Downing v. Abbott Labs.

48 F.4th 793

Jacinta DOWNING, Plaintiff-Appellant,

v.ABBOTT LABORATORIES and Abbott Molecular, Inc., Defendants-Appellees.

No. 21-2746

United States Court of Appeals, Seventh Circuit.

Argued June 3, 2022

Decided September 12, 2022

Linda Debra Friedman, Senior Attorney, Shona B. Glink, Daniel B. Lewin, Attorneys, Stowell & Friedman, LTD., Chicago, IL, Matthew J. Singer, Attorney, Matt Singer Law, LLC, Chicago, IL, for Plaintiff-Appellant.

Christa C. Cottrell, Rebecca Fitzpatrick, James F. Hurst, Attorneys, Kirkland & Ellis LLP, Chicago, IL, Erin Murphy, Attorney, Clement & Murphy, PLLC, Alexandria, VA, John C. Brinkerhoff, Jr., Attorney, Kirkland & Ellis LLP, Washington, DC, for Defendants-Appellees.

Before Sykes, Chief Judge, and Flaum and Brennan, Circuit Judges.

Brennan, Circuit Judge.

Jacinta Downing worked for many years as a sales manager and then a sales executive at Abbott Molecular, Inc. Over time, that company faced financial difficulties. The company said that because of reductions in its sales force and Downing's work performance, it ended her employment. Downing claims the company racially discriminated and retaliated against her, so she sued.

Many of her claims survived summary judgment, but after trial a jury found for Abbott Molecular. On appeal Downing challenges several of the district court's decisions, including evidentiary rulings, the exclusion of her expert witness, the jury instructions, and the testimony of her former manager, on which she moved for a mistrial. Downing argues that these errors, individually and cumulatively, denied her a fair trial. She also appeals the grant of summary judgment to the company on her disparate-impact claim, for which she contends she had sufficient evidence. We conclude that as to each decision, the district court ruled correctly or did not abuse its discretion, so we affirm.

I. Background

Our description of the relevant facts comes from the jury trial transcript and other district court records.

A. Factual

Jacinta (or Jay) Downing, an African-American woman, had many years of sales experience when she was hired in 2002 by Abbott Molecular, Inc., a subsidiary of Abbott Laboratories. Downing's first job was Area Sales Manager. Her supervisor was Chris Jowett, a white man, who in 2009 arranged for her to be promoted to be one of four Regional Sales Managers. Each supervised a team of sales representatives who sold millions of dollars of healthcare products to hospitals, commercial laboratories, and clinics, and who negotiated service contracts.

According to Downing, she "really liked working for" Jowett, who was "very inspirational" and mentored her. She considered him a man of great integrity and honesty. In March 2011 Jowett reviewed Downing and gave her an overall performance rating of "achieved expectations." According to that review, one of her main challenges was forecasting future business. Downing also fell somewhat short in developing relationships with decisionmakers at key accounts, and she was not comfortable with some of Abbott Molecular's product categories.

In 2012, Jowett gave Downing a performance rating of "exceeded expectations," the highest rating available. He wrote, "Jay is a strong leader for the Abbott Molecular sales organization and can be counted on to deliver results in spite of challenges. I look forward to Jay's continued success at Abbott Molecular." Jowett was pleased with Downing's improvement over the previous year, and by giving her the "exceeded expectations" rating Jowett said he was encouraging Downing. Shortly after completing that performance review, Jowett accepted a new role at Abbott.

Abbott Molecular came under financial pressure in early 2012. Medicare cut its reimbursement rates for a key Abbott product, which significantly impacted the company's margins. Multiple competitors also entered the market with updated versions of products Abbott sold. In response, Abbott changed personnel in the Abbott Molecular division and reduced its work force. Mark Bridgman, a white man, was transferred from another Abbott division to fill Jowett's former role in Abbott Molecular.

Abbott also created the position of National Sales Director for the U.S. to "coach and guide the sales managers and reps on a day-to-day basis a bit more beyond what [Bridgman] was able to do." In October 2012, Peter Farmakis, a white man, was hired to fill the role. Farmakis oversaw one man, Mike Kohler (who is white), and three women: Jean Gray (who is white), Charlotte Jones (who is African-American), and Downing.

Almost immediately, Farmakis had issues with Downing, as well as with some of the other managers who reported to him. Downing had a conflict with a customer, in which she withheld a software key that could have possibly disrupted patient care, in October 2012. Farmakis was displeased, and he instructed Downing not to disrupt patient care going forward. Two months later, Farmakis was upset after he learned Downing had unilaterally informed another customer that Abbott would forgive a termination fee of $177,000. By January 2013, Farmakis had a list of concerns about Downing's performance, including oversights in end-of-year sales forecasting, which impacted other parts of Abbott's business.

Farmakis discussed his concerns about Downing's performance with Sarah Longoria, Abbott Molecular's human resources director in February 2013. The next month, Farmakis gave Downing her performance review. Although Downing's overall rating was "achieved expectations," Farmakis included some detailed criticisms of her performance and identified areas for improvement.

In July 2013, Farmakis had a conference call with his four direct reports: Kohler, Gray, Jones, and Downing. According to Downing, Farmakis was "shouting and screaming" at the three women, whom he accused of "throwing in the towel." Downing reported the incident to Abbott's Employee Relations Department. She relayed her belief that Farmakis was discriminating against her because of her race and gender. About the same time, Gray also complained to Employee Relations about Farmakis's behavior. Gray, Jones, and Downing discussed their opposition to Farmakis's management in emails with each other.

Abbott investigated these complaints against Farmakis. An Employee Relations specialist sent a climate survey to the four managers who reported to him. In August 2013, Gray, Jones, and Downing gave very negative responses, which focused primarily on Farmakis's management style. Gray wrote that "[Farmakis is] especially hard on Jay. He embarrasses her and calls her out in calls or emails, part of the unfairness. Her numbers are good so don't understand why he calls her out, makes her feel stupid, don't know why he's doing that to her."

The Employee Relations specialist removed the identifying information from the survey responses, deleted some of the comments, and sent them to Longoria. The anonymized feedback was shared with Farmakis, who Bridgman then coached to improve his management style.

Throughout 2013, Abbott Molecular's business continued to falter, resulting in layoffs. In January 2014, Abbott realigned its sales teams. Sales representatives who had previously reported to Downing were assigned to new teams. During the same month, Abbott also placed Downing on a performance improvement plan, the last step before termination. Downing then retained legal counsel and gave notice that she intended to file discrimination claims against the company. Abbott later cut Downing's stock award in March 2014, which left her unhappy.

That fall Downing filed a discrimination charge with the EEOC, which she later amended. Throughout 2014 Abbott's business had not improved, so the company instituted another reduction in force in January 2015. All four Regional Sales Managers, including Downing, lost their jobs when that position was eliminated. Farmakis, the National Sales Director, was also terminated.

At the same time Abbott terminated Downing's employment as part of the reduction in force, the company invited her to apply for the position of Regional Commercial Director. Downing understood this position to be essentially identical to her previous job. Keith Chaitoff, who replaced Bridgman in Abbott Molecular's leadership, testified his expectations for directors were "[d]ramatically" different. To him, the director role "needed people that understood business more holistically and understood the financial drivers because we had to focus more on profit."

Abbott selected ten candidates, including Downing, to interview for the director position. A process was used to rate the candidates and to extend offers. Under that process, two African-American candidates (Downing and Jones), received the lowest ratings of the candidates for the position. Abbott did not select Downing, Jones, Kohler, or Farmakis, and ultimately extended offers for the position to four white candidates. One of those candidates declined, and an African-American man, Eron Butler, was hired.

B. Procedural

In June 2015 Downing filed suit claiming discrimination under Title VII and 42 U.S.C. § 1981. She later amended her complaint to allege: (1) racial discrimination under § 1981 ; (2) retaliation under § 1981 ; (3) racial discrimination under Title VII; (4) sexual discrimination under Title VII; and (5) retaliation under Title VII. The parties proceeded through discovery, at the close of which Abbott moved for summary judgment.

Abbott's summary judgment motion was "largely denied" because, the district court concluded, "the record in this case is replete with material factual disputes." For example, the facts did not establish whether Downing had a history of significant performance problems. To the court, Downing had "adduced enough evidence to support a jury verdict in her favor on her claim that Farmakis retaliated against her for complaining about discrimination by giving her negative performance evaluations and placing her on performance management plans." Likew...