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Floyd Jones v. Glaxosmithkline

December 20, 2010

FLOYD JONES, PLAINTIFF,
v.
GLAXOSMITHKLINE, LLC, DEFENDANT.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

Floyd Jones, an African-American man, sues GlaxoSmithKline, LLC ("GSK"), his former employer, alleging harassment and hostile work environment based on his race and sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and wrongful termination in breach of an implied contract.*fn1 On March 1, 2010, at the end of prolonged discovery, GSK filed a motion for summary judgment. After three extensions, Mr. Jones filed no opposition. Therefore, on April 23, 2010, GSK moved the Court to treat its unopposed motion for summary judgment as conceded, and the Court issued an order to show cause why said motion should not be granted. Mr. Jones responded on April 26, 2010, and stated: "If Plaintiff does not file [his opposition] on April 28, 2010, Plaintiff has no further extension or opposition to Defendant's Motion for Summary Judgment." Pl.'s Opp'n to Def.'s Mot. to Treat its Unopposed Mot. as Conceded [Dkt. # 49] ¶ 10. Nonetheless, Mr. Jones's opposition was filed on April 29, 2010, with no motion for leave to file late, and GSK followed with a reply on June 21, 2010. Given the history of this case, the Court could take Mr. Jones at his word and grant summary judgment as conceded or dismiss the matter for failure to prosecute. Nonetheless, given the "strong polic[y] favoring the resolution of genuine disputes on their merits," Jackson v. Beech, 636 F.2d 831, 835 (D.C. Cir. 1980), the Court has reviewed the pleadings and decides the case on its merits. Summary judgment will be granted to GSK.

I. FACTS

GSK hired Mr. Jones as a Pharmaceutical Consultant and he began work on approximately June 26, 1995.*fn2 In that role, he was principally responsible for calling on hospitals, medical centers, and healthcare professionals to engage in face-to-face discussions regarding the use and benefits of GSK's medical products. In September 2003, Mr. Floyd assumed the position of Oncology Senior Executive Account Manager, a position he held until his discharge on March 30, 2006. His basic duties continued to entail meeting with healthcare professionals to discuss and promote GSK's products.

A. Events Leading to Mr. Jones's Discharge

GSK restructured its Oncology Division in January 2005 and Mr. Jones was assigned to the Acute Care Group. That reassignment placed him under the supervision of Joanna Turbeville, who was the Regional Sales Director. GSK measures the performance of its sales representatives, in part, based upon their sales rankings, which GSK prepares on a quarterly basis. In the last quarter of 2004, Mr. Jones was ranked in the top 15% in the nation among GSK's salesforce. Starting in January 2005, his sales rankings began to decline and, over the course of the next four quarters, plummeted from the top 17%, top 52%, top 71%, top 82%, until the first quarter of 2006, when Mr. Jones tied for last in the nation. As Mr. Jones notes, the precipitous drop in his sales performance coincided with Ms. Turbeville's assignment as his supervisor. See Opp'n [Dkt. # 50] 6 ¶ 18.

As his supervisor, Ms. Turbeville spent time in the field with Mr. Jones to observe his work performance on five occasions: in March 2005, June 2005, November 2005, January 2006, and March 2006. These "work contacts" are intended to give GSK supervisors an opportunity to observe sales representatives as they call on health care professionals, after which the supervisor provides feedback on the representative's performance. The substance and feedback from these work contacts were captured in written notes called "Field Coaching Tools," which Ms. Turbeville prepared and then shared with Mr. Jones. In the first of these Field Coaching Tools, which followed the March 2005 work contact, Ms. Turbeville noted that "Floyd has the desire and skills to move this product," and that her expectation was that "Floyd will move a lot of business." Def.'s Mem. in Supp. of Mot. for Summ. J. [Dkt. # 44] ("Def.'s Mem."), [Ex. 2] Decl. of Joanna Turbeville ("Turbeville Decl."), [Ex. A] Field Coaching Tool 3/23 & 3/24. Ms. Turbeville suggested: "Look at your geography from an account basis and identify where your efforts will get the maximum ROI [return on investment]. Find ways to see the orthos [orthopaedic doctors] that are driving your business." Id. Further, she suggested that he "[f]ocus cslls [sic] mostly on selling the product versus sharing information." Id. Despite these generally positive comments, Mr. Jones thought that Ms. Turbeville was "very contentious" during this work contact and that she "challenge[d] me without any resolutions to help me improve the situation." Def.'s Mem., [Ex. 1] Decl. of Mary Kate Harkins, [Ex. D] Floyd Jones GSK Employee Issues File ("Jones GSK Employee Issues File") 1 (quoting Week of 3/21/05 entry).

When Ms. Turbeville next worked with Mr. Jones in June 2005, she expressed concerns about his "market knowledge" and strategic analysis and planning. Turbeville Decl. ¶ 9; see also id., [Ex. B] Field Coaching Tool (undated). Specifically, Ms. Turbeville observed that Mr. Jones did not seem to have his routing - a schedule of doctors to call on - well developed. Id., [Ex. B] Field Coaching Tool (undated) ( "Floyd need[s] to get the routing done and spend more time selling and less time tracking down the doctor."). She was concerned that Mr. Jones spent so much time finding doctors that it limited the amount of time he could spend actually selling the product. See Turbeville Decl. ¶ 9. She found that he was "[g]ood at sharing the information, [but] need[ed] to include the visual and clinical. Go over the clinical as you show it. You know the data but need to sell it with a sense of urgency." Id., [Ex. B] Field Coaching Tool (undated). Mr. Jones was also approximately rated "fair" in the four of five "Winning Practices" ranking categories in which he was rated. Mr. Jones was not rated in the category Teamwork & Leadership. Ms. Turbeville noted that she was "[s]till determining this." Id. In response, Mr. Jones wrote:

I have been dis-empowered and discouraged by the clash of personalities that have existed on this team over the past several months.*fn3 The routing of physicians requires me to spend a good portion of my time providing information to the nurses and the Doctor in the hospital, and I have good access in some areas and adequate access in others. Also, I have attempted to exert my influence to correct and improve the working relationship with my teammates, which will improve the contact with customers. . .

Id. at 2.

The November 2005 work contact between Ms. Turbeville and Mr. Jones noted some continuing problems and some improvements:

Floyd has identified who can write Arixtra today. He has selected a hand full [sic] of Orthos to focus activity and frequency for the remainder of the year. He has improved at getting time with the doctors, but I have not seen a lot of selling in front of the customer. For example, the Ortho group we saw was detailed on Medicare Part D and the new educational device, but there was no use of visual and no mention of efficacy with our core messages delivered. I expect this to be the core of every interaction.

Turbeville Decl., [Ex. C] Field Coaching Tool (undated). Ms. Turbeville advised Mr. Jones that she expected him to use his "visual and clinicals as a seasoned account manager and [to be] asking for the business." Id. She noted that "[w]e discussed this on the contact in March and on the June contact." Id. Ms. Turbeville also indicated that Mr. Jones was not selling the product to the extent he could, and that his last quarter did not meet expectations and that the current quarter was trending the same way. Id.

When Ms. Turbeville and Mr. Jones met at the next work contact in January 2006, they had a lengthy discussion concerning his career. Mr. Jones expressed his interest in management positions and Ms. Turbeville wrote that she "could not support him for further positions at this point. His focus needs to be on meeting expectations as a surgical account manager" and on "leadership and strategic planning skills." Turbeville Decl., [Ex. D] Field Coaching Tool 1/18 & 1/19/06. Ms. Turbeville noted that Mr. Jones's main strategy was to "do a lunch once a month with the key office he targeted," but that he needed to develop a more strategic approach and a plan to move business. Id. She also noted that Mr. Jones had some improved coordination, but she expressed disappointment that his numbers had not risen in one particular region. Id. She acknowledged his past success: "Floyd, you have had tremendous success in the past. Draw on what worked then and utilize these skills to get on top in this position." Id. Lastly, Ms. Turbeville informed Mr. Jones that "[w]e will discuss your career growth on each contact, but now is the time to meet expectations in your current role." Id.

The March 13, 2006 work contact was especially problematic. Ms. Turbeville noted that she and Mr. Jones were "[n]ot successful in meeting call objectives for today." Turbeville Decl., [Ex. E] Field Coaching Tool 3/13/2006 at 2. Ms. Turbeville commented:

Floyd took me to see Dr. Oplinger in Rockville. We drove around for a while and Floyd stated, "this doesn't look familiar like last itme" [sic]. We ended up in a housing community. I asked Floyd where he saw Dr. Oplinger last time, and he said it was at another office building. I said to call Dr. Oplingers [sic] office after he decided to go to the hospital and track him down. Floyd, this is another example of poor strategic planning. You should have called yesterday to find this MD. I called the hospital for Floyd, and they had no record of Dr. Oplinger. I asked Floyd to go to the office where he saw this MD last time, and he said he had just ran into him in the lobby and saw his name on his MD coat. (white coat) [sic]. He stated that he stopped and talked to him, and that now he was going to follow up. We went to the building that Floyd said he ran into this doctor, and his name was not on the marquis. Floyd shrugged his shoulders and I suggested we go into a surgery office suite and ask if they knew this doctor, [n]o one had heard of Dr. Oplonger [sic] at this office. I asked Floyd why he didn't ask Dr. [O]plinger where and how he could follow up with him on Arixtra, and he said that was his mistake. I discussed with Floyd that this is not the type of behavior and strategy I would expect from someone of his tenure and a specialty representative. This is the type of strategy I would expect from a brand new hire to GSK. We never located Dr. Oplinger and went to see another office. I discussed my frustration with continued lack of strategy with Floyd. We reviewed frequency on the top doctors and Floyd is still not seeing the doctors on the frequency that we had discussed previously. I asked for his routing, and he showed me an old one. Floyd agreed that he needed to update his routing.

Id. Ms. Turbeville found that Mr. Jones's lack of a strong strategic plan was "unacceptable after 18 months selling Arixtra." Id. at 1. Ms. Turbeville again focused on what she concluded was Mr. Jones's lack of strategic thinking and planning, outdated routing, and insufficient frequency in visits. She wrote that she "was concerned with what [Mr. Jones] was doing with this time and how he was managing it." Id. She specifically stated that she was going to review Mr. Jones's "call reporting to look at frequency on the doc[tors] he identified form [sic] his routing" and that she would follow up with Mr. Jones on the results. Id.

Ms. Turbeville also conveyed a direct written message to Mr. Jones: I want to review time management with you after I review [internal company reports] and calendar to ensure you are focusing on the business and using good strategy. Strategic planning and account management skills are a vital part of this job, and you have not demonstrated these skills in running your business. As discussed, my expectations were much higher based on your tenure and previous success, but your activities are mirror [sic] that of a new representative.

Id. She concluded, "Floyd is not meeting expectations of performance based on goal attainment and skill sets that are needed to be successful as an account manager." Id.

Unhappy with Mr. Jones's performance at the March 13, 2006 work contact, Ms. Turbeville examined GSK records to determine how Mr. Jones was using his time. GSK sales representatives' primary responsibility is to conduct face-to-face discussions with health care professionals about the use and benefits of GSK products; such meetings are referred to as "calls." Ms. Turbeville reviewed Mr. Jones's records of calls from early March 2006 and identified two instances of what she considered suspicious call reporting. First, Mr. Jones reported a call on March 2, 2006, with Dr. Oplinger in Frederick, Maryland, where he reported he had discussed GSK products. However, when Ms. Turbeville located and called Dr. Oplinger, she was told he had not been in Frederick at any time in 2006 and that his office is actually in Pennsylvania. Turbeville Decl. ¶ 16. Mr. Jones later explained that he met a physician at a medical office building in Frederick whom he believed to be Dr. Oplinger, and recorded that meeting as a "call." Opp'n, [Ex. A] Aff. of Floyd Jones ("Jones Aff.") ¶ 18.

The second questionable report concerned a Dr. Hamersley, with whom Mr. Jones recorded a call on March 13, 2006. However, that was the date on which Ms. Turbeville accompanied Mr. Jones on their last work contact. She knew that they had stopped by Dr. Hamersley's office but that the doctor was very busy and Mr. Jones did not have a face-to-face meeting with the doctor about GSK products. While no face-to-face discussion occurred, Mr. Jones left literature at the office. See Jones Aff. ¶ 17; Def.'s Facts [Dkt. # 44] ¶ 67. When Ms. Turbeville asked Mr. Jones why he recorded this visit as a "call," he explained that he would report a call if he left product information or made an appointment, not just when he had a face-to-face meeting with a physician. Ms. Turbeville told Mr. Jones that he knew leaving literature did not constitute a call; GSK policy requires a face-to-face discussion with a health care provider about GSK products to constitute a recordable "call."

Ms. Turbeville's review of Mr. Jones's reported "calls" caused her to review Mr. Jones's expense reports, which included a request for reimbursement that Mr. Jones had submitted for lunch with Dr. Davidson, an orthopedic surgeon, at a Ruby Tuesday restaurant in Alexandria, Virginia, on February 16, 2006. Ms. Turbeville had already approved payment of the expense. However, when she compared the lunch receipt with Mr. Jones's call report for February 16, 2006, she noted that there was no call listed that day for Dr. Davidson. Ms. Turbeville called Dr. Davidson's office and learned that he had not gone to lunch with Mr. Jones on February 16, 2006, and that he had never gone to a Ruby Tuesday restaurant with Mr. Jones at any time. Turbeville Decl. ¶ 21. In response to her questions, Mr. Jones explained that he purchased two carry-out lunches, that he left both at Dr. Davidson's office for the doctor, and that he never reported that the lunch was a sit-down lunch. See Jones Aff. ¶ 24; Opp'n, [Ex. 4] Floyd Jones Deposition Excerpt (6/3/2009) 113--16. Ms. Turbeville observed that the restaurant receipt showed that two people ate lunch in the restaurant from approximately 12:13 pm to at least 12:59 pm, suggesting that Mr. Jones's explanation was not accurate. Turbeville Decl. ¶ 23; see also id., [Ex. H] 2/16/2006 Ruby Tuesday Receipt.

Ms. Turbeville became convinced that Mr. Jones had falsely reported "calls" he had not made and had submitted a false reimbursement request. Turbeville Decl. ¶¶ 18, 22. She discussed these conclusions with Mary Kaye Harkins, GSK's Director of Human Resources ("HR"), and a decision was made to terminate Mr. Jones. A separation notice dated March 30, 2006, was prepared by HR, stating:

This memo is to inform you that it has been determined that you have violated GlaxoSmithKline's Employee Conduct policy; Misrepresentation, including falsification of reports or records, or deliberate failure to accurately complete reports or records; and as a result are being separated from employment effective March 30, 2006.

You reported on March 2, 2006 that you talked personally with Dr. Oplinger. Dr. Oplinger stated that he had not been in Fredrick [sic], MD at any time this year yet you recorded him as a call in your records. Dr. Oplinger's office is located in Pennsylvania.

On March 13, 2006 we visited Dr. Hamersley's office. You made an appointment to bring in lunch and we left. We never saw the doctor, and no information was left behind yet you report Dr. Hamersley as a call in your records and entered call notes.

On your 2/05 to 2/18/06 expenses you reported a lunch with Dr. Stuart Davidson at Ruby Tuesdays in Alexandria, VA. Dr. Stuart Davidson stated that he has never been to Ruby Tuesdays with you. The schedule A states that the meeting took place at Ruby Tuesday.

Turbeville Decl., [Ex. I] 3/30/2006 Separation Notice. The separation notice was given to Mr. Jones on March 30, 2006, during a meeting with Mr. ...


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