Hembrador v. PruGen, LLC

IVY HEMBRADOR, Plaintiff(s), v. PRUGEN, LLC, Defendant(s).

Case No. 4:19-cv-03203

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

March 23, 2021

Memorandum and Order

When Ivy Hembrador answered her supervisor's phone call on August 1, 2017, she learned that she had been terminated, much to her dismay. Believing that her termination stemmed from discriminatory animus towards women, Hembrador filed suit against PruGen, LLC and her former supervisor, Mike Pinto. Defendants maintain they fired her simply because of her poor sales and that no evidence demonstrates that any sex discrimination or retaliation occurred. Accordingly, Defendants move for summary judgment, which the Court evaluates below.

I. Background and facts

Hembrador filed suit in 2018, asserting two counts under the Missouri Human Rights Act. Count I asserts a claim for sex discrimination, contending that Defendants fired her because she is a woman. Doc. 5 at pp. 4-6. Count II asserts a claim for retaliation, stating that Defendants fired her in retaliation for her complaints about sex discrimination. Id. at pp. 6-7. Defendants now move for summary judgment as to both Counts, arguing that no evidence supports the claims. Doc. 44. Hembrador opposes the motion and requests oral argument. Doc. 50. The summary judgment record establishes the following as undisputed facts, except as noted.

A. Facts

PruGen develops, manufactures, and sells generic and branded prescription and over-the-counter dermatology medications. Declaration of Mike Pinto at ¶ 2. PruGen divides the dermatology products it sells into two categories: acne and dermatitis. Pinto Decl. at ¶ 6; Ivy Hembrador Deposition Transcript at 34:5-9; 44:14-19. PruGen employed salespeople, called Territory Managers, throughout the country to sell its products to healthcare providers. Pinto Decl. at ¶ 5. During Hembrador's employment with PruGen, PruGen employed approximately ninety-five Territory Managers; half the Territory Managers sold acne products and half sold dermatitis products. Pinto Decl. at ¶ 7; Hembrador Depo. at 44:14-19.

Matt Walterscheid, a Territory Manager at PruGen, encouraged Hembrador to apply for a position at PruGen. Mike Pinto, PruGen's Director of Sales, hired Hembrador as a Territory Manager in June 2016. Pinto Decl. at ¶ 4; Hembrador Depo. at 32:3-6; 41:2-4; 97:18-20. Hembrador sold dermatitis products in a territory which includes parts of Missouri, Illinois, and Kentucky. Pinto Decl. at ¶ 8; Hembrador Depo. at 32:3-19; 34:5-9. Walterscheid sold acne products in the same area. Pinto Decl. at ¶ 4; Hembrador Depo. at 33:2-14; 34:5-9; 43:2-7. During Hembrador's employment with PruGen, Pinto supervised PruGen's Territory Managers, including Hembrador and Walterscheid. Pinto Decl. at ¶¶ 4, 10; Hembrador Depo. at 32:20-33:1; 43:2-9.

Hembrador sold an average of about 19 new prescriptions per day, with her highest average number of prescriptions sold per day reaching 25.08 new prescriptions. Pinto Decl. at ¶ 13. During Hembrador's employment with PruGen, Territory Managers sold, on average, acrossthe company, between about 40 and 60 new prescriptions per day. Pinto Decl. at ¶ 12. Acne representatives sold more new prescriptions than dermatitis representatives. Pinto Depo: 51:6-14.

A Territory Manager's primary indicator of job performance is measured by the average number of new prescriptions sold per day on a monthly basis within the assigned territory. Pinto Decl. at ¶ 11. PruGen did not provide Hembrador with a formal sales goal of units per day or a percentage growth. Hembrador Depo. at 101:5-102:10. PruGen did not tell Hembrador the new number of prescriptions she wrote each month or that she was not meeting expectations. Hembrador Decl. at ¶ 4. Hembrador did not view any sales charts comparing her sales to others at the company. Hembrador Decl. at ¶ 1.

The parties dispute whether Hembrador received a performance review. Hembrador states that she never received a performance review from Pinto. Hembrador Decl. at ¶ 3. Pinto testified "I think we had conversations about having to improve. I think we talked about strategies and wanting to improve." Pinto Depo. at 46:22-47:7. Pinto also testified that Territory Managers, including Hembrador, "know full well whether they're performing or not. They should. If they don't, they're not paying attention. Because if you came in, I don't know about you, but if you came in and you were at 17 prescriptions in September and 17 prescriptions at May, I don't know that you can consider yourself a major contributor to the success of the organization, you know." Pinto Depo. at 46:22.

1. National sales meeting and ensuing events

From May 16-18, 2017, prior to Hembrador's termination, PruGen held a national sales meeting in Puerto Rico. Pinto Decl. at ¶ 25; Hembrador Depo. at 46:10-19. Territory Managers, including Hembrador and Walterscheid, attended the national sales meeting. Pinto Decl. at ¶ 26.Hembrador claims the sales meeting was a "drunken party of debauchery," Hembrador Decl. at ¶ 6, but Defendants rightly point out that this constitutes a personal opinion, which the Court will not consider. See Woods v. Wills, 400 F. Supp. 2d 1145, 1162 n. 7 (E.D. Mo. 2005) ("The Court therefore does not consider statements . . . which merely constitute personal opinions as opposed to facts."). Hembrador became uncomfortable after learning that, at the sales meeting, another PruGen employee kissed a woman who was not his wife. Id. Hembrador did not want to hang out at the pool with Walterscheid because of the debauchery. Id. Walterscheid confirmed the details of the sales meeting during a lunch with Dr. Wang on May 30, 2017, during which he stated that everyone should be on Doryx, which is an antibiotic used for gonorrhea. Id. Hembrador did not complain about the sales meeting because she feared retaliation. Id.

At least three times, Walterscheid commented to Hembrador that she did not hang out at the pool during the sales meeting, including telling Dr. Robert Schwarze and his staff during a lunch at the doctor's office soon after Walterscheid returned from Puerto Rico. Hembrador Depo. 62:6-65:12; Doc. 52-9. These comments offended Hembrador. Hembrador Depo. 65:13-15. Specifically, Hembrador stated

[i]t was offensive, you know. I told him I work hard enough in the territory. I showed up at the meeting, I showed up when I was supposed to show up. I showed up at the dinners. I should be allowed to walk at the beach during my free time. Those free times are given to us to do what we want. When [Walterscheid] said to me, "Ivy that's what happens when you don't hang out with me," that was a very condescending tone.

Hembrador Depo. 65:13-25. Hembrador complained to Walterscheid about his comments to Dr. Schwarze and to her over a period of weeks about her not hanging out with him at the pool in Puerto Rico. Hembrador Depo. at 62-66; 120-121. Hembrador stated that "the last straw" regarding Walterscheid's comments occurred when Hembrador asked Walterscheid for help with the app PruGen rolled out in June after the national sales meeting, and he responded "this is whathappens when you don't hang out with me at the pool." Hembrador Depo. at 62-66; 120-121. Hembrador told Walterscheid to "stop this." Hembrador Depo. at 65:12.

Pinto stated that Walterscheid and Hembrador "were like two peas in a pod" and "very complimentary of each other," before the Puerto Rico incident. Pinto Depo. at 20-21. In reference to Hembrador, Walterscheid stated that he "thought we were friends at the time" when they were in Puerto Rico. Walterscheid Depo. at 33-34. Before the national sales meeting, Walterscheid had made comments about the attractiveness of certain women. Hembrador Depo. at 55:15-58:10. For example, they ran into a sales representative for Pfizer, Lori Johnson, and Walterscheid commented about how "hot" she was and that he could not stop staring at her. Hembrador Depo. at 56:1-12. These comments did not "really" bother Hembrador "until [Walterscheid] would not stop complaining that she would not hang out with him at the pool." Hembrador Depo. 58:4-10.

As a result of Hembrador's anxiety over Walterscheid's comments to her about not hanging out at the pool, she stopped talking to him. Hembrador Depo. at 113:1-6. On July 11, 2017, Pinto called Hembrador and stated "Ivy, I can feel that there's something going on between you and Matt [Walterscheid]." Hembrador Depo. 126:7-12. Hembrador responded, "[w]ell, Mike, [Walterscheid] keeps complaining that I didn't hang out with him at the pool." Hembrador Depo. 126:13-17. Before any further conversation occurred during the July 11 call, Pinto ended it because he needed to answer another call he was receiving. Hembrador Depo. 126:7-17.

Pinto called Hembrador about two weeks later and stated, "I know there is something going on between you and Matt [Walterscheid] and I want you to fix it now. I want you to fix it right away. If you don't fix it now, I will fix it for you." Hembrador Depo. 68:19-69:24;126:22-25. Hembrador responded, "Yes, I will." Hembrador Depo. 127:5-9. At her deposition, Hembrador could not remember any statements (other than those described above) that she made to Pinto during the telephone calls which occurred on July 11 or the one about two weeks later. Hembrador Depo. 127:13-24.

On July 27, 2017, Walterscheid and Hembrador exchanged a series of emails. Walterscheid sent an email to Hembrador with the following opening paragraph: "Im [sic] not really sure what I did to make you want to stop talking to me but whatever it is we need to get over it. I just want to continue to grow the business and make a lot of money. I am sure you feel the same way." Walterscheid Decl. at ¶ 9; Doc. 44-3 at p. 4. Plaintiff responded via email, stating:

Let me tell you this, I did not like the fact that you kept repeating that I did not hang out at the pool in Puerto Rico, five weeks after we got back. If

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