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Marheine v. Johnson & Johnson Services

January 7, 2009


The opinion of the court was delivered by: Alicemarie H. Stotler United States District Judge



On April 21, 2008, defendant Johnson & Johnson Services, Inc. filed a motion for summary judgment ("the Motion" or "MSJ"). On May 12, 2008, plaintiff Jeffrey K. Marheine filed opposition to the Motion and objections to defendant's declarations ("plaintiff's objections"). On June 2, 2008, defendant filed a reply, a response to plaintiff's objections, and objections to plaintiff's declarations ("defendant's objections"). On June 5, 2008, plaintiff filed objections to evidence submitted in conjunction with defendant's reply ("plaintiff's supplemental objections"). On June 9, 2008, the Court heard the Motion, ordered the parties to lodge proposed orders for the purpose of ruling on their evidentiary objections, and took the matter under submission. By this order, the Court denies defendant's motion.*fn1


Johnson & Johnson Sales Recruiting ("JJSR") is a division of named defendant JJS. JJS is, in turn, a wholly owned subsidiary of J&J. JJSR provides recruiting services to various subsidiary companies of J&J.

Plaintiff began working for JJSR in 1990 and, in 1999, became a recruiter. TAC, ¶ 7. As a recruiter, plaintiff worked with managers at various J&J subsidiaries to assist them in finding candidates to fill job openings in Southern California. TAC, ¶ 8.

Plaintiff sent a Hispanic candidate to interview with a hiring manager at Ethicon, Inc., a J&J subsidiary, and during the interview, the hiring manager, Lloyd Lowry ("Lowry") made inappropriate comments about the candidate's Hispanic heritage. TAC, ¶ 9. After hearing about the incident from the job candidate, plaintiff reported Lowry's behavior to plaintiff's manager and subsequently to Human Resources. TAC, ¶ 10. After plaintiff reported the incident, Lowry appeared to develop a dislike for plaintiff. Id.

During plaintiff's years as a recruiting manager, he consistently received positive reviews for his work. TAC, ¶ 11. In 2006, plaintiff sent an African-American woman to interview for an open position at PriCara, another J&J subsidiary. TAC, ¶ 12. PriCara's Regional Business Director/Hiring Manager, Russ Stough ("Stough"), stated that he did not want to hire her because she was a single mother who would be required to move to Las Vegas for the job. Id. Another PriCara Hiring Manager, Karen Martin ("Martin"), stated her strong dislike for hiring women with children and a reluctance to hire Asians. TAC, ¶ 13.

On or about March 23, 2006, plaintiff informed the Director of Sales Recruiting, Cindy Burkhardt ("Burkhardt") about the illegal hiring practices he had observed at PriCara. TAC, ¶ 14. Within days of reporting these illegal practices, plaintiff began to receive critical feedback from Burkhardt. TAC, ¶ 15. On April 6, 2006, through an e-mail, plaintiff confronted Burkhardt about the questionable timing of her criticism. TAC, ¶ 16. Approximately four months after plaintiff criticized certain illegal hiring practices; plaintiff was criticized, written up, placed on probation, and terminated. TAC, ¶ 17.

Plaintiff's remaining claims assert retaliation in violation of the California Fair Employment and Housing Act (TAC, ¶¶ 23-28), wrongful termination in violation of public policy (TAC, ¶¶ 29-32), and retaliation in violation of Title VII of the Civil Rights Act of 1964 (TAC, ¶¶ 64-69). Plaintiff seeks compensatory and general damages, punitive damages, statutory penalties, attorney's fees, costs of suit, and prejudgment interest.



A. Defendants' Motion for Summary Judgment

1. Time Line of Incidents and Background

In November 2005, JJSR modified its recruiting model to require hiring managers at J&J operating companies to use JJSR as their primary and first provider of recruiting services. Before this time, hiring managers at J&J operating companies had the option of using outside recruiters.

In January 2006, plaintiff's direct supervisor, Lori Skjong-Nilsen ("Skjong-Nilsen"), based in Texas, directed plaintiff to present JJSR's change in policy to Southern California hiring managers for PriCara, a J&J operating company. Skjong-Nilsen Decl. ¶ 38, MSJ Ex. 105. Plaintiff did not make the presentation. As a result, PriCara attempted to process a candidate through JJSR, but the attempt was rejected because the candidate was procured through an independent recruiter, not through JJSR. In response, PriCara hiring manager Stough complained to Burkhardt, JJSR's Director of Sales Recruiting. Stough's e-mails to Burkhardt indicate dissatisfaction with communication between Burkhardt's team and PriCara regarding JJSR's new recruiting policy. MSJ Ex. 109.

On March 27, 2006, in response to plaintiff's failure to timely advise PriCara of JJSR's change in recruiting policy, Burkhardt directed Skjong-Nilsen, plaintiff's direct supervisor, to issue a formal memorandum of discipline to plaintiff. Shortly thereafter, Burkhardt e-mailed Skjong-Nilsen and plaintiff to schedule a conference call regarding plaintiff's performance. On March 28, 2006, plaintiff wrote back, indicating he believed it would not be "in my best interest to speak live about the issues involving Russell Stough." MSJ Ex. 111.

On March 29, 2006, Burkhardt sent plaintiff an e-mail outlining her concerns and noting they were not just about the PriCara presentation but "the greater problem which is your overall performance to include complaints from multiple organizations, customers requesting not to work with you, communication issues, customer management issues and conflict management." MSJ Ex. 113.

On April 6, 2006, while on medical leave, plaintiff sent an e-mail to Burkhardt in which he suggested he was being retaliated against for complaining of Stough, Martin, and Lowry's illegal hiring practices. MSJ Ex. 114.

Over the course of the next few months, JJSR assured plaintiff they were concerned with his claims of illegal hiring practices. MSJ Ex. 117. However, as employees of independent companies with their own supervisors and line of authority, JJSR had no authority to admonish these individuals.

After returning from medical leave in late April, plaintiff's performance continued to decline. On July 21, 2006, Skjong-Nilsen received a notice from Mark Berghoefer, a business director at Ortho-McNeil, that a week had elapsed during which plaintiff failed to advise a candidate that she had not been chosen for a position. MSJ Ex. 120; Skjong-Nilsen Dec. ¶ 66.

On July 11, 2006, plaintiff was given a formal termination warning. MSJ Ex. 124; Skjong-Nilsen Decl. ¶ 71.

2. Summer Hours Program

JJSR implemented a "Summer Hours Program" allowing employees to work additional hours on certain days to cover the required hours during the week prior to taking a Friday off. MSJ Ex. 125. Employees were allowed to take every other Friday off if they worked nine straight days of additional hours. Plaintiff elected to participate in the program. Skjong-Nilsen Decl. ¶ 73.

In August, Skjong-Nilsen conducted a survey of records regarding plaintiff's access card use and computer log-on, log-off records. Skjong-Nilsen Decl.¶ 77. As part of his job duties, plaintiff was required to keep regular access to e-mail and continually enter data, based on conversations with candidates and customers, on the JJSR form. This required him to be logged on to the JJSR computer network during working hours. Id. These computer records showed that plaintiff was regularly taking days off and working less than a full 40-hour week. MSJ Ex. 126. The parking garage records also showed that plaintiff was at the office less than 7.5 hours a day during the summer months. MSJ Ex. 127.

These records proved to Skjong-Nilsen the accuracy of complaints made about plaintiff. Accordingly, she made the decision to terminate him. Following a review of Skjong-Nilsen's recommendation, plaintiff was terminated on August 14, 2006.

3. Plaintiff Does Not Establish a Prima Facie Case for Retaliation

Plaintiff fails to establish a causal link between the protected activity and his firing. First, plaintiff claims Burkhardt retaliated against him, but the undisputed evidence is that Skjong-Nilsen made the firing decision. MSJ Ex. 124; Skjong-Nilsen Decl. ¶ 82. Second, the initial decision to discipline plaintiff was in response to his failure to conduct the PriCara presentation. Third, Stough, Martin, and Lowry, the individuals plaintiff accused of making improper statements, were not employees of defendant. As employees of separate operating companies their behavior created no risk for JJSR and therefore no motive to retaliate. Finally, four months, the time between plaintiff's reporting and termination, is too long to find the existence of a causal link.

4. Reasons for Termination were Legitimate and Non-Retaliatory

Plaintiff had a history of poor performance dating back to 2003. MSJ Ex. 104. In July 2006, plaintiff was also the subject of a complaint for lack of responsiveness. Skjong-Nilsen Decl. ¶ 66. The most significant shortcoming was plaintiff's failure to present the new recruiting model to PriCara in a timely manner.

In addition, plaintiff's metric scores show that he was in the bottom of the department in terms of performance after 2 quarters in 2006. MSJ Ex. 124. He failed to work the hours required to do his job effectively.

5. There is no Evidence of Pretext

Defendant acted consistently in its treatment of plaintiff and other recruiters. Only one other individual had a lower metric score than plaintiff and was also fired. Skjong-Nilsen Decl. ¶ 90. Defendant's reasons for termination were also consistent with the warnings previously given to plaintiff dating back to 2004. The decision was in good faith as it was based on plaintiff's minimal work effort and substandard performance.

6. Plaintiff had no Reasonably-Based Suspicion of Unlawful Activity

Plaintiff's April 6, 2006 communication accuses Burkhardt of retaliation but he did not report the alleged wrongful conduct to Burkhardt prior to his April e-mail. Burkhardt Decl. ¶ 40. Where there is no evidence the employer knew of an employee's opposition, there can be no basis for a retaliation claim.

7. Plaintiff Failed to Mitigate Damages

Plaintiff voluntarily elected not to work for more than a year, thereby willfully failing to mitigate any purported damages. Neubauer Decl. ¶ 24.

B. Plaintiff's Opposition

1. Time Line of Incidents and Background

Plaintiff began his career at J&J in 1990. In 1998, he transferred to JJSR, a J&J subsidiary to work as a recruiter in the Southern California region. His primary job was to locate, interview, and screen applicants for the position of pharmaceutical representative for J&J subsidiaries operating in the region. Marheine Decl. ¶ 3.

Plaintiff works from home an average of 60-90 minutes a day, and it is undisputed that he was never told he was expected to spend eight hours a day in the Irvine office. Nearly all recruiters, including Marheine, worked at least a portion of their workweek from their homes. Marheine Decl. ¶ 3; Skjong-Nilsen Depo., 33:1-33.

As a federal contractor, JJSR's compliance with federal anti-discrimination guidelines was a primary goal of the new hiring process JJSR instituted in 2005, wherein all recruitment of J&J subsidiary offices would go through JJSR. Burkhardt Depo., 25:1-26:23.

In early 2006, plaintiff participated in several uncomfortable conversations with hiring managers of J&J subsidiaries wherein it became clear to plaintiff that these hiring managers were engaging in discriminatory hiring practices. On two different occasions he reported allegedly discriminatory hiring practices engaged in by district managers at J&J subsidiary companies for whom JJSR conducted recruiting. First, in 1999, an applicant accused district manager Lowry of Ethicon of discrimination based on nationality. Plaintiff conveyed this charge to J&J Human Resources. Marheine Decl. ¶ 7. Then, in "early 2006," plaintiff had "several uncomfortable conversations" with district managers for whom JJSR recruited suggesting the managers were engaged in illegal hiring practices. Marheine Decl. at ¶ 10.) Plaintiff alleges Karen Martin ("Martin"), a district manager for PriCara, informed plaintiff that she did not want to hire a candidate because "she did not want any more 'quiet Asians' on her team." Id. This conversation with Martin led him to believe she no longer wanted him to ...

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