Nazarian v. Abbott Laboratories

MARK NAZARIAN, Plaintiff, v. ABBOTT LABORATORIES, Defendant.

CIVIL ACTION NO. 12-11415-TSH

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

March 31, 2014

MEMORANDUM OF DECISION AND ORDER

HILLMAN, D. J.

Background

Mark Nazarian ("Plaintiff" or "Nazarian") filed a Complaint against Abbott Laboratories ("Abbott" or "Defendant") alleging federal claims for discrimination based on race and national origin (Count 1) and retaliation for his having filed a complaint with the Massachusetts Commission Against Discrimination ("MCAD")(Count 2). Nazarian has also filed a state common law claim for wrongful termination (Count 3).

This Memorandum and Decision addresses Defendant Abbott Laboratories' Motion for Summary Judgment (Docket No. 32), and Defendant Abbott Laboratories' Motion To Strike Plaintiff's Evidence Offered In Opposition To Abbott's Motion For Summary Judgment (Docket No. 45). For the reasons set forth below, the motion to strike is allowed in part and denied in part, and the motion for summary judgment is allowed.

Defendant's Motion To Strike

Abbott has moved to strike certain statements contained in the Plaintiff's affidavit on the grounds that such statements lack personal knowledge, are not factual and contradict his earlier deposition testimony, are argumentative and not grounded in fact and/or state legal conclusions. See Affidavit of Mark Nazarian, attached to Pl's Reply To Rule 56.1 Statement (Docket No. 38). I agree with Abbott that the following statements are not based on personal knowledge, but are premised on speculation and inference and, therefore, are stricken:

• It was clear that [Kevin Packard] did not know that I was from Syria prior to that conversation.

• Abbott was far more concerned with whether I could work independently and whether I was willing to work a different schedule.

• In fact, during the last few months of my employment on the Zymogentic project, Ms. Chudzik changed my weekly overnight schedule in order to prevent me from preparing for the assay and then she demanded that I run the assay even though I was not familiar with it in order to cause me to make mistakes. She then used those mistakes to support the termination of my employment.

• The claim that I was late to work makes no sense.

• With respect to the Performance Improvement Plan ("PIP") it should be noted that I disagree with the allegations about the manner in which I worked and how I treated others.

• In 2008, I achieved expectations in all of my work. In addition, I went above and beyond the call of duty . . . None of this was reflected in my 2008 Performance Assessment. In fact, I was more productive, more accurate, and volunteered for more projects than a colleague of mine who's overall Performance Assessment achieved expectations.

• Unfortunately, Jill Lebow made it clear to me that she had already prejudged my matter. She basically told me that I was not a good performer and that I was not well regarded.

• The matters raised in the Memorandum do not logically lead to the issuance of a CCP . . . of significant importance is that my performance compared favorably to my colleagues. I was more productive and more accurate than several colleagues who were not placed on CCPs and who were not terminated from their employment.

• After I received the CCP it was apparent that ER was not going to make any effort to address my concerns.

• Despite my qualifications and experience fitting the job description, I was denied the promotion.

• I realized that this was not true when Abbott allowed another employee from the second shift to receive the training that I had previously requested and that person was promoted.

• Mr. Packard frequently talked at me in an aggressive tone of voice . . . in order to try to intimidate me.

• It was painfully apparent that the exchange with Ms. Chudzik and the Final Warning were done in response to my complaint to Mr. Packard in which I advised him that I had gone to the MCAD.

• Mr. Packard was aware of the amended complaint and participated in preparing Abbott's response. I believe this to be true because Abbott's reply makes reference to statements made by Mr. Packard.

Abbott's request to strike the following statements on the ground that they are argumentative assertions not based on fact, is allowed:

• I am aware that Abbott claims that I did not treat my colleagues with respect. That is not true. I treated all colleagues and management with respect. It is not in my nature to disrespect someone.

• I performed more assays than my colleagues and had fewer errors than some of my colleagues. My percent of errors per assay was lower than my colleagues. I was not argumentative and did not disrespect colleagues or managers. I did not refuse to do work. In fact, there was no reason for me to do any of that.

• One of my colleagues made considerably more errors than me in 2008 . . . This employee also had more errors in 2007 but was not disciplined.

• Abbott changed its expectations for me on the 2008 performance assessment after completing a draft of the goals and expectations.

• I frequently performed as much as 100 more assays per year as compared to my colleagues at Abbott. While I had no problem with working hard I should not have been held to the same standards. For instance a person who makes 5 errors when performing 200 assays has a higher percentage of errors as compared to a person who makes 6 errors when performing 300 assays.

As asserted by Abbott, in response to a motion for summary judgment, Nazarian may not by way of affidavit assert facts which contradict testimony given at his deposition, although he may supplement or clarify such testimony. I find that the following two statements contradict his deposition testimony and therefore, are stricken:

• The Defendant did not provide a refresher training course to improve my performance on certain assays that I had not previously performed work on.

• I did not record assay data on sticky notes.

In all other respects, Abbott's motion to strike is denied.

Defendant's Motion For Summary Judgment

Standard of Review

Summary Judgment is appropriate where, "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Carroll v. Xerox Corp., 294 F.3d 231, 236 (1^st Cir. 2002) (citing Fed. R. Civ. P. 56(c)). "'A "genuine" issue is one that could be resolved in favor of either party, and a "material fact" is one that has the potential of affecting the outcome of the case." Sensing v. Outback Steakhouse of Florida, LLC, 575 F.3d 145, 152 (1^st Cir. 2009) (quoting Calero-Cerezo v. U.S. Dep't. of Justice, 355 F.3d 6, 19 (1^st Cir. 2004)).

When considering a motion for summary judgment, the Court construes the record in the light most favorable to the nonmoving party and makes all reasonable inferences in favor thereof. Sensing, 575 F.3d at 153. The moving party bears the burden to demonstrate the absence of a genuine issue of material fact within the record. Id., at 152. "'Once the moving party has pointed to the absence of adequate evidence supporting the nonmoving party's case, the nonmoving party must come forward with facts that show a genuine issue for trial.'" Id.(citation to quoted case omitted). "'[T]he nonmoving party "may not rest upon mere allegations or denials of the [movant's] pleading, but must set forth specific facts showing that there is a genuine issue of material fact as to each issue upon which [s/he] would bear the ultimate burden of proof at trial." Id. (citation to quoted case omitted). The nonmoving party cannot rely on "conclusory allegations" or " improbable inferences". Id. (citation to quoted case omitted). " ' The test is whether, as to each essential element, there is "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." ' " Id. (citation to quoted case omitted).

Facts¹

Nazarian's Prior Employment

Before going to work for Abbott, Nazarian (formerly known as "Nizar Nazar") had been employed as a quality control analytical chemist at Pharm-Eco, Laboratories, Inc. ("Pharm-Eco"), a pharmaceutical company. During his employment with Pharm-Eco, Nazarian was counseled regarding the frequency of his mistakes, his inability to efficiently multi-task, his tendency to waste time on minor duties and his failure to understand and comply with instructions. Nazarian's managers further noted that Nazarian's education and years of experience did not match his skill level and instructed Nazarian that it was unacceptable for him to blame his performance errors on inadequate training or instruction. Nazarian also had a tenuous relationship with female Chinese colleagues at Pharm-Eco. Nazarian believed that his Chinese colleagues, as a group, "stuck together" and were disrespectful.

As a result of his poor performance, Pharm-Eco terminated Nazarian's employment in 2002. Nazarian was sent a termination letter to this effect. ² According to Nazarian, he was told by a manager at Pharm-Eco that when asked, he could report that his termination was due to "downsizing."

Nazarian's Employment With Abbott

Abbott is a global, broad-based health care company devoted to discovering new medicines, new technologies and new ways to manage health. At all relevant times, Abbott had policies in place, accessible on its internal website, that prohibited discrimination based on race and national origin, and retaliation. Abbott's Code of Business Conduct provides: "We are all expected to understand how this code applies to our own jobs and business decisions and activities—or if we don't understand, we must get help with our questions."

From 2003 to 2006, Kevin Packard ("Packard") held the position of Quality Control Senior Supervisor at Abbott. In 2006, Packard became Quality Control Manager and was responsible for managing the Quality Control Lab. From 2005 to...