United States District Court, W.D. Washington, Seattle
C. COUGHENOUR UNITED STATES DISTRICT JUDGE.
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.
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.)
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
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.)
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
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.)
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,
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.)
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.)
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.) 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.)
now moves for summary judgment on two of Defendant's
affirmative defenses, 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.
Summary Judgment Standard
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).
McDonnell Douglas Framework
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
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).
Plaintiff's Migraine Condition
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 §
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. (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).
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.
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.
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.
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 ...