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Didier v. Abbott Laboratories

United States District Court, District of Kansas

May 13, 2014

Jeremy Didier, Plaintiff,
Abbott Laboratories; Abbott Laboratories, Inc.; Abbott Products, Inc.; and Abbvie, Inc., Defendants.


John W. Lungstrum United States District Judge

Plaintiff Jeremy Didier filed this lawsuit against her former employer and related entities asserting claims of sex discrimination, religious discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and claims of interference and retaliation pursuant to the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. This matter is presently before the court on defendants’ motion for summary judgment on all claims (doc. 78). As explained below, the motion is granted.

I. Facts

The following facts are uncontroverted, stipulated in the pretrial order, or related in the light most favorable to plaintiff as the nonmoving party. Plaintiff Jeremy Didier was hired by Solvay Pharmaceuticals, Inc. as a sales representative in April 2002 and she continued as a Solvay employee through February 15, 2010 when Solvay was acquired by defendant Abbott Laboratories. At that time, plaintiff became an Abbott employee until the termination of her employment on March 8, 2012.[1]

In April 2009, plaintiff was promoted to the position of Kansas City District Manager for the Pharmaceutical Products Division (“PPD”), Metabolic Franchise. She reported directly to K. Byron Rex, the Regional Manager of the West Region, PPD, Metabolic Franchise who, in turn, reported to Marty Comer. Mr. Rex is a member of the Church of Jesus Christ of Latter Day Saints, commonly called the Mormon Church, and plaintiff is a non-Mormon. Over the course of their working relationship, plaintiff and Mr. Rex talked frequently about their children and their personal lives and Mr. Rex knew that plaintiff was not Mormon. Mr. Rex made the decision to promote plaintiff to the District Manager position and, according to plaintiff, he expressed concern during the interview over whether plaintiff was being “stretched too thin” because both she and her husband worked full-time and had 4 young children at home. Plaintiff assured Mr. Rex that she could handle the position.

While plaintiff was employed by Solvay, she became familiar with Solvay’s policy regarding expenses relating to travel and entertainment. Solvay’s written policy stated that employees were to incur only those travel and entertainment expenses that were reasonable and necessary to conduct business. While the policy did not establish a “per diem” amount for reasonable expenses, it set forth guidelines for what Solvay considered reasonable amounts to spend on meals when traveling on company business-$15 for breakfast; $20 for lunch; and $50 for dinner. Abbott also maintains a policy concerning travel and entertainment expenses known as the T&E policy. That policy requires supervisor approval of all corporate expenses, prohibits the use of a corporate charge card for personal expenses, prohibits corporate reimbursement or payment of personal expenses, and prohibits corporate reimbursement or payment of expenses incurred for anyone other than the Abbott employee except that a meal for a spouse is reimburseable or payable by Abbott if the spouse is required to attend a business-related event.[2]A dinner expense is generally only reimburseable or payable by Abbott when the employee is traveling overnight on a business trip, but a dinner expense is also reimburseable or payable by Abbott when an employee arrives home late due to work so long as the employee properly annotates the expense in the “explanation” section of the expense report. Abbott’s written T&E policy does not provide a “per diem” for meals but instead directs employees to exercise good judgment in terms of what is reasonable. The record reflects that plaintiff, as a District Manager, would complete her expense reports online and fax her receipts with the submission of the expense report. Once the expense report and receipts were submitted online, Mr. Rex, as plaintiff’s supervisor, would open the report online, review the report and receipts, and either approve the expenses or decline to approve the expenses. Once Mr. Rex approved the expenses, they were forwarded to the appropriate department for reimbursement or payment. Plaintiff’s expense reports and receipts, then, were sent to Mr. Rex as the first step in the reimbursement/payment process.

According to plaintiff, Solvay and Abbott permitted employees to follow certain “unwritten guidelines” in terms of how the written T&E policies were applied to certain situations. Plaintiff testified that employees had wide latitude in applying the “suggested” per diem amounts to travel expenses such that she could apply that amount toward the cost of a meal that she could either eat by herself or share with her family. According to plaintiff, she occasionally purchased food at a fast food restaurant on the way home from a day of traveling and she would share that meal with her family. Plaintiff testified that she never made any attempt to disguise those receipts or expenses (or the number of entrees for which she was seeking reimbursement or payment) and that such expenses were routinely approved by Mr. Rex during the three years when he supervised her employment-both at Solvay and Abbott. Mr. Rex testified that he was unaware that he had approved expenses for family meals.

Abbott also requires its employees to make all business travel arrangements through Abbott’s authorized travel agency. To the extent an employee books airline tickets outside of Abbott’s authorized travel agency, that employee is required to submit a Travel Agency Exception Form with his or her expense report for corporate reimbursement or payment. That form requires, among other things, an explanation from the employee as to why the tickets were booked through an alternate channel and a signature from the employee’s supervisor. Plaintiff was aware of this policy. A Travel Agency Exception Form is submitted by an employee just like expenses are submitted-the Form is submitted online and awaits the supervisor’s approval before the Form is forwarded on for reimbursement or payment.

In November 2011, plaintiff contacted Mr. Rex about a family emergency relating to her two young sons and she requested time off from to work to deal with the situation. Mr. Rex told plaintiff to take the time she needed to deal with the family emergency and he directed her to call Abbott’s toll-free Human Resources hotline for employee assistance and he encouraged her to apply for an FMLA leave of absence. Plaintiff sought intermittent leave under the FMLA to care for her sons for a few hours each week. Abbott’s Leave Center granted her request beginning November 7, 2011.

In December 2011, plaintiff submitted to Abbott expenses for gift baskets that she had purchased for her sales team. Plaintiff previously had been counseled by Mr. Rex on several occasions not to purchase gift baskets and similar items for her team and he had declined to approve such expenses in the past. In any event, the December 2011 gift basket expense was flagged by an automated system utilized by Abbott’s Corporate Disbursement Department and that department decided to monitor whether Mr. Rex approved the expense. When Mr. Rex declined to approve the expense, Susan Ballard, a disbursement analyst in the Corporate Disbursement Department, conducted an initial review of plaintiff’s expense submissions and identified that plaintiff frequently submitted meals for corporate reimbursement or payment but rarely had an overnight stay. Based on this initial review and the attempted gift basket expense, Ms. Ballard initiated a two-year audit of plaintiff’s expenses beginning January 10, 2012. Ms. Ballard summarized her audit findings and, on January 26, 2012, submitted a Corporate Disbursement Case Report to Abbott’s Office of Ethics and Compliance (OEC) for further investigation into potential misrepresentation of expenses by plaintiff. The OEC is charged with ensuring compliance with Abbott’s Code of Business Conduct. There is no evidence that Mr. Rex or Mr. Comer had any knowledge that the Corporate Disbursement Department was reviewing plaintiff’s expenses or that it had asked the OEC to investigate further.

Meanwhile, on January 13, 2012, Mr. Rex discussed with plaintiff two specific concerns he had about her January 12, 2012 expense report. First, he was concerned that plaintiff had submitted a Travel Agency Exception Form, which required Mr. Rex’s signature indicating his approval, without obtaining Mr. Rex’s signature. Rather than obtaining Mr. Rex’s signature for the form, plaintiff instead wrote Mr. Rex’s name on the signature line and indicated that his signature was “on file.” Nonetheless, he discussed the reasons why plaintiff had needed to use alternative travel arrangements and asked her to revise and resubmit the form, which he signed. Plaintiff then submitted the revised Travel Agency Exception Form, including Mr. Rex’s signature, and Mr. Rex forwarded that form on for reimbursement or payment by Abbott. According to plaintiff, she used the Exception Form after making travel arrangements through the United Airlines app on her phone. Plaintiff testified that she had tried to access Abbott’s travel department online, but kept getting “kicked off” the system due to heavy year-end web traffic. She further testified that she wrote Mr. Rex’s name on the line, knowing full well that he would necessarily see that she had done that, to expedite the approval process for Mr. Rex who, according to plaintiff, was often slow to sign documents relating to expenses.

Second, Mr. Rex was concerned that plaintiff had submitted for corporate reimbursement or payment a dinner on January 2, 2012 for her family in the amount of $53.53. The record reflects that Mr. Rex was concerned about this expense both because plaintiff had written “family” in the comment section next to the particular expense and because the expense was dated January 2, 2012 which was a company holiday and plaintiff had not been traveling for work that day. According to plaintiff, Mr. Rex said to her, “Please tell me we’ve not been paying for dinners for your family all this time.” Plaintiff advised Mr. Rex that, in fact, Mr. Rex had been approving family dinner expenses for years (as had plaintiff’s prior supervisors) and that such approval was consistent with her understanding of the T&E policy. Plaintiff testified that she was surprised that Mr. Rex’s understanding of the policy was different and that it seemed as if Mr. Rex was not aware that he had been approving expenses for family dinners. Plaintiff further testified that she believed she could expense the meal because, although she did not work on January 2, 2012, she had an early morning flight the next morning.

Plaintiff testified that, after her discussion with Mr. Rex, she contacted Abbott’s Corporate Disbursement Call Center because she was concerned that maybe she violated company policy concerning the expensing of family meals. On January 16, 2012, plaintiff had a conversation with DeMario Hudson, a call center representative. According to plaintiff, Mr. Hudson confirmed her understanding of the T&E policy and told her that she could expense a family meal in a reasonable amount as long as she was traveling out-of-town for at least 5 hours on the day of the meal and that it was within her manager’s discretion to approve a family meal expense on the evening before an early morning departure. That same day, plaintiff e-mailed to Mr. Rex a summary of her conversation with Mr. Hudson. Because the information provided by Mr. Hudson to plaintiff did not seem accurate to Mr. Rex, Mr. Rex forwarded the e-mail to Mr. Hudson and asked him to verify that plaintiff’s summary of the conversation was accurate. Mr. Hudson reported to Mr. Rex that plaintiff’s summary was not accurate. Abbott’s evidence reflects that Mr. Hudson and plaintiff did not discuss the expensing of family meals. After Mr. Rex informed plaintiff that Mr. Hudson had disagreed with her summary of their conversation, plaintiff called Mr. Hudson and, on January 21, 2012, sent an email to Mr. Rex stating that Mr. Hudson had “confirmed” that what she had written was accurate. At all times, Mr. Hudson denied to Abbott that he had discussed with plaintiff the expensing of family meals.

On January 24, 2012, Mr. Rex contacted Abbott’s myHR department about plaintiff’s January 12, 2012 expense report (specifically, about the fact that she had written his name on the manager signature line without his consent and had submitted a meal for herself and her family on a day she was not working). He further expressed concern that plaintiff had misrepresented the substance of her conversation with Mr. Hudson. Cherylle LaFleur, one of Abbott’s Employee Relations managers, was assigned to address Mr. Rex’s concerns and Mr. Rex provided her with the Travel Agency Exception Form, the meal receipt in question and the emails concerning plaintiff’s discussion with Mr. Hudson. In addition, Ms. LaFleur contacted Ms. Ballard in the Corporate Disbursement Department for clarification on certain expense practices. At that time, Ms. LaFleur learned that the Corporate Disbursement Department had separately initiated its own audit of plaintiff’s expenses and that Ms. Ballard was in the process of referring the case to the OEC for further review. On January 26, 2012, Ms. LaFleur submitted a New Case Report to the OEC for further investigation into whether plaintiff had falsified her manager’s signature/approval on a company document; whether she had submitted improper expenses; and whether she had intentionally misrepresented what Mr. Hudson had said in an effort to buttress her position relating to the family meal expense.

The OEC assigned Julie Fendel to investigate the allegations submitted by Ms. Ballard and Ms. LaFleur. Ms. Fendel works as an Investigator in Abbott’s Global Security department. Global Security is responsible for conducting investigations into allegations of loss incidents within Abbott. As part of that investigation, Ms. Fendel interviewed plaintiff. In her interview, plaintiff admitted that she often submitted family meals for corporate reimbursement or payment and explained that her understanding of the policy permitted those expenses. Plaintiff also explained that, to her knowledge, many other Abbott employees shared the same understanding of the policy and expensed family meals and that they had done so with Solvay as well. Mr. Rex and Mr. Comer confirmed, however, that Solvay did not permit employees to expense family meals. Plaintiff also declined Ms. Fendel’s invitation to provide her with the names of employees who shared her understanding of the policy concerning family meals in light of the fact that Ms. Fendel promised to investigate the expense reports of any employees identified by plaintiff. Abbott did not otherwise attempt to determine whether any other District Managers shared plaintiff’s understanding of the T&E policy as it related to the expensing of family meals.

Ultimately, Ms. Fendel concluded, in a thorough written report, that plaintiff had improperly submitted multiple personal, family meals for reimbursement or payment by Abbott; that her explanation that she believed that expensing family meals was an ‘Abbott perk” was not credible; and that her conduct violated Principle 5 of Abbott’s Code of Business Conduct (“Accuracy and Integrity of Books, Records, and Accounts”). Ms. Fendel also concluded that plaintiff did not follow appropriate procedures regarding the Travel Agency Exception Form and that she tried to circumvent the system by writing that Mr. Rex’s signature was “on file” in violation of Principle 9 of the Code of Business Conduct (“Compliance with Abbott Standards, Policies and Procedures”).

Based on Ms. Fendel’s findings and her own analysis of the facts, Ms. LaFleur recommended the termination of plaintiff’s employment. Ms. LaFleur also discussed the results of the investigation with Mr. Rex and Mr. Comer, both of whom agreed with the termination decision. Abbott terminated plaintiff’s employment on March 8, 2012. Additional facts will be provided as they relate to the specific arguments raised by the parties in their submissions.

II. Summary Judgment Standard

“Summary judgment is appropriate if the pleadings, depositions, other discovery materials, and affidavits demonstrate the absence of a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Water Pik, Inc. v. Med–Systems, Inc., 726 F.3d 1136, 1143 (10th Cir. 2013) (quotation omitted); see Fed. R. Civ. P. 56(a). A factual issue is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Water Pik, Inc., 726 F.3d at 1143 (quotation omitted). “The nonmoving party is entitled to all reasonable inferences from the record; but if the nonmovant bears the burden of persuasion on a claim at trial, summary judgment may be warranted if the movant points out a lack of evidence to support an essential element of that claim and the nonmovant cannot identify specific facts that would create a genuine issue.” Id. at 1143-44.

III. Sex Discrimination Claim[3]

In the pretrial order, plaintiff asserts that defendants terminated her employment on the basis of her sex. In their motion for summary judgment, defendants, using the burden-shifting framework developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), assert that plaintiff cannot establish a prima facie case of discrimination and cannot show that defendants’ articulated reasons for terminating plaintiff’s employment are pretextual. As an initial matter, plaintiff contends that she has come forward with direct evidence of discrimination, thus obviating the need for the McDonnell Douglas analysis. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985) (holding that the McDonnell Douglas framework does not apply once plaintiff has presented direct evidence of discrimination). Specifically, plaintiff points to the following evidence as “direct” evidence of discrimination:

Plaintiff testified that in April 2009, when Mr. Rex promoted her to the District Manager position, he expressed concern over whether she was being stretched too thin because both she and her husband worked full-time and had 4 young children at home;
plaintiff testified that during the investigation into her expense practices, Mr. Rex told her to “focus on her family and her faith” and wanted reassurance from plaintiff that her husband had a good job and that they “would be okay” if her employment was terminated;
Terri Garrett, the woman who replaced plaintiff in the District Manager position after plaintiff was fired, testified that she resigned her employment in part because she was concerned about Mr. Rex’s attitude toward working mothers and his apparent concern whether women employees with young children at home could be focused and committed to their jobs; and
Torrie Fenton-Oswald, a sales representative who worked under Mr. Rex’s supervision in 2001, averred that Mr. Rex, in 2001, expressed his belief to her that women with young ...

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