Erickson v. Biogen, Inc.

417 F.Supp.3d 1369

Danita ERICKSON, Plaintiff,

v.BIOGEN, INC., Defendant.

CASE NO. C18-1029-JCC

United States District Court, W.D. Washington, at Seattle.

Signed October 16, 2019

James Walter Beck, Janelle Ellen Chase Fazio, Stephanie L Bloomfield, Gordon Thomas Honeywell LLP, Tacoma, WA, for Plaintiff.

Paul V Kelly, Sarah W Walsh, Daniel P Crowner, Michael Anthony Griffin, Jackson Lewis P.C., Seattle, WA, for Defendant.

ORDER

John C. Coughenour, UNITED STATES DISTRICT JUDGE This matter comes before the Court on Plaintiff Danita Erickson's motion for partial summary judgment (Dkt. No. 48) and Defendant Biogen, Inc.'s motion for summary judgment (Dkt. No. 50). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS in part and DENIES in part Plaintiff's motion and DENIES Defendant's motion for the reasons explained herein.

I. BACKGROUND

Defendant is a pharmaceutical company that produces and markets products to treat serious diseases, primarily multiple sclerosis. (See Dkt. No. 1 at 2.) In 2011, Defendant hired Plaintiff to work in its sales division as a territory business manager ("TBM"). (Dkt. No. 51 at 90–91.) She was responsible for a territory within Defendant's Northwest region, which includes Washington, Oregon, Idaho, and Alaska. (Id. ) The Northwest region had a total of 10 TBMs in late 2017 and early 2018. (Dkt. No. 53 at 1.) By January 2017, Mary Brown was the regional director for the Northwest region. (Dkt. No. 51 at 8.) Plaintiff reported to Brown from 2017 to 2018. (Id. at 90.)

Plaintiff had experienced migraine headaches for about 10 years prior to the events in question. (Dkt. No. 49 at 8.) While employed for Defendant, Plaintiff experienced very few migraines while traveling for work. (Id. at 11.) On September 5, 2017, during a sales trip in Alaska, she experienced a debilitating migraine. (Id. at 6–7.) Brown was with Plaintiff and helped her through the migraine. (Id. at 53–54.) At a work event about a week later, James Lykins, Plaintiff's sales partner and fellow TBM, mentioned to Brown that Plaintiff had a migraine on a different sales trip. (Id. at 13–14, 84–85.) Brown pulled Lykins aside and told him that she appreciated his concern, but they should not be discussing Plaintiff's medical condition. (Dkt. No. 51 at 178.) Plaintiff maintains that following these incidents, Brown spoke to her on multiple occasions about her migraine condition and became concerned about her ability to travel for work. (Dkt. Nos. 49 at 10–11, 62 at 5.) Plaintiff also states that Brown recommended she seek a different job. (Dkt. No. 49 at 10–11.) Brown asserts that she never made such a statement and instead expressed support and offered possible accommodations. (See Dkt. No. 51 at 12, 59–62.)

While employed by Defendant, Plaintiff had been trained annually on her duty to report suspected violations of the False Claims Act ("FCA"), 31 U.S.C. § 3729, by the off-label use, promotion, or sale of prescription drugs. (Dkt. No. 49 at 24.) In 2017, Defendant marketed and sold the drug Zinbryta. (Dkt. No. 1 at 2.) Zinbryta had been approved by the Food and Drug Administration in a limited capacity—to treat multiple sclerosis patients who had an inadequate response to other treatments. (Id. at 4.) t iIs a FCA violation to promote off-label use of prescription drugs to Medicare patients. See 31 U.S.C. § 3729(a)(1) ; (Dkt. No. 49 at 25–26.)

Before a doctor can enroll a patient in certain drug therapy regimens, the doctor must complete and submit a "START Form" to the pharmaceutical manufacturer. (See Dkt. No. 53 at 2.) Defendant's Zinbryta START form requires the doctor to specify the patient's diagnosis, certify that the diagnosis is the rationale for prescribing the drug, and further certify that the doctor will supervise the patient's treatment accordingly. (Dkt. No. 64 at 209–10.) Defendant's Zinbryta START form is pre-filled with the International Classification of Disease ("ICD") codes for multiple sclerosis, and by signing the START form, the doctor "certifies that the rationale for prescribing ZINBRYTA therapy is for a primary diagnosis of ICD-9:340/ICD-10:G35." (Id. at 209–10.)

In the fall of 2017, shortly after Plaintiff's sales trip to Alaska, Lykins told Plaintiff that a doctor had contacted him about providing Zinbryta to an aplastic anemia patient for off-label use. (Dkt. No. 49 at 91.) Plaintiff told Lykins that she believed it would be improper for him to deliver the forms because they involved an off-label use of Zinbryta. (Id. ) In November 2017, Plaintiff expressed her opposition to Lykins's involvement with providing Zinbryta to the aplastic anemia patient to Brown at a meeting with Western division manager Zachary Allison. (Dkt. No. 51 at 102.) On November 17, 2017, Plaintiff was copied on an email that stated that the patient's insurance company had approved the patient for Zinbryta, and that Lykins planned to deliver the START form so the patient could get enrolled. (Dkt. No. 55 at 2, 6–8.) On December 6, 2017, Plaintiff submitted a complaint to Defendant's ethics hotline to report Brown and Lykins's involvement with the off-label Zinbryta sale. (Id. at 102.) In her report, she also stated she was in fear of retaliation by Brown for her opposition. (Dkt. No. 75 at 16.) Shortly thereafter, Dan Curto, Defendant's in-house counsel, followed up with Plaintiff about her ethics complaint. (Id. at 16.) Curto also followed up with Brown about Plaintiff's complaint. (Dkt. No. 64 at 72–73.)

In mid-January, Plaintiff contacted Defendant's human resources partner Keri Palacio to follow up further about the ethics complaint. (Dkt. No. 75 at 17.) On January 25, 2018, Plaintiff spoke to Palacio about the ethics complaint. (Id. ) Additionally, Plaintiff raised a new concern: that Brown treated men more favorably than women. (Dkt. No. 62 at 2–3.) Plaintiff asserted she had observed Brown favoring male TBMs over females, tending to call on them more, assigning them to committees, supporting their promotions, and assigning them more advanced tasks. (Id. ) Plaintiff also maintains that she reported to Palacio that Brown had been treating her unfavorably since Brown witnessed Plaintiff's migraine. (Dkt. No. 51 at 76–77, 298.) Palacio denies that Plaintiff reported that she had a migraine condition or that she was being treated differently because of it. (Id. at 191, 194, 202–203.)

Defendant evaluated TBM performance every six months in the form of "OPR" ratings. (Dkt. No. 64 at 74.) Plaintiff had consistently received competent 2/2 OPR ratings. (Id. at 65, 135.) In early 2018, Defendant decided to restructure its national workforce and determined that some TBM positions would be eliminated due to a reduction in force. (Dkt. No. 20 at 2.) One of the four TBM positions in Plaintiff's territory was to be eliminated. (Dkt. No. 19 at 2.) On January 31, 2018, Brown and Allison listed Plaintiff as a "bottom performer" identified for "realignment," i.e. , termination. (Dkt. Nos. 64 at 44, 66 at 42–45.) In early February 2018, Brown completed her review of Plaintiff's performance for the second half of the previous year, once again assigning Plaintiff a 2/2 OPR rating. (Id. at 65.)

In mid-February 2018, Defendant provided its managers three criteria to use in selecting TBMs for termination: OPR ratings, sales competencies, and tenure. (Id. at 27, 29, 79–80; see Dkt. No. 20 at 2.) Brown was responsible for rating the TBMs in her region and deciding whom to terminate, with input from Palacio and Allison. (Dkt. No. 19 at 2.) On the first criterion, all four TBMs had the same OPR rating of 2/2. (Id. ) On the second criterion, Brown evaluated Plaintiff, Lykins, and the other TBMs on three sales competencies specified by Defendant: sales disposition, customer-focusing selling, and territory and account planning. (Id. ) Brown rated Plaintiff as "developing" for customer-focused selling. (Id. ) This gave her the lowest score of the four TBMs. (Id. ) Brown did not consider the third criterion, tenure, as Plaintiff had the lowest score amongst the four TBMs for the second criterion. (Dkt. No. 64 at 77–78.) Brown completed the evaluation in March 2018. (Dkt. No. 19 at 2.) On March 20, 2018, Plaintiff was notified she had been identified for termination. (Dkt. Nos. 1 at 13, 51 at 80.) She was terminated in April 2018. (Id. )

Plaintiff brings gender and disability discrimination and retaliation claims under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C § 12101 –02, Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000(e), and Washington's Law Against Discrimination ("WLAD"), Wash. Rev. Code. § 49.60. (Dkt. No. 1 at 14–18.)¹ Plaintiff also brings a retaliation claim under the FCA, 31 U.S.C. § 3730(h), and a tort claim of wrongful termination in violation of public policy under Washington law, citing Washington's Consumer Protection Act ("CPA"), Wash. Rev. Code § 19.86.020. (Id. )

Plaintiff now moves for summary judgment on two of Defendant's affirmative defenses,² for a determination that she is disabled as a matter of law under the ADA and WLAD, and for a determination that she engaged in protected activity as a matter of law under the ADA, Title VII, WLAD, and the FCA. (See Dkt. No. 48.) Defendant moves for summary judgment on all of Plaintiff's claims. (See Dkt. No. 50.)

II. DISCUSSION

A. Summary Judgment Standard

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In making such a determination, the Court must view the facts and justifiable inferences to be drawn therefrom in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once a motion for summary judgment is properly made and supported, the...