After a fired employee wins a $289,669 jury verdict in an Family and Medical Leave Act (FMLA) retaliation case, the district court takes it away on a motion for judgment as a matter of law, on the ground that the plaintiff did not present sufficient evidence that the claimed retaliation (reshuffling her accounts) actually caused her termination three years later. The D.C. Circuit affirms. The case presents a cautionary tale for a plaintiff who claims that a loss/reassignment of accounts caused further, more serious harm down the road.
Breeden v. Novartis Pharmaceuticals Corp., No. 10-7073 (D.C. Cir. July 8, 2011): The plaintiff - a Transplant Account Manager (TAM) - testified that in June 2004, she had an unsettling conversation with the head of her unit (named O'Callaghan), where "he asked her if she had children, inquired about her fertility treatments and asked if she planned to return to Novartis after having children."
After this conversation, the unit met with a consultant to discuss realignment of accounts. One of the issues discussed was Breeden's prospective maternity leave (in November 2004, Breeden informed Novartis she was pregnant and would need FMLA the next year).
During the realignment, Breeden complained that she lost some key accounts. According to Breeden, O'Callaghan responded to her objections by "jokingly" saying "well, you're not coming back from maternity leave anyway, right?" In addition, "Breeden further claimed that both O'Callaghan and her immediate supervisor, Tom Harper (Harper), acknowledged she had suffered from the realignment and promised to make her 'whole' and to 'compensate' her by giving her some of her old accounts back," a promise that the two men denied making.
Breeden returned to work in 2005, and her performance actually improved. O'Callaghan left Novartis in mid-2006 and Novartis hired Jesus Leal (Leal) to replace him as head of the plaintiff's unit (TBU). The unit's territory was reorganized to reach Midwest markets. Leal hired a new salesperson with experience in that part of the country, and in 2008 terminated Breeden while keeping another TAM who was reportedly single.
The district court granted summary judgment on the FMLA interference claim, but allowed her retaliation claim to go to trial. After she prevailed at trial, the judge then granted judgment as a matter of law to the defendant. "The court found that Breeden's harm - her 2008 termination - was too far removed from the alleged retaliation - the 2005 realignment - with too many intervening causes for the alleged retaliation to be the proximate cause of her termination."
The D.C. Circuit affirms. On the interference claim, 29 U.S.C. § 2615(a)(1), where she complained about her reassignment in 2005, the panel finds that the employer complied with its statutory duty to restore her to comparable work upon her return from leave, and did not interfere with her FLMA rights. Citing the DOL regulation, 29 C.F.R. § 825.215(a), the panel holds that the plaintiff was in fact restored to an equivalent job, despite what the plaintiff claimed was an unfavorable reassignment of accounts. The panel agrees that the record did not support the plaintiff's claims that the accounts were less productive or that the plaintiff suffered worse working conditions as a result.
On the retaliation claim (for the termination), the panel affirms judgment as a matter of law. Both parties apparently agreed that an FMLA retaliation claimant must show that the employer's actions proximately caused the employee's losses, and the jury was so instructed. (The panel notes that it accepts this concession, but does not opine on its correctness.) The panel then observes that the record revealed two intervening developments that supposedly broke the chain of causation between the account assignments and the termination: the change in leadership in the unit (Leal replaced O'Callaghan) and the reorganization of the territory that placed a premium in Midwest experience that the plaintiff did not have.
Breeden argued that the 2005 reassignment of accounts caused her performance to lag behind her peers, and that this in turn caused her termination in 2008. The panel holds that the inference that Breeden would have performed better with her old accounts is speculative.
"Simply put, Breeden adduced no evidence to establish that, had her accounts not been realigned, she would have established and maintained successful relationships with the accounts she serviced before 2005. Accordingly, there is no basis upon which a reasonable jury could conclude that Breeden's career prospects or job security diminished after the 2005 realignment."
It is uncertain from the opinion whether the jury heard from Breeden's pre-2005 customers, as to which some intelligence might have been gathered about the importance of personal contact and prior experience. But it is clear that building a termination claim based on discriminatory/retaliatory assignment of accounts requires a lot of blocks, and that it is all too easy for a court to knock the house down post-trial.