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BOHLINGER v. Abbott Laboratories, Abbott Nutrition Manufacturing, Inc., Defendants.1 (2021)

United States Court of Appeals, Second Circuit.2021-02-09No. 20-1166-cv

Summary

Holding. The court affirmed the district court's grant of summary judgment in Abbott's favor, concluding that Bohlinger failed to present sufficient evidence to establish that age discrimination motivated either the 2015 specialization or the 2017 reassignment decision.

Michael Bohlinger appealed a district court's grant of summary judgment on his age discrimination claim under New York City Human Rights Law against Abbott Laboratories. Bohlinger challenged two employment decisions: a 2015 reassignment that gave him the lowest workload among sales representatives in his district, and a 2017 offer to reassign him to a different territory after his workload fell below Abbott's minimum threshold. The appellate court examined whether sufficient evidence existed to support an inference that age played a role in either decision.

The court found that Abbott provided legitimate, non-discriminatory business reasons for both decisions. For the 2015 specialization, Abbott explained it was designed to optimize sales representative skills and maximize pediatric product sales by considering various neutral factors. For the 2017 reassignment, Abbott noted Bohlinger was the only representative whose workload dropped below the company's minimum threshold. The court determined that Bohlinger failed to present evidence from which a jury could reasonably conclude that the company's stated reasons were pretextual or that age discrimination played any role in these decisions.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether Bohlinger presented sufficient evidence to create a genuine factual dispute regarding age discrimination under the NYCHRL
  • Whether Abbott's stated non-discriminatory reasons for the 2015 workload assignment were pretextual
  • Whether inconsistencies in supervisor testimony about the 2017 reassignment could support an inference of discriminatory motive

Procedural posture

Bohlinger appealed from a district court judgment granting Abbott's motion for summary judgment on his age discrimination claim.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

SUMMARY ORDER

Plaintiff-Appellant Michael Bohlinger appeals from a judgment, entered on March 11, 2020, by the United States District Court for the Southern District of New York (Oetken, J.), granting Defendant-Appellee Abbott Laboratories Inc.’s (“Abbott”) motion for summary judgment under Federal Rule of Civil Procedure 56(a). Bohlinger challenges the district courts ruling that he failed to submit sufficient evidence to preclude summary judgment on his age discrimination claim under the New York City Human Rights Law (the “NYCHRL”). We assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal, which we reference only as necessary to explain our decision to affirm.

We review the district courts decision to grant summary judgment de novo, resolving all ambiguities and drawing all permissible factual inferences in favor of the non-moving party. Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 69 (2d Cir. 2015). Summary judgment is appropriate only when the movant demonstrates that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Id. We have discretion to affirm a district courts grant of summary judgment on any ground appearing in the record. Deep Woods Holdings, L.L.C. v. Sav. Deposit Ins. Fund, 745 F.3d 619, 623 (2d Cir. 2014).

Pursuant to the NYCHRL, employers and their agents are prohibited from discriminating against an employee based on the employees “actual or perceived age.” N.Y.C. Admin. Code § 8-107(1)(a). To establish a claim for discrimination under the NYCHRL, Bohlinger “need only show that [Abbott] treated [him] less well” than other employees, “at least in part for a discriminatory reason.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 110 n.8 (2d Cir. 2013); see also Golston-Green v. City of New York, 184 A.D.3d 24, 123 N.Y.S.3d 656, 667 (2020) (holding that to establish liability under the NYCHRL, a plaintiff must simply show “he was subject to an unfavorable change or treated less well than other employees on the basis of a protected characteristic”); Watson v. Emblem Health Servs., 158 A.D.3d 179, 69 N.Y.S.3d 595, 598 (2018) (“A plaintiff may prove her case if she proves that unlawful discrimination was one of the motivating factors, even if it was not the sole motivating factor, for an adverse employment decision.” (internal quotation marks omitted)). Under this standard, “[t]he employer may present evidence of its legitimate, non-discriminatory motives to show the conduct was not caused by discrimination, but it is entitled to summary judgment on this basis only if the record establishes as a matter of law that ‘discrimination play[ed] no role’ in its actions.” Mihalik, 715 F.3d at 110 n.8 (second alteration in original) (quoting Williams v. N.Y.C. Hous. Auth., 61 A.D.3d 62, 872 N.Y.S.2d 27, 38 (2009)).

Bohlingers claim is based on two discrete decisions in which Abbott allegedly discriminated against him because of his age. The first decision occurred in 2015 when, pursuant to Abbotts nationwide specialization of its pediatric sales representatives, Peter Youngs, the regional sales director at the time, in consultation with Susan Schultz, Bohlingers immediate supervisor at the time, categorized Bohlinger as a Pediatric Sales Specialist (“PSS”) who would market and sell pediatric products to both hospitals and doctors offices on Long Island.

2

As a result of this 2015 specialization, Bohlinger was assigned a sales territory with the lowest “workload” of any sales representatives working in Abbotts Long Island district.

The second decision occurred approximately two years later, in 2017. Between 2016 and 2017, the territories for every sales representative in Abbotts Long Island district suffered a decrease in workload, either because of a decline in the number of child births or representatives having less access to hospitals or pediatric offices in the district. Although every sales representative saw a workload decrease, only Bohlingers workload decreased below the threshold that Abbott had designated as acceptable. Consequently, Zariq Siddiqui (who by then had replaced Peter Youngs as the regional sales director), and Eric Brown (Bohlingers direct supervisor at the time) discussed reassigning Bohlinger to an open territory in the Philadelphia district, which was located in New Jersey (where Bohlinger lived), to raise Bohlingers workload above Abbotts minimum threshold. Brown asked Bohlinger if he would consider a reassignment to the territory in New Jersey. After some consideration, Bohlinger declined the reassignment and retired thereafter.

The district court concluded that the portion of Bohlingers age discrimination claim based on the 2015 specialization was untimely and held that the continuing violation exception to the NYCHRLs three-year statute of limitations did not apply. As to the portion of the age discrimination claim based on the 2017 reassignment, the district court held that there was insufficient evidence of age discrimination to survive summary judgment. As discussed below, we conclude that the district court properly granted summary judgment because Bohlinger has failed to put forth sufficient evidence regarding these two decisions, either individually or collectively, from which a rational jury could find that Bohlingers age played a role in these two decisions.

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I. The 2015 Specialization

With respect to the 2015 specialization, Abbott contends that it was a business decision ultimately designed to increase overall sales. More specifically, Abbott explains that when crafting the 2015 specialization, it determined Bohlingers workload by considering various factors, including Bohlingers workload hours, his designated role as a PSS, the geographical location of hospitals and offices, and the desire to limit the transfer of relationships to a new representative. Abbott also provides its reasoning for transferring two high workload hospitals from Bohlinger to another sales representative. According to Abbott, it “identified a shift in which ․ nurse practitioners, dieticians, and system administrators,” rather than doctors, were influencing hospitals’ decisions to use Abbotts products. Appx at 467. As a result of this shift, Abbott began placing more value on “strong relationships with nurses, skill at conducting inservices ․, and high call activity.” Id. Because Bohlingers strengths were not in these areas, Abbott elected to transfer responsibility for two of his high workload hospitals to another sales representative with those strengths.

Bohlinger argues that Abbott is not entitled to summary judgment because its explanations are not “ ‘legitimate, clear, specific and non-discriminatory.’ ” Appellants Reply at 19 (quoting Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir. 1995)). We disagree. Abbott articulated that it determined Bohlingers workload under the 2015 specialization by considering various neutral, business-related factors with the goal of optimizing the sales representatives’ skills and maximizing pediatric product sales. These reasons, on their face, are legitimate and non-discriminatory.

Thus, the ultimate question is whether there is evidence from which a “reasonable jury could conclude either that the defendants ‘reasons were pretextual,’ or that the defendants stated reasons were not its sole basis for taking action, and that its conduct was based at least ‘in part on discrimination.’ ” Ya-Chen Chen, 805 F.3d at 76 (quoting Melman v. Montefiore Med. Ctr., 98 A.D.3d 107, 946 N.Y.S.2d 27, 35, 41 (2012)). Under the NYCHRL, “[i]f the plaintiff responds [to defendants evidence of a non-discriminatory reason] with some evidence that at least one of the reasons proffered by the defendant is false, misleading, or incomplete, ․ such evidence of pretext should in almost every case indicate to the court that a motion for summary judgment must be denied.” Bennett v. Health Mgmt. Sys., Inc., 92 A.D.3d 29, 936 N.Y.S.2d 112, 124 (2011).

Bohlinger contends that Abbotts reasons are simply “incomplete.” Appellants Br. at 45. Specifically, Bohlinger maintains that Abbott failed to articulate exactly how it used the identified factors to arrive at its decision to assign Bohlinger a lower workload as compared to his younger peers. We find that argument unpersuasive. It is clear from the record that Abbott engaged in a discretionary, rather than formulaic, decision-making process, which considered a blend of subjective and objective business-related factors. This type of business decision does not lend itself to being explained using the precision that Bohlinger demands, and the failure to provide Bohlinger with such details does not render the reasons “incomplete” or discriminatory.

More importantly, the record lacks evidence that assigning Bohlinger a lower workload was motivated, in any part, by age discrimination. It is uncontroverted that, following Bohlingers change in workload, Abbott paid him a larger bonus, promoted him, and raised his pay, and there is no evidence that any of these actions could be viewed as unfair or less favorable when considered in the context of how other sales representatives in the district were treated. Moreover, Bohlinger testified that he worked with Schultz to help “create[ ]” the workload plan that he now claims was discriminatory.

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Appx at 345.

In short, we conclude that no reasonable jury could find that Abbotts explanation of Bohlingers change in workload in 2015 is incomplete such that it, or any other evidence in the record, would “constitute[ ] evidence of consciousness of guilt, an attempt to coverup the alleged discriminatory conduct, or an improper discriminatory motive co-existing with other legitimate reasons.”

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Bennett, 936 N.Y.S.2d at 123. Accordingly, we conclude that the district court properly granted summary judgment in Abbotts favor with respect to Bohlingers age discrimination claim based on the 2015 specialization.

II. The 2017 Reassignment

With respect to the 2017 reassignment, Abbott offers the following non-discriminatory reason for why Bohlinger was the only sales representative in the Long Island district to be offered a reassignment to a new territory in New Jersey (his home state): Bohlinger was the only sales representative to have his workload drop below Abbotts minimum workload threshold and thus needed to be reassigned to a new territory with an acceptable workload. Bohlinger raises two arguments as to why, notwithstanding that non-discriminatory reason, there is sufficient evidence to support a reasonable inference of age discrimination.

Bohlinger first contends that Abbotts reason is incomplete insofar as it leaves out that the low workload he was assigned under the 2015 specialization caused his workload to drop below Abbotts minimum threshold. Given the absence of any evidence of age discrimination regarding the 2015 specialization, as well as the fact that the two decisions occurred more than two years apart and involved different decisionmakers under different circumstances, no reasonable inference of an age-related motivation in 2015 can be drawn even when the two decisions are viewed together.

Bohlinger next argues that Abbotts reason is “misleading” insofar as Bohlingers supervisors at the time, Siddiqui and Brown, gave inconsistent testimony about the reasons behind the 2017 reassignment. See Bennett, 936 N.Y.S.2d at 124 (stating that a plaintiff may establish pretext by submitting evidence that a defendants non-discriminatory reasons for its actions are “misleading”). In particular, Bohlinger points out that when Brown proposed the reassignment to Bohlinger, Siddiqui believed no final decision had been made about eliminating Bohlingers territory in the Long Island district, while Brown understood at that time that Bohlingers Long Island territory would be eliminated. We agree with the district courts conclusion that any discrepancies in Siddiquis and Browns testimony with respect to the 2017 reassignment are immaterial and, as a result, cannot provide a reasonable inference of discriminatory motive. Both Siddiqui and Brown testified consistently as to the reason Abbott offered Bohlinger a reassignment—because his workload had become too low. Thus, the purported discrepancies in Siddiquis and Browns testimony were, as the district court correctly reasoned, “variations, if that, on the same theme rather than separate inconsistent justifications.” Special Appx at 9 (quoting Roge v. NYP Holdings, Inc., 257 F.3d 164, 170 (2d Cir. 2001)).

Nor has Bohlinger established a discriminatory motive by highlighting differences in Siddiquis and Browns testimony with respect to how the reassignment was presented to Bohlinger. Indeed, whether the reassignment was presented as an option or as an ultimatum carries little relevance to the ultimate question why the reassignment was offered to Bohlinger, i.e., whether a reasonable jury could conclude that the discrepancies in Siddiquis and Browns testimony demonstrated that the 2017 reassignment was based, in part, on discriminatory animus. On that question, Bohlinger fails to point to any evidence in the record that would show a genuine dispute as to the existence of discriminatory motive. Accordingly, we conclude that the district court properly granted summary judgment in Abbotts favor with respect to Bohlingers age discrimination claim based on the 2017 reassignment.

* * *

We have considered all of Bohlingers remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.

FOOTNOTES

2

.   The other sales representatives in Abbotts Long Island district were designated as either Hospital Sales Specialists, responsible for marketing and selling pediatric products to only hospitals, or Office Sales Specialists, responsible for marketing and selling pediatric products to only doctors offices.

3

.   Because we conclude that the age discrimination claim fails on the merits and affirm on that basis, we need not address the district courts ruling on timeliness.

4

.   Because Schultz testified that Bohlingers workload was “set in stone” before she had presented him with his new workload assignment, Appx at 361, Bohlinger contends that there is some dispute as to whether Bohlinger had any actual role in shaping his workload. That argument, however, misses the point. Regardless of how flexible the workload plan was during those discussions, Bohlingers testimony that he helped create the workload plan demonstrates that he did not view the plan as unfair or discriminatory when it was presented to him.

5

.   Although Bohlinger points to, as evidence of age discrimination, the disputed fact that Schultz asked him in 2015 “how much longer are you going to be around,” Appx at 311-12, that disputed fact does not alter the analysis. As a threshold matter, the regional sales manager Youngs, and not Schultz, was the final decisionmaker with respect to the 2015 specialization. In any event, as the district court correctly concluded, that alleged lone comment, especially in the context of the other uncontroverted facts in the record discussed above, is insufficient to create a reasonable inference of age discrimination that precludes summary judgment.