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Armitage v. Biogen Inc.

United States District Court, M.D. North Carolina

April 24, 2019

BIOGEN INC., Defendant.


          Loretta C. Biggs, United States District Judge.

         Plaintiff initiated this action in Durham County Superior Court on November 9, 2017, against his former employer, Defendant Biogen Inc. (“Biogen”), alleging age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623, and wrongful termination in violation of North Carolina public policy. (ECF No. 1-1.) Defendant removed the case to this court on December 21, 2017. (ECF No. 1.) Before the Court are Defendant's Motion for Summary Judgment, (ECF No. 32), and Defendant's and Plaintiff's Motions to Seal Documents, (ECF Nos. 36, 44). For the reasons set forth below, the parties' motions to seal will be granted, and Defendant's motion for summary judgment will be granted.

         I. BACKGROUND

         Biogen is a “biotechnology company that produces and sells pharmaceutical products and therapies.” (ECF No. 1-1 ¶ 6.) Plaintiff was hired by Defendant in 2003, when Plaintiff was 38 years old. (ECF No. 33-2; see ECF No. 34-6 ¶ 9(b).) Plaintiff worked in Defendant's RTP office, located in Durham, North Carolina, and served in many different positions, eventually being promoted in 2015 to Associate Director of Large Scale Manufacturing (“LSM”) and leader of the Cell Culture division. (ECF No. 1-1 ¶ 1; ECF No. 34-1 at 15-22; ECF No. 34-6 ¶ 9(b).) In 2016, Plaintiff's direct supervisor was Andy Stober, Senior Director of Manufacturing and leader of LSM. (ECF No. 34-6 ¶ 9(a); ECF No. 34-7 ¶¶ 11-12.)

         Starting in June 2016, Christie Mabry, Defendant's Human Resources (“HR”) Site Leader for the RTP office, began receiving “complaints relating to employee culture within LSM and how people were being treated by and within LSM.” (ECF No. 34-6 ¶¶ 6-7.) Ms. Mabry compiled those complaints into a report, which she shared with Bob Kenyon, Vice President of North American Manufacturing Operations and Site Manager for Defendant's RTP facility. (Id. ¶¶ 8, 10.) Mr. Kenyon, who had also independently become aware of “culture issues in LSM, ” advised his supervisor about the above issues. (ECF No. 34-7 ¶¶ 14- 16.) In October 2016, Mr. Kenyon's supervisor asked Elizabeth Brown, a Biogen HR professional who worked in a different part of the company and was therefore unfamiliar with the LSM department, to conduct an independent assessment of the culture within LSM. (ECF No. 34-5 at 3, 5-6.) Ms. Brown's report found that Plaintiff, his supervisor Mr. Stober, and another LSM manager created an environment where “employees are afraid to speak up or raise concerns for fear of reprisal” due to their “focus on product delivery to the exclusion of all else.” (ECF No. 33-5.) The report further summarized its findings regarding Plaintiff's behavior by stating that he “is known to overreact, interrupt and in general be disrespectful and rude to others.” (Id.)

         In response to the report, Mr. Kenyon “decided to move [Plaintiff] out of his position leading Cell Culture in LSM and to transfer him to an individual contributor role at the [Drug Product Site (“DPS”)] under the supervision of Miles Devaney.” (ECF No. 34-7 ¶ 27.) At the time Plaintiff was transferred from LSM to DPS, Plaintiff was 52 years old. (See ECF No. 34-6 ¶ 9(b); ECF No. 34-7 ¶ 28.) Mr. Kenyon chose James Phillips, who was 47 years old at the time, to replace Plaintiff as Associate Director, Cell Culture. (ECF No. 34-7 ¶ 32; ECF No. 34-8 ¶ 9).

         Although Plaintiff's salary and title remained the same in his new position, (ECF No. 34-7 ¶ 30), his responsibilities changed significantly, (see ECF No. 33-10; ECF No. 34-2 at 5- 7). Plaintiff claims that Mr. Kenyon and Mr. Devaney, Plaintiff's new supervisor at DPS, both told Plaintiff to “look[ ] for a new job.” (ECF No. 42-29 at 14, 21; ECF No. 42-31 at 28-29.) Plaintiff began his new position at DPS on January 17, 2017, (ECF No. 34-2 at 7), and on January 26, 2017, Plaintiff interviewed for a position at Patheon, a pharmaceutical company based in St. Louis, Missouri, (ECF No. 34-1 at 44-45; ECF No. 33-12). Plaintiff received an offer from Patheon on February 17, 2017, with a start date of March 27, 2017. (ECF No. 33-13 at 1.) Plaintiff left Biogen in the middle of the workday on March 17, informing Mr. Devaney that he needed to see his attorney and doctor. (See ECF No. 33-14; ECF No. 34-2 at 14-15.) Plaintiff never returned to Biogen and was formally terminated for “job abandonment” on March 29, 2017. (ECF No. 34-6 ¶¶ 21-26; ECF No. 33-18.)


         Both parties have filed motions to seal certain documents, [1] (ECF Nos. 36, 44), pursuant to a Stipulated Consent Protective Order (the “Protective Order”) entered on June 15, 2018, (ECF No. 18). The Protective Order allowed the parties to designate as “Confidential” certain types of documents, including “personal information of Defendant's employees . . . including, but not limited to: social security numbers, tax information [and] personnel records, ” and “confidential proprietary business and proprietary information including, but not limited to, confidential information regarding Defendant's business operations, business strategy, employee benefits and compensation programs, products and customers.” (ECF No. 18 at 2.) In accordance with the categories stipulated in the Protective Order, both parties filed certain documents under seal that fit into either of those categories. (See ECF Nos. 35-1 to 35-4, 45-1 to 45-23.) Those sealed documents include the reports prepared by Ms. Mabry and Ms. Brown detailing the cultural issues in LSM, their notes taken in preparation of those reports, and other personally identifying information, such as birth dates, of Defendant's employees. (See id.)

         “It is well settled that the public and press have a qualified right of access to judicial documents and records filed in civil and criminal proceedings.” Doe v. Pub. Citizen, 749 F.3d 246, 265 (4th Cir. 2014). “The right of public access springs from the First Amendment and the common-law tradition that court proceedings are presumptively open to public scrutiny.” Id. “The common law, ” however, “does not afford as much substantive protection to the interests of the press and the public as does the First Amendment.” Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988). “The common-law presumptive right of access extends to all judicial documents and records, and the presumption can be rebutted only by showing that ‘countervailing interests heavily outweigh the public interests in access.'” Doe, 749 F.3d at 265-66 (quoting Rushford, 846 F.2d at 253). The First Amendment presumptive right of access, in contrast, extends “only to particular judicial records and documents.” Id. at 266 (quoting Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988)). Further, the First Amendment presumptive right of access may only be restricted upon a showing that such a restriction is “necessitated by a compelling government interest and . . . narrowly tailored to serve that interest.” Id. (internal quotation marks omitted).

         “When presented with a request to seal judicial records or documents, a district court must comply with certain substantive and procedural requirements.” Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 576 (4th Cir. 2004). Substantively, a district court must “first ‘determine the source of the right of access with respect to each document.'” Doe, 749 F.3d at 266 (quoting Va. Dep't of State Police, 386 F.3d at 576). The Fourth Circuit has “squarely held that the First Amendment right of access attaches to materials filed in connection with a summary judgment motion.” Id. at 267. Therefore, the First Amendment right of access applies in this case, as the documents that the parties wish to seal were filed in support of or in opposition to Defendant's summary judgment motion.

         Procedurally, a district court presented with a sealing request must “(1) provide public notice of the sealing request and a reasonable opportunity for the public to voice objections to the motion; (2) consider less drastic alternatives to closure; and (3) if it determines that full access is not necessary, it must state its reasons-with specific findings-supporting closure and its rejections of less drastic alternatives.” Id. at 272. Local Rule 5.4 outlines similar requirements.[2] LR 5.4. The burden rests on the party seeking to keep information sealed. Va. Dep't of State Police, 386 F.3d at 575.

         First, the Court notes that the motions to seal have been publicly docketed since their dates of filing on November 19, 2018, and February 8, 2019. (ECF Nos. 36, 44.) “Any interested party therefore has had sufficient time to seek intervention to contest any sealing order, but the docket reflects no such action.” Cochran v. Volvo Grp. N. Am., LLC, 931 F.Supp.2d 725, 728 (M.D. N.C. 2013). Accordingly, the Court concludes that the “public notice” requirement has been satisfied. See Id. (concluding that a motion to seal docketed less than one month before the entry of the order to seal provided sufficient public notice).

         Next, Defendant has demonstrated a sufficiently compelling interest in preserving the confidentiality of its employees' sensitive personal information and personnel information regarding confidential internal investigations into “personnel issues and culture concerns.” (ECF No. 37 at 7-8); see Robinson v. Bowser, No. 1:12CV301, 2013 WL 3791770, at *4 (M.D. N.C. July 19, 2013) (explaining that the interest in keeping “sensitive personal material regarding third parties[ ] private outweighs the First Amendment right of access”). Defendant argues that the details in Ms. Mabry's and Ms. Brown's reports “could harm or embarrass the current and former employees who shared this information with Biogen in confidence and in good faith, including possible future retaliation in the job market to the extent they provided criticism about management level employees.” (ECF No. 37 at 7.) Further, because simply redacting portions of those reports would be insufficient to protect the identities of those individuals, the Court finds it appropriate for the entirety of those documents to be filed under seal. (See Id. at 8; ECF Nos. 35-1, 35-2.)

         Because the Defendant's interests in preserving the confidentiality of the documents in question overcome the First Amendment presumption of public access to court documents, both parties' motions to seal will be granted.

         III. MOTION FOR ...

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