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Erickson v. Biogen, Inc

United States District Court, W.D. Washington, Seattle

October 16, 2019

DANITA ERICKSON, Plaintiff,
v.
BIOGEN, INC., Defendant.

          ORDER

          JOHN C. COUGHENOUR UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Plaintiff Danita Erickson's motion for partial summary judgment (Dkt. No. 48) and Defendant Biogen, Inc.'s motion for summary judgment (Dkt. No. 50). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS in part and DENIES in part Plaintiff's motion and DENIES Defendant's motion for the reasons explained herein.

         I. BACKGROUND

         Defendant is a pharmaceutical company that produces and markets products to treat serious diseases, primarily multiple sclerosis. (See Dkt. No. 1 at 2.) In 2011, Defendant hired Plaintiff to work in its sales division as a territory business manager (“TBM”). (Dkt. No. 51 at 90-91.) She was responsible for a territory within Defendant's Northwest region, which includes Washington, Oregon, Idaho, and Alaska. (Id.) The Northwest region had a total of 10 TBMs in late 2017 and early 2018. (Dkt. No. 53 at 1.) By January 2017, Mary Brown was the regional director for the Northwest region. (Dkt. No. 51 at 8.) Plaintiff reported to Brown from 2017 to 2018. (Id. at 90.)

         Plaintiff had experienced migraine headaches for about 10 years prior to the events in question. (Dkt. No. 49 at 8.) While employed for Defendant, Plaintiff experienced very few migraines while traveling for work. (Id. at 11.) On September 5, 2017, during a sales trip in Alaska, she experienced a debilitating migraine. (Id. at 6-7.) Brown was with Plaintiff and helped her through the migraine. (Id. at 53-54.) At a work event about a week later, James Lykins, Plaintiff's sales partner and fellow TBM, mentioned to Brown that Plaintiff had a migraine on a different sales trip. (Id. at 13-14, 84-85.) Brown pulled Lykins aside and told him that she appreciated his concern, but they should not be discussing Plaintiff's medical condition. (Dkt. No. 51 at 178.) Plaintiff maintains that following these incidents, Brown spoke to her on multiple occasions about her migraine condition and became concerned about her ability to travel for work. (Dkt. Nos. 49 at 10-11, 62 at 5.) Plaintiff also states that Brown recommended she seek a different job. (Dkt. No. 49 at 10-11.) Brown asserts that she never made such a statement and instead expressed support and offered possible accommodations. (See Dkt. No. 51 at 12, 59-62.)

         While employed by Defendant, Plaintiff had been trained annually on her duty to report suspected violations of the False Claims Act (“FCA”), 31 U.S.C. § 3729, by the off-label use, promotion, or sale of prescription drugs. (Dkt. No. 49 at 24.) In 2017, Defendant marketed and sold the drug Zinbryta. (Dkt. No. 1 at 2.) Zinbryta had been approved by the Food and Drug Administration in a limited capacity-to treat multiple sclerosis patients who had an inadequate response to other treatments. (Id. at 4.) It is a FCA violation to promote off-label use of prescription drugs to Medicare patients. See 31 U.S.C. § 3729(a)(1); (Dkt. No. 49 at 25-26.)

         Before a doctor can enroll a patient in certain drug therapy regimens, the doctor must complete and submit a “START Form” to the pharmaceutical manufacturer. (See Dkt. No. 53 at 2.) Defendant's Zinbryta START form requires the doctor to specify the patient's diagnosis, certify that the diagnosis is the rationale for prescribing the drug, and further certify that the doctor will supervise the patient's treatment accordingly. (Dkt. No. 64 at 209-10.) Defendant's Zinbryta START form is pre-filled with the International Classification of Disease (“ICD”) codes for multiple sclerosis, and by signing the START form, the doctor “certifies that the rationale for prescribing ZINBRYTA therapy is for a primary diagnosis of ICD-9:340/ICD-10:G35.” (Id. at 209-10.)

         In the fall of 2017, shortly after Plaintiff's sales trip to Alaska, Lykins told Plaintiff that a doctor had contacted him about providing Zinbryta to an aplastic anemia patient for off-label use. (Dkt. No. 49 at 91.) Plaintiff told Lykins that she believed it would be improper for him to deliver the forms because they involved an off-label use of Zinbryta. (Id.) In November 2017, Plaintiff expressed her opposition to Lykins's involvement with providing Zinbryta to the aplastic anemia patient to Brown at a meeting with Western division manager Zachary Allison. (Dkt. No. 51 at 102.) On November 17, 2017, Plaintiff was copied on an email that stated that the patient's insurance company had approved the patient for Zinbryta, and that Lykins planned to deliver the START form so the patient could get enrolled. (Dkt. No. 55 at 2, 6-8.) On December 6, 2017, Plaintiff submitted a complaint to Defendant's ethics hotline to report Brown and Lykins's involvement with the off-label Zinbryta sale. (Id. at 102.) In her report, she also stated she was in fear of retaliation by Brown for her opposition. (Dkt. No. 75 at 16.) Shortly thereafter, Dan Curto, Defendant's in-house counsel, followed up with Plaintiff about her ethics complaint. (Id. at 16.) Curto also followed up with Brown about Plaintiff's complaint. (Dkt. No. 64 at 72-73.)

         In mid-January, Plaintiff contacted Defendant's human resources partner Keri Palacio to follow up further about the ethics complaint. (Dkt. No. 75 at 17.) On January 25, 2018, Plaintiff spoke to Palacio about the ethics complaint. (Id.) Additionally, Plaintiff raised a new concern: that Brown treated men more favorably than women. (Dkt. No. 62 at 2-3.) Plaintiff asserted she had observed Brown favoring male TBMs over females, tending to call on them more, assigning them to committees, supporting their promotions, and assigning them more advanced tasks. (Id.) Plaintiff also maintains that she reported to Palacio that Brown had been treating her unfavorably since Brown witnessed Plaintiff's migraine. (Dkt. No. 51 at 76-77, 298.) Palacio denies that Plaintiff reported that she had a migraine condition or that she was being treated differently because of it. (Id. at 191, 194, 202-203.)

         Defendant evaluated TBM performance every six months in the form of “OPR” ratings. (Dkt. No. 64 at 74.) Plaintiff had consistently received competent 2/2 OPR ratings. (Id. at 65, 135.) In early 2018, Defendant decided to restructure its national workforce and determined that some TBM positions would be eliminated due to a reduction in force. (Dkt. No. 20 at 2.) One of the four TBM positions in Plaintiff's territory was to be eliminated. (Dkt. No. 19 at 2.) On January 31, 2018, Brown and Allison listed Plaintiff as a “bottom performer” identified for “realignment, ” i.e., termination. (Dkt. Nos. 64 at 44, 66 at 42-45.) In early February 2018, Brown completed her review of Plaintiff's performance for the second half of the previous year, once again assigning Plaintiff a 2/2 OPR rating. (Id. at 65.)

         In mid-February 2018, Defendant provided its managers three criteria to use in selecting TBMs for termination: OPR ratings, sales competencies, and tenure. (Id. at 27, 29, 79-80; see Dkt. No. 20 at 2.) Brown was responsible for rating the TBMs in her region and deciding whom to terminate, with input from Palacio and Allison. (Dkt. No. 19 at 2.) On the first criterion, all four TBMs had the same OPR rating of 2/2. (Id.) On the second criterion, Brown evaluated Plaintiff, Lykins, and the other TBMs on three sales competencies specified by Defendant: sales disposition, customer-focusing selling, and territory and account planning. (Id.) Brown rated Plaintiff as “developing” for customer-focused selling. (Id.) This gave her the lowest score of the four TBMs. (Id.) Brown did not consider the third criterion, tenure, as Plaintiff had the lowest score amongst the four TBMs for the second criterion. (Dkt. No. 64 at 77-78.) Brown completed the evaluation in March 2018. (Dkt. No. 19 at 2.) On March 20, 2018, Plaintiff was notified she had been identified for termination. (Dkt. Nos. 1 at 13, 51 at 80.) She was terminated in April 2018. (Id.)

         Plaintiff brings gender and disability discrimination and retaliation claims under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C § 12101-02, Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000(e), and Washington's Law Against Discrimination (“WLAD”), Wash. Rev. Code. § 49.60. (Dkt. No. 1 at 14-18.)[1] Plaintiff also brings a retaliation claim under the FCA, 31 U.S.C. § 3730(h), and a tort claim of wrongful termination in violation of public policy under Washington law, citing Washington's Consumer Protection Act (“CPA”), Wash. Rev. Code § 19.86.020. (Id.)

         Plaintiff now moves for summary judgment on two of Defendant's affirmative defenses, [2]for a determination that she is disabled as a matter of law under the ADA and WLAD, and for a determination that she engaged in protected activity as a matter of law under the ADA, Title VII, WLAD, and the FCA. (See Dkt. No. 48.) Defendant moves for summary judgment on all of Plaintiff's claims. (See Dkt. No. 50.)

         II. DISCUSSION

         A. Summary Judgment Standard

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In making such a determination, the Court must view the facts and justifiable inferences to be drawn therefrom in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Once a motion for summary judgment is properly made and supported, the opposing party “must come forward with ‘specific facts showing that there is a genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)). Material facts are those that may affect the outcome of the case, and a dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248-49. Conclusory, non-specific statements in affidavits are not sufficient, and “missing facts” will not be “presumed.” Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888-89 (1990). Ultimately, summary judgment is appropriate against a party who “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catlett, 477 U.S. 317, 324 (1986).

         B. McDonnell Douglas Framework

         Plaintiff's federal and state law discrimination and retaliation claims are governed by the familiar McDonnell Douglas burden-shifting framework. See Surrell v. California Water Serv. Co., 518 F.3d 1097, 1105-06 (9th Cir. 2008) (Title VII); Curley v. City of N. Las Vegas, 772 F.3d 629, 632 (9th Cir. 2014) (ADA); Hines v. Todd Pac. Shipyards, 112 P.3d 522, 529 (2005) (WLAD). The WLAD largely mirrors federal law, and “courts should look to interpretations of federal anti-discrimination laws, including the ADA, when applying the WLAD.” See Grill v. Costco Wholesale Corp., No. C03-2450-TSZ, Dkt. No. 32 at 8 (W.D. Wash. 2004). Under the burden-shifting framework, Plaintiff must first establish a prima facie case of discrimination or retaliation. Curley, 772 F.3d at 632. If she succeeds, then the burden shifts to Defendant to offer a legitimate explanation for Plaintiff's termination. Id. If Defendant does, the burden shifts back to the Plaintiff to show that Defendant's explanation is pretext for discrimination or retaliation. Id.

         C. Disability Discrimination

         To establish a prima facie case of disability discrimination under the ADA or WLAD, Plaintiff must show that: “(1) [she] is disabled within the meaning of the ADA; (2) [she] is qualified (i.e., able to perform the essential functions of the job with or without reasonable accommodation); and (3) the employer terminated [her] because of [her] disability.” Nunies v. HIE Holdings, Inc., 908 F.3d 428, 433 (9th Cir. 2018) (ADA); see Hines, 112 P.3d at 529 (WLAD).

         1. Plaintiff's Migraine Condition

         The ADA defines “disability” as “(1) ‘a physical or mental impairment that substantially limits one or more of the major life activities of such individual;' (2) ‘a record of such an impairment;' or (3) ‘being regarded as having such an impairment.'” Kaplan v. City of N. Las Vegas, 323 F.3d 1226, 1231 (9th Cir. 2003) (quoting 42 U.S.C. § 12102(2)). The ADA defines “major life activities” to include “working” as well as the “operation of a major bodily function, ” including neurological functions. 42 U.S.C. § 12102. “The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures.” 29 C.F.R. § 1630.2. The WLAD similarly defines “disability” as: “the presence of a sensory, mental, or physical impairment that: (i) is medically cognizable or diagnosable; or (ii) exists as a record or history; or (iii) is perceived to exist whether or not it exists in fact.” Wash. Rev. Code § 49.60.040(7)(a).

         Plaintiff argues she is entitled to a determination that her migraine condition constitutes an actual or perceived disability under the ADA and WLAD as a matter of law.[3] (Dkt. No. 48 at 8-10.) A sufficiently severe migraine condition may constitute an actual impairment. See, e.g., Kimbro v. Atl. Richfield Co., 889 F.2d 869, 873 (9th Cir. 1989) (finding acute cluster migraines causing absenteeism constituted disability under the WLAD); Stewart v. Snohomish Cty. PUD No. 1, No. C16-0020-JCC, Dkt. No. 72 at 14-15 (W.D. Wash. 2017) (finding side effects of migraine medication constituted disability under the WLAD); but see Swart v. Premier Parks Corp., 88 Fed.Appx. 366, 371 (10th Cir. 2004) (finding no disability where plaintiff experienced three or four migraines per week, but they did not prevent her from work or other life activities).

         Plaintiff has offered a declaration from her doctor stating that Plaintiff often suffers from severe migraines multiple times per month and has experienced them since before 2013. (Dkt. No. 63 at 2.) Plaintiff takes medication for them as needed. (Id. at 2.) Defendant observes that Plaintiff did not miss any work due to a migraine between September 5, 2017 and April 3, 2018, and her condition has not prevented her from competing in a marathon. (Dkt. No. 67 at 5.) Because of the conflicting evidence about the severity of Plaintiff's migraine condition, questions of fact remain as to whether Plaintiff's migraines substantially limit at least one life activity. Thus, Plaintiff has not established that her migraine condition is an actual impairment under the ADA or WLAD as a matter of law. See Kaplan, 323 F.3d at 1231.

         Plaintiff may also bring a claim as a perceived (or “regarded-as”) disability claim. See Nunies, 908 F.3d at 434. In a perceived disability claim, there is no requirement that the perceived impairment limit (or be perceived to limit) a major life activity. Id. Defendant may defeat Plaintiff's perceived impairment claim by showing the perceived impairment was transitory or minor. Id.

         Defendant was aware that Plaintiff experienced migraines because Brown observed Plaintiff's migraine in September 2017. (Dkt. No. 49 at 53.) Brown also had subsequent conversations that month with Plaintiff and Lykins about Plaintiff's condition. (Id. at 10-11, Dkt. No. 62 at 2.) Plaintiff states that Brown recommended she find other employment, (see Dkt. No. 62 at 2), but Brown maintains she never made that statement (see Dkt. No. 51 at 12). In the months that followed, there is no evidence that Brown made further comments about Plaintiff's migraine condition. Plaintiff did not miss any days of work due to migraines, nor did she request accommodations. (Dkt. No. 67 at 5.) There is no other objective evidence that Defendant continued to perceive Plaintiff as impaired. For that reason, a jury could find that Defendant perceived the condition as transitory and minor. Thus, Plaintiff has not carried her burden to show that Defendant perceived her as impaired. See Nunies, 908 F.3d at 434. Plaintiff has not established that she is disabled under the ADA or WLAD as a matter of law. Therefore, Plaintiff's motion is DENIED on this ground. See id.

         Nonetheless, Plaintiff has offered sufficient evidence for a reasonable jury to find she is actually impaired or was perceived as impaired. (See Dkt. Nos. 49 at 10-11, 62 at 2-5, 63 at 2). Therefore, for the purpose of Defendant's motion for summary judgment, Plaintiff has established the ...


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