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Breeden v. Novartis Pharmaceuticals Corp.

February 16, 2010


The opinion of the court was delivered by: James Robertson United States District Judge


Mary Kate Breeden sues her former employer Novartis Pharmaceuticals Corporation under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601, et seq. Novartis moves for summary judgment. For the reasons set forth below, the motion will be granted in part and denied in part.


Breeden was a salesperson in Novartis' transplant business unit ("TBU"). Her job was to persuade hospital transplant personnel to prescribe Novartis drugs. Pl. St. Facts 2. During the fall of 2004, Novartis developed a plan with the assistance of an outside consulting firm to overhaul the structure of the TBU. Pl. St. Facts 2-3. As a part of the overhaul, the geographic territories assigned to sales personnel like Breeden were realigned. Id. Around November 2004, Breeden notified her colleagues and supervisors that she was pregnant and that she intended to take leave in the spring of 2005. Depo. of Mary Kate Breeden 94:7-18, 103:1--104:17, attached to Resp. at Ex. 1. Breeden's pregnancy was noted on PowerPoint slides used by the consultants for planning the realignment of sales territories. Pl. St. Facts 29.

Breeden learned around the beginning of 2005 that her sales territory would be changing. Mot. 9. While she gained several new accounts with the realignment, she lost three Baltimore-area accounts that she deemed especially valuable. Pl. St. Facts 3. The net result for Breeden was a territory in which the number of transplants performed per year was roughly half that of her earlier territory. Resp. 5; see also Decl. of Mary Kate Breeden ¶¶ 13-14, attached to Resp. at Ex. 2 (describing the decreased number of transplants and diminished interest in Novartis drugs at her new accounts).

When the realignment was announced on a conference call, Breeden objected to the change to her territory. Pl. St. Facts 14. Brian O'Callaghan, the general manager of the TBU, said in response, "Well, you're not coming back from maternity leave anyway, right?" Resp. 4. After she stated that she did intend to return, Tom Harper, Breeden's supervisor, assured her that she would be made "whole" and that the changes were not permanent. Id. Harper also raised Breeden's concerns to his supervisors. Pl. St. Facts. 15.

Breeden began her FMLA leave in March 2005 and returned to work in July 2005. Id. at 4. Soon after her return, she was informed that the realignment of her territory was in fact permanent, and that it would not be altered. Resp. 4. After the realignment, however, her rank in sales success among her peers and resulting incentive-based pay improved considerably compared to their pre-2005 levels.*fn1 Mot. 11.

In early 2008, Novartis did another reorganization of the TBU. Id. 13. It combined Breeden's sales territory with another territory and decided to retain only one of the two sales representatives who had been assigned to the former territories. Id. Because Breeden's accounts produced fewer prescriptions than those of her co-worker, Novartis terminated her employment on January 10, 2008. Id.


Breeden argues that Novartis interfered with her FMLA rights ("interference") and retaliated against her for exercising those rights ("retaliation").

A. Interference

An eligible employee who takes FMLA leave is entitled, upon return, to be restored to her former job or "to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment." 29 U.S.C. § 2614(a)(1)(B). Breeden contends that her realigned sales territory was not equivalent to her former position in terms of effort and skill required, responsibility, authority, and status.*fn2 See 29 C.F.R. § 825.215(a) (listing these terms as ways in which positions must be equivalent).

1. Effort/Skill/Responsibility

Breeden's arguments regarding effort, skill, and opportunity all center on the fact that the realignment diminished the size and quality of her sales territory. The premise of this argument appears to be that dealing with a more challenging territory required less effort, skill, and responsibility. The premise is unconvincing on its face -- more effort and skill should be needed to wring more sales from a smaller territory -- and in any case is supported neither by facts of record nor by caselaw. Shifting focus in a sales position from maintenance of old accounts to producing ...

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