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Perdue v. Sanofi-Aventis U.S. LLC

United States District Court, W.D. North Carolina, Asheville Division

October 2, 2019

JANET PERDUE, Plaintiff,



         THIS MATTER is before the Court on the Defendant's Motion for Summary Judgment [Doc. 16] and the Plaintiff's Motion for Partial Summary Judgment [Doc. 19].


         Janet Perdue (the “Plaintiff”) brings this action against her former employer, sanofi-aventis U.S. LLC (the “Defendant”), asserting claims for violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., and for wrongful discharge in violation of North Carolina public policy as codified in the North Carolina Equal Employment Practices Act, N.C. Gen. Stat § 143-422.2(a).

         The Defendant moves for summary judgment on the Plaintiff's claims. [Doc. 16]. The Plaintiff moves for partial summary judgment regarding her reasonable accommodation claim and the Defendant's Twelfth, Fourteenth, Fifteenth, and Sixteenth Affirmative Defenses. [Doc. 19].[1]


         Summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits 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.” Fed.R.Civ.P. 56(c). “As the Supreme Court has observed, ‘this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.'” Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 519 (4th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)).

         A genuine issue of fact exists if a reasonable jury considering the evidence could return a verdict for the nonmoving party. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994), cert. denied, 513 U.S. 814 (1994). “Regardless of whether he may ultimately be responsible for proof and persuasion, the party seeking summary judgment bears an initial burden of demonstrating the absence of a genuine issue of material fact.” Bouchat, 346 F.3d at 522. If this showing is made, the burden then shifts to the non-moving party who must convince the Court that a triable issue does exist. Id.

         In considering the facts on a motion for summary judgment, the Court will view the pleadings and material presented in the light most favorable to the nonmoving party. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). Where, as here, the parties have filed cross-motions for summary judgment, the Court must consider “each motion separately on its own merits ‘to determine whether either of the parties deserves judgment as a matter of law.'” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (quoting Philip Morris Inc. v. Harshbarger, 122 F.3d 58, 62 n.4 (1st Cir. 1997)).


         The Defendant operates a multinational pharmaceutical company in various locations, including Asheville, North Carolina. [Doc. 1 at ¶ 9]. The Plaintiff began working for the Defendant in November 2001. [Id. at ¶ 10, 28]. The Plaintiff worked as an Executive Sales Professional (“ESP”), which involves making drug sales calls with physicians across a set territory in addition to attending meetings and education programs. [Doc. 18-3 at 1]. ESPs typically spend 50% of more of their time traveling, depending on the geography of the territory they are assigned. [Id. at 2]. Generally, ESPs work more than forty hours per week. [Doc. 18-2 at 30-31].

         In February 2013, the Plaintiff was placed on medical leave due to inflammation of her lungs, joints, and muscles, and a severe decrease in her ability to breathe. [Doc. 1 at ¶ 12]. In April 2013, the Plaintiff was diagnosed with an autoimmune disorder called Antisynthetase Syndrome. [Id. at ¶ 13]. The Plaintiff remained on short and long-term disability due to her symptoms as well as a surgery to remove a tumor in her head that was causing her to lose sight in one eye. [Id. at ¶¶ 15-19]. In December 2013, the Plaintiff returned to work on a 50% flex-time schedule. [Id. at ¶ 20]. The Plaintiff returned to work full-time in late 2015 and continued to work in that capacity until January 2017. [Id. at ¶ 21-22].

         In January 2017, the Defendant restructured its entire sales organization. [Doc. 18-17 at 2]. As part of the restructuring, the Plaintiff was transferred from a territory where she resided in Greenville, South Carolina to a territory in Asheville, North Carolina. [Doc. 18-2 at 17]. The Asheville territory is much larger than the Greenville territory and required the Plaintiff to drive longer distances. [Id. at 49]. After the reassignment, the Plaintiff's commute from Greenville to Asheville took an hour and twenty minutes oneway. [Doc. 18-17 at 2]. Shortly after the restructuring, the Plaintiff's health began to deteriorate because of the increased travel. [Doc. 18-28 at 2].[3]

         Deborah Anderson (“Anderson”) served as the Area Business Leader (“ABL”) for the Greenville territory. [Doc. 28-2 at 74]. At the time of the restructuring in January 2017, Anderson told the Plaintiff that there was a position opening in Greenville for which she believed the Plaintiff was qualified. [Doc. 18-2 at 79, 147]. The Plaintiff, however, told Anderson that she was not interested in the position because she did not believe she was qualified for it. [Id. at 81].

         Merideth Hernandez (“Hernandez”) served as the ABL for the Asheville territory and was the Plaintiff's supervisor after the restructuring. [Doc. 18-2 at 69-70]. In February 2017, Hernandez wrote to her immediate supervisor, Regional Business Leader Tim Cole (“Cole”), requesting that he either transfer the Plaintiff back into the Greenville territory or allow the Plaintiff to participate in job share because of her health issues. [Doc. 18-17 at 2].

         Caitlin Hunt (“Hunt”) was transferred to an ESP position in the Greenville territory as part of the restructuring. [Doc. 18-11 at 88]. Hunt thereafter reported to Anderson. [Doc. 28-2 at 74]. The year before the restructuring, Hunt worked as an ESP under a different manager and won the Defendant's Gold Award for her comparatively high sales figures. [Doc. 28-1 at 2].

         The Defendant allows its employees to apply for “Flexible Work Arrangements” including “job share.” [Doc. 18-4 at 4]. In February 2017, the Plaintiff contacted Hunt about the possibility of applying to job share Hunt's position. [Doc. 18-11 at 88]. The Defendant's policies regarding “Flexible Work Arrangements” are explained in a document titled “Sanofi U.S. Flexible Work Arrangements” (the “FWA Document”). [Id.]. The FWA Document defines “job share” as a “work agreement between two employees who pair up with each handling 50% of the time of a standard position.” [Id.]. According to the FWA Document, job share “[i]s not an entitlement” and “[n]ot all positions may be suitable due to the type of work being performed, business needs, or performance concerns.” [Id. at 3, 12].

         The FWA Document has a “Job Share Checklist, ” which states that “[e]mployees may be eligible for a Job Share Work Arrangement by applying to their managers and HR Business Partners.” [Id. at 11]. The FWA Document also has “Flexible Work Guidelines, ” which state that “[a]ll Flexible Work Arrangements must be approved in advance of their commencement.” [Id. at 5]. They also say that employees must “maintain satisfactory performance prior to applying for a Flexible Work Arrangement” and that “[e]mployees who are not meeting performance expectations may have their request for a Flexible Work Arrangement denied.” [Id. at 7]. According to the FWA Document, managers “consider each request individually” and “approve or deny a request . . . based on business conditions and the employee's satisfactory demonstration that his or her job is suitable for the particular Flexible Work Arrangement and that business needs will continue to be met.” [Id. at 6].

         On March 9, 2017, the Plaintiff and Hunt applied to job share Hunt's ESP position in the Greenville territory. [Doc. 18-31 at 3]. Their job share proposal explicitly stated that the Plaintiff sought the job share “based on her current health issues.” [Id.]. Under the proposal, the Plaintiff would work Tuesdays, Thursdays, and every other Friday, while Hunt would work Mondays, Wednesdays, and every other Friday. [Id. at 3]. Before the Plaintiff submitted the proposal, she acknowledged that “[t]he job share possibility will be determined by whether the business unit can support it.” [Doc. 18-30 at 2]. Anderson needed to approve the Plaintiff and Hunt's job share proposal because she was the ABL in the region where the job share would occur. [Doc. 18-2 at 104].

         On March 24, 2017, a few weeks after the Plaintiff submitted the proposal, Hernandez texted the Plaintiff to tell her that a full-time position may soon be available in Greenville. [Doc. 18-41]. The Plaintiff never responded to Hernandez. [Id.].

         Cole, Hernandez, and Anderson discussed the job share proposal several times. [Doc. 18-12 at 88; 18-23, 18-36]. To account for the possibility of the proposal being approved, they sought and obtained a waiver from the Defendant's policy that only allowed job shares to begin at the beginning of each quarter because consideration of the proposal was extending beyond March 31. [Doc. 18-34 at 2]. Although they were discussing the job share proposal and preparing for its approval, they acknowledged that the final decision on the proposal would depend on “the outcomes of the [Plaintiff and Hunt's] meetings with [Anderson].” [Id.].

         On April 19, 2017, Anderson, Hunt, and the Plaintiff held an in-person meeting to discuss the job share proposal. [Doc. 18-2 at 105]. In addition to asking questions about the job share proposal, [Doc. 18-12 at 143-44], Anderson also asked Hunt “tough questions” regarding her performance, competence, and attention to detail. [Doc. 18-2 at 118-122; Doc. 28-2 at 166]. Specifically, Anderson mentioned Hunt's issues regarding the submission of her expense reports for the last few months. [Doc. 18-2 at 118-122; Doc. 18-44; Doc. 28-2 at 166]. Hunt responded that under her previous manager she had received a Gold Award in 2016 for her sales figures and received a positive year-end review in 2016. [Doc. 28-2 at 166]. Anderson told Hunt that she was judging her by what she had seen since the restructuring in 2017 and did not “care what [her previous manager] thinks about you.” [Id.].

         The Plaintiff testified that during the meeting, Anderson “asked about my health and then made some reference to that not being appropriate for her to ask.” [Doc. 18-2 at 123]. Hunt testified that Anderson simply asked the Plaintiff, “[w]hen are you going to be coming back from medical leave?” [Doc. 28-2 at 168]. After Anderson asked, the Plaintiff “very openly explained to [Anderson] about [her] autoimmune disorder.” [Doc. 18-2 at 119]. The Plaintiff conceded, however, that Anderson did not ask any extensive follow-up questions about the Plaintiff's health after hearing the Plaintiff's answer. [Id. at 123].

         On May 2, 2017, the Plaintiff spoke with Kaitlin Santana (“Santana”), who worked in the Defendant's Human Resources Department. [Doc. 18-18 at 2]. During that conversation, Santana offered to provide the Plaintiff with hotel stays to limit the distance she needed to travel and a more comfortable car to make her travel more comfortable if she continued to work in the Asheville territory. [Id.].[4] The Plaintiff responded that neither option would help her. [Id.]. Santana also told the Plaintiff that she should look on the Defendant's online portal to see if any jobs in the Greenville area were vacant. [Doc. 18-38 at 175]. By that time, however, there were no vacant positions in upstate South Carolina. [Doc. 25-6 at 231].[5]

         On May 3, 2017, Anderson denied the Plaintiff's job share proposal and communicated the denial to the Plaintiff and Hunt by telephone. [Doc. 18-37]. Anderson explained to them that “at this point in time with all the changes happening at Sanofi, this would not be a good business decision.” [Doc. 18-2 at 160-61]. Anderson said that she discussed her decision with Cole and the Defendant's Human Resources Department before notifying the Plaintiff and Hunt. [Id. at 85].

         Later, Anderson elaborated that she denied the proposal because (1) Hunt lacked attention to detail regarding expense reports; (2) Hunt lacked attention to detail regarding oversampling of certain products; (3) Hunt was one of the lowest ESPs in the district in achieving a metric known as Call Plan Adherence; (4) the proposal did not include a day when the Plaintiff and Hunt would work together, which was important for planning; (5) Anderson only recently had begun supervising Hunt and felt uneasy about approving job share for such a new employee; (6) the Greenville territory could not support a job share because it was underperforming at the time of the request; (7) Anderson felt that Hunt and the Plaintiff did not meet the qualifications for a job share; and (8) the recent restructuring had created a tense environment within the company. [Id. at 85-88, 236, 300; Doc. 18-49 at 2]. It was noted that the first of three of these stated reasons fell squarely within the basis for a denial of job share because of Hunt's performance. [Doc. 18-4 at 7].

         Anderson said that she did not take the Plaintiff's disability into account when she denied the job share proposal. [Doc. 18-12 at 295]. Anderson said that she “didn't have a problem with [the Plaintiff]” and “[i]t wasn't [the Plaintiff's] ability that I really had a question about ever.” [Id. at 295, 300].

         Later that year, Hunt received a mid-year performance review, which included a manager evaluation for Anderson to complete and an employee self-evaluation for Hunt to complete. [Doc. 18-45].[6] In her self-evaluation Hunt wrote that her “[s]trategic planning could be improved for the second half of the year” and that her “[p]lanning and strategizing will be more successful due to more familiarity to new territory.” [Doc. 18-45 at 3]. She also wrote that due to changes in the Defendant's sales organization related to the restructuring, “things that are important have perhaps fallen behind.” [Id. at 6]. Hunt also said that her “adaptability may have been challenged at the beginning of 2017” after she started working for Anderson. [Id. at 7; see also Doc. 28-2 at 273-74].[7] Anderson's section of the review noted that “[e]arly in the year, [Hunt] had some missteps with appropriate sampling, but quickly corrected her mistakes.” [Doc. 18-45 at 8].

         Hunt suffered a seizure in May 2017, which she attributed to stress caused by her relationship with Anderson. [Doc. 28-2 at 198-99]. Hunt was placed on medical leave until July 16, 2017. [Id. at 220]. Hunt returned to work on July 17, 2017, although her doctors had been unable to ascertain a physical reason for the seizure. [Doc. 28-2 at 222-23]. Roughly a month after Hunt returned from leave, she heard rumors that the Defendant was going to restructure again at the end of 2017. [Doc. 28-2 at 224]. On September 25, 2017, Hunt suffered from seizure-like symptoms again. [Doc. 25-9 at 5]. On November 3, 2017, Hunt resigned, saying she said that she “couldn't take working for Debbie Anderson anymore.” [Doc. 28-2 at 250].

         After the job share with Hunt was denied, the Plaintiff looked for other jobs on the Defendant's online portal that she could perform with her restrictions but did not find one. [Doc. 18-2 at 182]. At that point, it was already rumored that the Defendant would be undergoing another restructuring at the end of 2017. [Doc. 18-20 at 2]. The Plaintiff hoped that she would be reassigned to the Greenville territory as part of the potential restructuring. [Id.].

         On August 31, 2017, the Plaintiff informed the Defendant that she was unable to return to her full-time position, with or without accommodations, and did not know when she would be able to do so. [Doc. 18-1 at 2]. The Plaintiff also requested a part-time position but was told that the Defendant could not sustain a part-time position at that time. [Doc. 18-26].

         On September 19, 2017, the Defendant terminated the Plaintiff's employment. [Id.].[8] The Defendant explained to the Plaintiff that her short-term disability ended and said it was unable to grant her an “indefinite leave of absence.” [Doc. 18-2 at 198; 18-1].


         The Plaintiff claims that the Defendant violated the ADA in the following ways: (1) by failing to accommodate her disability; (2) by failing to engage in the interactive process; (3) by terminating her employment; and (4) by retaliating against her for requesting a reasonable accommodation. [Doc. 1 at ¶¶ 55-56]. The Plaintiff also claims that the Defendant wrongfully discharged her in violation of North Carolina public policy. [Id. at ¶¶ 59-68]. The Defendant moves for summary judgment on each of the Plaintiff's claims. [Doc. 16].

         A. Failure to Accommodate

         The Plaintiff's primary claim is that the Defendant discriminated against her by failing to accommodate her disability. The Defendant moves for summary judgment on the basis that the Plaintiff's forecast of evidence fails to create an issue of fact as to whether any reasonable accommodation was available.

         The ADA protects a “qualified individual, ” which is defined as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). To prevail on a failure-to-accommodate claim brought under the ADA, the Plaintiff is required to show that (1) she was a qualified individual; (2) the Defendant had notice of her disability; (3) she could perform the essential functions of the position she held or desired with a reasonable accommodation; and (4) the Defendant refused to make such accommodations. See Wilson v. Dollar Gen. Corp., 717 F.3d 337, 345 (4th Cir. 2013).

         The Plaintiff does not claim that she could be accommodated as an ESP in the Asheville territory. Her physician said as much. [Doc. 18-50 at 2-3]. In fact, the Plaintiff declined the accommodations that were offered in that position. [Doc. 18-18 at 2]. Instead, the Plaintiff specifically requested the job share with Hunt in the Greenville territory as an accommodation.

         The employer is “not obligated to provide the accommodation requested or preferred by the employee.” Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1019 (8th Cir. 2000). Under the ADA, however, the employer may need to reassign the employee to a vacant position as an accommodation if the employer is unable to identify a reasonable accommodation that will allow a qualified employee to continue performing the essential functions of his or her current job. 42 U.S.C. ยง 12111(9)(B). Thus, the question before the Court is whether ...

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