United States District Court, D. Oregon
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[Copyrighted Material Omitted]
For Kimberley Arnold, Plaintiff: Carl Lee Post, Daniel J. Snyder, Cynthia J. Gaddis, Law Offices of Daniel Snyder, Portland, OR.
For Pfizer, Inc., Defendant: Heidi A. Guettler, LEAD ATTORNEY, Jackson Lewis LLP, Portland, OR; Karen D. Simpson, Nicky Jatana, PRO HAC VICE, Jackson Lewis LLP, Los Angeles, CA.
OPINION AND ORDER
JOHN V. ACOSTA, United States Magistrate Judge.
Plaintiff Kimberly Arnold (" Arnold" ) brings this employment lawsuit against defendant Pfizer, Inc. (" Pfizer" ) arising from a prior employment relationship. Arnold alleges claims of discrimination and retaliation under Title I of the Americans with Disabilities Act (" the ADA" ), 42 U.S.C. § 12101, et seq .; discrimination and retaliation under the Oregon Rehabilitation Act, Oregon Revised Statutes (" ORS" ) 659A.100, et seq .; retaliation for filing a workers compensation claim, in violation of ORS 659A.040; violation of the Family and Medical Leave Act (" the FMLA" ), 29 U.S.C. § 2601, et seq., and wrongful termination. Pfizer moves for summary judgment on all claims. For the reasons below stated, Pfizer's motion is granted as to Arnold's Oregon Rehabiliation Act retaliation, workers compensation retaliation, and wrongful termination claims. The motion is denied as to Arnold's ADA discrimination and retaliation, Oregon Rehabilitation Act discrimination, and FMLA claims.
Arnold began working at Pfizer in 1996 as a sales representative. (Jatana Declaration (" Decl." ), Exhibit (" Ex." ) B at 17, 20.) Sales representatives " call on physicians, hospitals and other healthcare providers to explain the benefits of and to sell Pfizer's pharmaceutical products." (Jennings Decl. ¶ 5.) Sales representatives report to a district manager. Id . Arnold's employment with Pfizer was " at will." (Jatana Decl., Ex. B at 18.) Arnold's employment was also governed by the Prescription Drug Marketing Act (" PDMA" ), of which she was aware and with which she knew she was obligated to comply. (Jatana Decl., Ex. B at 20.) Arnold was aware of Pfizer's policy of encouraging employees to register problems or complaints with management, or " anybody up the chain of command." (Jatana Decl., Ex. B at 26.) Arnold testified that she was aware of Pfizer policies and her obligation to comply with them, as well as those requirements set forth under the PDMA. (Jatana Decl., Ex. B at 28-44.)
One of Arnold's duties as a sales representative was to furnish healthcare providers with samples of Pfizer products, a practice referred to as " sampling." (Jatana Decl., Ex. B at 29.) Starters are samples given to physicians and their distribution must be documented. (Jatana Decl., Ex. B at 29-30.) Arnold was aware that she was requried to accurately document all starter activity by way of a Starter Activity Form (" SAF" ). (Jatana Decl., Ex. C at 10-11.) The SAFs state that starter activity should be entered and synchronized daily. (Jatana Decl., Ex. C at 12.) According to Arnold, during her eleven-year tenure with Pfizer in Oregon, " no Pfizer manager, supervisor, or official ever talked to [her] about the [SAFs] until May 27, 2009, a few weeks before [she] was terminated." (Arnold Decl. ¶ 9.)
In 1999, Arnold received a promotion to Specialty Healthcare Representative and was transferred to Portland. (Jatana Decl., Ex. B at 21; Arnold Decl. ¶ 8.) Arnold was promoted twice more by Pfizer, to Cardiovascular Specialty Healthcare Representative and Senior Cardiovascular
Specialty Representative. (Arnold Decl. ¶ 11-12.) On September 1, 2005, Pfizer reorganized and laid off much of its workforce. (Arnold Decl. ¶ 17.) Arnold was not laid off but, in order to stay in Portland, she relinquished her position as a Specialty Healthcare Representative and took a position as a Primary Care Healthcare Representative. (Jatana Decl., Ex. B at 21-22, 68; Arnold Decl. ¶ 17.)
Between 2001 and 2005, Arnold went on medical leave three times. The first was following her pregnancy, the second for surgery to remove her gallbladder, and the third after she broke her foot. (Arnold Decl. ¶ 18.) Each time, Arnold was returned to the same position and the same rate of pay she enjoyed prior to going on medical leave. (Jatana Decl., Ex. D at 8-11, 14-15.)
On September 16, 2005, Arnold was driving on the job when she was hit by a FedEx delivery truck. (Jatana Decl., Ex. B at 68.) Arnold subsequently sued FedEx for negligence. (See Complaint, Jatana Decl. Ex. B at 81-83.) Around the same time, Arnold again went on medical leave, or short-term disability, as the result of injuries sustained in the accident. (Arnold Decl., Exs. 4, 5.) Dr. Agatha Nody (" Dr. Nody" ) and Nurse Jenny Mark (" Nurse Mark" ), with Pfizer, are responsible for approving short-term disability and scheduling independent medical examinations (" IME" ). (Jatana Decl., Ex. B at 52.)
Arnold informed Pfizer that she was ready to return to work in early 2006. On March 1, 2006, Dr. Nody wrote to Arnold, informing her that although Pfizer had received her " Return to Work Status form," she was required to undergo an IME to ensure her readiness to return to work. The letter advised Arnold that she would be contacted by a third party, Unival, about scheduling the IME. (Arnold Decl., Ex. 6.) The examination was subsequently scheduled for March 16, 2008, with Dr. Thomas P. Anderson, M.D. (" Dr. Anderson" ). (Arnold Decl., Ex. 7 at 1.) The day before, March 15, 2006, Arnold underwent a " Functional Capacity Evaluation" (" FCE" ), administered by Healthsouth Mountain View and physician Jeff Gerry, M.D. (" Dr. Gerry" ). Dr. Gerry deemed
Arnold fit to perform light work, leaving her able to lift twenty pounds occasionally and ten pounds frequently. (Arnold Decl., Ex. 8 at 1.) Arnold was not cleared to work by the March 16, 2006, IME. (Arnold Decl. Ex. 10.) In an April 16, 2006, email to Carol Crane (" Crane" ), Arnold stated that she wished to return to work full time, would attempt to schedule another IME, and was concerned that her position had been posted on Pfizer's website. (Arnold Decl. Ex. 10.) The next day she emailed Dr. Nody and Nurse Mark, expressing her desire to schedule another IME in light of her improved condition. (Arnold Decl. Ex. 11.) A letter from Dr. Nody stated that Arnold's short-term disability benefits would exhaust on March 17, 2006. (Arnold Decl. Ex. 9.)
On April 26, 2006, Arnold underwent another IME, conducted by Dr. Edward Grossenbacher (" Dr. Grossenbacher" ), wherein Arnold was found capable of operating a motor vehicle, lifting up to twenty-five pounds, and returning to her position at Pfizer. (Arnold Decl. Ex. 14.)
Arnold again took leave, between October 31, 2006, and the end of June 2007, for cervical spine surgery, the result of her
motor vehicle accident with FedEx. (Arnold Decl., Ex. 15 at 1; Jatana Decl., Ex. D at 32.) Arnold was approved for short-term disability benefits from November 6, 2006, through December 15, 2006. (Arnold Decl., Ex. 15 at 1.) She applied for long-term disability, which request was denied. While still on short-term disability leave, Arnold noticed that her position had been posted online as an available position at Pfizer. In a February 27, 2007, email sent to Dr. Nody and Nurse Mark, Arnold stated she was ready to return to work on April 1, 2007, and asked if she needed another IME. Dr. Nody responded that an updated IME was required and that she would " proceed to schedule the IME." (Arnold Decl. Ex. 16.) On April 16, 2007, Arnold was released for " modified work" by Dr. Anderson beginning on April 30, 2007. (Arnold Decl. Ex. 17.)
Pfizer informed Arnold she would have to " undergo a Fitness for Duty (FFD) examination" prior to her return and extended Arnold's short-term disability benefits through May 6, 2007. (Arnold Decl., Ex. 18.) Arnold emailed Crane, stating that she wanted to return to work and was concerned about her position being posted in the meantime. (Arnold Decl. Ex. 19.) In a May 4, 2007, letter, Dr. Nody informed Arnold that she would need to obtain an FFD evaluation, including an FCE, prior to returning to work. Arnold testified that Pfizer put off scheduling an IME until after her short-term disability ran out. (Jatana Decl., Ex. D at 40.)
On May 29, 2007, Julie Jennings (" Jennings" ), Senior Manager of Human Resources at Pfizer, notified Arnold by letter that her short-term disability had exhausted as of May 6, 2007, and that Pfizer policy permitted it to reassign Arnold " to a Regional Representative territory in [her] current district" and to " fill [her] vacant territory." (Arnold Decl. Ex. 21.) On June 4, 2007, Arnold emailed to Jennings in response, arguing that she had complied with all of Pfizer's requirements, but that Pfizer personnel unreasonably delayed scheduling the examinations that would permit her to return to work. (Arnold Decl., Ex. 25.) This prompted a series of emails amongst Pfizer personnel regarding whether there had, in fact, been a delay in scheduling the necessary tests and whether Arnold's position should continue to be posted online. (Arnold Decl. Ex. 24.) The consensus was that the posting should be taken down. Id . Arnold's email also prompted Jennings to forward the exchange to Crane, stating: " Carol, please file and keep record of this. I think weshould maintain electronic or paper files once adisability starts down this type of road." (Arnold Decl. Ex. 28.)
On June 8, 2007, Arnold's FCE issued, stating that she could return to work, but limiting her to lifting twenty pounds occasionally and ten pounds frequently. (Arnold Decl., Ex. 27 at 1.) On June 18, 2007, Arnold's IME took place and Dr. Grossenbacher cleared Arnold to work with light duty restrictions. (Arnold Decl., Ex. 31 at 1, 4.) Pfizer was in receipt of the IME by at least June 21, 2007, and Arnold was back to work by the end of the month. (Arnold Decl. Ex. 32, 34.) Arnold's 2007 performance review was largely positive. (Arnold Decl., Ex. 37.)
After returning to Pfizer in June 2007, Arnold discussed with her supervisor, Mark Johnson (" Johnson" ), that she was subject to a lifting restriction by her doctor, and was still in pain, particularly when she had to bend down to pick something up. Johnson suggested that she request a van with a " lift back" as an accommodation from Pfizer to minimize her need for bending over. (Jatana Decl., Ex. B at 54-55.) On February 6, 2008, Arnold requested the accommodation from Dr. Nody at Pfizer.
(Jatana Decl., Ex. D at 57.) Dr. Nody asked to see Arnold's medical file from her pain specialist, Dr. Andrew Chiu (" Dr. Chiu" ), to determine whether the accommodation was necessary. (Jatana Decl., Ex. B at 55.) Arnold complied and, approximately one month later, Dr. Nody contacted Arnold and said that Arnold's chart notes indicated that she was on medication that would impair her driving. Id . Dr. Nody stated that Arnold should not be out working in the field and should be on short-term disability. (Jatana Decl., Ex. B at 56.) Dr. Nody also contacted Arnold's pain specialist, Dr. Chiu, to inform him of same. Id .
Arnold wanted to continue working, however, and worked with Dr. Chiu to get on an appropriate pain medication that would permit her to continue driving. (Jatana Decl., Ex. B at 55-56.) Dr. Nody voiced another objection to the new medication and Arnold again contacted Dr. Chiu to address that further concern. (Jatana Decl., Ex. B at 56-57.) Throughout this process, Arnold was in contact with Johnson who assured her that everything would be okay. She informed Johnson about her contact with Dr. Nody and how upset she was that Dr. Nody was pressuring her to go on short-term disability or to quit working for Pfizer altogether. (Jatana Decl., Ex. B at 57; Ex. D at 30.) Dr. Chiu informed Pfizer that he had prescribed Arnold a pain medication, Ultram, to be taken only once daily, at night. (Arnold Decl. Ex. 48.) On April 17, 2008, Dr. Nody cleared Arnold to drive. (Arnold Decl. Ex. 49.)
Shortly thereafter, on April 30, 2008, Dr. Nody approved Arnold's accommodation request, deeming it a " qualifying condition under the ADA[.]" (Arnold Decl. Ex. 50.) However, by August 3, 2008, Arnold still had not received the vehicular accommodation. She queried Johnson as to the delay, and he forwarded her inquiry to Andrew Powell (" Powell" ) in human resources. (Arnold Decl. Exs. 51, 52.)
Throughout her tenure with Pfizer in Oregon, Arnold had five district managers: Lisa Ness, Leslie Fox, Gerald Bringhurst, Mark Johnson, and Darcy Small. Johnson was Arnold's district manager from early 2007 until January 30, 2009, at which time Small took over as district manager. (Jatana Decl., Ex. B at 24.) In his experience with Arnold, he believed that she had good rapport with physicians and he never questioned the service she was providing or her honesty in representing that service. (McCool Decl., Ex. A at 8.) Johnson testified that he was never concerned about the amount of pain medication Arnold was taking, with respect to both her job performance and her ability to drive. (McCool Decl., Ex. A at 19.) In January 2009, extensive layoffs took place at Pfizer. (Jatana Decl., Ex. C at 19.) Out of fifteen to twenty representatives in Portland, Arnold was one of approximately five representatives that was not laid off. Id . Johnson testified that Arnold was not laid off, in his opinion, because she was capable. (McCool Decl., Ex. A at 23.)
Arnold first met Small in person at a February 11, 2009, meeting. In the course of the lengthy meeting, Arnold needed to periodically stand to relieve her back pain. (Arnold Decl. ¶ 115.) According to Arnold, Small was offended by this and questioned her about it after the meeting. Id . Arnold told Small about the accident involving the Fed Ex truck and informed her that she was injured and would likely need surgery in the coming year. (Jatana Decl., Ex. D at 24.) Later, at a work-related dinner, Arnold told Lonnie Lucherini (" Lucherini" ), Regional Manager for Northwest Region at Pfizer, about the accident, her injuries, and future need for surgery; Small
was present and privy to this conversation. (Jatana Decl., Ex. E at 6.)
Toward the end of February 2009, Small contacted Lucherini with concerns about some of Arnold's behaviors. (Jatana Decl., Ex. H at 7-8.) Small was concerned because of a series of events: Arnold failed to return Small's first phone call as her supervisor in a timely fashion, arrived late for their first district meeting, asked to leave that same meeting early, and missed a scheduled one-on-one meeting with Small. (Jatana Decl., Ex. H at 7-12.) Small was also troubled by a sense she got during a meeting with Arnold's coworker Rahimi. This concern was based on a comment or gesture made by Rahimi that made Small think " something's not right here." (McCool Decl., Ex. F at 14.)
In response to her concerns, Lucherini recommended that Small contact Jennings, in Human Resources, and Jennings in turn recommended that Small investigate Arnold's " work activity." (Jatana Decl., Ex. H at 15; Jennings Decl. ¶ 1.) Jennings also suggested Small talk to Johnson, Arnold's most recent supervisor. (Jatana Decl., Ex. H at 16.) Following these conversations, Small planned to look at the number of calls Arnold made each day and whether she left samples at those locations. (Jatana Decl., Ex. H at 20.) Small subsequently requested a starter activity report from Jennings, and then determined that she needed more information regarding Arnold's work activity. (Jatana Decl., Ex. H at 24-25.) Small testified that, other than " compliance violation[s]" she had no concerns about Arnold. (McCool Decl., Ex. F at 20.) Small testified that she did not look into the starter activity of any representatives other than Arnold, except in comparison to determine if Arnold's forms were truthful. (McCool Decl., Ex. E at 27.)
On March 18, 2009, Small forwarded an email regarding a sampling inquiry from Dr. Graham's office to Arnold and Rahimi, and Arnold replied that she had sampled the office the previous day. (Arnold Decl. Ex. 67.) On April 14, 2009, Small followed up with Arnold and Rahimi regarding the prior inquiry. (Arnold Decl. Ex. 70.) Arnold responded via email later that day that she had sampled Dr. Graham three times since the request. (Jatana Decl., Ex. H at 39.) On April 26, 2009, Arnold emailed Small indicating she was out of Lipitor and Small responded that Arnold's Lipitor samples were shipped to her on April 18, 2009. (Arnold Decl. Exs. 74, 75.)
On May 5, 2009, Small emailed Arnold, stating that a report submitted by Arnold " look[ed] good." (Arnold Decl. Ex. 76.) On May 11, 2009, Arnold emailed Small that she was out sick and Small's response did not suggest that there was a problem. (Arnold Decl. Ex. 77.)
On May 13, 2009, Small accompanied Arnold for a half day " ride along," to observe Arnold working in the field. (Arnold Decl. ¶ 153.) In the course of the ride along, Small asked Arnold how much money she was seeking in her settlement discussions with FedEx, to which Arnold laughingly answered that she was seeking " $4 million, in my dreams." (Jatana Decl., Ex. B at 71.) Small also inquired about Arnold's injuries and Arnold told her she would need additional surgery in the future. (Jatana Decl., Ex. B at 72.) Arnold was upset by some of Small's questions that day about Arnold's injury and her lawsuit with FedEx. (Jatana Decl., Ex. B at 70.) Notably, during the same period of time, Small did not accompany Arnold's coworker Rahimi on a ride along. (McCool Decl., Ex. B at 9.)
On May 17, 2009, Small emailed Johnson about Arnold's vacation and sick leave trackers stating that she wanted to have
her " bases covered[.]" (Arnold Decl. Ex. 80.) The information contained in Arnold's vacation trackers is the subject of dispute. (Arnold Decl. Ex. 86, 87.)
On May 27, 2009, Arnold met with Small and Lucherini. Arnold describes the meeting in her declaration. First, Arnold, Small, and Lucherini discussed the manner in which Arnold used starter activity pads. Arnold was specifically questioned about alleged discrepancies on two SAFs and she was able to explain the legitimate cause of the discrepancy. Small repeatedly accused Arnold of trying to cover up a lack of work activity and attempted to get Arnold to confess to violations, but Arnold denied she had engaged in any misconduct. Small also questioned Arnold about absences beginning as early as 2006. Small was hostile and, toward the end of the meeting, Arnold became upset. Lucherini assured Arnold that the purpose of the meeting was to be clear about expectations and that he and Small would get back to her after they consulted with the legal department and Human Resources. (Arnold Decl. ¶ ¶ 157-173.)
At one point during this meeting, Arnold said " I'm so sorry. I know this looks bad. I would never mislead." (Jatana Decl., Ex. D at 22.) The parties dispute the meaning of this statement. According to Arnold, she was unprepared to explain her numerous absences and was unable to identify absences that were attributable to vacation or sick leave because she did not have access to her leave trackers. Flustered, she apologized for the appearance of numerous absences and her inability to explain them. (Jatana Decl., Ex. D at 22-23.) Arnold also admitted at the meeting that she was not an organized person. (Jatana Decl., Ex. D at 23.)
Around the same time as Arnold's meeting with Small and Lucherini, Pfizer initiated an investigation of Arnold's starter activity. James Batura (" Batura" ), Director of PDMA Compliance, conducted this investigation. (Jatana Decl., Ex. G at 5.) Batura characterized Pfizer's policy as follows:
Starter Administration Forms (" SAFs" ) are sequentially numbered forms used to record the transfer of starters by representatives to licensed prescribers. The forms are bound in pads containing 25 forms per pad. SAFs are ordered by control number. . . . Pfizer must make all starter forms available to the U.S. Federal Drug Administration (" FDA" ) and starter forms are considered by the FDA to be the controlling record of a starter transaction.
Pfizer's Starter Administration Policy requires sales representatives to input an electronic record of each starter transaction they have with a physician into a secure electronic database called Sherlock. At the end of each sales day, a sales representative is required to log onto Sherlock and " synch" his or her starter activity report with the Sherlock host computer by logging onto a secure network and uploading the electronic records of the day's starter activity.
(Batura Decl. ¶ ¶ 4-5.)
Batura reviewed Arnold's starter activity between January 2, 2008, and April 10, 2009. (Jatana Decl., Ex. G at 8.) In this investigation, Batura looked at whether Arnold's SAFs were used in sequential order, whether transactions from a single day were entered over two or more days, whether transactions were entered electronically but not backed up by hard copies, and the length of time between transaction and electronic entry. (Jatana Decl., Ex. G at 10-24.) On May 12, 2009, the results of Batura's SAF analysis were circulated via email from Jennings to Small and Lucherini. (Arnold Decl. Ex. 78.)
At deposition, Batura testified that his impression of Arnold's starter activity was that it represented " very serious" noncompliance. (Jatana Decl., Ex. G at 35.) Batura also testified that his conclusions regarding the percentage of non-consecutive SAFs were based on his own observations, and not a scientific basis. (McCool Decl., Ex. K at 12.) Batura gave significance to whether Arnold initialed the changes she made to SAFs because the act of initialing would indicate that the mistake was honest and the alteration a correction of said mistake. (Jatana Decl., Ex. G at 38-39.) Batura admitted that, in reporting Arnold's starter activity to the FDA, Pfizer did not state that Arnold had not called on physicians on the dates recorded on the starter forms, though Pfizer did state that there were reporting discrepancies. (Jatana Decl., Ex. G at 46-47.) Batura also admitted that there was not " anything definitive on that form that would confirm that she didn't see those providers on those days." (McCool Decl., Ex. K at 34.) Jennings testified that using SAFs out-of-order was not prohibited and also that waiting for a physician to appear in Pfizer's database would be appropriate before completing the SAF. (McCool Decl., Ex. G at 21-23, 25.)
Notably, after Arnold's termination, Batura sent an email to Jennings on June 18, 2009, in which he wrote: " Had the audit we conducted of the forms Kimberly Arnold submitted for the five doctors about whom Darcy Small had concerns produced anything actionable I would have been in touch sooner." (Arnold Decl. Ex. 90.) He went on to explain that, of the five doctors contacted, four confirmed their signatures and one failed to respond completely. Id . Furthermore, Batura agreed that Arnold had been trained to fill out starter forms in advance of seeing a doctor, which would at times require a change to the date where sampling did not go as planned, a permitted practice. (McCool Decl., Ex. K at 38-40.) He also admitted, at deposition, that a post-termination audit of Arnold's starter activity " did reconcile successfully." (McCool Decl., Ex. K at 16.) Batura further admitted that health care representatives have logged longer delays in entering an SAF but were not terminated. (McCool Decl., Ex. K at 17-18.) Batura did not make a recommendation as to whether Arnold should be terminated for the alleged discrepancies in her starter activity forms. (Jatana Decl., Ex. G at 48.) Jennings also admitted that Pfizer did not contact any of the physicians to determine whether they had, in fact, been sampled on the dates Arnold claimed she had sampled them. (Jennings Decl., Ex. G at 24.)
Following the May 27, 2009, meeting with Small and Lucherini, Arnold set up an appointment for June 1, 2009, with Dr. Sue A. Lewis (" Dr. Lewis" ), who determined that Arnold suffered from Attention Deficit Disorder (" ADD" ). (Jatana Decl., Ex. C at 15-17.) Dr. Lewis deemed the condition the cause of Arnold's inconsistent conduct with respect to documenting starter activity and prescribed medication to manage the condition. (Jatana Decl., Ex. C at 16.) On June 2, 2009, Arnold informed Lucherini, via email, that she had been diagnosed with an additional condition that may have affected her ability to complete starter activity with total accuracy. (Jatana Decl., Ex. C at 16, 37.) He told her to call Jennings and report the new diagnosis. Arnold did so, at which time Jennings told her to get a letter from her doctor and give it to Dr. Nody. Jennings also reassured Arnold about the stater activity dispute, stating that she would likely be warned verbally or in writing, and that only rarely did such disputes result in termination. (Jatana Decl., Ex. D at 26; Jatana Decl., Ex. E at 5.)
On June 8, 2009, Dr. Lewis faxed a letter to Dr. Nody at Pfizer Employee Health stating that she had recently diagnosed Arnold with ADD and started her on medication. Dr. Lewis wrote: " It is my medical opinion that Kimberly Arnold's condition has hindered her ability to perform some of her job responsibilities and consequently has hindered her ability to perform some of her overall job performance. I believe that with treatment, her performance should improve." (Jatana Decl., Ex. R at 2.)
Jennings testified that the decision to terminate Arnold was made prior to Arnold's disclosure to Lucherini of the ADD diagnosis. (Jatana Decl., Ex. E at 14.) She explained: " So we made a decision on Kimberly Arnold's employment based on the facts that arose from the investigation. And because we had not yet communicated the outcome to her, and she brought this issue forward to Lonnie Lucherini, certainly there needed to be due diligence accorded to see if in fact the medical information that her physician provided to our medical department would have reason to change the decision that all parties agreed to." (Jatana Decl., Ex. E at 15.) At that point, Pfizer determined that the new information did not alter its plan to terminate Arnold. (Jatana Decl., Ex. E at 16.) According to Jennings, Small and Lucherini made the final decision to terminate Arnold, which decision Jennings supported. (Jatana Decl., Ex. E at 19.) Jennings later testified that the decision-makers were Lucherini and Michelle Wickwire. (Jatana Decl., Ex. E at 32.)
On June 25, 2009, Batura wrote a letter to the FDA regarding Arnold's starter activity and compliance with the PDMA. He first described the irregularities he observed in Arnold's starter activity reporting. He wrote: " In a subsequent interview with her District and Regional Sales Managers, Ms. Arnold admitted to changing the dates on some of her forms and mis-recording those on others in order to conceal a lack of work activity on those days." (Batura Decl., Ex. A.) He stated in conclusion, however, that Arnold's last two annual inventories had been in compliance with the PDMA and, " [b]ased on the information gathered in the course of our investigation, we do not have any reason to suspect that any of the samples issued to her were used for other than their intended purposes." Id .
On July 9, 2009, Arnold and her attorney at the time, Steve Piucci, exchanged emails. Arnold reported to Piucci that she had spoken with her doctor: " He thinks that my termination is [the] result of my accident. I was not able to give work my all because of my pain problem and all the drugs I'm on." (Jatana Decl., Ex. N.) The parties dispute the meaning of this statement. Pfizer contends that it is an admission that Arnold was not qualified to perform her essential job duties. Arnold argues that she was merely repeating her doctor's opinion to her attorney. As discussed below, this evidence is ambiguous and a trier of fact must determine its meaning.
On September 18, 2009, Arnold authored a letter to the Bureau of Labor and Industries (" BOLI" ), wherein she alleged that Pfizer was opposing her unemployment claim in retaliation for her refusal to agree to not sue Pfizer. (Jatana Decl., Ex. C at
56.) BOLI conducted an investigation into Arnold's allegations and recommended that the complaint be dismissed because Arnold " failed to show any significant connection between her workers' compensation claim/disabilities and [Pfizer's] actions." (Jatana Decl., Ex. C at 59.)
On March 19, 2010, Arnold filed a complaint with BOLI. On her " Employment Discrimination Questionnaire," she indicated that she had been subjected to discrimination based on sex, gender, age, disability, and injured worker status. (Jatana Decl., Ex. C at 43.) She stated that the first and last date of discrimination was June 17, 2009, and that she had been terminated without warning for alleged violations of Pfizer's starter administration policies. Id . In an attachment to this form, Arnold explained the bases for her allegations: first, she stated that Pfizer fired her for a technical violation, without process, because she is more than forty years old and in a high salary bracket because of her experience; second, she stated that Pfizer knew of her recent ADD diagnosis and that she had been prescribed medication to help her correct her starter activity errors, and terminated her anyway; and, third, she stated that the injuries resulting from her motor vehicle accident with FedEx gave rise to physical limitations and expensive medical bills that Pfizer sought to avoid by terminating Arnold. (Jatana Decl., Ex. C at 45-47.) She was unable to identify any comparators, but noted that the EEOC was investigating Pfizer for civil rights violations and that she was one of many older employees who experienced similar treatment. (Jatana Decl., Ex. C at 49.)
With respect to her injured worker complaint, Arnold reported that she had returned to the same position she held before the accident involving the FedEx truck, and that Pfizer neither offered her a light duty position nor placed her on OFLA leave. She wrote: " I had no choice but to go back full time or lose my job." (Jatana Decl., Ex. C at 51.) With respect to her disability discrimination claim, she wrote that she could not perform essential functions of her job without accommodation, and that she had requested and received accommodation in the form of " a car with [an] automatic lift gate" to facilitate loading samples in her car for physician sampling. (Jatana Decl., Ex. C at 54.) She also wrote that her disability limited her in her work life, in the following ways: " With work, I had to rest or go home at times because of the pain. It would require taking pain medications where I was unable to drive." (Jatana Decl., Ex. B at 54.)
Arnold's coworkers testified about her condition. Coworker Nooshin Rahimi (" Rahimi" ) stated that she at times felt uneasy about riding with Arnold and would offer to drive to avoid being her passenger. She also stated that she had observed Arnold experiencing medication side effects which caused Arnold to sweat and tremble. (Janata Decl., Ex. I at 4, 8.) After Arnold's surgery, however, she had observed Arnold effectively operating a vehicle and, generally, considered Arnold an effective Pfizer representative. (McCool Decl., Ex. B at 7-8.) Another coworker, Seaneed Rudkin-Manning (" Rudkin-Manning" ), testified that she felt similar unease with respect to Arnold's physical condition, but that she never felt Arnold's physical condition would prevent her from performing her job at Pfizer. (McCool Decl., Ex. E at 14.)
Pfizer moves to strike the expert testimony of Michael D. Freeman (" Freeman" ) (#105), the Declaration of Olga Buchanan (" Buchanan" ) (#106), and portions of Arnold's declaration (#107). Arnold, in her
response memorandum, moves to strike portions of the Jatana and Jennings declarations. In its reply memorandum, Pfizer also objects to portions of the McCool declaration and an alleged failure by Arnold to comply with Local Rule 7-1(a). These motions and objections will be addressed in turn.
I. Motion to Strike Testimony of Freeman
Pfizer argues that Freeman's expert opinion is neither qualified nor relevant to the subject matter of this case. Arnold responds that Freeman is qualified to testify and his testimony is relevant to the question of whether Pfizer's termination of Arnold was lawful.
Federal Rule of Evidence (" FRE" ) 702 governs testimony by expert witnesses. It provides, generally, that an expert may testify where his or her expert knowledge will assist the trier of fact, and is supported by facts, reliable methodology, and application of said methodology. Fed. R. Ev. 702. Under Supreme Court precedent, trial courts have an obligation to exercise a gatekeeping function with respect to the reliability of admitted expert testimony. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Expert testimony must assist the trier of fact, but an expert's bare assertion of validity is insufficient to satisfy this threshold requirement. Tyson v. Oregon Anesthesiology Group, P.C., Civil No. 03-1192-HA, at *39 (D. Or. June 6, 2008). FRE 403 authorizes the court to exclude " relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed. R. Ev. 403.
Freeman's declaration states his expert qualifications. Generally put, he is a Professor of Epidemiology at Oregon Health & Sciences Univeristy and has advanced degrees including a Masters degree in biostatistics. He uses statistical analysis on a daily basis in his work as a professor and as a private forensics consultant, and has published " more than 50 peer reviewed scientific publications that utilize statistical analysis." (Freemand Decl. ¶ 2.) He also reports that he has " been qualified to testify as an expert witness regarding statistical analysis and forensic epidemiology," at trial, more than two-hundred times. (Freeman Decl. ¶ 3.)
According to Freeman, he was retained to give his expert opinion on the validity of the analysis and conclusions of Batura as offered by Pfizer in support of its motions for summary judgment. Batura's testimony concerns alleged patterns in Arnold's " starter activity," used to support a finding that Arnold was engaged in a prohibited practice known as " form-banking," which practice was cited as the reason for her termination. Freeman gives several reasons that he would discount Batura's testimony and conclusions. First, Batura characterized his conclusion that Arnold engaged in misconduct as " possible," a standard that Freeman concludes fell below that of a " reasonable probability and substantial evidence" that the misconduct took place. (Freeman Decl. ¶ 7.) Second, Freeman characterizes Batura's finding that Arnold's SAFs were out of sequence as indirect evidence of misconduct, rather than the kind of direct evidence that would justify termination. He writes: " Thus, even though SAF sequence has been cited by Mr. Batura and Pfizer as an indirect measure of form-banking, there is no evidence that this is a validated construct for
any type of employee misconduct or prohibited practice, including form-banking." (Freeman Decl. ¶ 8.) Third, Freeman states that Batura's methods did not involve statistical analysis. He goes on to describe a statistically reliable method for evaluating when nonsequential SAF forms were indicative of form-banking, noting that even this analysis is predicated on a threshold finding that " there was a statistically reliable basis for evaluating fraudulent employee activity by looking at SAF sequence." (Freeman Decl. ¶ 9.) In Freeman's view, neither of these analyses were performed by Batura.
Freeman goes on to identify Batura's specific conclusions and states his own opinion that Batura's conclusions do not necessarily follow from the data he relied on. He notes that Batura used conditional language like " should" or " might" to express his conclusions and also that his statements lacked a foundation in statistics to reliably indicate that form-banking or other concealment took place. Freeman concludes: " Ultimately, it is apparent that Pfizer's claim that Ms. Arnold was form-banking because she used SAFs out of order does not rise above the level of bald assertion, and is completely lacking in any supporting evidence that would allow for a conclusion regarding the probability of the former given the latter." (Freeman Decl. ¶ 13.)
A. Freeman's Qualifications
Pfizer argues, essentially, that Freeman has no expertise in the complex and highly regulated field of pharmaceutical sales and, therefore, cannot render an opinion on Pfizer's policies, the PDMA, and the record-keeping requirements promulgated therein. In fact, Pfizer argues, Freeman admitted that he lacks experience in this area and that he typically testifies in cases involving personal injury and medical negligence.
Arnold argues that her termination was premised, at least in part, on a statistical analysis of her " starter activity" and that Freeman's testimony is intended to rebut the reliability of this analysis. Arnold argues that Freeman's lack of knowledge of Pfizer's policies or the PDMA may go to the weight given Freeman's testimony, but not to its admissibility.
At deposition, Freeman did state that his role as an expert witness in this case differed from that in previous cases, in that he is typically asked to address more complex issues. Freeman testified that " [i]n this particular case, it was simply a matter of saying, Do you have a valid basis or reliable basis for drawing an inference with regard to a certain characterization of activity . . . with regard to Ms. Arnold." (McCool Decl., Ex 1 at 12:7-11.) He stated that he understood the scope of his inquiry to be limited to an evaluation of Batura's methods for evaluating Arnold's performance via her SAFs, " whether there was statistical methodology implied in his conclusions and to determine whether that methodology was a valid basis for his conclusions, valid or reliable." (McCool Decl., Ex. 1 at 45:23-46:5.)
The court agrees with Arnold that Freeman is qualified to testify as to the reliability of the methods used by Batura to evaluate the statistical significance of Arnold's SAFs. His qualifications in the field of statistics are unchallenged. The court is not persuaded that Freeman's admitted lack of expertise in the field of medical sales and the PDMA undermines his ability to evaluate Batura's methodology. For these reasons, the court admits the expert testimony of Freeman for the stated purpose.
Pfizer argues that, even if Freeman is found qualified to give his opinion in this case, his testimony should be excluded as irrelevant, confusing, and for failing to create a genuine issue of material fact. According to Pfizer, Freeman's testimony lacks relevance because it does not speak to whether Pfizer had a good faith belief that Arnold violated Pfizer's policies with respect to SAFs. Pfizer argues that this good faith belief is the touchstone for determining whether a termination had a lawful basis. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002) (" Rather, courts 'only require that an employer honestly believed its reason for its actions, even if its reason is foolish or trivial or even baseless.'" (quoting Johnson v. Nordstrom, Inc., 260 F.3d 727, 733 (7th Cir. 2001)). Pfizer also argues that, contrary to Freeman's claim that statistical analysis is required to evaluate violations involving SAFs, such requirement has no legal basis and, furthermore, this court ruled against such requirement previously. Finally, Pfizer claims that Freeman's testimony is confusing and should be excluded.
Arnold argues that the standard for relevance is liberal and that Freeman's testimony is relevant as a direct rebuttal to Batura's conclusions that purport to carry the imprimatur of scientific validity. Arnold contends that Pfizer's good faith belief, or lack thereof, is a question for the jury, and that Freeman's testimony clarifies the issue, rather than confuses it. In sum, Arnold argues, Freeman's testimony is merely a ...