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Abebe v. Thermo Fisher Scientific, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

January 31, 2017

Haile Abebe, Plaintiff,
Thermo Fisher Scientific, Inc., Defendant.



         Plaintiff Haile Abebe worked at Eli Lilly and Company (“Lilly”) for seventeen years as a scientist, holding various positions. In March 2010, Lilly outsourced certain services related to clinical drug trials to Defendant Thermo Fisher Scientific, Inc. (“Thermo Fisher”). Subsequently, Thermo Fisher hired Mr. Abebe, along with several other Lilly employees. While a Thermo Fisher employee, Mr. Abebe applied for numerous positions within Thermo Fisher, complained internally about discriminatory treatment after not being chosen for the positions, and obtained several right to sue letters from the Equal Employment Opportunity Commission (“EEOC”) along the way. Mr. Abebe remained a Thermo Fisher employee until all positions within his department were reab-sorbed by Lilly and eliminated by Thermo Fisher in early 2015. He rejected a severance package from Thermo Fisher that required signing a release, and initiated this lawsuit in February 2015, asserting claims for violations of Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (“ADEA”), and 42 U.S.C. § 1981. Specifically, Mr. Abebe claims that Thermo Fisher discriminated against him on the basis of his gender, age, race, and national origin, and that it retaliated against him for complaining about the discrimination.

         Presently pending before the Court are: (1) a Motion for Summary Judgment filed by Thermo Fisher, [Filing No. 79]; and (2) a Motion to Strike Plaintiff's Surreply in Opposition to Defendant's Motion for Summary Judgment, [Filing No. 100]. Both motions are now ripe for the Court's review.

         I. Motion to Strike Mr. Abebe's Surreply

         Before analyzing the substantive arguments Thermo Fisher raises in its Motion for Summary Judgment, the Court will consider Thermo Fisher's Motion to Strike Surreply in Opposition to Defendant's Motion for Summary Judgment. [Filing No. 100.] This is necessary because the motion relates to the scope of information that the Court could consider in deciding the Motion for Summary Judgment.

         Mr. Abebe filed a twenty-one page Surreply in Opposition to Defendant's Motion for Summary Judgment on December 8, 2016. [Filing No. 99.] Thermo Fisher moved to strike the surre-ply, arguing that the surreply was untimely, and that if it is permitted it should be limited to addressing the only new evidence Thermo Fisher submitted with its reply brief - the Second Declaration of Virginia Campbell. [Filing No. 100 at 2-3.]

         In response, Mr. Abebe argues that his surreply was not untimely because Thermo Fisher served the reply brief when the old version of Federal Rule of Civil Procedure 6(d) - providing for three extra days for responding to an electronic filing - was in effect. [Filing No. 101 at 5.] Mr. Abebe also argues that Thermo Fisher “objected” to his evidence by arguing that it constituted offering a personal opinion, so he was entitled to address that evidence. [Filing No. 101 at 2.] Mr. Abebe contends that Thermo Fisher makes new arguments in its reply, and that he should be able to address them based on “due process and fundamental fairness.” [Filing No. 101 at 3.]

         On reply, Thermo Fisher argues that it did not object to Mr. Abebe's evidence in its reply brief, but merely argued that his evidence was not sufficient to overcome summary judgment. [Filing No. 102 at 2.] Further, it asserts that the version of Federal Rule 6(d) in effect when the surreply was filed governs the timing of the surreply and, consequently, it was untimely. [Filing No. 102 at 3-4.]

         As to timeliness, the Court notes that Thermo Fisher filed its reply brief on November 28, 2016, when the old version of Rule 6(d) was in effect. [Filing No. 98.] The Court finds it reasonable to apply the deadline set forth in the old version of Rule 6(d), since that version governed on that date. See Fed. R. Civ. P. 6(d) (version of the rule in effect before December 1, 2016 providing that “[w]hen a party may or must act within a specified time after service and service is made under Rule 5(b)(2)(C), (D), (E), or (F), 3 days are added after the period would otherwise expire under Rule 6(a)”). Accordingly, Mr. Abebe timely filed his surreply on December 8, 2016 - ten days after service of Thermo Fisher's reply brief.

         As to the scope of the surreply, Local Rule 56-1(d) permits the filing of a surreply “only if the movant cites new evidence in the reply or objects to the admissibility of the evidence cited in the response.” Thermo Fisher concedes that it submitted, and cited to, the Second Declaration of Virginia Campbell for the first time in its reply brief. Mr. Abebe is permitted to address that declaration in a surreply. The Court rejects Mr. Abebe's argument, however, that Thermo Fisher generally objected to the admissibility of all of his evidence as expressing his personal opinion in its reply, so he is permitted to discuss that evidence again in his surreply. Thermo Fisher does not object to the admissibility of Mr. Abebe's evidence, but argued instead that the evidence is not sufficient because it merely constitutes Mr. Abebe's opinion. Admissibility and sufficiency are distinctly different concepts, and Mr. Abebe cannot address the latter in a surreply.

         The Court GRANTS IN PART Thermo Fisher's Motion to Strike, [Filing No. 100], to the extent that it strikes the portions of Mr. Abebe's surreply that do not relate to the Second Declara- tion of Virginia Campbell, but DENIES IN PART the Motion to Strike to the extent that it declines to strike the portions of the surreply that relate to the Second Declaration of Virginia Campbell. The Court notes that only three sentences of Mr. Abebe's 21-page surreply address that issue. [See Filing No. 99 at 4 (Mr. Abebe addressing Lillian Knarr's resume, which was submitted with the Second Declaration of Virginia Campbell).][1]

         II. Motion for Summary Judgment

         A. Standard of Review

         A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed.R.Civ.P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed.R.Civ.P. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially in the grant of summary judgment. Fed. R. Civ. P. 56(e).

         In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir. 2005). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable fact-finder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). The Court need only consider the cited materials, Fed.R.Civ.P. 56(c)(3), and the Seventh Circuit Court of Appeals has “repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them, ” Johnson, 325 F.3d at 898. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).

         B. Statement of Facts

         The following statement of facts was evaluated pursuant to the standards set forth above, that is, they are either undisputed or presented in the light most favorable to Mr. Abebe:

         1. Mr. Abebe's Background and Employment at Lilly

         Mr. Abebe is a black male of Ethiopian descent, who was born in 1953. [Filing No. 57 at 2; Filing No. 93-4 at 2.] He has a Bachelor's Degree in Agriculture, a Master's Degree in Soil Microbial Ecology, a Master's Degree in Microbiology, and has completed course work toward a PhD in Microbiology. [Filing No. 93-4 at 9-10.]

         Mr. Abebe began working for Lilly in 1995 as a Technical Services Representative, and received several promotions within Lilly over the next several years, culminating with his promotion to a Manager of Clinical Trial Support Operations in August 2009. [Filing No. 93-10 at 6-15.] During his employment at Lilly, Mr. Abebe received good performance evaluations.[2] [Filing No. 93-9.]

         2. Mr. Abebe's Employment At Thermo Fisher

         a. Initial Position With Thermo Fisher

         In March 2010, Lilly outsourced its clinical trial drug manufacturing and packaging, known as New Drug Product Trial Support (“NDPTS”), to Thermo Fisher, which had provided those services on-site at Lilly. [Filing No. 93-10 at 1.] Thermo Fisher contacted Lilly employees whose positions were being eliminated due to the outsourcing, inviting them to submit their resumes for consideration for a position at Thermo Fisher. [Filing No. 93-10 at 1.] Mr. Abebe completed an application for employment at Thermo Fisher, stating that he was seeking a manager position. [Filing No. 93-10 at 2-5.]

         On April 29, 2010, Thermo Fisher offered Mr. Abebe the position of Senior NDP Trial Support Associate, at an annual salary of $92, 000. [Filing No. 93-10 at 16-17.] Michael McNear, then General Manager of Thermo Fisher's Indianapolis facility, made the decision to hire Mr. Abebe. [Filing No. 79-5 at 1.] Mr. Abebe had a long tenure with Lilly, and Thermo Fisher offered him a salary that was significantly higher than other employees in similar positions with Thermo Fisher because Thermo Fisher wanted to provide him with a salary that was comparable to what he had earned at Lilly. [Filing No. 79-2 at 2.] Thermo Fisher also gave Mr. Abebe the title of Senior NDPTS Associate, although his day-to-day job duties were the same as the other NDPTS Associates. [Filing No. 79-2 at 2.] Although Mr. Abebe's position at Lilly as Clinical Trial Support Manager was a supervisory role on Lilly's NDPTS team, Thermo Fisher did not have a comparable position in its NDPTS group. [Filing No. 79-2 at 1-2.] Mr. Abebe accepted Thermo Fisher's employment offer on May 5, 2010. [Filing No. 93-10 at 17.] He was fifty-six years old at the time. [Filing No. 93-4 at 2.] Mr. Abebe began working in his new position at Thermo Fisher in July 2010. [Filing No. 93-4 at 19.]

         In April 2011, Mr. Abebe's salary increased to $93, 389.20. [Filing No. 79-2 at 2.]

         b. Client Services Manager and NDPTS Team Leader Positions

         In September 2011, Thermo Fisher posted a position for Client Services Manager and Mr. Abebe applied. [Filing No. 79-2 at 2.] Thermo Fisher ultimately selected Mishel Dyas for the Client Services Manager position. [Filing No. 79-3 at 2.] Also in September 2011, Mr. Abebe applied for an NDPTS Team Leader position. [Filing No. 79-2 at 2.] Thermo Fisher selected Thomas Turner for the position. [Filing No. 79-2 at 3.] Ms. Dyas was offered a salary of $79, 279 for the Client Services Manager position, and Mr. Turner was offered a salary of $69, 229 for the NDPTS Team Leader position - both lower than Mr. Abebe's then-current salary of $93, 389.20. [Filing No. 79-2 at 2-3.]

         c. Mr. Abebe Expresses Concerns About the Hiring Process

         In October 2011, Mr. Abebe contacted Virginia Campbell, Human Resources Generalist at Thermo Fisher, to express his concerns regarding the hiring process for the Client Services Manager and NDPTS Team Leader positions, and to suggest that he was not selected for either position for discriminatory reasons. [Filing No. 79-2 at 3.] Ms. Campbell and Steve Yoder, General Manager of Thermo Fisher, met with Mr. Abebe to discuss his concerns, and Mr. Abebe continued to voice his concerns after the meeting. [Filing No. 79-2 at 3.]

         Consequently, in early 2012 Thermo Fisher assigned Kimberly Bardellini, Human Resources Manager, to investigate Mr. Abebe's complaints. [Filing No. 79-2 at 3.] Ms. Bardellini reviewed numerous documents including the job descriptions for the positions, written statements, email correspondence, interview notes, Mr. Abebe's application and resume, and the applications and resumes of the other applicants. [Filing No. 79-4 at 1-2.] Mr. Bardellini also interviewed Mr. Abebe, Mr. Yoder, Ms. Campbell, Ms. Dyas, and Mr. Turner. [Filing No. 79-4 at 1-2.] Ultimately, she did not find any evidence to substantiate Mr. Abebe's complaints or to suggest that he was not selected for the positions due to discriminatory reasons. [Filing No. 79-4 at 2.]

         d. Clinical Supply Chain Manager Positions

         In January 2012, Mr. Abebe applied for a Clinical Supply Chain Manager position, for which there were two openings. [Filing No. 79-2 at 3.] Thermo Fisher selected Lindsay Simmons and Susie Haros for those positions. [Filing No. 79-5 at 1.] Thermo Fisher offered Ms. Simmons a salary of $77, 625, and offered Ms. Haros a salary of $80, 000 - both lower than Mr. Abebe's then-current salary of $93, 389.20. [Filing No. 79-2 at 2-3.]

         e. Mr. Abebe's Mistake and Leave of Absence

         One of the key functions of the NDPTS group is to “allocate[e] drugs appropriately for clinical drug trials.” [Filing No. 79-1 at 2.] In early March 2012, Mr. Abebe failed to properly reconcile how much of a particular drug was available, which resulted in Thermo Fisher being unable to fill an order for the drug from Lilly. [Filing No. 79-6 at 2-3.] In March 2012, after the incident, Mr. Abebe requested a medical leave of absence. [Filing No. 79-2 at 4.] He remained on leave until May 14, 2012, when he returned to his Senior NDPTS Association position. [Filing No. 79-2 at 4.] When he returned from his leave of absence, Mr. Abebe felt that his co-workers treated him differently. [See Filing No. 93-22.]

         f. Mr. Abebe's First EEOC Charge

         Meanwhile, in April 2012, Mr. Abebe filed a charge of discrimination with the EEOC relating to Thermo Fisher's decision not to hire him for the positions he had applied for from September 2011 to March 2012. [Filing No. 79-2 at 4; Filing No. 84 at 20.] Specifically, Mr. Abebe stated that the alleged discrimination took place from September 29, 2011 to March 12, 2012, and summarized his claim as follows:

I am a 58 year old black male of Ethiopian descent with a disability, who started working for the Company in July, 2010. My present position with the Company is that of Senior NDPTS Associate. Over the past year, I have applied for several promotional positions with the organization. I have not, however, been selected for any of the positions for which I have applied. All of the successful candidates have had far less managerial, technical, pharmaceutical and scientific experience; far less qualified than me in the position for which I applied. The successful candidates have also been younger, white, mostly female, American and non-disabled. I questioned management about my non-selection. I further requested of management an investigation into the suspect promotional practice. I went so far as to put management on notice that I believed the selections were made on discriminatory bases. I was informed the Company found no discrimination. After complaining, I was placed on a bogus and false coaching plan that prevented me from being considered for other opportunities within the Company. I was further informed by Charles Pinto, Executive Director of Human Resources, that I had three options regarding my future with the organization - I could either stay, relocate to another state or leave.
I believe I have been discriminated against by not being promoted because of my age, gender, race, national origin and disability.[3] I further believe I have been retaliated against because I complained of the discriminatory activity to management, all in violation of Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act of 1967, as amended, and the Americans with Disabilities Act of 1990, as amended.

[Filing No. 84 at 20.]

         The EEOC dismissed Mr. Abebe's charge, and issued a Notice of Right to Sue (“Right to Sue Letter”) on December 6, 2012. [Filing No. 79-2 at 4; Filing No. 79-2 at 17.] Mr. Abebe did not file a lawsuit relating to the three positions that were the subject of his April 2012 EEOC Charge within the 90-day deadline provided in the December 6, 2012 Right to Sue Letter.

         g. The Client Services Manager Position ...

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