Ivie v. AstraZeneca Pharm., LP

SUZANNE IVIE, Plaintiff, v. ASTRAZENECA PHARMACEUTICALS, LP, Defendant.

No. 3:19-cv-01657-HZ

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

March 28, 2021

OPINION & ORDER

Anita Mazumdar Chambers

Robert Scott Oswald

The Employment Law Group

888 17th Street, NW

Washington, DC 20006

David C. Rocker

Catalyst Law, LLC

810 NW Marshall St, Ste 300

Portland, OR 97209

Collin C. McKean

McKean Smith LLC

1140 SW 11th Ave Ste 400

Portland, OR 97205

Attorneys for Plaintiff

Courtney Sanders

Ryan P. McCarthy

Morgan, Lewis & Bockius LLP

1000 Louisiana St.

Suite 4000

Houston, TX 77002

John C. Dodds

Philadelphia Litigation

1701 Market Street, Ste 14th Floor

Philadelphia, PA 19103-2921

Anne M. Talcott

Schwabe, Williamson & Wyatt

1211 SW 5th Ave, Ste. 1900

Portland, OR 97204

Attorneys for Defendant

HERNÁNDEZ, District Judge:

Plaintiff Suzanne Ivie brings this employment discrimination and retaliation action against Defendant AstraZeneca Pharmaceuticals, LP. Defendant moves for summary judgment on each of Plaintiff's claims. The Court grants in part and denies in part Defendant's motion for summary judgment.

BACKGROUND

AstraZeneca is a global biopharmaceutical company that focuses on the discovery, development, and commercialization of prescription medications. Answer ¶ 9. Plaintiff worked at AstraZeneca for 19 years. Id. ¶ 11. In her last role she was an Executive District Sales Manager (DSM) in Defendant's respiratory products division. First Talcott Decl. Ex. B at 13, ECF 42-1. The respiratory products division sells several products including Symbicort, Dalisrep, and Bevespi. Pl.'s Opp'n Mem. Ex. NN (DiNunzio Dep.) 40:18-22, ECF 43-40.

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I. Plaintiff's Off-Label Marketing and Discrimination Complaints

In October 2017, Stephanie DiNunzio became Plaintiff's direct supervisor as the commercial business director. First Talcott Decl. Ex. C (DiNunzio Dep.) 51:9-15, 19:19-20:2, ECF 42-1. DiNunzio over saw the respiratory and health therapeutic sales area for the Seattle region. Id.

The respiratory sales team uses a sales strategy called "Selling with Insights" to approach customer physicians. Pl.'s Opp'n Mem. Ex. RR (Craig Dep.) 20:14-21:6, ECF 43-44. This strategy involves discussing various drugs' indications with physicians in order to start a conversation about the AstraZeneca pharmaceutical product. Id. The "insights" are not about the pharmaceutical product itself, but about the problem or patient type the medication might be used to treat. Pl.'s Opp'n Mem. Ex. NN (DiNunzio Dep.) 119:2-5. "Insights" can be developed by members of the sales team, but they must be true and meet AstraZeneca's compliance standards. Id. at 119:6-11.

In August 2018 DiNunzio contacted Plaintiff regarding some possible "new insights" for Symbicort. Pl.'s Opp'n Mem. Ex. C at 3, ECF 43-3. At the time, Plaintiff was a Compliance Ambassador for the company. Answer ¶ 40. DiNunzio asked and then allegedly pressured Plaintiff to approve the use of the proposed Symbicort insights. Pl.'s Opp'n Mem. Ex. D at 1, ECF 43-4. Plaintiff became concerned that the Symbicort insights proposed by DiNunzio raised compliance issues. Id. She contacted an AstraZeneca's compliance officer about her concerns. Pl.'s Opp'n Mem. Ex. C at 1-3. After a phone conversation with Plaintiff, the compliance officer sent Plaintiff and DiNunzio an email describing AstraZeneca's "Selling with Insights" rules and recommending DiNunzio follow-up with further team training on the insights program. Id. at 2. DiNunzio allegedly responded to the email by telling Plaintiff that she should not have gottenanyone else involved and that she needed to reevaluate Plaintiff's role as a Regional Compliance Ambassador. Pl.'s Opp'n Mem. Ex. D. At two other points in August 2018 DiNunzio allegedly responded to Plaintiff's compliance concerns with threats of cutting back Plaintiff's national leadership exposure and "reevaluating her role as a compliance champion." Id.

In December 2018 Plaintiff became concerned about another set of insights proposed for the drug Daliresp. Plaintiff testified that in a meeting discussing insights for Daliresp, DiNunzio said that 50% of patients with mild to moderate conditions die when they have their first exacerbation. Pl.'s Opp'n Mem. Ex. SS (Ivie Dep.) 172:10-21, ECF 43-45. Plaintiff felt that this insight was "pushing the limits" and "illegal." Id. at 172:22-25. During a follow-up investigation, another employee at the same meeting recalled DiNunzio bringing up the need to increase the Daliresp patient population by promoting Daliresp for primary prevention. Pl.'s Opp'n Mem. Ex. E at 2, ECF 43-5.

On December 19, 2018 Plaintiff filed a formal complaint against DiNunzio. Pl.'s Opp'n Mem. Ex. D. Her complaint raised concerns of off-label marketing based on the improper proposed insights described above and retaliation after voicing her concerns. Id. Plaintiff also reported age discrimination. Id. Her complaint references multiple incidents in 2018 where DiNunzio allegedly made comments referencing age such as "you are all about the old way, and if you can't get on this new bus you have to leave," "the old bus is too expensive to the organization," "the old people need to get off the bus," and allegedly called Plaintiff an "old bus person." Id. at 1.

On February 5, 2019 Plaintiff filed a second formal complaint related to the unethical use of insights for Daliresp, Symbicort, and Bevespi. Pl.'s Opp'n Mem. Ex. G at 2, ECF 43-7. The concerns stemmed from insights shared on a call and later forwarded in an email that suggestedpatients with Chronic Obstructive Pulmonary Disease and anxiety and/or depression were at a higher risk for exacerbations and severe illness. Pl.'s Opp'n Mem. Ex. F at 1, ECF 43-6.

In response to the first formal complaint, Karen Belknap, a senior employment practices partner, was as assigned to investigate Plaintiff's complaints of discrimination. Pl.'s Opp'n Mem. Ex. OO (Belknap Dep.) 16:16, ECF 43-41. Mike Pomponi, Senior Manager of Commercial Compliance Monitoring, was assigned to investigate Plaintiff's compliance complaints related to off-label marketing. Pl.'s Opp'n Mem. Ex. TT (Pomponi Dep.) 47:13-48:5, ECF 43-46.

II. Plaintiff's Job Performance

Before 2018 Plaintiff was considered a top performer. Pl.'s Opp'n Mem. Ex. NN (DiNunzio Dep.) 43:21-44:11, 45:24-46:25. In June 2018 DiNunzio met with Plaintiff to raise concerns about Plaintiff's coaching of sale specialists on her team. First Talcott Decl. Ex. E., ECF 42-1 at 37. These concerns were based on a policy AstraZeneca had at the time that stated that "Coaching without Customer Engagement" and "Business Development" could count towards a district sales manager's total coaching days but should not comprise more than 20% of total coaching days.¹ First Talcott Decl. Ex. L at 2, ECF 42-2. According to the policy, "Coaching without Customer Engagement" refers to coaching done by district sales managers when not in the field such as distance and virtual coaching. Id.; First Talcott Decl. Ex. K at 1, ECF 42-2. "Coaching with Customer Engagement" refers to coaching conducted in the field with pharmaceutical sales specialists making calls on customer physicians. Id.; First Talcott Decl. Ex. M at 1, ECF 42-2. This policy was discussed in and attached to emails Plaintiff was copied onbefore the June 2018 meeting. First Talcott Decl. Ex. J at 1, ECF 42-2; First Talcott Decl. Ex. K at 1, ECF 42-2.

In December 2018, at Plaintiff's 2018 yearend review, DiNunzio raised similar concerns about Plaintiff's coaching practices. She conducted a quarterly audit of Plaintiff's coaching entries in company database before their meeting and found that Plaintiff had not conducted 80% of her coaching days in the field and had been inconsistent in her data entry. First Talcott Decl. Ex. L at 1. DiNunzio emailed Plaintiff prior to the yearend review with her findings. Id. The performance review report shows Plaintiff received a 2 out of 5 rating for her overall performance as a manager and a 4 out of 5 rating for her overall performance as an employee. First Talcott Decl. Ex. I at 2, ECF 42-2. The negative 2018 yearend review occurred the day before Plaintiff filed her first formal complaint against DiNunzio.

On January 15, 2019, DiNunzio emailed Karen Belknap in human resources (HR) documenting her concerns about Plaintiff's lack of in-person coaching and other "abnormalities" in her data entry. First Talcott Decl. Ex. D at 1, ECF 42-1. This included a six-month audit of Plaintiff's coaching activities. Id. Belknap, the same HR person assigned to investigate Plaintiff's complaints of discrimination and retaliation, was also assigned to investigate her performance case. Pl.'s Opp'n Mem. Ex. NN (DiNunzio Dep.) 107:7-15. On February 18, 2019 DiNunzio and Belknap spoke with Plaintiff to discuss DiNunzio's concerns and allow her an opportunity to respond. Pl.'s Opp'n Mem. Ex. M at 1, ECF 43-13. The case report states that in response Plaintiff said she did not fully understand the coaching expectations, limited in-person coaching based on budget concerns, and was stretched thin because of other leadership responsibilities. First Talcott Decl. Ex. BB at 3-4, ECF 42-4. Belknap concluded that Plaintiff did not have an adequate explanation for her lack of in-person coaching. Id. at 4. Plaintiff wasmade aware of the negative findings on February 25, 2019, and Defendant issued Plaintiff a First Written Warning with an effective date of March 1, 2019. Pl.'s Opp'n Mem. Ex. M at 1.

After receiving the First Written Warning, Plaintiff took one and half months of medical leave. Pl.'s Opp'n Mem. Ex. II at ¶ 39, ECF 43-35. The day Plaintiff returned from protected leave, April 16. 2019, she was subjected to new supervisory requirements and removed from one of her leadership roles. Id. She was required to submit a weekly calendar to DiNunzio, complete additional training, and was removed as a Compliance Ambassador. Id. ¶ 40. Defendant contends that these...