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Brandli v. Micrus Endovascular Corp.

United States District Court, District of Columbia

September 21, 2016




         Plaintiff Karen Brandli brought this sex discrimination suit against her former employer, Micrus Endovascular Corporation (“Micrus”), Johnson & Johnson Services, Inc. (“JJSI”), Codman & Shurtleff, Inc. (“Codman”), and James Bertrand. Brandli was a Micrus employee under Bertrand's supervision until 2010 when JJSI acquired Micrus and merged it with Codman, a business JJSI owned. In the process, Micrus terminated Brandli's employment. Defendants have collectively moved for summary judgment on the grounds that they had legitimate, nondiscriminatory reasons for not retaining Brandli and that Brandli failed to produce evidence that these reasons are a pretext for discrimination on the basis of sex. The Court heard oral argument on this motion on June 15, 2016. Upon careful consideration of the parties' written and oral arguments, the entire record in this case, and the relevant statutes and case law, the Court will grant defendants' motion.[1]

         I. BACKGROUND

         Karen Brandli began working for Micrus as an account manager in 2006, selling neurosurgery devices in Washington, D.C., Northern Virginia, Maryland, and West Virginia. Am. Compl. ¶ 25; Defs. SMF ¶¶ 1-3. Brandli's sales quota for Micrus's fiscal year 2007 was $995, 000, a quota she substantially exceeded by selling approximately $2.4 million dollars worth of Micrus products during that period. Am. Compl. ¶ 32. As a result, Micrus nominated her for its “Sales Rep of the Year” and “Rookie of the Year” awards. Id. ¶ 33. In April 2007, Micrus removed Virginia and West Virginia from Brandli's territory and gave them to a new sales representative, Steve Tripp. Id. ¶ 36. In 2007, Micrus released the director of sales who had hired Brandli and replaced him with James Bertrand. Id. ¶ 37.

         Micrus reassigned Brandli in 2008 from the northeast region sales territory to the southeast region sales territory. Defs. SMF ¶ 4. At that time, Brandli complained to her regional manager that she believed Bertrand was attempting to force her out of her sales territory. Am. Compl. ¶ 39. The regional manager mentioned to Brandli that Bertrand had been “throwing around” the notion of assigning Brandli to the sales training division, an assignment that would have deprived Brandli of the opportunity to earn commissions. Id. ¶¶ 38-40. Brandli alleges that during a conference call in 2008 Bertrand stated that he was going to “get rid of” her, and that another manager advised Bertrand not to “do anything more with women right now, because we may have an issue.” Id. ¶¶ 55-56. Bertrand denies making both statements, and two managers who were present for the conference call confirmed in deposition testimony that Bertrand did not say that he was going to “get rid of” Brandli. Defs. SMF ¶ 32.

         In 2009, Brandli acquired a new account, Chistiana Hospital, and earned for Micrus the majority of Chistiana Hospital's medical coil device business. Am. Compl. ¶ 59. As a result, Micrus awarded her “President's Club” status and ranked her as the number three sales representative in North America. Id. ¶ 60; see also Opp. Ex. 22 [Dkt. 33-32]. Bertrand's predecessor conducted a field visit with Brandli in 2009 and wrote an “excellent review and praised her sales efforts, product knowledge, and relationship with clients.” Opp. at 4; see also Opp. Ex. 21 [Dkt. 33-31]. Her strong performance continued in 2010 when she reached 96% of her yearly quota by April. Am. Compl. ¶ 61. But in 2009 Brandli received a rating of “meets expectation” as opposed to the higher rating of “exceeds expectation, ” and defendants assert that Brandli's supervisor received customer complaints that Brandli was “abrasive.” Defs. SMF ¶ 13. Micrus never placed Brandli on a performance improvement plan (“PIP”), a measure that is commonly taken when a sales employee performs below expectations. Opp. at 4.

         In 2010, JJSI publicly announced its intention to acquire Micrus. Am. Compl. ¶ 64. JJSI owned Codman, one of Micrus's competitors, and JJSI intended to run Micrus as one of Codman's business units. Id. ¶ 62; Defs. SMF ¶¶ 5-6. Codman anticipated that there would be overlap in the post-acquisition sales territories, which meant that Codman planned to terminate some sales representatives from the post-acquisition entity. Defs. SMF ¶ 7. On September 29, 2010, Codman informed Brandli that defendants would terminate her employment effective October 31, 2010. Am. Compl. ¶ 71. Defendants thereafter gave sales responsibilities in Brandli's territory to two male Codman sales representatives, Daniel Garrison and Christopher Kearney. Id. ¶ 96; Defs. SMF ¶ 19.

         Brandli filed this sex discrimination suit against the defendants in 2011, alleging that she was terminated on the basis of her sex. Am. Compl. ¶ 2. She initially asserted five claims: (1) against all defendants, a claim of discrimination on the basis of sex in violation of the District of Columbia Human Rights Act (“DCHRA”), D.C. Code § 2-1402.11(a)(1) (2012 Repl.); (2) against Bertrand, a claim of aiding and abetting discrimination on the basis of sex in violation of the DCHRA; (3) against JJSI and Codman, a failure-to-hire claim that is also premised on discriminating on the basis of sex in violation of the DCHRA; (4) against all defendants except Bertrand, a common law negligent hiring claim for the defendants' hiring of Bertrand; and (5) against Bertrand, a common law tortious interference with business expectations claim. Am. Compl. ¶¶ 100-70. In her opposition to the motion for summary judgment, Brandli stated that she was withdrawing Counts 4 and 5, the common law claims. See Opp. at 1 n.1. In support of her sex discrimination claims, Brandli alleges that defendants: forced her out of her sales territory; forced out other female employees and replaced them with males; required her to prepare reports justifying her sales numbers; placed other female sales representatives on PIPs; failed to select her for a position on the Field Advisory Board; and praised only male employees. Am. Compl. ¶ 105.

         Defendants moved for summary judgment on each count of the amended complaint. With respect to the sex discrimination claims, they argue that: (1) they had a legitimate, nondiscriminatory reason for terminating Brandli and that Brandli has not shown that the reason is pretextual; (2) the Court cannot infer discrimination because Garrison and Kearney had stronger credentials than Brandli; (3) Brandli's failure-to-hire DCHRA claim is not based on a tangible adverse employment action and is untimely; and (4) if the underlying DCHRA claim fails, the aiding-and-abetting claim against Bertrand must also fail. Mot. at 12-26.


         Summary judgment is appropriate only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see Baumann v. District of Columbia, 795 F.3d 209, 215 (D.C. Cir. 2015); Fed.R.Civ.P. 56(a), (c). In making that determination, the court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor. Baumann v. District of Columbia, 795 F.3d at 215; see Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (per curiam); Anderson v. Liberty Lobby, Inc., 477 U.S. at 255; Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011). A disputed fact is “material” if it “might affect the outcome of the suit under the governing law.” Talavera v. Shah, 638 F.3d at 308 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248). A dispute over a material fact is “genuine” if it could lead a reasonable jury to return a verdict in favor of the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Grimes v. District of Columbia, 794 F.3d 83, 94-95 (D.C. Cir. 2015); Paige v. DEA, 665 F.3d 1355, 1358 (D.C. Cir. 2012). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge at summary judgment. Thus, [the court] do[es] not determine the truth of the matter, but instead decide[s] only whether there is a genuine issue for trial.” Barnett v. PA Consulting Group, Inc., 715 F.3d 354, 358 (D.C. Cir. 2013) (quoting Pardo-Kronemann v. Donovan, 601 F.3d 599, 604 (D.C. Cir. 2010)); see also Tolan v. Cotton, 134 S.Ct. at 1866; Baumann v. Dist. of Columbia, 795 F.3d at 215; Allen v. Johnson, 795 F.3d 34, 38 (D.C. Cir. 2015).

         The Court will first review the legal framework for analyzing Brandli's claim, placing special emphasis on Brandli's chosen theory of defendants' liability under the DCHRA, and then discuss whether Brandli's two main pieces of evidence - statements of other female employees and Codman's employee selection model - create a genuine issue of material fact entitling her to a jury trial on her claims.

         A. McDonnell Douglas and Brandli's Cat's-Paw Theory of Liability

         Title VII prohibits discrimination by an employer against “any individual” based on that individual's “race, color, religion, sex, or national origin, ” 42 U.S.C. § 2000e-2(a), and the DCHRA contains a similar provision. See D.C. Code § 2-1402.11(a). Brandli alleges that defendants discriminated against her on the basis of her sex. “[F]ederal case law addressing questions arising in Title VII cases is applicable to the resolution of analogous issues raised regarding DCHRA claims.” Ali v. District of Columbia, 697 F.Supp.2d 88, 92 n.6 (D.D.C. 2010) (citing Howard Univ. v. Green, 652 A.2d 41, 45 n.3 (D.C. 1994)); see also Whitbeck v. Vital Signs, Inc., 116 F.3d 588, 591 (D.C. Cir. 1997) (“District of Columbia courts interpreting the DCHRA ‘have generally looked [for guidance] to cases from the federal courts' arising under federal civil rights statutes.” (quoting Benefits Communication Corp. v. Klieforth, 642 A.2d 1299, 1301-02 (D.C. 1994))). “A plaintiff may prove her Title VII discrimination or retaliation claim with direct evidence, for example through a statement that itself shows racial bias in the employment decision. Alternatively, a plaintiff may base her claim on circumstantial evidence under the familiar McDonnell Douglas burden-shifting framework.” Nurriddin v. Bolden, 818 F.3d 751, 758 (D.C. Cir. 2016). Here, because Brandli offers no direct evidence, the Court will analyze Brandli's DCHRA claims under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

         The McDonnell Douglas burden-shifting framework contains three steps. First, the burden is on the employee to make a prima facie case of retaliation or discrimination. 411 U.S. at 801-02. Second, if the employee does so, the burden shifts to the employer to offer a legitimate, nondiscriminatory reason for the challenged action. Morris v. McCarthy, 825 F.3d 658, 668 (D.C. Cir. 2016). Third, if the employer does so, the McDonnell Douglas burden-shifting analysis “falls away, ” id., and “the district court must resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of [sex]?” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008); see also Gaujacq v. EDF, Inc., 601 F.3d 565, 576 (D.C. Cir. 2010). “The employee can survive summary judgment by providing enough evidence for a reasonable jury to find that the employer's proffered explanation was a pretext for retaliation or discrimination.” Morris v. McCarthy, 825 F.3d at 668; see also Nurriddin v. Bolden, 818 F.3d at 758-59.

         Defendants do not dispute that Brandli is a member of a protected class, that she was qualified for her job, or that her termination was an adverse employment action. They maintain, however, that they had a legitimate, nondiscriminatory reason for terminating her: JJSI could not afford to retain all of Micrus's sales representatives when it merged Micrus with Codman, and the two persons selected had higher assessment scores than Brandli. Defs. SMF ¶¶ 7-8. It is established that “terminat[ing an employee] as part of the company's larger reorganization . . . constitute[s a] legitimate, non-discriminatory reason[.]” Edmonds v. Engility Corp., 82 F.Supp.3d 337, 341-42 (D.D.C. 2015), aff'd (Jan. 21, 2016); see also Gross v. Logistics Support, Inc., 952 F.Supp.2d 119, 124 (D.D.C. 2013) (“implementing cost-cutting measures” is a legitimate, nondiscriminatory reason for an employer to terminate an employee). “[W]here an employee has suffered an adverse employment action and an employer has asserted a legitimate, non-discriminatory reason for the decision, the district court need not - and should not - decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas.” Brady v. Office of Sergeant at Arms, 520 F.3d at 494 (emphasis in original). The question in this case therefore is whether, viewing the evidence in the light most favorable to Brandli, her evidence would allow a reasonable jury to conclude that JJSI's proffered reason for terminating her was not the actual reason for her termination and that defendants intentionally discriminated against her on the basis of sex.

         Brandli relies entirely on the so-called “cat's-paw” theory of liability for her DCHRA claims. Opp. at 15, 17-21, 28.[2] “Under that theory, the discriminatory animus of a subordinate who recommends an adverse employment decision is imputed to the selecting officer who relies on the subordinate's recommendation.” McNally v. Norton, 498 F.Supp.2d 167, 184 n.16 (D.D.C. 2007).[3] As the D.C. Circuit recently explained: “Under a cat's-paw theory of discrimination, an employer may be held liable for discriminatory acts by a direct supervisor - even where that supervisor is not the final decision maker - if ‘[1] [the] supervisor performs an act motivated by [discriminatory] animus [2] that is intended by the supervisor to cause an adverse employment action, and . . . [3] that act is a proximate cause of the ultimate employment action.'” Morris v. McCarthy, 825 F.3d at 668 (quoting Staub v. Proctor Hosp., 562 U.S. 411, 422 (2011) (internal citation omitted)) (emphasis in original); see also Griffin v. Washington Convention Ctr., 142 F.3d 1308, 1311 (D.C. Cir. 1998); Furline v. Morrison, 953 A.2d 344, 355 (D.C. 2008).

         Here, Brandli's theory is that Bertrand was a supervisor who - although he did not personally make the decision to terminate her - performed acts motivated by discriminatory animus that he intended to cause and which actually did cause her termination. Opp. at 21.[4]Brandli has no direct evidence that discriminatory animus motivated Bertrand's actions in this case and instead attempts to prove Bertrand's animus with two kinds of circumstantial evidence: (1) the statements of other female Micrus employees; and (2) reasons ...

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