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Lámar v. Procter & Gamble Distributing LLC

United States District Court, E.D. Michigan, Southern Division

April 6, 2015



PATRICK J. DUGGAN, District Judge.


This is an employment discrimination case brought under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., Michigan's Elliott-Larsen Civil Rights Act (ELCRA), Mich. Comp. Laws § 37.2101 et seq., and the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. Plaintiff Bridgett Lamar claims that she was placed on a performance improvement plan (PIP) and subsequently terminated from her employment with Defendant Procter & Gamble Distributing LLC (P&G) because of her race (African American), pregnancy, use of FMLA leave, and complaints of discrimination. P&G claims that the PIP and termination resulted solely from Plaintiff's poor work performance.

Now before the Court is P&G's motion for summary judgment. The matter is fully briefed and the Court heard oral argument on January 22, 2015. For the reasons that follow, the Court will grant the motion.


Plaintiff began working for P&G in March 2010 as a veterinary account manager (VAM) in P&G's pet care division. Banker Decl. ¶¶ 2, 4; Pl. Dep. at 72. As a VAM, Plaintiff's job was to sell products manufactured by P&G to veterinary practices within her designated region, the central region, which encompassed most of Michigan's lower peninsula. Pl. Dep. at 40-41, 51-52, 54-55. For the first two years of her employment, Plaintiff's direct supervisor was Eleanor (Marci) Banker, a veterinary account executive (VAE); Plaintiff's so-called "one-up" manager was Steve Giovanni, who was in charge of the central region. Banker Decl. ¶¶ 4, 9; Giovanni Dep. at 77-79. Giovanni, in turn, reported to associate director Tommy Walsh, who was responsible for the operation of P&G's pet care division nationally. Walsh Decl. ¶ 2; Giovanni Dep. at 137; Taney Dep. at 10-11.

As a VAM, Plaintiff was required to visit veterinary clinics in her region to promote and sell P&G products. Lamar Dep. Ex. 3-4, 8. "VAM Scorecards" were used by P&G to evaluate the sales performance of each VAM relative to other VAMs around the country. Giovanni Decl. ¶ 4. VAMs also received annual performance evaluations after the close of each fiscal year, which ran from July 1 to June 30, through "work and development plans." Banker Decl. ¶ 12. Work and development plans were completed by each VAM and his or her VAE, and then reviewed and approved by Giovanni. Banker Dep. at 81; Giovanni Dep. at 81-82. Finally, each fiscal year P&G rates the performance of VAMs on a scale of one to three, with a one rating reflecting a performance within the top 20% relative to the employee's peer group, a rating of three reflecting a performance within the bottom 6% relative to the employee's peer group, and a rating of two reflecting performances in between. Erwin Decl. ¶¶ 8-9.

Plaintiff's performance evaluation for fiscal year 2010-2011, her first full fiscal year with P&G, contained positive comments. However, despite these positive remarks and her receipt of a "meeting expectations" rating, Banker noted on the evaluation that Plaintiff "delivered 3 out of 8 of her deliverables [i.e., performance goals] in [fiscal year 2010-2011]." Pl. Dep. Ex. 11. In addition, Plaintiff received a performance rating of two for fiscal year 2010-2011, indicating that her performance relative to her peers was better than the bottom 6% but worse than the top 20%. Erwin Decl. ¶ 12. Under P&G's VAM Scorecard rating system, Plaintiff ranked 34 out of 38 VAMs nationwide, with a rating of one being the best. Giovanni Decl. ¶ 6. According to Giovanni, "the Michigan region [Plaintiff] was responsible for went from being one of the top 15 performing regions - her predecessor's VAM ranking as of June 2009 - to one of the five worst performing regions in the country." Id. ¶ 7. VAM Scorecard rankings as of June 2009 indicate that Plaintiff's predecessor, Michelle Swigart, who managed the same territory as Plaintiff, ranked 15 out of 36 VAMs nationwide. Id. at Ex. C; Banker Decl. ¶ 6. Thus, P&G's objective performance metrics indicate that under Plaintiff's watch, performance for Plaintiff's region dropped from about average to below average. Banker Decl. ¶ 6; Giovanni Decl. ¶ 7, Ex. C.

After the 2010-2011 fiscal year ended on June 30, 2011, the relationship between Plaintiff and Banker began to deteriorate. At around this time, Banker grew concerned that Plaintiff was not appropriately inputting her sales activity in ", " P&G's internal sales tracking system, and was not confident about Plaintiff's "ability to relate all the product knowledge... to our customers." Banker Dep. at 315. Regarding the requirement that VAMs input their sales activities in, Plaintiff testified that "at the beginning" of her employment, she was told to log only "things that were important" into, and was not told to log all of her sales activities in until March 2012. Pl. Dep. at 64-66. However, Banker sent an email on June 23, 2011, right before the end of the 2010-2011 fiscal year, to the VAMs under her supervision, including Plaintiff, reminding them that "[t]his is your last chance to get all your calls... recorded in Salesforce." Pl. Dep. at Ex. 8. Additionally, Banker sent another email on July 1, 2011, right after the close of the 2010-2011 fiscal year, telling VAMs to "LOG EVERYTHING IN SALESFORCE" and warning: "This is not an area that will allow for any flexibility this year." Id. at Ex. 9. Notwithstanding Plaintiff's testimony, the July 1 email demonstrates that VAMs were required to log all sales activity in beginning July 1, 2011.

As mentioned, Banker perceived problems in the manner Plaintiff was logging her sales hours in beginning July 1, 2011, which was when the requirement to log all sales activity became mandatory. Banker Dep. at 315; Pl. Dep. at Ex. 9. Banker testified that "there were many days [where] there was nothing logged" and "some months where there were more phone calls made than in-person calls made, " which concerned Banker because "this was a field-selling role that required you to have a relationship with the customers, which meant that you needed to leave your home to... build on that relationship." Banker Dep. at 318. On August 23, 2011, Banker sent an email to Plaintiff informing her that she "can't understand how you [Plaintiff] are logging things [in], " explaining to Plaintiff that she had logged more phone calls than in-person calls, and reminding Plaintiff that "[y]ou should have more in person calls than phone calls." Pl. Dep. Ex. 10. Although Plaintiff responded to Banker's email stating that "[a]ll calls in [] are reflective of my work, " id., she admitted in her deposition that she did not comply with Banker's July 1, 2011 directive to "LOG EVERYTHING IN SALESFORCE." Pl. Dep. at 128. When asked why, Plaintiff responded: "I just didn't." Id. [1]

On January 5, 2012, Plaintiff and Banker spoke by phone. According to Plaintiff, Banker was "disrespectful, rude, and demeaning, " and told Plaintiff that her "counterparts were doing circles around [her], " that she "should be grateful for having a job, " that she "didn't deserve the money that [she was] making, " and that she "didn't love [her] job." Pl. Dep. at 160-61. Banker testified that she "had concerns about [Plaintiff's] performance... versus her peers that were hired within the same timeframe" and admits that she told Plaintiff that her peers - namely, male VAMs Mike Scovronski and Tyler Winters - "could run circles around her." Banker Dep. 250. However, Banker denies that she told Plaintiff that she thought Plaintiff was underpaid or that she did not like her job. Id.

Plaintiff sent an email to Banker on February 6, 2012 reflecting on their phone conversation a month earlier. In the email, Plaintiff wrote that statements made by Banker during the conversation "were disrespectful and in my opinion not conductive to a healthy working relationship, " and proposed that they "move forward and develop a stronger and healthier relationship and work towards the same goal each day." Banker Decl. Ex. A.

Also on February 7, 2012, Plaintiff sent an email to Lucy Klette in human resources requesting that the two discuss "a private matter." Pl. Ex. 13B. Plaintiff forwarded to Klette a copy of Plaintiff's February 6 email to Banker, and told Klette that the email was written "as a result of what I deem as verbal abuse and harassment for some time while I have been in this position." Id. Klette responded to Plaintiff's email on February 13, 2012, writing that she would "be happy to connect with you whenever I can to help resolve this conflict, " but also noting that Allison Erwin was the primary human resources contact for Plaintiff's division. Id. Plaintiff and Klette spoke the next day; Plaintiff told Klette "about the issues that were going on" between her and Banker and about "the inappropriate conversation that took place" on January 5, 2012, which Plaintiff "felt... was discriminatory and harassing." Pl. Dep. at 160. At some point after this conversation, Klette turned the matter over to Allison Erwin, who was the human resources manager responsible for VAMs. Klette Dep. at 70.

On February 23, 2012, Banker discussed Plaintiff's performance issues with Giovanni, Erwin, Klette, Walsh, and Karen LaBarre, P&G's regional manager. Pl. Ex. 13C. On February 27, 2012, Erwin emailed Plaintiff stating that she (Erwin) and Klette had spoken about Plaintiff's issues with Banker, and proposing a conference call between Plaintiff, Banker, and Erwin. Pl. Ex. 13D. Plaintiff responded to Erwin's email on March 1, 2012, writing that she is uncomfortable with a conference call with Banker, as she feared that Banker would retaliate. Id.

The teleconference between Plaintiff, Erwin, and Banker took place on March 2, 2012. Erwin took detailed notes on what occurred during the conversation. Erwin began by stating that both Banker and Plaintiff had concerns that they wanted to discuss, which is why Erwin scheduled the conference call, and asked Banker to lead the conversation. All agreed that Plaintiff's concerns about Banker would be "table[d]" "until either the end of the meeting or for another time." Banker stated that she was aware that Plaintiff had spoken to Klette and Erwin with confidential concerns, and encouraged Plaintiff to talk with human resources "anytime she may need something and that she has every right to do that, and that this phone call was about a specific issue unrelated to [Plaintiff's] call to HR." Prior to the conference call, Banker emailed Plaintiff and Erwin a calendar showing an excessive number of days over a six-month period from July 1, 2011 to January 31, 2012 in which no in-person or telephonic sales calls were recorded in[2] Erwin expressed concern and stated that she and Banker "needed to understand what activity was occurring the days with little to no sales activity recorded." Plaintiff explained that "logging calls in Salesforce was not a deliverable [goal] expected of her" and that "she views Salesforce as a tool for recording information on clinics and looking up information for cold calls, but that people don't document every call they make and that she was never expected to." Plaintiff admitted that she did not record all of her activity in Erwin asked Plaintiff what unrecorded tasks she had completed during the time period in question to account for the days on which no sales activity was recorded in Plaintiff responded listing various tasks, and Erwin asked Plaintiff if she had verifying documentation. Banker explained the importance of inputting all activity in and noted that this has always been a job expectation. Plaintiff responded that she now understood that this was an expectation and that she would log all activity going forward. Pl. Ex. 13E.

Banker then shared another concern: That Plaintiff's "travel to western Michigan is not as high as she would expect" and that Plaintiff had not spent enough "overnights" in that area. Plaintiff explained that she had traveled to western Michigan more times than reflected in, and that she made day trips to Grand Rapids and did not stay overnight due to "budget constraints" facing P&G. Plaintiff also explained that "she did not think travel should be an issue, given that the majority of her business is in southeast Michigan and that western and northern Michigan represent white space." Plaintiff and Banker agreed that the two would jointly review Plaintiff's routing schedule and that "[Plaintiff] would use [Banker] as a resource in the future for guidance around appropriate travel percentages and schedules." Erwin then summarized what had occurred during the conference and the plan going forward. Erwin wrote that "they were not able to get to [Plaintiff's] concerns in the time allotted today" but that "she would separately set up a time" for the three to discuss those concerns. Pl. Ex. 13E.

On March 5, 2012, Plaintiff emailed Erwin expressing her dissatisfaction and disappointment with the way in which her issues with Banker had been handled. In the email, Plaintiff wrote that "[t]he issues that [Banker] brought to your attention are not relative to my objectives, " "VAMs... are not mandated to log calls into Sales force and that is something that [Banker] herself does not adhere to, " and that Plaintiff "should not be forced to complete a task that none of my fellow co-workers complete and neither does my superiors." Plaintiff then inquired: "I would like to know how and why were my complaints ignored??? I did not feel like anything was accomplished in a positive manner and it makes me question how my issues of discrimination and [Banker] creating a hostile work environment for the women on our team become a non-issue over [Banker] making up an complaint about me. My reviews have all been positive and my numbers have been great and I enjoy my job." Plaintiff wrote that "[t]he real issue is [Banker] has been very unprofessional with the comments that she has made to myself and about my fellow co-workers" and that "[s]he has used discrimination tactics towards the women on this team and she violated the code of ethics for a work place environment." Plaintiff stated that she "brought this issue to HR and I would like to see that this issue is not ignored and that a complete investigation is completed." Erwin responded to this email the same day, expressing her desire to speak to Plaintiff. Id.

On March 7, 2012, Plaintiff emailed Klette expressing her belief that Banker retaliated against her for contacting human resources by making much of the fact that Plaintiff did not log all her sales activity in Pl. Ex. 13G. Plaintiff also expressed disappointment that her issues with Banker were "completely ignore[d], " and conveyed her belief that human resources had allowed Banker to "deter the real issues" and "act out of rage" such that Banker is "not... accountable for the unprofessionalism and creating a hostile work environment." Id. Klette forwarded Plaintiff's email to Erwin. Id. When asked in her deposition if she understood Plaintiff's March 7 email to Klette as lodging a complaint of discrimination, Erwin responded: "Probably. Possibility." Erwin Dep. at 289.

Erwin and Plaintiff spoke by phone on March 13, 2012. Id. at 292-93; Erwin Decl. ¶ 4. During the phone conversation, Erwin "assured" Plaintiff that Erwin would investigate Plaintiff's concerns regarding Banker and "keep them separate" from Banker's concerns about Plaintiff's performance." Erwin Decl. ¶ 4. The next day, Erwin sent an email to Plaintiff confirming their phone conversation the previous day, writing: "I want to reiterate that I am looking into both the performance questions and your concerns about your working relationship with [Banker], both equally seriously and on parallel timing, but I am keeping the two issues separate, in terms of who I talk to and how I document the conversations." Def. Ex. 6A. Erwin also informed Plaintiff that she and Giovanni "have some follow-up questions now that we have had a chance to review your documentation and the comments you shared with me yesterday, " and sent Plaintiff an electronic conference call invitation. Id. However, Plaintiff refused to participate in the conference call, writing to Erwin in an email: "I am denying your [electronic] invite to further discuss, this has been racial discrimination and harassment I need to speak with the proper individuals to further investigate. I will contact you at... a later date or someone else will be in contact with you." Def. Ex. 6B. This is the first time Plaintiff indicated that her discrimination complaints were based on race, as opposed to only gender.

On March 15, 2012, Plaintiff filed a formal complaint against Banker and Erwin through P&G's internal reporting system, known as "Alertline, " complaining of non-sexual harassment and race and gender discrimination. Pl. Ex. 14. P&G took two actions after Plaintiff filed her Alertline complaint. First, it assigned two new human resources investigators from outside the pet care division to investigate: Hallam Sargeant and Dee Johnson. Sargeant Dep. at 55-56. Second, effective March 27, 2012, P&G reassigned Plaintiff to a different direct supervisor, Giovanni, in place of Banker, and appointed Mike Taney, the global human resources manager for P&G's pet care division, as Plaintiff's new human resources contact in place of Erwin. Giovanni Decl. ¶ 8. From this point forward, Banker had no involvement with Plaintiff for the duration of her employment at P&G. Banker Decl. ¶ 15; Giovanni Decl. ¶ 8.

Sargeant and Johnson investigated Plaintiff's Alertline complaint by reviewing documents and conducting interviews of Plaintiff, Banker, Giovanni, Deidre Scott (Plaintiff's peer), Janet Holthus (Plaintiff's peer), Mike Scovronski (Plaintiff's peer), and Michelle Swigart (Plaintiff's predecessor covering the same region and former direct report of Banker). Their findings and recommendations are summarized in a written report dated May 2, 2012. In sum, Sargeant and Johnson found that Plaintiff's allegations of non-sexual harassment and race and gender discrimination were "not substantiated, " but did find that "a culture of fear and retaliation exists with the three female members of Marci Banker's team." Specifically, Sargeant and Johnson noted that Banker made statements to her female subordinates to the effect that "she did not like working with women" and Banker's female subordinates "were afraid to speak to anyone in Petcare HR as well as [Banker's] manager Steve Giovanni for fear that word would get back to [Banker] and they would end up on a performance improvement plan or without a job." Sargeant and Johnson further noted that the women on Banker's team described her management style as "condescending, " "abrasive, " and "creating and fostering a hostile work environment, " and that they "try to keep their distance from her" due to "a fear of retaliation, fear of losing their job and of not getting promoted." Sargeant and Johnson determined that Plaintiff's complaint that Banker treated one particular male VAM, Mike Scovronski, more favorably than others was "substantiated." Sargeant and Johnson also noted that one particular employee told them that she was told by Banker and Giovanni that it was "not a good idea" to complain about Banker to human resources, causing that employee to "put her tail between her legs and move on." In the "recommendations" section of their report, Sargeant and Johnson "strongly recommend moving [Banker] to a role where she is no longer managing others" and issuing her a "[s]trong formal warning regarding... no retaliation, treat all employees with respect, etc." Sargeant Dep. at Ex. 9.

P&G took remedial actions against Banker in response to the investigation of Sargeant and Johnson:

[Erwin] and I [Walsh] went and met with [Banker] and we pulled her from managing anyone on her team for 60 days. We required Steve Giovanni to sit in on all her monthly one-on-ones. We required [Banker] to go to a leadership conference, and we removed [Plaintiff] from reporting directly to [Banker].

Walsh Dep. at 55. Meanwhile, on May 16, 2012, Plaintiff sent an email to Sargeant expressing her satisfaction with Giovanni, her new direct manager, writing that "his support and dedication to my success has been exceedingly apparent" and that working with him has been a "very professional experience." Taney Decl. Ex. A.

On June 1, 2012, Giovanni and Taney met with Plaintiff, and Giovanni recapped the meeting in an email to Plaintiff sent on June 7, 2012. During the meeting, the three discussed the results of Plaintiff's Alertline complaint, Plaintiff's job performance, and upcoming sales goals. Regarding the first issue, Giovanni acknowledged the results of the investigation, noting that "the investigation did reveal the feelings of fear and retaliation amongst... members of the team, " and reassured Plaintiff that this was "being fixed." In addition, Giovanni invited Plaintiff to alert him, Erwin, or Taney should Plaintiff experience any retaliation going forward, writing that P&G would "not tolerate any form of retaliation, " and told Plaintiff to "share any more negative experiences" with him "at anytime." Taney Dep. Ex. 10.

During the June 1 meeting, the three also discussed Plaintiff's performance up until that point in fiscal year 2011-2012 and her selling plan for the next fiscal year. Giovanni noted that Plaintiff was "on target to achieve... 4 out of 6 deliverables [performance goals]" and that she "had a chance to make [her] 5th deliverable." The three also discussed steps for "getting off to a great start" in the next fiscal year, including "20-25 in clinic calls per week" and "[r]ecording [those] calls daily in" Id.

On June 14, 2012, Giovanni emailed Plaintiff inquiring whether Plaintiff had made her hotel reservations for a national sales conference scheduled for the next month. Pl. Ex. 17. Plaintiff responded informing Giovanni that she would be unable to attend the conference because her doctor had placed her on a travel restriction. Id. The travel restriction, signed by Plaintiff's doctor on June 14, 2012, indicated that Plaintiff is pregnant with an expected delivery date of November 1, 2012, and that "related to pregnancy she should not be traveling." Erwin Decl. Ex. C. On June 17, 2012, Lisa Breedon, a registered nurse in P&G's health services department, emailed Plaintiff congratulating her on her pregnancy and asking Plaintiff to provide more detailed information about her travel restrictions, noting that "[i]t is imperative that you remain safe at work." Breedon Decl. ¶¶ 2-3, Ex. A. On June 27, 2012, Plaintiff's doctor provided more details on Plaintiff's medical restrictions, as requested by P&G:

Due to her high risk pregnancy, we recommend the following restrictions. At this point in her pregnancy, we recommend her not flying or taking a train. Driving is permissible, 3-4 hours with a break every hour. We recommend that she stay close to home. She is able to work from home or the office at this time but, as the pregnancy progresses; we would prefer that she work from home. We also recommend that she not lift anything over 25 pounds and maintain a low stress environment.


On July 25, 2012, Giovanni spoke to Plaintiff about her travel restrictions and sent her an email the same day recapping the conversation. Giovanni told Plaintiff:

[P]lease do not conduct any overnight travel in your territory until your doctor has had the opportunity to review your travel restrictions and approve overnight travel with Health Services. In the meantime, please plan to continue working locally focusing on calling on 5-6 clinics in person per day and be sure to stay within your medical/travel restrictions that are in place today. Lastly, as a reminder, please be sure to log your calls into daily.

Giovanni Decl. Ex. B. On July 24, 2012, Erwin sent an email to Plaintiff and Giovanni detailing the FMLA process and providing Plaintiff with the necessary paperwork. Erwin Decl. Ex. D.

On July 30, 2012, Giovanni sent an email to Tommy Walsh outlining six issues with Plaintiff's performance. The issues relate to Plaintiff's failure to adhere to various deadlines regarding the submission of medical paperwork, including FMLA-related papers, along with Plaintiff's failure to respond in a timely manner to work emails. In closing, Giovanni told Walsh that there have been "multiple examples of not following direction, " including "15 days out [of] the field (as reported in as of July 9th)." Giovanni also wrote that Plaintiff "struggles with taking direction from just about anyone and it just does not seem like there is a willingness on her part to operate with discipline or a sense of urgency and take accountability of her actions." Pl. Ex. 13I.

On August 15, 2012, Plaintiff's doctor submitted another medical restriction: "Patient may only work from home starting 8/14/12 through the duration of her maternity leave." Pl. Dep. Ex. 22. However, P&G could not accommodate Plaintiff's work-from-home restriction. On August 17, 2012, Giovanni and Taney spoke to Plaintiff regarding the new restriction, and the details of the discussion are summarized in an email written by Giovanni to Plaintiff on August 20, 2012. Giovanni told Plaintiff to "suspend any and all field activity immediately" because her "health is very important to [P&G] and we want to ensure you follow all required restrictions." Giovanni also informed Plaintiff that P&G could not accommodate her new restriction prohibiting all field work:

Since our field-based selling roles require face to face interaction, we are not able to accommodate your work-from-home restrictions. In addition, we have no available alternate and meaningful work for you to perform at home. Therefore, and has been consistent practice for field-based sales personnel requiring work-from-home accommodation, you will be placed on an unpaid leave of absence effective August 27th, 2012. Your absences while on leave will be applied against your 12-week leave entitlement under the Family Medical Leave Act.

However, Giovanni also told Plaintiff that P&G could give her five months of unpaid leave, which is two months longer than required under the FMLA:

Our practice in the selling organization is to allow employees to take four months for any medical-related leave [of] absence. We follow this practice to prevent any adverse effect on volume in our business as a result of having a salesperson absent from his/her territory for an extended period of time. On 08/17/12, you said that you would need three months post your surgery (which is now anticipated to occur in early October 2012) to recover. Although this would take you from your territory for approximately 5 months, at this time we anticipate being able to effectively manage your territory during your period of absence. If, however, the timing of your leave would extend greatly beyond this time, we may need to bring someone else into the territory to ensure we don't lose a significant amount of business with your customers. We would of course, come to you first to see if you were ready to return before backfilling your role.

Pl. Dep. at Ex. 23.

Plaintiff testified that Taney tried to "force" her to take early FMLA leave during the August 17 discussion and when Plaintiff resisted, Taney stated, "oh, is it because you don't have the money?" Pl. Dep. at 181. Moreover, according to Plaintiff, Giovanni and Taney repeatedly asked her throughout her pregnancy - "I want to say four or five times" - to provide additional details regarding her work limitations beyond those provided by Plaintiff's doctor. Id. at 199.

Plaintiff filed another Alertline complaint, alleging that "she was discriminated against because she was not allowed to work from home and because she was being forced' to take FMLA." Taney Decl. ¶ 6. P&G assigned an independent investigator to investigate the complaint, and the investigator ultimately concluded that Plaintiff's allegations "could not be substantiated and that Plaintiff was told both verbally and in writing that she could have 3 months after her babies were born until she would be expected to be back to work and a position would be held for her.'" Id.

On August 22, 2012, Plaintiff's doctor eased Plaintiff's work restrictions: "Working from home is preferred at this point in her pregnancy, however she is not prohibited to go into the work field and may resume her normal work duties with no restrictions." Pl. Ex. 17. P&G returned Plaintiff ...

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