Kirkpatrick v. Pfizer, Inc. , 391 F. App'x 712 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
August 12, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
KAREN KIRKPATRICK,
Plaintiff-Appellant, No. 09-6116
v. (W.D. Oklahoma)
PFIZER, INC., (D.C. No. 5:09-CV-00092-C)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before KELLY, MURPHY, and O’BRIEN, Circuit Judges.
I. INTRODUCTION
Karen Kirkpatrick filed this lawsuit against Pfizer, Inc., her former
employer, alleging various violations under the Age Discrimination in
Employment Act (“ADEA”) and Oklahoma law. The district court granted
Pfizer’s motion for summary judgment on Kirkpatrick’s state-law outrage claim
but allowed her age discrimination claim to proceed to trial. After the close of
Kirkpatrick’s evidence at trial, the district court granted Pfizer’s Rule 50 motion,
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
concluding Kirkpatrick had failed to present sufficient evidence from which the
jury could conclude her age played any role in Pfizer’s decision to terminate her.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court AFFIRMS the
decisions of the district court.
II. BACKGROUND
Kirkpatrick began working as a pharmaceutical sales representative for
Pfizer in 2000, after Pfizer acquired Parke-Davis, her former employer. She
remained at Pfizer until her termination on August 21, 2006. At the time of her
termination, Kirkpatrick was fifty-five years old.
As a sales representative, Kirkpatrick routinely called on physicians,
hospitals, and other healthcare providers and explained the benefits of Pfizer’s
pharmaceutical products to generate sales of prescription medications. The
marketing and distribution of prescription drugs is regulated by the U.S. Food and
Drug Administration (“FDA”) and is subject to the Prescription Drug Marketing
Act (“PDMA”). Pfizer’s sales representatives distribute samples of Pfizer’s
products, called “starters,” to allow doctors to start patients on a course of therapy
with the drug. Whenever a sales representative gives a starter to a doctor, the
representative is required by Pfizer policy and the PDMA to complete a “starter
form.” The starter form must be completed by the sales representative, signed by
the doctor, and dated by the sales representative each time starters are delivered
to a doctor.
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Pfizer must make all starter forms available to the FDA and must also
report any intentional misstatement on a starter form to the FDA. “Banking”
starter forms (re-dating them to create the impression of regular sales activity) or
otherwise falsifying starter forms in any way is both a federal crime and a
violation of Pfizer’s policies. Pfizer’s policies require sales representatives to
input their starter transactions on a daily basis into an electronic database, which
Pfizer uses to oversee starter activity.
In September 2005, Pfizer underwent a nationwide reorganization. As a
result, a large portion of the sales force across the country obtained new managers
and/or were given new sales territories. As a result of this reorganization, Geoff
Holt became Kirkpatrick’s district manager and Curt McAllister became her
regional manager. When Kirkpatrick first met Holt at a meeting on September 12,
2005, he immediately pulled her aside and said, “Karen, hey, Curt McAllister and
I were in the bar last night and we didn’t realize that you were as old as you are.”
Kirkpatrick twice asked Holt what he meant, but Holt refused to respond. When
the two met again in October 2005, Holt told Kirkpatrick, “Well, you certainly
have been doing this a long time now. Have you thought about retirement?”
Kirkpatrick told Holt she had never thought about retirement, that she liked her
job and had a son just about to start college and therefore needed to work.
Later in 2005, on a field ride while Kirkpatrick was driving, Holt put his
hand on the back of her seat and said, “you know, Karen, in my other position I
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got three people fired.” When Kirkpatrick made suggestions, Holt would respond
“Karen, that’s just old school” and would refuse to consider them. Kirkpatrick
confronted Holt in early 2006 about the pressure mounting on her at the
workplace and notified him the added stress was causing her diverticulitis to flare
up. To the best of Kirkpatrick’s recollection, Holt again responded by asking her,
“Have you thought about retirement?” When Kirkpatrick’s worsening
diverticulitis required her to frequently stop to use the restroom during a
subsequent field ride, Holt asked, “Well, what took you so long?” After Holt
later stated he wanted Kirkpatrick in the field from 8:00 to 5:00, unless she was in
a doctor’s office or pharmacy, Kirkpatrick asked, “Does this mean like if I have a
flare-up that I’m supposed to call you and let you know I’m in the restroom?”
Holt responded, “Yes.” Holt also required Kirkpatrick to adhere to a
predetermined call schedule. There was no evidence Holt made any similar
comments or treated any other employee under the age of forty in a similar
manner. For example, Holt permitted a younger employee, Meredith Edwards, to
complete her required calls at her discretion over the course of a week.
In late June or early July 2006, McAllister noticed Kirkpatrick’s name on a
“No Starter Activity” report and contacted Holt. Holt prepared a written report
entitled “Work Ethic concerns about Karen Kirkpatrick,” in which he wrote, inter
alia, that Kirkpatrick appeared to be “spreading” starter forms because her forms
were “consistently out of order” and there were instances in which her “forms for
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single clinics were spread over multiple days.” Holt noted an instance in which
starter forms for six doctors in the same office “appeared to be stock piled from
different actual call days,” but were all dated June 23.
Holt and McAllister then met with Elizabeth Chaudhari, a manager in
Pfizer’s Human Resources Department, and provided her with a copy of Holt’s
report. Following this meeting, Chaudhari contacted James Batura, Pfizer’s
Director for PDMA compliance, and requested him to prepare a report on
Kirkpatrick’s starter forms. This report captured data on several aspects of
Kirkpatrick’s starter activity, including the number of days elapsing between the
date of each starter transaction and the date Kirkpatrick electronically input the
transaction, and instances in which starter forms from different pads were entered
as being used in the same day or forms from the same pad were used out of
sequential order. These indicators were compiled to determine whether there was
cause to believe Kirkpatrick was entering incorrect dates on her starter forms, or
otherwise submitting false information to Pfizer to cover up a lack of consistent
sales activity.
Batura’s report showed that Kirkpatrick often entered the starter
transactions into the electronic database weeks, and in some cases months, after
the transaction had occurred. It also showed that Kirkpatrick, in reporting her
daily starter activity, entered forms from several different pads simultaneously,
including one day on which she entered forms from at least seven different pads,
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including forms from five different pads for purported sales calls in the same
office. Further, it noted Kirkpatrick’s forms from the same pad were often
submitted out of sequence and identified several starter forms on which
Kirkpatrick appeared to have altered the date. Holt reviewed Batura’s report and
cross-referenced it to the information Holt already had from Kirkpatrick’s weekly
call activity reports and travel and expense reports. Holt found several additional
discrepancies by comparing the dates of restaurant receipts and turnpike toll pass
records to the dates listed on Kirkpatrick’s starter forms. Holt continued to
analyze Kirkpatrick’s starter form data for the period from February 2005 to July
2005, and prepared a spreadsheet identifying thirty instances of suspicious starter-
form activity.
Pfizer did not, however, conduct a longitudinal audit of Kirkpatrick’s
starter forms, which would have involved sending starter forms to doctors and
asking whether they could confirm that the sales representative actually contacted
them on a particular date. Batura described Pfizer’s policy regarding such audits
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in an email addressing the investigation of Marjorie Wagoner, 1 another Pfizer
employee. The email reads:
Depending on the situation, we conduct physician signature audits in
either of two ways.
In cases where ‘form banking’ or the falsification of dates and/or
signatures is suspected, we conduct “longitudinal” audits, which
entail the selection of 6-8 forms for between 10 and 15 medical
practitioners. . . .
In cases where there’s more generalized “concern,” but little in the
way of circumstantial evidence that suggests wrong-doing, we’ll
randomly select 25+ of a representative’s more recently submitted
forms . . . .
Based on Marj Wagoner’s sampling patterns, it might be worthwhile
to try the latter [random] approach first, if only to be able to survey
large numbers of the practitioners with whom she’s left starters. In
my experience, most survey respondents base their replies on the
perceived authenticity of their signatures and whether they believe
the recorded quantities to be realistic—rather than on the form dates.
Indeed, Pfizer seldom used longitudinal audits: neither Chaudhari, nor her
supervisor, Cheryl James, had ever been involved in one and Batura estimated
such audits were employed in only 15% of the starter-form investigations.
1
Wagoner brought similar claims against Pfizer, and many of the facts of
her case are identical to Kirkpatrick’s. After Pfizer reorganized its sales force,
Wagoner was similarly asked by her new district manager, Clark Mohar, about
her retirement plans. In addition, her district manager told her that she had an
“adult learning style” and “needed a lot of repetition.” Like Kirkpatrick, she was
also summoned to meet with Chaudhari in Chicago, and was accused of changing
the date on starter forms to balance out her daily sales activity. Wagoner was
terminated on July 14, 2006, just one month prior to Kirkpatrick’s termination.
At the time of her termination, Wagoner was fifty-six years old.
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In light of the inconsistencies in Kirkpatrick’s starter forms, McAllister
informed Tim George, Vice President of Sales, of his intention to bring
Kirkpatrick in for an investigative meeting. George agreed with this decision,
and told McAllister that if Kirkpatrick did not have a plausible explanation for the
apparent falsification of starter forms, he would recommend discharge “even in
the absence of her admitting it.” On July 20, 2006, Pfizer conducted an
investigative meeting with Kirkpatrick regarding her starter activity. This
meeting was held in Chicago, the location of Pfizer’s regional office; Chaudhari,
McAllister, and Holt were in attendance. At this meeting, Kirkpatrick was
repeatedly accused of changing the dates on her starter forms. The meeting was
very upsetting to Kirkpatrick, who was understandably shaken by the accusations.
She began crying, and twice became physically ill. According to Kirkpatrick, at
no point during the four-hour meeting did she admit to falsifying her starter
forms. After the July 20 meeting, both Chaudhari and her supervisor, James,
continued to investigate Kirkpatrick’s starter-form practices. These investigations
provided additional evidence that Kirkpatrick was not following the required call
cycle, and that Kirkpatrick completed fewer starter forms than her teammate,
Meredith Edwards.
On August 21, 2006, Kirkpatrick was terminated based on the results of the
investigation into her starter-administration practices. Pfizer’s statement to the
EEOC indicated the company “terminated Ms. Kirkpatrick’s employment because
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she admitted that she knowingly falsified company records regarding calls she
claimed to have made on doctors’ offices and starters (pharmaceutical product
samples) that she left at those offices.” The statement, however, also detailed the
evidence of falsification Pfizer relied upon to support its decision to terminate
Kirkpatrick, noted that “[f]alsification of [starter] forms is absolutely prohibited,”
and ultimately asserted Pfizer’s decision to terminate Kirkpatrick therefore
“clearly was a legitimate business decision.” The day she was terminated,
Kirkpatrick was told to meet Holt at a storage unit with her company credit card
and company car keys. Kirkpatrick handed the credit card, which she had already
cut into pieces, and car keys to Holt. Holt turned to Kirkpatrick, said “you’re
done,” and drove away in the company car, leaving Kirkpatrick stranded more
than two miles from home.
More than a year after Kirkpatrick’s termination, on April 1, 2008, Pfizer
wrote a letter to the FDA accusing Kirkpatrick of admitting to falsifying her
starter forms. The letter stated:
In accordance with Section 503(d)(3)(D) of the Federal Food, Drug
and Cosmetic Act, we are hereby writing to belatedly inform you of
the admission by our now former representative, Karen M.
Kirkpatrick, that, in order to report a more consistent number of
physician calls per day, she changed the dates on certain of her
sample receipts.
After her termination, Kirkpatrick obtained employment as a sales
representative with Amylin Pharmaceutical. However, she alleged Pfizer’s
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conduct “completely changed [her] life,” and that the intimidation, harassment,
and humiliation she experienced at Pfizer was “worse than the loss of [her] first
husband to cancer.” In particular, her diverticulitis went from “completely
manageable” to severe during the period after Pfizer reorganized its sales force.
Indeed, she left her job at Amylin after one year because of the adverse impact of
travel on her diverticulitis.
The evidence at trial, however, indicated there are no medical studies
linking stress with diverticulitis. Further, Kirkpatrick’s medical records did not
support her description of the progression of her disease. For example, the notes
from Kirkpatrick’s doctor’s appointment shortly before her termination at Pfizer
indicated she suffered from intermittent diarrhea and lower abdominal pain. The
next two visits, which occurred during her employment at Amylin, reflected
Kirkpatrick was “feeling better,” with “some intermittent pain.” Notes from over
one year after her termination from Pfizer indicated Kirkpatrick complained only
of “constipation” from the “long hours of driving.” The notes from 2004-2008
also indicate Kirkpatrick never rated her pain as higher than two on a scale of one
to five, and colonoscopies performed in 1998 and 2007 indicate Kirkpatrick’s
diverticulitis actually improved during that time period.
Kirkpatrick filed the present lawsuit against Pfizer alleging violations of
the Age Discrimination in Employment Act (“ADEA”) 29 U.S.C. § 621, and age
discrimination and intentional infliction of emotional distress under Oklahoma
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law. 2 Pfizer moved for summary judgment on all of Kirkpatrick’s claims. The
district court denied summary judgment on Kirkpatrick’s age discrimination
claims, concluding that “[w]hile the evidence in favor of Plaintiff is sparse, the
Court cannot say that it is so one-sided as to entitle Defendant to judgment as a
matter of law.” The district court granted summary judgment on Kirkpatrick’s
intentional infliction of emotional distress claim, concluding Kirkpatrick “failed
to offer any evidence from which a reasonable juror could find that Defendant’s
actions were . . . so extreme and outrageous as to be beyond all possible bounds
of decency,” and that Kirkpatrick did not establish she suffered distress so
extreme that “no reasonable person could be expected to endure it.”
On May 11, 2009, the case proceeded to trial on the age discrimination
claims. After the conclusion of Kirkpatrick’s case-in-chief on May 14, Pfizer
moved under Rule 50 for the entry of judgment as a matter of law. The district
court granted Pfizer’s motion in both an oral and written ruling. The district
court’s written ruling explained Kirkpatrick had failed to present sufficient
evidence from which a jury could conclude Kirkpatrick’s age played a role in her
2
Kirkpatrick initially joined her claims with those of Marjorie Wagoner, a
similarly situated Pfizer employee, in the same lawsuit in the District of Kansas.
The district court severed the two cases, stating the two terminations “were at
different times, involved different individuals, and occurred at different
locations.” Further, the district court held there was “no evidence” to support the
allegation that Pfizer had engaged in “a common plan or scheme” with regard to
Kirkpatrick and Wagoner. The district court transferred Kirkpatrick’s case to the
Western District of Oklahoma, and neither Kirkpatrick nor Wagoner appealed
from the order of severance and transfer.
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termination. First, it noted there was an entirely age-neutral explanation for
Pfizer’s conduct in investigating Kirkpatrick, including its failure to conduct a
longitudinal audit. Next, it held the age-related comments made by Holt “too
temporally remote and too infrequent to permit a reasonable jury to find they are
evidence of an intent to discriminate.” Finally, the district court concluded that,
despite Kirkpatrick’s assertions to the contrary, “there is absolutely no evidence
Defendant did not have a good faith belief that forms had been falsified and that
falsification required termination.” On appeal, Kirkpatrick argues the district
court erred in dismissing her claims against Pfizer as a matter of law.
III. ANALYSIS
A. Age Discrimination Claims
The district court’s decision granting judgment as a matter of law on
Kirkpatrick’s ADEA claim is reviewed de novo applying the same standard as the
district court. Sanjuan v. IBP, Inc., 275 F.3d 1290, 1293 (10th Cir. 2002).
Judgment as a matter of law is appropriate “only if the evidence points but one
way and is susceptible to no reasonable inferences which may support the
opposing party’s position.” EEOC v. Heartway Corp., 466 F.3d 1156, 1160 (10th
Cir. 2006) (quotation omitted).
Under the ADEA, it is “unlawful for an employer . . . to fail or refuse to
hire or to discharge any individual or otherwise discriminate against any
individual with respect to [her] compensation, terms, conditions, or privileges of
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employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). 3 ADEA
liability turns on whether age “actually motivated the employer’s decision.”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (holding a
plaintiff must show age “actually played a role in [the employer’s decision-
making] process and had a determinative influence on the outcome” (quotation
omitted)). Once there has been “a full trial on the merits, . . . we are left with the
single overarching issue whether plaintiff adduced sufficient evidence to warrant
a jury’s determination that adverse employment action was taken against the
plaintiff because of his or her protected status.” Kendrick v. Penske Transp.
Servs., Inc., 220 F.3d 1220, 1226 (10th Cir. 2000) (quotation omitted). Therefore,
the outcome of this appeal turns on whether Kirkpatrick presented sufficient
evidence from which a jury could conclude Pfizer’s articulated reason for
terminating her was pretextual.
3
In addition to her federal claim under the ADEA, Kirkpatrick brought a
state-law Burk claim based on the same conduct. See Burk v. K-Mart Corp., 770
P.2d 24, 28 (Okla. 1989). Under Burk, an employer can be liable for discharging
an at-will employee if “‘the discharge is contrary to a clear mandate of public
policy as articulated by constitutional, statutory, or decisional law.’” Moore v.
City of Wynnewood, 57 F.3d 924, 935 (10th Cir. 1995) (quoting Burk, 770 P.2d at
28). The district court, in granting Pfizer’s motion for judgment as a matter of
law, did not include a separate discussion of Kirkpatrick’s Burk claim. In
briefing this appeal, Kirkpatrick has not provided any argument indicating her
Burk claim survives the dismissal of her ADEA claim. Accordingly, our
discussion of Kirkpatrick’s ADEA claim applies equally to her related Burk
claim.
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In determining whether Kirkpatrick has met her burden, this court
“examine[s] the facts as they appear to the person making the decision.” Zamora
v. Elite Logistics, Inc., 478 F.3d 1160, 1166 (10th Cir. 2007) (quotation and
emphasis omitted); see also Kendrick, 220 F.3d at 1231. A plaintiff typically
makes a showing of pretext with evidence that: (1) defendant’s stated reason for
the adverse employment action is false, (2) defendant acted contrary to a written
policy, or (3) defendant acted contrary to an unwritten policy or practice.
Kendrick, 220 F.3d at 1230. However, pretext can also be shown “by revealing
such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could rationally find them unworthy of credence.”
Mickelson v. N.Y. Life Ins. Co., 460 F.3d 1304, 1315 (10th Cir. 2006) (quotation
omitted).
Kirkpatrick advances several arguments in an attempt to show Pfizer’s
proffered legitimate reason was pretextual. She argues the evidence presented at
trial revealed ageist remarks made by her regional manager, Pfizer’s “sham”
investigation of her, Pfizer’s disparate treatment of her, Pfizer’s “false” reason for
terminating her, and Pfizer’s termination of Marjorie Wagoner, a similarly
situated employee, was sufficient to allow the jury to reasonably infer Pfizer’s
proffered reason was pretextual. Each of Kirkpatrick’s arguments fail.
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1. Age-Related Comments
The evidence reveals that Kirkpatrick’s supervisor, Holt, made three
comments to Kirkpatrick after Pfizer’s reorganization of its sales force. Holt told
her he “didn’t realize [she was] as old as [she] was,” asked her about her
retirement plans, and commented that her suggestions were “old school.” These
comments are insufficient to support a finding of pretext for several reasons.
First, “stray remarks,” and “isolated or ambiguous comments are too
abstract . . . to support a finding of age discrimination.” Cone v. Longmont
United Hosp. Ass’n, 14 F.3d 526, 531 (10th Cir. 1994) (quotations and alteration
omitted); see also Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1140 (10th Cir.
2000) (holding supervisor’s comments that “at [employee’s] age, it would be
difficult to train for another position” or “difficult to find a new job” were too
abstract to support an inference of age discrimination). Holt’s comment about not
realizing Kirkpatrick’s age, and his description of her suggestions as “old school”
are the type of stray remarks that are too ambiguous to be evidence of age
discrimination. Holt’s final comment regarding Kirkpatrick’s retirement plans
also does not support age bias under the particular facts of this case. See, e.g.,
Ziegler v. Beverly Enters.-Minn., Inc., 133 F.3d 671, 676 n.3 (8th Cir. 1998)
(holding an employer’s questions about an employee’s age and retirement plans
insufficient to demonstrate age discrimination); Woythal v. Tex-Tenn Corp., 112
F.3d 243, 247 (6th Cir. 1997) (same); Colosi v. Electri-Flex Co., 965 F.2d 500,
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502 (7th Cir. 1992) (“[A] company has a legitimate interest in learning its
employees’ plans for the future, and it would be absurd to deter such inquiries by
treating them as evidence of unlawful conduct.”).
Furthermore, the passage of time can also render a comment too remote to
support a finding of pretext. See Antonio v. Sygma Network, Inc., 458 F.3d 1177,
1184 (10th Cir. 2006) (holding a comment made nine months before termination
too remote to establish retaliatory motive). In the present case, Holt’s comments
regarding his impressions of Kirkpatrick’s age were made ten months prior to
Kirkpatrick’s termination and are too remote to support a finding of pretext. As
such, this comment, in addition to being ambiguous, was also too temporally
remote to support a finding of pretext.
2. Pfizer’s Investigation
Kirkpatrick alleges Pfizer’s investigation of her starter forms was a “sham”
because Pfizer did not conduct a longitudinal audit in contravention of its
investigation practices. As noted, Kirkpatrick can establish pretext by pointing to
“weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
the employer’s proffered legitimate reasons,” Mickelson, 460 F.3d at 1315(quotation omitted), and through evidence that Pfizer acted contrary to its own
written and unwritten policies and practices, Kendrick, 220 F.3d at 1230.
Kirkpatrick’s evidence, however, fails to support a reasonable inference that
Pfizer’s investigation of her starter forms was pretextual in this regard.
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First, Pfizer’s investigation was triggered by uncontested deficiencies in
Kirkpatrick’s starter forms. Both Holt and Batura prepared reports indicating
why they suspected Kirkpatrick of falsifying her starter forms. Batura’s report
showed Kirkpatrick was often late in entering her starter transactions into the
electronic database and entered forms out of sequence. It also identified several
starter forms on which Kirkpatrick appeared to have altered dates. Further
investigation by Holt revealed additional discrepancies, including several
instances where Kirkpatrick’s restaurant receipts and toll pass records did not
match the dates listed on Kirkpatrick’s starter forms. Additional investigation by
Chaudhari and her supervisor, James, also provided further evidence that
Kirkpatrick was not following the call cycle imposed by Holt. In light of this
uncontested evidence supporting the propriety of Pfizer’s investigation,
Kirkpatrick’s conclusory allegation that Pfizer’s investigation was a “sham” fails
to reveal weaknesses or inconsistencies in Pfizer’s proffered reason sufficient to
allow a reasonable jury to conclude Pfizer’s articulated reason is pretextual.
Pfizer’s failure to conduct a longitudinal audit of Kirkpatrick’s starter
forms is similarly insufficient. In the present case, Kirkpatrick’s argument is
based on language from an email Batura wrote in connection with Pfizer’s
investigation of Marjorie Wagoner. That email, however, does not support
Kirkpatrick’s contention that Pfizer had a policy of conducting longitudinal audits
whenever there was a suspicion of starter form falsification. Read in its entirety,
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the email states that Pfizer conducts two types of audits, longitudinal and random,
when investigating starter form falsification, and that in cases similar to this one,
it is “worthwhile to try the latter [random] approach first, if only to be able to
survey large numbers of the practitioners with whom [the sales representative has]
left starters.” The uncontested evidence revealed Pfizer rarely used longitudinal
audits in conducting starter form investigations. Thus, the evidence produced at
trial provided no basis for a jury to conclude Pfizer had a policy of conducting
longitudinal audits or that it failed to follow any written or unwritten policy.
3. Disparate Treatment
As noted, a plaintiff may also show pretext “by providing evidence that
[she] was treated differently from other similarly-situated, nonprotected
employees who violated work rules of comparable seriousness.” Kendrick, 220
F.3d at 1232. Trivial differences in treatment are insufficient to show pretext.
See id.; see also Doan v. Seagate Tech. Inc., 82 F.3d 974, 977 (10th Cir. 1996)
(holding plaintiff’s “[s]peculation . . . will not suffice for evidence”); Branson v.
Price River Coal Co., 853 F.2d 768, 772 (10th Cir. 1988) (holding mere
conjecture insufficient to support an allegation of pretext).
Kirkpatrick argues Pfizer failed to investigate other sale representatives
who made similar errors on their starter forms. Kirkpatrick testified she “felt”
Pfizer was more lenient towards younger representatives. She also testified Holt
used a “harsher tone” with her than with Meredith Edwards, a younger employee.
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These alleged differences in treatment are insufficient for a reasonable jury to
conclude Pfizer’s articulated reason is pretextual because they are based solely
upon Kirkpatrick’s mere speculation. Kirkpatrick’s additional assertion that
Pfizer did not investigate her younger replacement Rachel Hyde’s starter activity,
even if correct, similarly does not show disparate treatment because Kirkpatrick
has failed to demonstrate this disparate treatment, if any, was caused by age bias
and not based upon the other circumstances which distinguished Hyde’s case from
Kirkpatrick’s. 4
4. False Reason
Kirkpatrick also contends Pfizer’s only stated reason for terminating her
was her admission at the Chicago investigative meeting that she falsified her
starter forms. She argues she presented sufficient evidence from which a jury
could conclude this reason was fabricated by Pfizer. As noted, evidence that a
defendant’s stated reason is false can support a finding of pretext. Kendrick, 220
F.3d at 1230. In determining whether the proffered reason for a decision was
false, this court “examine[s] the facts as they appear to the person making the
decision.” Zamora, 478 F.3d at 1166 (quotation and emphasis omitted). “The
4
Kirkpatrick’s argument rests on her assertion that “[changes to dates on
Hyde’s starter forms] were the exact same type of inconsistencies that [Pfizer]
alleged to be ‘falsification’ in Kirkpatrick’s case.” There is no evidence there
were any other similarities between the two; for example, there is no evidence her
replacement’s name appeared on a No Starter Activity Report, failed to follow her
mandatory call cycle, submitted inconsistent receipts, or failed to be in the field
during mandatory work hours.
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relevant inquiry is not whether [the employer’s] proffered reasons were wise, fair,
or correct, but whether [it] honestly believed those reasons and acted in good
faith upon those beliefs.” Rivera v. City & County of Denver, 365 F.3d 912, 924-
25 (10th Cir. 2004) (quotation omitted).
Kirkpatrick argues Pfizer’s statement to the EEOC, which stated Pfizer
“terminated Ms. Kirkpatrick’s employment because she admitted that she
knowingly falsified company records regarding calls she claimed to have made on
doctors’ offices and starters (pharmaceutical product samples) that she left at
those offices.” The remainder of the statement detailed the evidence of
falsification Pfizer relied upon to support its decision to terminate Kirkpatrick,
noted that “[f]alsification of [starter] forms is absolutely prohibited,” and
ultimately concluded Pfizer’s decision to terminate Kirkpatrick therefore “clearly
was a legitimate business decision.” Further, Pfizer produced evidence that
independently established Kirkpatrick’s falsification of starter forms and showed
Pfizer had a good faith reason to terminate her, regardless of whether she
admitted to any wrongdoing at the Chicago meeting. Accordingly, Kirkpatrick
has not put forth sufficient evidence from which a reasonable jury could conclude
Pfizer’s proffered reason for terminating her was false.
5. Pfizer’s Termination of Marjorie Wagoner
Marjorie Wagoner’s termination does not support Kirkpatrick’s claim.
There is no evidence to support Kirkpatrick’s assertion that Pfizer acted against
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her and Wagoner as part of an orchestrated scheme. The district court in the
Wagoner case granted summary judgment in favor of Pfizer on all of Wagoner’s
claims, and that decision has been affirmed by this court. See Wagoner v. Pfizer,
No. 09-3066, slip op. at 23 (10th Cir. Aug.12, 2010). The difference in
procedural posture between the two cases is of no moment. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (stating the standard for granting
summary judgment “mirrors the standard for a directed verdict under Federal Rule
of Civil Procedure 50(a)”). Just as Wagoner’s evidence of pretext failed to create
an issue of triable fact in her case, it is also insufficient to show pretext in this
case. In sum, all of the evidence, taken together and viewed in the light most
favorable to Kirkpatrick, demonstrates that no reasonable jury could conclude
Pfizer’s proffered reason for terminating her was pretextual. Accordingly, the
district court’s directed verdict in Pfizer’s favor on Kirkpatrick’s age
discrimination claim is appropriate.
B. Outrage Claim
The district court’s decision granting summary judgment on Kirkpatrick’s
outrage claim is reviewed de novo. Clear One Commc’ns v. Nat’l Union Fire Ins.
Co., 494 F.3d 1238, 1243 (10th Cir. 2007). Summary judgment is appropriate
when “the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). In
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conducting this review, “we view the evidence and draw reasonable inferences
therefrom in the light most favorable to the nonmoving party.” Garrett v.
Hewlett-Packard Co., 305 F.3d 1210, 1216 (10th Cir. 2002).
To succeed on a claim of outrage under Oklahoma law, a plaintiff must
show: (1) the defendant’s conduct was intentional or reckless, (2) the defendant’s
conduct was extreme and outrageous, (3) the defendant’s conduct caused the
plaintiff to suffer emotional distress, and (4) the plaintiff’s emotional distress was
severe. Daemi v. Church’s Fried Chicken, Inc., 931 F.2d 1379, 1387 (10th Cir.
1991). To satisfy the extreme and outrageous element, a plaintiff must prove the
defendant’s conduct was so extreme and outrageous as to be beyond all possible
bounds of decency. Eddy v. Brown, 715 P.2d 74, 77 (Okla. 1986) (“Conduct
which, though unreasonable, is neither beyond all possible bounds of decency in
the setting in which it occurred, nor is one that can be regarded as utterly
intolerable in a civilized community, falls short of having actionable quality.”
(quotations omitted)). In evaluating the outrageousness of certain conduct, courts
must consider the setting in which the conduct occurred. Id. In the workplace
setting, this allows “employers some latitude in investigating possible employee
misconduct.” Daemi, 931 F.2d at 1388 n.8. Further, Oklahoma law explicitly
does not extend liability “to mere insults, indignities, threats, . . . [or] occasional
acts that are definitely inconsiderate and unkind.” Eddy, 715 P.2d at 77
(quotation omitted). Finally, Oklahoma law also directs the district court to act as
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a gatekeeper and make an initial determination about the validity of a claim
before sending it to the jury. Breeden v. League Servs. Corp., 575 P.2d 1374,
1377-78 (Okla. 1978) (“The court, in the first instance, must determine whether
the defendant’s conduct may reasonably be regarded so extreme and outrageous as
to permit recovery . . . .”).
Kirkpatrick argues evidence of a defendant’s “sustained, persistent, and
orchestrated campaign to embarrass and humiliate” a plaintiff is sufficient to
establish a claim of outrage under Oklahoma law. Kirkpatrick cites no Oklahoma
law in support of this proposition. Rather, she relies entirely on this court’s
decisions in Starr v. Pearle Vision, Inc., 54 F.3d 1548, 1559 n.7 (10th Cir. 1995),
and Snider v. Circle K Corp., 923 F.2d 1404, 1408-09 (10th Cir. 1991). In Starr,
this court affirmed summary judgment against an employee on an outrage claim
even though the facts revealed the employer had yelled at, touched, and briefly
obstructed the employee from leaving a meeting. Id. at 1559. In rejecting the
plaintiff’s claim, the court dismissed the plaintiff’s reliance on Snider, concluding
Snider was both procedurally and factually distinguishable. Starr, 54 F.3d at1559 n.7. In a footnote, the Starr decision observed:
When viewed in the context of its procedural posture, however,
Snider does not dictate judgment in favor of Starr. In Snider, the
district court submitted the plaintiff’s intentional infliction of
emotional distress claim to the jury, which ruled in her favor.
Defendants appealed, following an adverse jury verdict, claiming
there was insufficient evidence at trial to have submitted that issue to
the jury. We reviewed that ruling under an abuse of discretion
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standard. The evidence there revealed a sustained, persistent and
orchestrated campaign to embarrass and humiliate the plaintiff which
is quite unlike the episodic nature of the events involving Jacqui
Starr.
Id. This footnote should not be read to support Kirkpatrick’s theory that an
outrage claim under Oklahoma law can be supported by only showing “a
sustained, persistent, and orchestrated campaign to embarrass and humiliate.” Id.This is especially true given Snider did not involve a de novo review of the
sufficiency of the evidence. Rather, as noted above, to be actionable under
Oklahoma law, a defendant’s conduct must be so extreme and outrageous as to be
beyond all possible bounds of decency. Eddy, 715 P.2d at 77.
In the present case, Kirkpatrick failed to offer any evidence from which a
reasonable juror could find that Pfizer’s actions were so extreme and outrageous
as to meet this high standard. Kirkpatrick argues Holt’s conduct, combined with
her treatment at the investigative meeting in Chicago, were sufficient to establish
outrage. Specifically, she highlights the age-related comments Holt made to her,
his imposition of a schedule on her that hindered her performance, and the
constant pressure Holt directed toward her after Pfizer’s reorganization of its
sales force. Further, she emphasizes the Chicago meeting comprised four hours
of intense interrogation, accusation, and rapid-fire questioning which she found
physically and emotionally distressing. Finally, she claims Pfizer’s conduct after
her termination, the manner in which her credit card and company car were
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retrieved, and Pfizer’s reporting of her starter falsification to the FDA, provide
further support for her outrage claim. Even considered in the light most favorable
to Kirkpatrick, this evidence is not sufficient to support an outrage claim under
Oklahoma law. Accordingly, the district court was correct in granting Pfizer’s
motion for summary judgment on this claim.
IV. CONCLUSION
For the foregoing reasons, the district court’s grant of summary judgment
in favor of Pfizer on Kirkpatrick’s outrage claim and its grant of judgment as a
matter of law on her age discrimination claim are AFFIRMED.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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