Case 2:05-cv-00404-TFM Document 48-1 Filed 11/03/2006 Page 1 of 1

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT October 25, 2006 # ACO-13
No. 06-8053

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
v.
NOVARTIS PHARMACEUTICALS CORPORATION, Petitioner
(W.D. of PA - DC No. 05-cv-00404)
PRESENT: SLOVITER, CHAGARES and NYGAARD, Circuit Judges
1. Petition for Leave to Appeal Pursuant to 28 U.S.C. Section 1292(b) by Novartis Pharmaceuticals Corporation.
2. Response by U. S. Equal Employment Opportunity Commission.
Carolyn Hicks, Case Manager 267-299-4926
O R D E R
The foregoing petition for leave to appeal pursuant to 28 U.S.C. section 1292(b) by Novartis Pharmaceuticals Corporation is denied.
By the Court,

Dated: November 3, 2006 CH/cc: M. Jean Clickner, Esq.
Abigail D. Flynn-Kozara, Esq. Jacqueline H. McNair, Esq. Martha H. Munsch, Esq. Judith A. O’Boyle, Esq. Kim M. Watterson, Esq. James M. Tucker, Esq.

/s/ Dolores K. Sloviter Circuit Judge
A True Copy:
Marcia M. Waldron, Clerk

 
 Case 2:05-cv-00404-TFM Document 62 Filed 09/28/2007 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

NOVARTIS PHARMACEUTICALS )

CORPORATION,

)

)

Defendant.

)

2:05-cv-404

MEMORANDUM OPINION AND ORDER OF COURT Before the Court for disposition are DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Document No. 50), with brief in support (Document No. 52), Plaintiff’s Memorandum in Opposition to Defendant’s Motion for Summary Judgment (Document No. 55), and the Reply Memorandum of Law in Support of Defendant’s Motion for Summary Judgment (Document No. 61). After considering the filings of the parties, the evidence of record and the relevant statutory and case law, Defendant’s motion for summary judgment will be denied.

Background Bethany Brandstatter (“Brandstatter”) was hired by Novartis Pharmaceuticals Corporation (“Novartis”) as a sales representative in April 2002. (Doc. Nos. 51, p. 1, ¶ 1, 56, p. 1, ¶ 1). Novartis apparently has four levels of sales employees. (Doc. Nos. 51, p. 1, ¶ 2, 56, p. 1, ¶ 2). Sales representative positions are considered to be entry-level positions. Id. The positions at the other three levels, in ascending order, are sales consultant, senior sales consultant and executive sales consultant positions. Id. Because she was an entry-level sales representative, Brandstatter attended Phase 1 Sales Training during the first three weeks of her employment. (Doc. Nos. 51, p. 2, ¶ 3, 56, p. 2, ¶ 3). She needed to attend this mandatory training before starting to sell in the field. Id. This training focused on priority products, selling skills, anatomy, physiology and diseases. Id. In July 2002,
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Brandstatter attended Phase 2 Sales Training. (Doc. Nos. 51, p. 2, ¶ 4, 56, p. 2, ¶ 4). New employees typically undergo Phase 2 Sales Training two to three months after completing Phase 1 Sales Training. Although the subject matter covered in both phases is generally the same, Phase 2 Sales Training provides a greater degree of depth in the areas of disease management, product management, physiology, and sales techniques. Id. Phase 2 Sales Training also covers clinical reviews and prescribing information. Id.
Toward the end of August 2002, Brandstatter attended a sales meeting in Orlando, Florida, along with other sales representatives. (Doc. Nos. 51, p. 2, ¶ 5, 56, p. 2, ¶ 5). The meeting was in connection with the upcoming launch of Zelnorm, a new Novartis product. Id. At the meeting, Brandstatter’s immediate supervisor, Ivory Gethers (“Gethers”), gave Brandstatter some negative feedback concerning her presentation. Id. Gethers apparently “failed” Brandstatter’s presentation because she had exceeded the designated allotment of time, even though he did not fail another sales representative who had also exceeded the designated allotment. (Doc. No. 56, p. 2, ¶ 5).
On or around September 3, 2002, Brandstatter filed an internal complaint with Novartis’ Human Resources Department, accusing Gethers of subjecting her to sexual harassment and a hostile work environment. (Doc. Nos. 51, p. 2, ¶ 6, 56, p. 2, ¶ 6). Brandstatter’s complaint was investigated by Joseph Palumbo (“Palumbo”), who worked for Novartis’ Human Resources Department. (Doc. Nos. 51, p. 3, ¶ 8, 56, p. 3, ¶ 8). Gethers, who was responsible for evaluating Brandstatter’s performance, would occasionally ride with her in the field and accompany her on calls to physicians’ offices. (Doc. Nos. 51, p. 5, ¶ 15, 56, p. 10, ¶ 15). On December 9, 2002, Gethers placed Brandstatter on a Territory Coaching Plan (“TCP”), which explained the steps that she needed to take in order to improve her job performance. (Doc. Nos. 51, pp. 5-6, ¶ 17, 56, pp. 12-13, ¶ 17). Brandstatter responded to the TCP in writing. (Doc. Nos. 51, p. 6, ¶ 18, 56, p. 13, ¶ 18). Thereafter, having conferred with Gary Branch (“Branch”), Gethers revised Brandstatter’s TCP. Id.
On or around January 27, 2003, Brandstatter received a written performance evaluation from Gethers. (Doc. Nos. 51, p. 6, ¶ 19, 56, p. 13, ¶ 19). Gethers gave Brandstatter an overall rating of 2-1, or “Needs Improvement.” Id. After receiving the evaluation, Brandstatter
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contacted Maria LaRosa (“LaRosa”), who worked for Novartis’ Human Resources Department. (Doc. Nos. 51, p. 6, ¶ 20, 56, p. 14, ¶ 20). She told LaRosa that she believed that Gethers was treating her differently (i.e., giving her a bad performance evaluation) because she had filed a complaint against him for sexual harassment. Id. Brandstatter indicated that Gethers had mentioned her complaint against him twice, and that she felt uncomfortable riding with him because he was a large man. Id. Brandstatter made it clear to LaRosa that she did not agree with the performance evaluation. Id. After hearing from LaRosa about the matter, Branch spoke with Gethers. (Doc. Nos. 51, p. 7, ¶ 21, 56, pp. 14-15, ¶ 21). Branch also spoke with Brandstatter about the situation. (Doc. Nos. 51, p. 7, ¶ 22, 56, p. 15, ¶ 22). When asked by Branch whether she would be able to continue working with Gethers, Brandstatter responded in the negative. Id. Although they discussed the possibility of her transferring to an open territory in either York or Carlisle (both of which were in Pennsylvania), Brandstatter decided that she was not interested in such a transfer. Id.
Brandstatter contacted LaRosa again on March 7, 2003, complaining that she had not received an increase in her salary. (Doc. Nos. 51, p. 7, ¶ 23, 56, p. 16, ¶ 23). Gethers sent Brandstatter an email on March 18, 2003, stating that her TCP was scheduled to end on that day. (Doc. Nos. 51, p. 8, ¶ 27, 56, p. 18, ¶ 27). In the same email, he indicated that her calls-per-day average was only 8.8, whereas the district goal was 10. Id. For this reason, he wanted her to continue to send him emails regarding her weekly calls. Id. On April 11, 2003, Gethers formally removed Brandstatter from the TCP. Id. Consequently, she was no longer required to send him her weekly calls. Id.
On July 1, 2003, Branch accompanied Brandstatter in the field. (Doc. Nos. 51, p. 8, ¶ 28, 56, p. 18, ¶ 28). Brandstatter apparently never mentioned her concerns about Gethers on that occasion. Id. She took online, self-directed training courses, enabling her to learn more without spending time outside of her territory. (Doc. Nos. 51, p. 9, ¶ 32, 56, p. 19, ¶ 32). Nevertheless, she was apparently omitted from some training-related emails sent by Gethers to other sales representatives. (Doc. Nos. 51, p. 10, ¶ 33, 56, pp. 19-20, ¶ 33).
Brandstatter went on short-term disability leave on August 1, 2003. (Doc. Nos. 51, p. 10, ¶ 34, 56, p. 20, ¶ 34). At some point during the summer of 2003, Brandstatter started to look for
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a new job. (Doc. Nos. 51, p. 10, ¶ 35, 56, p. 20, ¶ 35). She ultimately accepted a job with Schwartz Pharmaceuticals, which was scheduled to begin in September 2003. (Doc. Nos. 51, p. 10, ¶ 36, 56, p. 20, ¶ 36). Brandstatter submitted her resignation to Novartis on August 29, 2003. (Doc. Nos. 51, p. 10, ¶ 37, 56, p. 20, ¶ 37). She never returned to Novartis after the commencement of her short-term disability leave. Id. Gethers is no longer employed by Novartis. (Doc. Nos. 51, p. 11, ¶ 40, 56, p. 21, ¶ 40).
In April 2003, Brandstatter filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), alleging that she had been subjected to both sexual harassment and retaliatory animus after complaining about such harassment. (Doc. Nos. 51, p. 11, ¶ 41, 56, p. 22, ¶ 41). The EEOC commenced this action against Novartis on March 24, 2005. (Doc. No. 1). Brandstatter intervened on May 6, 2005. (Doc. No. 9). Brandstatter subsequently moved to Chicago, Illinois. (Doc. Nos. 51, p. 11, ¶ 43, 56, p. 22, ¶ 43). She entered into a settlement agreement with Novartis in January 2006. (Doc. No. 51, p. 11, ¶ 44). On February 14, 2006, the Court granted a motion filed by Novartis and Brandstatter seeking the dismissal of Brandstatter’s claims against Novartis. (Doc. No. 25). Novartis responded by filing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), seeking the dismissal of the EEOC’s complaint on the ground that there was no longer a live “Case” or “Controversy” within the meaning of Article III of the United States Constitution. (Doc. No. 28). The Court denied this motion in a memorandum opinion dated August 8, 2006, holding that Brandstatter’s settlement agreement with Novartis, and the subsequent dismissal of her claims, did not deprive the Court of subject matter jurisdiction in this case. Equal Employment Opportunity Commission v. Novartis Pharmaceuticals Corporation, 2006 WL 2290410, 2006 U.S. Dist. LEXIS 58307 (W.D.Pa. August 8, 2006). At the request of Novartis, the Court amended the order denying Novartis’ motion to dismiss in accordance with 28 U.S.C. § 1292(b), thereby allowing Novartis to seek an interlocutory appeal to the United States Court of Appeals for the Third Circuit with respect to the jurisdictional issue. (Doc. No. 46). The Court of Appeals denied Novartis’ petition for leave to appeal on November 3, 2006. (Doc. No. 48).
On January 8, 2007, Novartis filed a motion for summary judgment, which is currently pending before the Court. (Doc. No. 50). The EEOC opposes Novartis’ motion for summary
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judgment. Briefing by the parties was completed on March 26, 2007. It is Novartis’ motion for summary judgment which is the subject of this memorandum opinion.
Standard of Review Rule 56(c) of the Federal Rules of Civil Procedure reads, in pertinent part, as follows:
[Summary Judgment] shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
In interpreting Rule 56(c), the United States Supreme Court has stated:
The plain language . . . mandates entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to material fact,” since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). An issue of material fact is genuine only if the evidence is such that a reasonable jury
could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must view the facts in a light most favorable to the non-moving party, and the burden of establishing that no genuine issue of material fact exists rests with the movant. Celotex, 477 U.S. at 323. The "existence of disputed issues of material fact should be ascertained by resolving all inferences, doubts and issues of credibility against the moving party.” Ely v. Hall's Motor Transit Co., 590 F.2d 62, 66 (3d Cir. 1978) (quoting Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 874 (3d Cir. 1972)). Final credibility determinations on material issues cannot be made in the context of a motion for summary judgment, nor can the district court weigh the evidence. Josey v. John R. Hollingsworth Corp., 996 F.2d 632 (3d Cir. 1993); Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224 (3d Cir. 1993).
When the non-moving party will bear the burden of proof at trial, the moving party's
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burden can be "discharged by ‘showing’ -- that is, pointing out to the District Court -- that there is an absence of evidence to support the non-moving party's case." Celotex, 477 U.S. at 325. If the moving party has carried this burden, the burden shifts to the non-moving party, who cannot rest on the allegations of the pleadings and must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Petruzzi's IGA Supermarkets, 998 F.2d at 1230. When the nonmoving party's evidence in opposition to a properly supported motion for summary judgment is "merely colorable" or "not significantly probative," the court may grant summary judgment. Anderson, 477 U.S. at 249-250.
Discussion
In support of its motion for summary judgment, Novartis essentially advances two basic arguments. First, Novartis contends that since the EEOC now seeks only injunctive relief, the Court must dismiss the claim because the EEOC cannot obtain injunctive relief as a matter of law. (Doc. No. 52, pp. 5-9). Second, Novartis argues that no genuine issue of material fact exists as to whether its actions violated federal law in any event, thereby defeating any possibility of injunctive relief as a matter of law. (Doc. No. 52, pp. 9-20). The Court cannot agree with Novartis with respect to both arguments, and will proceed to address each of them seriatim.
The EEOC claims that Novartis’ actions with respect to Brandstatter violated Title VII of the Civil Rights Act of 1964 [42 U.S.C. § 2000e et seq.]. Novartis first argues that the EEOC cannot demonstrate the “essential prerequisites” for injunctive relief, and that summary judgment should be granted in favor of Novartis for that reason. (Doc. No. 52, pp. 5-9). The relevant statutory provision provides:
If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate.
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42 U.S.C. § 2000e-5(g)(1). The statute speaks in very clear terms. The only essential prerequisite for the entry of injunctive relief in this case is a finding by the Court that Novartis has intentionally engaged in, or is intentionally engaging in, an unlawful employment practice charged in the complaint. Such a finding, of course, would not entitle the EEOC to an injunction as a matter of law, since the statutory language speaks in permissive terms (i.e., by providing that the court may enjoin the relevant unlawful employment practice). Nevertheless, a finding of intentional discrimination appears to be the only statutory prerequisite to the issuance of an injunction.
The Court’s construction of the statute is consistent with the construction adopted by other federal courts. In EEOC v. Frank’s Nursery & Crafts, Inc., 177 F.3d 448 (6th Cir. 1999), the United States Court of Appeals for the Sixth Circuit explained:
It is clear that the EEOC may obtain relief that protects a class of persons from unlawful employment discrimination without citing numerous instances of such discrimination. While the right to such relief is not absolute, and the power to order it rests in the hands of the lower courts, the EEOC may seek it upon proof even of just one instance of discrimination that violates Title VII. In seeking such relief, the EEOC need not identify a class or its numbers, or even identify a pattern or practice of discrimination.
Frank’s Nursery, 177 F.3d at 468. In EEOC v. Massey Yardley Chrysler Plymouth, 117 F.3d 1244 (11th Cir. 1997), the United States Court of Appeals for the Eleventh Circuit noted that “the EEOC is normally entitled to injunctive relief where it proves discrimination against one employee and the employer fails to prove that the violation is not likely to recur.” Massey Yardley, 117 F.3d at 1253 (emphasis added). Other federal appellate courts have indicated that the burden is on the employer to demonstrate, upon a finding of intentional discrimination, that it is unlikely to violate Title VII again. EEOC v. Harris Cherin, Inc., 10 F.3d 1286, 1292 (7th Cir. 1993); EEOC v. Goodyear Aerospace Corporation, 813 F.2d 1539, 1544-1545 (9th Cir. 1987). Admittedly, there is some authority indicating that, in circumstances where a single violation (rather than a pattern of violations) is found, the burden remains on the moving party (i.e., the EEOC) to establish that the employer is likely to engage in discriminatory conduct in the future. EEOC v. General Lines, Inc., 865 F.2d 1555, 1565 (10th Cir. 1989). The allocation of the
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burden, however, need not be determined at this stage of the proceeding. Regardless of which party bears the burden, the decision to grant or deny an injunction, upon a finding of intentional discrimination, is committed to the sound discretion of the Court. Frank’s Nursery, 177 F.3d at 467-468 (“Thus, the EEOC may obtain such general injunctive relief, under the equitable discretion of the district court, even where the EEOC only identifies one or a mere handful of aggrieved employees.”). It would be premature for the Court to dismiss the EEOC’s claim (under the guise of exercising its statutory discretion) without first determining whether Novartis did, in fact, engage in intentional discrimination. Harris Chernin, 10 F.3d at 1292 (“It has not yet been determined whether, in fact, Chernin discriminated against Rosenthal, and whether, if it did, it acted willfully or under such circumstances that an injunction would be appropriate. The EEOC is entitled to try to prove these claims if it believes it has a case. Identification in the complaint of persons who might be protected by an injunction is not required.”).
Novartis relies on EEOC v. North Gibson School Corporation, 266 F.3d 607 (7th Cir. 2001), for the proposition that injunctive relief is inappropriate where there is no identifiable discriminatory practice and no reasonable expectation that one will commence in the future. (Doc. No. 52, pp. 7-8). Novartis’ reliance on North Gibson is misplaced. In North Gibson, the United States Court of Appeals for the Seventh Circuit noted that “[t]he EEOC’s ‘interests in determining the legality of specific conduct and in deterring future violations are distinct from the employee’s interest in a personal remedy.’” North Gibson, 266 F.3d at 620, quoting Goodyear Aerospace, 813 F.2d at 1542. The Court of Appeals did not purport to limit the availability of the injunctive relief sought by the EEOC in the case. Instead, North Gibson stands for the more narrow proposition that the EEOC cannot obtain injunctive relief which serves as the functional equivalent of a form of monetary relief unavailable to the aggrieved individual. North Gibson, 266 F.3d at 621 (“In the present case, the retirement benefits the EEOC seeks to obtain through injunctive relief for Anthis and Schleter serve the same function as an award of back pay. The same considerations obtain whether the EEOC seeks this relief through monetary damages or through an injunction. We see no reason, and the EEOC has offered none, why the EEOC should be able to obtain through an injunction what the courts have refused to grant it directly.”). The Court of Appeals also determined that a district court had correctly dismissed as
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moot the EEOC’s request for injunctive relief against the future use of a discriminatory early retirement plan. Id. at 621. Nevertheless, the EEOC had not even suggested that it had a reasonable expectation that such a discriminatory plan would be adopted by the defendant. Id. In the instant case, the EEOC has done more than simply suggest that Novartis’ alleged conduct may be repeated. It has produced evidence that individuals currently employed by Novartis did not protect Brandstatter from Gethers’ retaliatory conduct, and that they tried to persuade Brandstatter to transfer to York, Pennsylvania, because her working relationship with Gethers had deteriorated so badly. (Doc. No. 57-15, p. 16). Since no finding as to whether Novartis intentionally engaged in an unlawful employment practice has been made at this point, the Court has no occasion to exercise its statutory discretion to either grant or deny the injunctive relief sought by the EEOC. 42 U.S.C. § 2000e-5(g)(1). Accordingly, at this stage, it suffices to say that Novartis is not entitled to a favorable judgment as a matter of law with respect to the propriety of injunctive relief.
Where Congress has intended to provide for heightened statutory prerequisites to certain forms of relief, it has done so. 42 U.S.C. § 1981a(b)(1), for instance, provides for an award of punitive damages “if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(1)(emphasis added). Title VII’s language conferring the discretionary authority on federal courts to grant injunctive relief upon a finding of intentional discrimination contains no prerequisite to such relief aside from the finding of an underlying violation itself. 42 U.S.C. § 2000e-5(g)(1). The statute requires only a finding that “the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint[.]” Id. Courts are not empowered to engraft onto statutes prerequisites to relief not intended by Congress. Kolstad v. American Dental Association, 527 U.S. 526, 534-535 (1999)(distinguishing between compensatory damages, which require only a showing of intentional discrimination, and punitive damages, which require an additional showing of malice or reckless indifference to an aggrieved individual’s rights under federal law). Thus, Novartis is not entitled to a judgment as a matter of law unless it can show that no genuine issue of material fact exists as to whether it intentionally
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engaged in an unlawful employment practice charged in the complaint. It is that inquiry to which the Court now turns.
The allegations set forth in the complaint only concern those affecting Brandstatter. (Doc. No. 1). The Court has already determined that, as a consequence of Brandstatter’s settlement agreement with Novartis, the EEOC can no longer seek monetary damages for Brandstatter. Novartis, 2006 WL 2290410, at *4, 2006 U.S. Dist. LEXIS 58307, at *13 (“The Court finds and rules that because Brandstatter’s claim for damages has been completely resolved, it is necessary to hold that that part of the EEOC’s claim which seeks damages for Brandstatter as an individual employee (i.e., victim-specific releif [sic]) is barred.”). Since the only Title VII violations charged in the complaint concern Brandstatter, however, the EEOC must establish that Novartis intentionally engaged in an unlawful employment practice with respect to her in order to trigger this Court’s discretionary authority to issue injunctive relief.
The relevant portions of Title VII provide: § 2000e-2. Unlawful employment practices
(a) Employer practices. It shall be an unlawful employment practice for an employer--
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
*** § 2000e-3. Other unlawful employment practices
(a) Discrimination for making charges, testifying, assisting, or participating in enforcement proceedings. It shall be an unlawful employment practice for any employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment
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practice by this title [42 U.S.C. §§ 2000e-2000e-17], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title [42 U.S.C. §§ 2000e-2000e-17].
42 U.S.C. §§ 2000e-2(a), 2000e-3(a). The relevant portion o f the EEOC’s prayer for relief provides:
Wherefore, the Commission requests that this Court:
A. Grant a permanent injunction enjoining the Defendant Employer, its officers, successors, assigns and all persons in active concert or participation with it, from retaliating against employees who complain of such and in any other employment practice which operates to retaliate against employees.
B. Grant a permanent injunction enjoining the Defendant Employer, its officers, successors, assigns and all persons in active concert or participation with it, from discriminating within any of its establishments between employees on the basis of retaliation.
C. Order Defendant Employer to institute and carry out policies, practices and programs which provide equal employment opportunities for women, and which eradicate the effects of its past and present unlawful employment practices.
(Doc. No. 1). It is clear that the EEOC is pursuing an injunction against retaliation under § 2000e-3(a), and not an injunction against violations of the substantive prohibitions contained in § 2000e-2(a). To establish a prima facie case of retaliation under § 2000e-3(a), the EEOC must demonstrate: (1) that Brandstatter engaged in conduct protected under the statutory provision; (2) that Novartis took a materially1 adverse action against Brandstatter; and (3) that there was a causal relationship between Brandstatter’s protected conduct and Novartis’ materially adverse action against her. Kachmar v. Sungard Data Systems, Inc., 109 F.3d 173, 177 (3d Cir. 1997).
In order to ascertain whether the EEOC can proceed in this action on the ground that Novartis unlawfully retaliated against Brandstatter within the meaning of § 2000e-3(a), the Court
1The United States Court of Appeals for the Third Circuit did not specifically refer to a “materially adverse” action in Kachmar v. Sungard Data Systems, Inc., 109 F.3d 173, 177 (3d Cir. 1997). In this case, the Court has added that term in order to incorporate the standard adopted by the United States Supreme Court in Burlington Northern & Sante Fe Railway Co. v. White, 126 S.Ct. 2405, 2415 (2006).
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must first determine whether Brandstatter opposed an employment practice made unlawful under Title VII. In this respect, the question of whether actionable retaliation occurred depends on whether the underlying practice opposed constituted an unlawful employment practice. The United States Court of Appeals for the Third Circuit has held that an individual engages in protected conduct when she protests what she believes in good faith to be a prohibited practice. Aman v. Cort Furniture Rental Corporation, 85 F.3d 1074, 1085 (3d Cir. 1996). Hence, it is not necessary for the EEOC to establish that the conduct which Brandstatter opposed (i.e., sexual harassment) independently violated § 2000e-2(a). It is sufficient for the EEOC to show that Brandstatter was acting under a good faith, reasonable belief that Gethers’ comments constituted an unlawful employment practice. Griffiths v. Cigna Corporation, 988 F.2d 457, 468 (3d Cir. 1993).
The Court understands Brandstatter’s initial complaints about Gethers to Novartis personnel to be based on a “hostile work environment” theory. To establish a violation of § 2000e-2(a) under this theory, a plaintiff must show that she endured harassing behavior sufficiently severe to alter the terms, conditions or privileges of her employment. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). An isolated incident amounts to a change in the terms, conditions or privileges of one’s employment only if it is “extremely serious.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). The Supreme Court has admonished that Title VII “does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex.” Oncale v. Sundower Offshore Services, Inc., 523 U.S. 75, 81 (1998). Title VII prohibits only those forms of sexual harassment severe or pervasive enough to create a hostile or abusive working environment. Pennsylvania State Police v. Suders, 542 U.S. 129, 146-147 (2004). “Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment–an environment that a reasonable person would find hostile or abusive–is beyond Title VII’s purview.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). With that in mind, the Court now turns to the comments allegedly made to Brandstatter by Gethers.
In her complaint in intervention, Brandstatter alleged three instances of harassing conduct on the part of Gethers which had prompted her to report him to Novartis’ Department of Human
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Resources. The first incident allegedly occurred on June 18, 2002. On that occasion, during a business-related telephone conversation between Brandstatter and Gethers, Gethers allegedly stated, “I bet you’re a freak.” (Doc. No. 2, ¶ 13). Brandstatter understood this comment to be a reference to her sexual behavior. The next incident alleged occurred one month later. During another business-related telephone conversation on July 19, 2002, Gethers allegedly asked Brandstatter, “Would you be offended if I said I wanted to fuck the shit out of you?” (Doc. No. 2, ¶ 14). The third incident alleged occurred on August 22, 2002, at a company event. On that occasion, when Brandstatter introduced another female sales representative to Gethers, he allegedly replied, “Is she a present for me?” (Doc. No. 2, ¶ 15). The Court does not understand Novartis’ position to be that these incidents did not occur. Indeed, the record contains a letter from Branch to Gethers indicating that Gethers had engaged in inappropriate remarks and conversation “of a sexual nature,” and that disciplinary action (including possible termination) would result if such conduct were to be repeated. (Doc. No. 57-4, p. 6). Thus, there is no question that the EEOC has sufficient evidence to create a triable issue of fact as to whether Gethers engaged in the alleged conduct.
Evidence supporting the allegations against Gethers, of course, does not answer the ultimate question. These comments, though inappropriate in many respects, are not necessarily suggestive of a hostile or abusive working environment. In Clark County School District v. Breeden, 532 U.S. 268 (2001), the United States Supreme Court held that a plaintiff cannot establish that she engaged in protected conduct under § 2000e-3(a) merely by showing that she complained about trivial jokes of a sexual nature. Breeden, 532 U.S. at 271-272. In Breeden, two male employees, in the presence of a female coworker, joked about the meaning of the following statement, which was allegedly made by an job applicant whose psychological evaluation report they were in the process of reviewing: “I hear making love to you is like making love to the Grand Canyon.” Id. at 269. The comments were not directed at the female, but were simply intended to be a humorous response to what was contained in the particular applicant’s psychological evaluation report. The female, who was apparently offended by these comments, voiced complaints about the joke. Id. at 269-270. She later claimed that she was punished for doing so. Id. The Supreme Court concluded that she had no claim under § 2000e-
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3(a), since no reasonable person could have believed that the comments by the male employees constituted a violation of Title VII’s substantive provisions. Id. at 271.
The circumstances of the instant matter are materially different from those in Breeden. On two occasions, Gethers allegedly made comments indicating that he had a sexual interest in Brandstatter. His comment about another female sales representative possibly being a “present” for him does not strike the Court as particularly objectionable (at least for purposes of Title VII). Nonetheless, Gethers’ alleged comments about Brandstatter’s sexual habits, and his subsequent implication that he wanted to have sexual relations with her, differ meaningfully from the petty joke at issue in Breeden. Gethers was Brandstatter’s immediate supervisor, and the record indicates that he may have expressed a sexual interest in her on two separate occasions. It may be that these incidents were not independently actionable under Title VII, and that Brandstatter’s working environment was not sufficiently hostile or abusive to violate § 2000e-2(a). A retaliation claim under § 2000e-3(a), however, can succeed even when no underlying sex discrimination actually took place. Jackson v. Birmingham Board of Education, 544 U.S. 167, 187-188 (2005)(Thomas, J., dissenting). Although the Supreme Court has not specifically addressed the question, this Court is bound by the decisions of the United States Court of Appeals for the Third Circuit holding that an individual need only be under a reasonable belief that the conduct of which she complains violated Title VII (rather than establish that such conduct actually violated Title VII) in order to establish that she engaged in activity protected under the anti-retaliation provision of § 2000e-3(a). Aman, 85 F.3d at 1085; Griffiths, 988 F.2d at 468. Adherence to this rule is virtually uniform in other circuits as well. Crumpacker v. Kansas Department of Human Resources, 338 F.3d 1163, 1171 (10th Cir. 2003); Moore v. California Institute of Technology Jet Propulsion Laboratory, 275 F.3d 838, 845, n. 1 (9th Cir. 2002); Gregory v. Daly, 243 F.3d 687, 701 (2d Cir. 2001); Byers v. Dallas Morning News, Inc., 209 F.3d 419, 428 (5th Cir. 2000); Johnson v. University of Cincinnati, 215 F.3d 561, 579-580 (6th Cir. 2000); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 262 (1st Cir. 1999); Meeks v. Computer Associates International, 15 F.3d 1013, 1021 (11th Cir. 1994); Parker v. Baltimore & Ohio Railroad Company, 652 F.2d 1012, 1019-1020 (D.C.Cir. 1981).
In her deposition, Brandstatter testified that some of her coworkers encouraged her to
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inform Novartis’ Department of Human Resources about Gethers’ comments to her. (Doc. No. 57-5, p. 19). One coworker apparently stated that she would report Gethers’ conduct towards Brandstatter herself if Brandstatter elected not to do so. Id. Given that Brandstatter was the recipient of implied sexual propositions from her immediate supervisor on two separate occasions, she may have been under the reasonable belief that Gethers’ comments to her constituted a violation of Title VII. This determination is reinforced by the seriousness with which her coworkers apparently viewed the situation. The Court need not determine whether Gethers’ comments were independently actionable under § 2000e-2(a) pursuant to a “hostile work environment” theory. It suffices to say that the EEOC has sufficient evidence to create a genuine issue of material fact as to whether Brandstatter reasonably believed that Gethers’ comments to her violated Title VII. Aman, 85 F.3d at 1085; Griffiths, 988 F.2d at 468. Any belief on the part of Brandstatter that Gethers’ behavior was actionable cannot be properly characterized as objectively unreasonable, even if it is assumed arguendo that Gethers’ implied sexual propositions were insufficiently hostile or abusive to constitute a violation of § 2000e2(a). Since all reasonable inferences must be drawn in favor of the EEOC at this juncture, the Court is convinced (for purposes of Novartis’ motion for summary judgment) that Brandstatter’s complaints about Gethers’ implied sexual propositions constituted protected activity under § 2000e-3(a), and that she was entitled to statutory protection from retaliation.
It remains to be determined whether the EEOC has sufficient evidence of retaliation to establish a genuine issue of material fact as to whether Brandstatter’s rights under § 2000e-3(a) were violated. Novartis devotes a portion of its brief to refuting an argument that the EEOC does not make. Novartis contends that the EEOC failed to plead a “hostile work environment” claim, thereby making such a claim as the basis for injunctive relief improper. (Doc. No. 52, pp. 1012). The Court does not understand the EEOC to argue that injunctive relief should be granted with respect to Gethers’ alleged creation of a hostile working environment for Brandstatter. Instead, the EEOC seeks injunctive relief against Novartis to prevent future instances of retaliation. (Doc. No. 1). Since the EEOC is clearly not pursuing injunctive relief to prevent Novartis from permitting severe forms of sexual harassment to continue, there is no need to
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address Novartis’ argument as to that issue further.2 The Court’s “hostile work environment” analysis is limited to the question of whether a reasonable employee in the position of Brandstatter could have believed that Gethers’ implied sexual propositions violated Title VII. The Court answers that question in the affirmative.
With respect to the issue of retaliation, the applicable standard was enunciated last year by the United States Supreme Court in Burlington Northern & Sante Fe Railway Co., 126 S.Ct. 2405 (2006). In Burlington Northern, the Supreme Court explained that Title VII’s antiretaliation provision “does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace.” Burlington Northern, 126 S.Ct. at 2409. In order to advance its retaliation claim, the EEOC must demonstrate that the alleged retaliatory actions taken against Brandstatter “would have been materially adverse to a reasonable employee or job applicant.” The standard of material adversity is designed to “screen out trivial conduct while effectively capturing those acts that are likely to dissuade employees from complaining or assisting in complaints about discrimination.” Id. at 2416.
Novartis argues that Gethers’ alleged actions against Brandstatter were not materially adverse (i.e., that they would not have dissuaded a reasonable person in Brandstatter’s position from complaining about Gethers’ sexually harassing comments). (Doc. No. 52, p. 13). At this stage, however, the Court must view the evidence in the light most favorable to the EEOC, and Novartis bears the burden of establishing that no genuine issue of material fact exists as to this issue. Celotex, 477 U.S. at 323. With that in mind, the Court is convinced that the EEOC has presented sufficient evidence of materially adverse actions against Brandstatter to defeat Novartis’ motion for summary judgment.
Branch sent Gethers a conduct memorandum dated October 7, 2002, chastising him for
2The Court’s understanding of the EEOC’s claim is buttressed by the fact that the EEOC alleges that, on February 4, 2003, LaRosa told Brandstatter that she had no basis for complaining because the “sexual” harassment had ceased. (Doc. No. 1, ¶ 7(e)). The EEOC apparently believes that Novartis acted appropriately to protect Brandstatter from harassment of a sexual nature. The crux of the EEOC’s argument is that Novartis did absolutely nothing to protect Brandstatter from Gethers’ retaliatory conduct, which occurred after he learned of her complaints. It is that issue that is before the Court, and Novartis’ diversion to collateral matters cannot obscure the central issue in this case.
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engaging in “inappropriate remarks” with members of his team, “some of which were of a sexual nature, on more than one instance.” (Doc. No. 57-4, p. 6). Two months later, Gethers put Brandstatter under a TCP. (Doc. No. 57-8, pp. 1-4). Gethers’ letter to Brandstatter contained the following sentence:
Again, I must inform you that should you fail to meet the overall coaching plan objectives, or fail to sustain improvement following satisfactory completion of the coaching plan, we will have no alternative but to take further job action and place you on a Performance Improvement Plan.
(Doc. No. 57-8, p. 3). Gethers listed several reasons for putting Brandstatter on a TCP. He indicated that she had been ten minutes late for a meeting without leaving him a voicemail message, that she had made a pre-call outside of her car rather than inside of it, that she had failed to keep her computer battery charged, and that her calls per day was below the expected average. (Doc. No. 57-8, pp. 1-3). Brandstatter responded to Gethers’ letter in writing. (Doc. No. 57-8, pp. 5-7). She stated that she had been late for a single meeting because of a traffic accident, and that another sales representative had also been late. (Doc. No. 57-8, p. 5). She further explained that her cellular phone was being repaired by AT&T, and that she had advised him of that after arriving late for the meeting. Id. According to Brandstatter, Jim Napoleon, the other sales representative who had arrived late, was never reprimanded in the way that she was. Id. Brandstatter complained that her battery had not been charged because of a computer cord failure. (Doc. No. 57-8, p. 6). She indicated that she had been in the process of putting her computer in the trunk of her car while Gethers was asking her a question, and that she had made a call to a doctor while standing outside of her car because she was simultaneously attempting to retrieve on the computer the information needed to answer Gethers’ question. Id. With respect to her average calls per day, Brandstatter explained that, as she understood the situation, sales representatives were given a grace period of six months to reach the national call average, and that she had not been afforded such an opportunity. Id.
The Court has also been presented with notes taken by LaRosa about her conversation with Brandstatter on February 3, 2003. (Doc. No. 57-15, pp. 14-16). Brandstatter apparently told LaRosa that Gethers had accused her of acting in an unethical manner by complaining about
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his sexually motivated comments. (Doc. No. 57-15, p. 14). According to Brandstatter, Gethers had indicated that she should have confronted him directly about his comments, and that complaining to the Human Resources Department demonstrated her immaturity. Id. A few weeks later, Brandstatter complained to Branch that Palumbo had failed to protect her anonymity when she complained about Gethers’ sexually harassing comments. (Doc. No. 57-15, p. 15).
LaRosa received a call from Brandstatter on March 7, 2003. (Doc. No. 57-15, pp. 15-16). On that occasion, Brandstatter indicated that she did not want to work with Gethers any longer. (Doc. No. 57-15, p. 16). He had apparently told her that she did not receive a merit increase in her salary because she was on a TCP, and because of her performance. Id. She was under the impression that he was retaliating against her because of her earlier complaints about his sexually harassing comments. Id. The record evidence indicates that Branch suggested that Brandstatter move to York, Pennsylvania, where Novartis had a vacancy. Id.
Subsequent to those events, Gethers apparently made the decision not to recommend Brandstatter for any “2003 Sales Workshop 3" classes until he had a chance to meet with Branch. (Doc. No. 57-23, p. 2). He stated that Brandstatter’s performance was “still deficient in some areas.” Id. At that point, she was no longer on her TCP, which had ended on April 11, 2003. (Doc. Nos. 51, p. 8, ¶ 27, 56, p. 18, ¶ 27). The record reflects that Brandstatter did not receive certain training-related emails that Gethers had sent to other sales representatives. (Doc. Nos. 51, p. 10, ¶ 33, 56, pp. 19-20, ¶ 33).
The record contains evidence that, as of August 1, 2003, Brandstatter was undergoing treatment for anxiety, depression, abdominal pain, nausea and vomiting. (Doc. No. 57-8, p. 18). She went on disability leave for this reason. Id. Her physician indicated that the cause of her medical problems was work-related. Id. Brandstatter, of course, never returned to her job at Novartis. After accepting a job with Schwartz Pharmaceuticals, Brandstatter submitted her resignation to Novartis on August 29, 2003. (Doc. Nos. 51, p. 10, ¶¶ 36-37, 56, p. 20, ¶¶ 36-37).
Brandstatter’s testimony provides additional evidence of retaliation. She testified that it was her understanding that, after “Phase 3 training,” she would have the potential to receive a merit increase. (Doc. No. 57-5, p. 3). Nevertheless, she testified that Gethers expressly denied her a merit increase because of her complaints about sexual harassment. (Doc. No. 57-5, p. 22).
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She explained: Q. Do you know when Mr. Gethers went to New Jersey to talk to people from Novartis about this issue?
A. No, I don’t. I could guesstimate it was sometime in late September, early October.
Q. Okay. Subsequent to that occurring, did Mr. Gethers discuss the issue with him–your complaint with him?
A. I’m sorry. I don’t understand.
Q. Subsequent to Mr. Gethers being flown to New Jersey, did he bring up the issue with you about your complaints?
A. He did.
Q. Okay. When did he do that?
A. It was a ride-along. Well, I know that we discussed it when we were talking about merit increases during that ride-along when we rode along in October. Or you know what? It was when we rode along together in October. He had gotten on me for–he told me that I had acted unethically by going to–no. At this point, he had told me that I had acted in an immature fashion, and, “When you have issues dealing with the district, you go directly to the source of the problem.” When we were discussing my merit increase, he had told me that I did not get a merit increase based that I had acted unethically by going to HR. And again, “You deal with the source of the problem at the source of the problem rather than bringing in external people.”
(Doc. No. 57-5, pp. 22-23). Brandstatter also testified that, on one occasion, Gethers refused to get out of her car when she confronted him about his unfair treatment of her. (Doc. No. 57-5, p. 7). Thus, the record clearly reflects evidence upon which a reasonable trier of fact could conclude that Gethers retaliated against Brandstatter for her complaints about his sexually harassing comments.
Novartis attempts to deflect this evidence by pointing out that LaRosa and Branch determined that Gethers had legitimate, nondiscriminatory reasons for not awarding Brandstatter a merit increase. (Doc. No. 52, p. 16). Be that as it may, the Court cannot ignore Brandstatter’s
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testimony that Gethers actually told her, face to face, that she was not getting a merit increase because of her complaints to the Human Resources Department. In order to defeat a motion for summary judgment, a plaintiff need not completely discredit every conceivable legitimate reason given by an employer for otherwise unlawful employment discrimination. Tomasso v. The Boeing Company, 445 F.3d 702, 707 (3d Cir. 2006). Even if Brandstatter’s performance was not as good as Novartis expected, the record contains evidence which suggests that her deficient performance may have been due, in large part, to the health problems that she experienced because of Gethers’ retaliatory conduct. (Doc. No. 57-7, p. 21). Brandstatter acknowledged in her deposition that her call numbers had dropped significantly during the fall of 2002. Id. Nevertheless, she attributed that drop to her medical problems, which had apparently been brought on by Gethers’ conduct. Id. The Court cannot conclude, at the summary judgment stage, that Novartis’ decision not to give Brandstatter a merit increase was based on legitimate, nondiscriminatory reasons unrelated to retaliation. It is also worth noting that Novartis is directly responsible for any tangible employment actions (i.e., the denial of Brandstatter’s merit increase) allegedly taken by Gethers, since he was only able to take such actions because of his employment relationship with Novartis. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761-762 (1998)(“When a supervisor makes a tangible employment decision, there is assurance the injury could not have been inflicted absent the agency relation.”). Indeed, in this case, the evidence suggests that Novartis personnel may have deferred to Gethers’ discretion as to such matters even after Gethers’ alleged retaliatory motives were brought to their attention. (Doc. No. 57-7, p. 19). The EEOC clearly has sufficient evidence to create a triable issue of fact as to whether Brandstatter was denied a merit increase and training opportunities because of Gethers’ retaliatory motives. Novartis’ argument to the contrary is simply unpersuasive. (Doc. No. 52, p. 18)(“Here, there is not a scintilla of evidence that Novartis’ explanations for the challenged decisions as to Brandstatter are untrue.”).
Novartis argues that even if Gethers’ actions against Brandstatter were taken in retaliation for her complaints about his earlier sexually harassing comments, those actions were not materially adverse for purposes of the standard enunciated in Burlington Northern (i.e., they would not dissuade a reasonable person in Brandstatter’s position from complaining to the
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Human Resources Department about Gethers’ implied sexual propositions). (Doc. No. 52, pp. 13-15). Novartis does not address the denial of Brandstatter’s merit increase in this portion of its brief. In Burlington Northern, the Supreme Court held that Title VII’s anti-retaliation provision “does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace.” Burlington Northern, 126 S.Ct. at 2409. Burlington Northern abrogated the prior rule applicable in this circuit, which had confined actionable retaliation under § 2000e-3(a) to adverse employment actions directly impacting one’s compensation, terms, conditions, or privileges of employment. Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997). The evidence presented by the EEOC is not only sufficient to satisfy the material adversity standard adopted by the Supreme Court in Burlington Northern, but also sufficient to satisfy the more stringent rule that had been applicable in this circuit prior to last year. There is evidence which suggests that Brandstatter was denied a raise precisely because she complained about Gethers’ sexual harassment. If such evidence is ultimately credited, the EEOC will be able to establish that Brandstatter’s compensation was directly impacted by Gethers’ retaliatory conduct. As the Supreme Court explained in Burlington Northern, Title VII’s substantive provision seeks to prevent discrimination on the basis of a person’s status, while Title VII’s antiretaliation provision seeks to prevent discrimination on the basis of a person’s conduct (i.e., opposing an unlawful employment practice). Burlington Northern, 126 S.Ct. at 2412. Given this distinction, it is not clear whether retaliatory actions directly impacting one’s compensation, terms, conditions, or privileges of employment constitute materially adverse actions as a matter of law, or whether it is possible for a tangible employment action to nevertheless fail to satisfy the standard of material adversity established in Burlington Northern. In any event, however, the Court need not decide this broader question at this time. While the substantive and antiretaliation provisions contained in Title VII serve different functions, the actions prohibited by each are not mutually exclusive. Johnson v. The McGraw-Hill Companies, 451 F.Supp.2d 681, 711 (W.D.Pa. 2006)(“In holding that Johnson has failed to establish a prima facie case of retaliation with respect to Counts IV, V and VI, the Court does not hold that the same conduct cannot support both an underlying charge of discrimination and a distinct charge of retaliation.”). The denial of Brandstatter’s merit increase in this case satisfies the material adversity standard,
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since a reasonable employee may be dissuaded from complaining about sexual harassment if she knew that she would subsequently be denied a raise for doing so.
In her deposition, Brandstatter testified that, at one point, she started throwing up blood because of the anxiety caused by her employment situation at Novartis. (Doc. No. 57-7, p. 21). She apparently underwent an endoscopy for diagnostic purposes. Id. She testified that she experienced both rapid changes in her weight and difficulty falling asleep. Id. Her testimony is corroborated by a statement from her physician which opined that her health problems were work-related. (Doc. No. 57-8, p. 18). In light of this evidence, the Court cannot conclude, at the summary judgment stage, that Gethers’ alleged retaliatory conduct would not have dissuaded a reasonable person in Brandstatter’s position from complaining about sexual harassment.
In its complaint, the EEOC alleges that Brandstatter was “forced to resign” because of Gethers’ retaliatory conduct. (Doc. No. 1, ¶ 7(l)). Novartis apparently construes this allegation as an assertion that Brandstatter was constructively discharged. (Doc. No. 52, pp. 18-20). In its responsive brief, the EEOC does not make clear whether it is relying on a theory of constructive discharge in addition to a more generalized claim of retaliation, or whether it no longer intends to proceed on the basis of a retaliatory discharge theory. (Doc. No. 55, p. 19). The EEOC correctly notes that it need not establish that Brandstatter was constructively discharged in order to demonstrate that Novartis violated § 2000e-3(a). Id. To establish that Brandstatter was constructively discharged, of course, the EEOC would have to show that “the abusive working environment became so intolerable that her resignation qualified as a fitting response.” Suders, 542 U.S. at 134. The burden would then shift to Novartis to establish, as an affirmative defense, that it had a readily accessible and effective policy for resolving problems of the kind suffered by Brandstatter, and that Brandstatter unreasonably failed to avail herself of that policy. Id. Since the EEOC is only seeking injunctive relief at this stage, the question of whether Brandstatter was constructively discharged (as opposed to being subjected to materially adverse retaliatory actions insufficient to satisfy the intolerability standard required to establish a constructive discharge) appears to be moot for all intents and purposes. To satisfy the statutory prerequisite for injunctive relief, the EEOC need only establish that Novartis intentionally engaged in an unlawful employment practice charged in the complaint. 42 U.S.C. § 2000e-5(g)(1). It is not
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necessary for the EEOC to establish that any intentional statutory violation on the part of Novartis was sufficiently severe to make Brandstatter’s resignation “a fitting response.” Suders, 542 U.S. at 134. Brandstatter and Novartis have now reached a settlement, thereby making the extent of Brandstatter’s damages irrelevant to the inquiry. The Court need not address the question of constructive discharge further, since Novartis’ motion for summary judgment must be denied even if it is assumed arguendo that the EEOC cannot establish that Brandstatter was constructively discharged. As far as the Court can tell, this is precisely why the EEOC does not specifically argue that its evidence is strong enough to make a showing of constructive discharge, opting instead to point out that such a showing is not necessary. (Doc. No. 55, p. 19)(“In a retaliation claim, the Commission is not required to prove the elements of an underlying claim, such as the elements of a hostile work environment or constructive discharge, as Novartis appears to be arguing.”).
The EEOC believes that injunctive relief is appropriate because the same Novartis employees who allegedly failed to protect Brandstatter from retaliation are likely to repeat such conduct in the future. It has presented evidence that Novartis personnel were not taking action to protect Brandstatter. Indeed, Branch’s testimony indicates that he may have placed part of the blame on Brandstatter for her poor working relationship with Gethers. (Doc. No. 57-3, p. 25). Since the matter comes before the Court on Novartis’ motion for summary judgment, the Court must resolve all disputed issues of material fact in favor of the EEOC. Ely, 590 F.2d at 66. Novartis cannot establish that injunctive relief is precluded as a matter of law, since the EEOC has sufficient evidence to create a triable issue of fact as to whether Novartis intentionally engaged in an unlawful employment practice. 42 U.S.C. § 2000e-5(g)(1). It is undisputed that Gethers is no longer employed by Novartis. (Doc. Nos. 51, p. 11, ¶ 40, 56, p. 21, ¶ 40). Novartis believes that Gethers’ departure eliminates any reasonable possibility that it will violate § 2000e3(a) in the future, since he is the one who allegedly retaliated against Brandstatter. (Doc. No. 61, pp. 4-5). In the Court’s view, however, that question is relevant to the Court’s discretionary decision to grant or deny injunctive relief, not to the question of whether the Court has the statutory authority under § 2000e-5(g)(1) to grant the EEOC’s request for an injunction. Consideration of this issue would be premature, since no determination has been made as to
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whether Novartis did, in fact, violate Title VII. If an intentional violation is proven, the Court will have the authority to grant injunctive relief of the kind sought by the EEOC. EEOC v. Illona of Hungary, Inc., 108 F.3d 1569, 1578 (7th Cir. 1997). Such authority will be lacking, of course, if no intentional violation of Title VII is established. If the EEOC is successful in its attempt to establish that Novartis’ conduct constituted an intentional violation of § 2000e-3(a), the Court will proceed to determine whether any form of injunctive relief is appropriate at that time. The Court will not attempt to exercise its discretionary authority to either grant or deny an injunction on the basis of a hypothetical violation which has not yet been established, but which could reasonably be established on the basis of the evidence presented by the EEOC. Harris Chernin, 10 F.3d at 1292 (“In effect, this conclusion amounts to a decision that the facts which the EEOC may be able to prove will not justify issuance of an injunction. This decision is premature.”). Accordingly, the Court must deny Novartis’ motion for summary judgment.
Conclusion The EEOC has presented sufficient evidence to enable a reasonable finder of fact to conclude that Novartis’ conduct with respect to Brandstatter constituted an intentional violation of § 2000e-3(a). Such a determination would be the only statutory prerequisite to the injunctive relief sought by the EEOC. 42 U.S.C. § 2000e-5(g)(1). The Court’s decision to grant or deny injunctive relief upon a finding of intentional discrimination under § 2000e-3(a) is wholly discretionary, and the Court cannot appropriately exercise such discretion without first determining whether a violation of Title VII occurred. Novartis cannot establish its entitlement to a judgment as a matter of law. Consequently, the Court must deny Novartis’ motion for summary judgment. An appropriate order follows.
McVerry, J.
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

EQUAL EMPLOYMENT

)

OPPORTUNITY COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

NOVARTIS PHARMACEUTICALS )

CORPORATION,

)

)

Defendant.

)

2:05-cv-404

ORDER OF COURT

AND NOW, this 28th day of September, 2007, in accordance with the foregoing memorandum opinion, it is hereby ORDERED, ADJUDGED and DECREED that Defendant’s Motion for Summary Judgment (Document No. 50) is DENIED.
Plaintiff shall file its Pretrial Statement on or before October 18, 2007. Defendant shall file its Pretrial Statement on or before November 7, 2007. The Court shall conduct a Pretrial Conference on November 9, 2007 at 2:30 P.M. in Courtroom 6C, 6th Floor, U.S. Courthouse, 700 Grant Street, Pittsburgh, Pennsylvania 15219.

BY THE COURT:

s/ Terrence F. McVerry United States District Court Judge

Case 2:05-cv-00404-TFM Document 62 Filed 09/28/2007 Page 26 of 26
cc: Jacqueline H. McNair Equal Employment Opportunity Commission Email: Jacqueline.McNair@eeoc.gov
Judith A. O’Boyle Equal Employment Opportunity Commission Email: Judith.Oboyle@EEOC.gov
M. Jean Clickner Equal Employment Opportunity Commission Email: jean.clickner@eeoc.gov
Abigail D. Flynn-Kozara Reed Smith Email: aflynn-kozara@reedsmith.com
Martha Hartle Munsch Reed Smith Email: mmunsch@reedsmith.com
Kim W. Watterson Reed Smith Email: kwatterson@reedsmith.com

 
 E.E.O.C. v. Novartis Pharmaceuticals Corp., Not Reported in F.Supp.2d (2006)

2006 WL 2290410 Only the Westlaw citation is currently available.
United States District Court, W.D. Pennsylvania.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v.
NOVARTIS PHARMACEUTICALS CORPORATION.
No. 02:05cv0404. | Aug. 8, 2006.
Attorneys and Law Firms
Jacqueline H. McNair, Judith A. O’Boyle, Equal Employment Opportunity Commission, Philadelphia, PA, M. Jean Clickner, Equal Employment Opportunity Commission, Pittsburgh, PA, for Plaintiff.
Abigail D. Flynn-Kozara, Martha Hartle Munsch, Reed Smith, Pittsburgh, PA, for Defendant.
Opinion
MEMORANDUM OPINION AND ORDER OF COURT
McVERRY, J.
*1 Presently pending before the Court is the MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(1) filed by Defendant, Novartis Pharmaceuticals Corporation (“Novartis) and the MEMORANDUM IN OPPOSITION filed by Plaintiff, the Equal Employment Opportunity Commission (“EEOC”). After deliberate review of the filings of the parties and the applicable case law, the Motion to Dismiss will be denied.
FACTS AND PROCEDURAL BACKGROUND
Bethany Brandstatter (“Brandstatter”), a former pharmaceutical sales representative of Novartis, filed a charge of discrimination with the EEOC on or about April 21, 2003, in which she alleged that she was sexually harassed and retaliated against by one of Novartis’ District Managers, Ivory Gethers (“Gethers”). In her EEOC Intake Questionnaire, Brandstatter alleged that she complained of the harassment / retaliation to Gethers’

immediate supervisor, Gary Branch, on February 18, 2003, and to Novartis Human Resources personnel, Joe Palumbo and Maria LaRosa, in September 2002, and February 4, 2003, respectively. Additionally, as a result of the alleged retaliation, Brandstatter alleged she was constructively discharged from her employment with Novartis on August 29, 2003.
During its internal investigation of Brandstatter’s complaints, Novartis discovered that Gethers had used inappropriate sexual language in group situations and that other female sales representatives were “uncomfortable” with Gethers. In fact, one female insisted on having her husband present when she met one on one with Gethers. (EEOC Group Ex. E and F).
On October 7, 2002, Gary Branch, Gethers’ immediate supervisor, issued a “Conduct Memo” in which Gethers was informed that the internal investigation conducted by Novartis Human Resources “concluded by (sic) that you engaged in inappropriate remarks and conversation with members of your district, some of which were of a sexual nature, on more than one instance.... I must inform you that should there be a similar or related incident at any point in the future, we will have no alternative but to take further disciplinary action, up to and including termination of employment.”EEOC Exhibit D.
The EEOC conducted its own investigation and on August 26, 2004 issued a Determination of reasonable cause in which it found that the “evidence indicates that [Bethany Brandstatter] was subjected to sexual harassment, and retaliated against for complaining of the harassment, in violation of Title VII.... [T]he evidence obtained during the investigation establishes a violation of the statute.”
The Determination noted that Brandstatter had made known to Gethers that his conduct was “unwelcomed,” that she had reported the conduct to Gethers’ supervisor and Novartis Human Resources personnel, that Novartis had investigated the complaint and determined that Gethers had “made off color, inappropriate comments to his work group which individuals in the group found offensive, thus creating a hostile work environment,” and that Gethers was issued a written warning on October 7, 2002. The EEOC determined that because Gethers “is a manager, [Novartis] has vicarious liability.”Affidavit of Martha Hartle Munsch, Tab B, EEOC Determination.
*2 On March 25, 2005, the EEOC filed the instant Complaint in which it narrowed its focus and alleged only that Novartis had failed to take prompt or effective action upon notice of Brandstatter’s claim of retaliation and that, as a result of the ongoing retaliation and Novartis’ failure to address it, Brandstatter was constructively discharged.
1

E.E.O.C. v. Novartis Pharmaceuticals Corp., Not Reported in F.Supp.2d (2006)

In its Prayer for Relief, the EEOC requests both victim-specific relief and general injunctive relief, to wit: “A. Grant a permanent injunction enjoining the Defendant Employer, its officers, successors, assigns and all persons in active concert or participation with it, from retaliating against employees who complain of such and in any other employment practice with operates to retaliate against employees.
B. Grant a permanent injunction enjoining the Defendant Employer, its officers, successors, assigns and all persons in active concert or participation with it, from discriminating within any of its establishments between employees on the basis of retaliation.
C. Order Defendant Employer to institute and carry out policies, practices and programs which provide equal employment opportunities for women, and which eradicate the effects of its past and present unlawful employment practices.
D. Order Defendant Employer to make whole Bethany Brandstatter by providing appropriate backpay with prejudgment interest, in amounts to be proved at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices, including but not limited to back pay, front pay, and reinstatement.
E. Order Defendant Employer to make whole Bethany Brandstatter by providing compensation for past and future pecuniary losses resulting from the unlawful practices described in [the Complaint], including medical expenses, in amounts to be determined at trial.
F. Order Defendant Employer to make whole Bethany Brandstatter and other affected female employees, to be identified through this litigation, by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of in [the Complaint], including emotional pain, suffering, inconvenience, loss of enjoyment of life, and humiliation, in amounts to be determined at trial.
G. Order Defendant Employer to pay Bethany Brandstatter punitive damages for its malicious and/or reckless conduct described in [the Complaint], in an amount to be determined at trial.
H. Grant such further relief as the Court deems necessary and proper in the public interest.
I. Award the Commission its costs of this action.”
Complaint, Prayer for Relief.
On May 6, 2005, Brandstatter, through private counsel, intervened in the action and alleged claims of both

retaliation and sexual harassment. In February 2006, Brandstatter achieved a voluntary monetary settlement of all her claims against Novartis. On February 13, 2006, Novartis and Brandstatter filed a Joint Motion to Dismiss Intervenor’s Complaint, which the Court granted on February 14, 2006.
*3 Novartis has filed the instant Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(1) in which it asserts that because “Ms. Brandstatter has settled her claims against Novartis and because the Complaint filed by the EEOC does not challenge a policy or practice or allege discrimination against any other employee,” this Court now “lacks subject matter jurisdiction as required under Article III of the Constitution of the United States.”In support of its position, Novartis points out that neither Brandstatter nor Gethers are employed by Novartis any longer .1

1

Brandstetter currently resides and works for another

employer in the Chicago, Illinois area. Gethers

terminated his employment with Novartis on January

10, 2005.

The EEOC vigorously opposes the motion to dismiss and contends that the factual allegations in the Complaint “extend beyond Mr. Gethers’ retaliatory and harmful conduct toward Ms. Brandstatter. The Commission has alleged, and will prove, that Novartis’ management and human resources staff failed to recognize Ms. Brandstatter’s cry for help from retaliation and failed to take any action, must less prompt and effective action, as required by law.”Memo. in Opp’n, at 7.

DISCUSSION
Under Federal Rule of Civil Procedure 12(b)(1), a court may dismiss a complaint for lack of subject matter jurisdiction. Similarly, Federal Rule of Civil Procedure 12(h)(3) provides, “Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”Although Novartis is the movant, the party invoking the federal jurisdiction, the EEOC here, has the burden of showing that jurisdiction is proper. The Court, in effect, presumes lack of jurisdiction unless the asserting party can prove otherwise. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994).
Although this is an issue of first impression in this circuit, the Court is persuaded by the logic and reasoning of Judge I. Leo Glasser of the United States District Court for the Eastern District of New York in the case of Equal Employment Opportunity Commission v. Bay Ridge
2

E.E.O.C. v. Novartis Pharmaceuticals Corp., Not Reported in F.Supp.2d (2006)

Toyota, Inc., 327 F.Supp.2d 167 (E.D.N.Y.2004). In that case, Judge Glasser, in a thoughtful and well-reasoned opinion, examined the history, rationale, and purpose of the amendment to Title VII which permitted the EEOC to initiate a civil action in federal court against employers and concluded that the employer’s private settlement of the employee’s sexual harassment claim did not bar the EEOC from bringing an action based on the discrimination alleged by the employee. The district court found that “[r]ather than victim-specific relief on behalf of [the individual plaintiff], EEOC’s complaint seeks only injunctive relief. Settled law plainly demonstrates that EEOC’s unique role in vindicating the public interest makes this type of suit for injunctive relief acceptable, even where the employee has entered into a settlement with the employer.”EEOC v. Bay Ridge Toyota, 327 F.Supp.2d 167, 173-74 (E.D.N.Y.2004) (emphasis added) (citing EEOC v. Kidder, Peabody & Co., Inc., 156 F.3d 298 (2d Cir.1998) (EEOC may seek injunctive relief in federal court for employees even when those employees have entered into binding arbitration agreements); EEOC v. McLean Trucking Co., 525 F.2d 1007, 1010 (6th Cir.1975) (employee’s acceptance of arbitration award and settlement does not preclude EEOC’s right to bring an action in the public interest to eliminate discriminatory practices); EEOC v. Goodyear Aerospace Corp., 813 FD.2d 1539, 1539 (9th Cir.1987); EEOC v. United Parcel Serv., 860 F.2d 373 (10th Cir.1988) (plaintiff’s settlement of case with employer does not moot EEOC action because EEOC intends to vindicate the public interest in preventing employment discrimination); EEOC v. Am. Express Co., 1977 WL 804, at *2 (S.D.N.Y. Jan. 10, 1977) (while settlement between employee and defendant would preclude any further recovery on his behalf by EEOC, it does not bar an EEOC suit based upon the employee’s discrimination charge)).
*4 As the district court in Bay Ridge Toyota noted, the EEOC maintains a right of action independent of the charging party. See Gen. Tel. Co. v. EEOC, 446 U.S. 318, 326 (1980) (Title VII’s authorization of “private-action rights suggest that the EEOC is not merely a proxy for the victims of discrimination”). By amending Title VII to allow EEOC to bring civil actions in federal court against private employers suspected of violating Title VII ‘Congress sought to implement the public interest as well as to bring about more effective enforcement of private rights. This is so even where the employee has entered into a private settlement with the defendant in which her right to sue was limited because ‘[b]y seeking injunctive relief the EEOC promotes public policy and seeks to vindicate rights belong to the United States as a sovereign .’’
Bay Ridge Toyota, 327 F.Supp.2d at 173 (quoting EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539, 1543 (9th Cir.1987)); see also EEOC v. Morgan Stanley & Co., Inc.,

132 F.Supp.2d 146, 152-53 (S.D.N.Y.2000) (“if the EEOC were foreclosed from pursuing investigations whenever the charging party whose charge occasioned the inquiry wished to settle with his or her employer, employers would be able to forestall investigations ... by ‘buying off’ any victim who had the temerity to complain”).
Novartis also argues that “[b]ecause Ms. Brandstatter has settled her claims against Novartis and because the Complaint filed by the EEOC does not challenge a policy or practice or allege discrimination against any other employee, the requisite ‘case or controversy’ is lacking in this matter.”Def’s Memo. of Law, at unnumbered 1.
However, it is well settled that Title VII provides that the EEOC may recover injunctive relief upon a showing of intentional employment discrimination. See 42 U.S.C. § 2000e-5(g)(1). Indeed, upon a finding of any intentional employment discrimination, a district court possesses broad discretion to craft an injunction that will ensure the employer’s compliance with the law. See Lemon v. Kurtzman, 411 U.S. 192, 201 (1973).“Thus, the EEOC may obtain such general injunctive relief, under the equitable discretion of the district court, even where the EEOC only identifies one or a mere handful of aggrieved employees.”EEOC v. Frank’s Nursery & Crafts, Inc., 177 F.3d 448, 468 (6th Cir.1999) (emphasis added). Moreover, “[t]he EEOC may obtain a permanent injunction even where it does not allege a pattern or policy of discrimination.”Id. (emphasis added).See, e.g., General Tel., 446 U.S. at 330; EEOC v. HBE Corp., 135 F.3d 543, 557 (8th Cir.1998); Ilona v. Hungary, Inc., 108 F.3d 1569, 1578 (7th Cir.1997).
The facts, issues, and arguments in Bay Ridge Toyota are analogous to those in this case. This Court agrees with the decision and reasoning employed by Judge Glasser in Bay Ridge Toyota and, therefore, adopts and incorporates said opinion and holding as the opinion of this Court. The Court finds and rules that because Brandstatter’s claim for damages has been completely resolved, it is necessary to hold that that part of the EEOC’s claim which seeks damages for Brandstatter as an individual employee (i.e., victim-specific relief) is barred. However, the Court finds and rules that the EEOC may maintain the remainder of its claim(s) for injunctive relief. Accordingly, the Court will deny Novartis’ Motion to Dismiss.
*5 An appropriate Order follows.
ORDER OF COURT
AND NOW, this 8th day of August, 2006, in accordance with the foregoing Memorandum Opinion, it is hereby
3

E.E.O.C. v. Novartis Pharmaceuticals Corp., Not Reported in F.Supp.2d (2006)

ORDERED, ADJUDGED, AND DECREED that the MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(1) filed by Defendant, Novartis

Pharmaceuticals Corporation is DENIED.
	  

4

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

NOVARTIS PHARMACEUTICALS

)

CORPORATION,

)

)

Defendant.

)

02: 05-cv-0404

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On March 24, 2005, Plaintiff, Equal Employment Opportunity Commission

(“EEOC”) commenced this lawsuit by the filing of a Complaint against Defendant, Novartis

Pharmaceuticals Corporation (“Novartis”) in which it seeks injunctive relief under Title VII of

the Civil Rights Act of 1964, as amended (“Title VII”). The sole allegation in this lawsuit is

that Novartis retaliated against its employee, Bethany Brandstatter, because she had engaged in

protected activity when she made a complaint against her supervisor. The EEOC is seeking

injunctive relief based on its allegations that the same Novartis employees who allegedly failed

to protect Ms. Brandstatter from retaliation are likely to repeat such conduct in the future. The

EEOC does not allege that any other employees were subjected to unlawful retaliation.

Novartis argues that the EEOC is not entitled to injunctive relief because it cannot

show that Ms. Brandstatter was retaliated against and, in the alternative, the EEOC cannot show

that there is any likelihood that Novartis will retaliate against any employees in the future.

On February 4 and 5, 2007, the Court conducted a non-jury trial and heard testimony and evidence. The transcript of the proceedings was filed on April 2, 2007. Proposed Findings and Fact and Conclusions were to be filed on or before May 2, 2008, and responses in opposition were to be filed on or before May 19, 2008, which were timely filed by all parties.
Based on the evidence and testimony presented during trial and the applicable law, the Court enters the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a). For the reasons that follow, the Court finds in favor of Defendant, Novartis Pharmaceuticals Corporation.
FINDINGS OF FACT General Background 1. Bethany Brandstatter (“Brandstatter”) commenced her employment with Novartis as a sales representative, an entry-level position, in April 2002. She worked in the Pittsburgh-area district. 2. The job of sales representative involved calling upon doctors’ offices to detail certain Novartis prescription drugs for the purpose of educating the doctors about those drugs and to encourage the doctors to prescribe the Novartis product rather than a competitor’s product. In addition to visiting physician’s offices, sales representatives were also expected to engage in other activities designed to promote access to physicians for the purpose of interacting and delivering information about Novartis’ products.
2

3. There were expectations set by Novartis regarding the numbers of physician calls that a sales representative was expected to make on a daily basis. These expectations were established at the national, regional, and district levels.
4. The activities of the sales representatives while in the field, such as preparing for and making their physician calls and documenting their activities in their call logs and post call notes, are important facets of a sales representative position.
5. A sales representative is required to pre-call plan prior to entering a physician’s office. Pre-call planning involves analyzing data on the representative’s computer and in his or her territory binder concerning the previous calls on that office as well as the physician’s prescribing patterns to determine how best to sell Novartis’ products.
6. Sales representatives are provided with a list of target physicians. These physicians are categorized as “Tier 1,” “Tier 2,” or “Tier 3,” based on the volume of prescriptions which each doctor writes. Tier 1 physicians are high-volume prescribers, while Tier 3 are low-volume prescribers, and Tier 2 fall in between.
7. Sales representatives do not have offices. They work in the field, and their performance is monitored by statistical information reflecting their activity in the field. District Managers periodically make field visits and conduct “ride along” training sessions with sales representatives on their physician calls to observe their performance in pre-call planning as well as their conduct in the physicians’ office themselves.
8. Brandstatter’s immediate supervisor was Ivory Gethers (“Gethers”), District Sales Manager for the Pittsburgh North District. Gethers had been newly hired by Novartis at about the same time as Brandstatter was hired.
3

9. Gethers had twelve (12) sales representatives who reported to him, which were divided into six (6) groups of two (2), called counterparts. The counterparts called on the same doctors, but separately and at different times. Brandstatter’s counterpart was William Simon.
10. Gethers reported to Gary Branch (“Branch”), Regional Sales Director. At the time Gethers was hired by Novartis, the Pittsburgh North District was Branch’s worst performing district. Accordingly, Branch put pressure on Gethers to turn around the performance of that district.
11. According to Branch, he expected that Gethers would use the tools available to him to develop his sales representatives so that they could improve their performance, which would translate into better sales results for Novartis.
12. One of the tools available for development was a Territory Coaching Plan or “TCP.”
Protected Activity Of Brandstatter 13. Within four (4) months of being hired, on or about September 2, 2002, Brandstatter lodged an internal complaint with the Human Resources Department of Novartis in which she accused Gethers of subjecting her to a sexually offensive work environment. The internal complaint was made against Gethers shortly after Brandstatter had been criticized by Gethers for a presentation she made at the Zelnorm launch meeting in Florida in August 2002. 14. Specifically, Brandstatter complained that Gethers “exhibited a lack of professionalism,” in that he had allegedly made approximately four (4) comments of a sexual nature over a period of three (3) months or so.
4

15. Brandstatter’s complaint was investigated by Joseph Palumbo (“Palumbo”), a Human Resources manager. Palumbo interviewed Brandstatter, as well as five (5) other sales representatives who reported to Gethers, including three (3) female representatives and two (2) male representatives. Palumbo kept detailed notes of these interviews.
16. Based upon these interviews, Palumbo concluded that Brandstatter’s allegations were generally supported by witnesses and that Gethers had used inappropriate sexual language on an individual basis and in group settings. Palumbo’s investigation also revealed that Gethers had an “intimidating” management style.
17. Also, as part of the investigation, Gethers was interviewed by Palumbo and Branch on October 2, 2002, in Novartis’ corporate offices in New Jersey. At that meeting, Gethers was informed that a sexual harassment complaint had been lodged against him, the nature of the allegations, and that Brandstatter was the complainant.1 Gethers was instructed that he must not engage in any retaliatory conduct and should not mention the complaint to his sales representatives.
18. Following the meeting, Branch issued to Gethers a Conduct Memo, dated October 7, 2002, which stated as follows:
The purpose of this memo is to outline behaviors currently below expectations, to review expected performance levels and to request your immediate action to correct these behaviors. This is a follow-up to the conversation on October 2, 2002.

1

Brandstatter testified that Palumbo promised that he would not disclose her name to

Gethers during the investigation. However, Palumbo testified that he addressed this

issue with Brandstatter and advised her that he could not thoroughly investigate her

claim without disclosing her name.

5

Based on the investigation within your district that I requested of Human Resources, it was concluded by [sic] that you engaged in inappropriate remarks and conversations with members of your district, some of which were of a sexual nature, on more than one instance. This was further corroborated by our discussion with Joseph Palumbo on October 2, 2002.
It is expected that a DMI performs at the Intermediate level for the Communication competency. This includes monitoring others’ reactions and addressing issues as appropriate, as well as, adapting your language and style to meet the needs of the audience.
Every individual in this corporation has the right to work in an environment free of harassment and intimidation. It is your responsibility as a District Manager to create that environment to insure the success of your team.
Ivory, I am confident we will not have any future occurrences. However, I must inform you that should there be a similar or related incident at any point in the future, we will have no alternative but to take further disciplinary action, up to and including termination of your employment.
Sincerely, Gary Branch
Exhibit 11.
19. The Court finds that Palumbo thoroughly and effectively investigated
Brandstatter’s allegations of sexual harassment.
20. Brandstatter contends that upon Gethers’ return to Pittsburgh after the
October 2, 2002, meeting in New Jersey where he was advised of Brandstatter’s harassment
complaint, Gethers began to make intimidating and retaliatory comments to her. However,
Gethers testified that Brandstatter’s complaint about him to Human Resources did not influence
any of his decisions or treatment of Brandstatter.
6

Brandstatter’s Territory Coaching Plan 21. On or about December 8, 2002, Gethers issued a TCP to Brandstatter for a period of three (3) months. Gethers testified that he issued the TCP because he had observed a cumulative decline in the performance of Brandstatter and was concerned about her concentration and dedication to her job. Gethers testified that the issuance of the TCP was needed because Brandstatter’s daily average of physician visits was below the national average and the district’s goal. Specifically, the TCP instructed Brandstatter with respect to the organization and use of her territory sales binder, to ensure her equipment (laptop) was working before going into the field, to conduct pre-call planning inside her car, and to ensure timely attendance at meetings (or a phone call if she was going to be late). 22. Gethers provided Brandstatter with clear coaching and instructions regarding how to address these concerns. Namely, Gethers informed Brandstatter exactly what she should have in her territory binder and the equipment she should have with her on each of her calls. Gethers also reminded Brandstatter that she was required to ensure that her equipment was functioning prior to going into the field. 23. Gethers also noted that Brandstatter’s physician call average was below expectations, and reminded her of the importance of achieving the required call averages. 24. The TCP also stated in relevant part, as follows: I sincerely want you to succeed as a productive member of our team. I am confident that not only will you be able to demonstrate immediate performance improvement to a level where you meet expectations in each area specified in the Coaching Plan, but also, you will be able to sustain that improvement going forward. Again, I must inform you that should you fail to meet the overall coaching plan objectives, or fail to sustain improvement following satisfactory
7

completion of the coaching plan, we will have no alternative but to take further job action and place you on a Performance Improvement Plan. See Exhibit 12. 25. A TCP is not a method of discipline; rather it is a developmental tool to improve performance. 26. Brandstatter responded in writing to the TCP and objected to many of the observations made by Gethers in the TCP. She copied her written response to both Palumbo and Branch. See Exhibit 13. 27. Branch spoke with Brandstatter upon receipt of her response to the TCP. She informed him that she felt the TCP was unfair and repeated her concern that Gethers had been advised that she was the earlier complainant, in spite of her request for anonymity. 28. Branch reviewed the TCP and determined that the performance issues addressed in it dealt with competencies and performance expected of all sales representatives in his region. 29. Palumbo contacted Gethers and advised him that he had not used the standard Novartis template for a TCP. He also informed Gethers that Novartis guidance prohibits a TCP from being positioned as a “pre-PIP” (Performance Improvement Plan). 30. Apparently in response to Palumbo’s concerns, Gethers issued a revised TCP, effective December 18, 2002; however, Gethers did not use the proper Novartis template nor did he remove the forbidden language regarding possible placement of Brandstatter on a PIP should her performance not improve. 31. Gethers placed one of his other Sales Representatives, James O’Camb (“O’Camb”), on a TCP on December 31, 2002. In the TCP issued to O’Camb, Gethers
8

included the same forbidden language regarding placing O’Camb on a PIP should his performance not improve. See Exhibit 36.
32. On June 27, 2003, Gethers placed O’Camb on a PIP “due to [his] unsatisfactory performance on the Territory Coaching Plan (TCP).” See Exhibit 38.
33. Gethers also placed William Simon, Brandstatter’s counterpart, on a PIP on September 27, 2002.
34. During a “ride along” in January 2003, Gethers provided Brandstatter with praise and positive feedback. In the business development report that he prepared following the ride-along, Gethers explained to Brandstatter, “Today, you demonstrated better use and understanding of the DAM report by analyzing it during your precall and post call notes. You have also improved probing and getting the physicians involved in discussion.” See Exhibit 57.
35. On April 22, 2003, Brandstatter was taken off the TCP; thereafter, she was never placed on another TCP, was never placed on a Performance Improvement Program, and never received any disciplinary action while employed at Novartis.
Brandstatter’s 2002 Performance Evaluation 36. Gethers was responsible for preparing annual performance evaluations on all of his assigned sales representatives. 37. On February 3, 2003, after receiving information from Gethers about his proposed rating (2-1) of her 2002 performance, Brandstatter contacted Maria LaRosa (“LaRosa”), a Human Resources Director, and complained that her performance was being rated unfairly by Gethers as he was retaliating against her because she had previously gone to
9

Human Resources with her harassment complaints. Brandstatter told LaRosa that Gethers had informed her that she would not be receiving a merit increase because she was on a TCP.
38. Brandstatter told LaRosa that she was being subjected to retaliation by Gethers, that he was “building a case against her,” that he had told her that she had “acted in an unethical manner in the fall;” and that “a mature rep goes to her manager instead of HR or over the manager’s head.”
39. LaRosa informed Branch of the allegations made by Brandstatter because he was the Regional Director and, as such, would be familiar with the expectations and performance measures and competencies required of sales representatives at Novartis.
40. Branch spoke separately with both Brandstatter and Gethers. 41. Branch obtained the proposed performance evaluation from Gethers before it was finalized and given to Brandstatter for signature, reviewed it himself, and discussed it with LaRosa. 42. Branch also asked Gethers about the alleged statements he had made to Brandstatter regarding her earlier complaint (e.g., “a mature rep doesn’t go to HR”). Gethers denied making the alleged statements that Brandstatter had attributed to him. 43. Both LaRosa and Branch concluded that the items Brandstatter had complained about were not unfair, but rather were fair and appropriate assessments of her performance in 2002. 44. Both LaRosa and Branch found no evidence that Gethers had taken any retaliatory actions against Brandstatter and concluded that Brandstatter’s retaliation complaint
10

against Gethers was not substantiated. They came to this conclusion in late February 2003, before the evaluation was given to Brandstatter for her signature on or about February 28, 2003.
45. The Court finds that LaRosa and Branch thoroughly and effectively investigated Brandstatter’s allegations of retaliation.
46. The Court finds that Brandstatter’s testimony that LaRosa advised her that because her sexual harassment complaints had been addressed, there was nothing Novartis could do about her claim of retaliation is not credible. LaRosa credibly testified that she did not make such a statement to Brandstatter. Further, the testimony of both LaRosa and Branch regarding the steps which they took in response to the retaliation complaint (including their notes which were offered and admitted into evidence at trial) refutes Brandstatter’s allegation.
47. In February 2003, Gethers prepared his first and only written performance evaluation for Brandstatter for her performance during the calendar year 2002. See Exhibit 16. The performance evaluation form contains sections for the employee to self-evaluate him/herself and for the manager to rate the employee. In the “competency level assessment” sections, Gethers’ ratings of Brandstatter were the same as Brandstatter’s self-ratings in eight (8) of the ten (10) sections.
48. In the “Objectives” portion of the performance evaluation, Gethers’ ratings of Brandstatter were the same as Brandstatter’s self-ratings in two (2) of the five (5) sections.
49. Gethers noted in his evaluation that: Brandstatter has a 2-1 overall rating which is needs improvement category due to her overall performance 3rd trimester. Bethany has been placed on a coaching plan to improve her performance. As her district manager, I am confident that Bethany will accept this overall rating as well as this coaching plan as a challenge and succeed within the Novartis organization and district.
11

50. Gethers explained in his deposition the meaning of Brandstatter’s “21"evaluation. The 2 (“met expectations”) was for her sales results, and the 1 (“partially met”) was for her competencies.
51. In the evaluation, Gethers identified the areas in which Brandstatter needed improvement:
1. Communications needs improvement: To check voice mails at least 3 times per day as well as responding / returning phone calls in a timely manner 2. Results Focus: To reach and exceed regional and national reach and frequency goals for Lotrel as well as Zelnorm and Famvir 3. Call Reports: Be prepared on all calls, including field contacts, with complete sales binder, functioning computer (power cord, charged battery). See Exhibit 16. 52. A sales representative who receives a “1" rating on either the sales results or competencies portion of the overall evaluation is not eligible for a merit pay raise. Accordingly, Brandstatter did not receive a merit raise for her 2002 performance. 53. Jim O’Camb, a similarly-situated employee who had not complained about Gethers, received an overall rating of 1-1 for 2002.
Brandstatter’s Application for Training Sessions 54. The EEOC alleges that Gethers’ retaliatory conduct toward Brandstatter is also evidenced in the manner by which he rejected her attempts at self-improvement when she applied for training sessions.
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55. However, the Court finds that Novartis has articulated legitimate, nonretaliatory reasons as to why Brandstatter was not sent to those sales training programs.
56. For example, the Phase III sales training would have required Brandstatter to be out of her territory for two (2) weeks. Gethers testified that such a lengthy absence from her territory would be detrimental because she needed more time in the field to demonstrate her sustainability to achieve the required number of calls per day.
57. Two other sales representatives in Gethers’ district likewise were not sent to the Phase III sales training at that time: Jennifer McLaughlin, who was ranked 502, and Angela Vermilya, who was ranked 401. Brandstatter was ranked 454.
58. Brandstatter also requested to attend the Mentoring and Critical Thinking course, which was to be held in the State of Washington. Again, this course would have required Brandstatter to be out of her territory for a several days. Moreoever, the class was for advanced representatives who would be mentoring others.
59. Brandstatter also requested to attend a three-day Effective Selling class, which was open to Sales Consultants, not Sales Representatives. Accordingly, Brandstatter was not eligible for that course.
60. The EEOC did not present any evidence that Brandstatter ever mentioned anything about these training programs to LaRosa or Branch.
Events Post Evaluation 61. Gethers participated in another “ride along” with Brandstatter on March 7, 2003. Gethers attempted to end the ride-along because Brandstatter was questioning him about
13

the salary increases of other sales representatives. According to Gethers, Brandstatter yelled and screamed at him, called him “asinine,” and told him to “go home to [his] wife and kids.” Gethers Depo. at 87-89.
62. Following this field ride, Brandstatter again called LaRosa to once again complain about her performance rating and the fact that she had not received a merit salary increase. She did not raise any new issues with LaRosa.
63. In the meantime, Gethers had contacted Branch and told him about Brandstatter’s behavior during the ride along on March 7, 2003. Based on that conversation, Branch concluded that the working relationship between Gethers and Brandstatter was perhaps beyond repair.
64. Branch considered the possibility of a transfer for Brandstatter and arranged for her to meet with Joe Hazelton (“Hazelton”), another District Manager, for possible transfer to a territory in York, PA.
65. Brandstatter met with Hazelton, and afterwards informed Branch that she was not interested in a transfer. Thereafter, Branch developed a strategy for moving forward to foster a constructive and productive working relationship between Brandstatter and Gethers.
66. In April 2003, Brandstatter filed a charge of discrimination with the EEOC in which she alleged that she had been subjected to both sexual harassment and retaliation after she complained about such harassment.
67. On July 1, 2003, Branch came to Pittsburgh and spent an entire day in the field with Brandstatter. Afterwards, Branch gave Brandstatter written developmental feedback.
14

68. Brandstatter did not make any complaints about Gethers during the July 1, 2003 ride-along with Branch.
69. Branch scheduled a meeting with Brandstatter, Gethers and himself, but Brandstatter cancelled the meeting.
70. Brandstatter went on short-term disability leave on August 1, 2003. At some point during the summer of 2003, she started to look for a new job. She ultimately accepted a job with Schwartz Pharmaceuticals. Brandstatter submitted her resignation to Novartis on August 29, 2003, and never returned to work at Novartis.
71. Gethers resigned from Novartis on January 10, 2005. 72. The EEOC commenced this action against Novartis on March 24, 2005. Brandstatter intervened in the lawsuit on May 6, 2005. In her complaint in intervention, Brandstatter alleged three instances of harassing conduct on the part of Gethers which had prompted her to report him to Novartis’ Department of Human Resources. 73. Brandstatter subsequently moved to Chicago, Illinois. She entered into a settlement agreement with Novartis in January 2006. On February 14, 2006, the Court granted a motion filed by Novartis and Brandstatter seeking the dismissal of Brandstatter’s claims against Novartis.
CONCLUSIONS OF LAW 1. The sole claim alleged by the EEOC in its Complaint is a claim for retaliation allegedly perpetrated by Gethers against Brandstatter in violation of Title VII, 42 U.S.C. §2000e-3(a).
15

2. The alleged retaliatory acts at issue are limited to: (i) the issuance of the TCP
to Brandstatter in December 2002; and (ii) the written performance evaluation given to
Brandstatter in February 2003.
3. The sole relief sought by the EEOC is injunctive relief pursuant to 42 U.S.C.
§ 2000e-5(g)(1), which provides:
If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate.
4. The only essential prerequisite for the entry of judgment of injunctive relief in
this case is a finding by the Court that Novartis has intentionally engaged in, or is intentionally
engaging in, an unlawful employment practice charged in the complaint. Such a finding,
however, would not entitle the EEOC to an injunction as a matter of law, since the statutory
language speaks in permissive terms (i.e., by providing that the court may enjoin the relevant
employment unlawful employment practice).
5. The EEOC is pursuing an injunction against retaliation under § 2000e-3(a),
which provides as follows:
§ 2000e-3. Other unlawful employment practices
(a) Discrimination for making charges, testifying, assisting, or participating in enforcement proceedings. It shall be an unlawful employment practice for any employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to
16

discriminate against any other member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this title, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title. 42 U.S.C. § 2000e-3(a). 6. To establish a prima facie case of retaliation under § 2000e-3(a), the EEOC must demonstrate: (i) that Brandstatter engaged in conduct protected by Title VII; (ii) that Novartis took a materially adverse action against Brandstatter; and (iii) that there was a causal relationship between Brandstatter’s protected conduct and Novartis’ materially adverse against her. Burlington Northern & Santa Fe Railway Co. v. White, -- U.S. ---, 126 S. Ct. 2504, 2415 (2006); Moore v. City of Philadelphia, 461 F.3d 331, 340-41 (3d Cir. 2006). 7. The EEOC seeks injunctive relief against Novartis to prevent future instances of retaliation. 8. The EEOC’s retaliation claims are analyzed under the familiar framework set forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny. 9. If the EEOC establishes a prima facie case, the burden of production shifts to Novartis to articulate a legitimate, non-retaliatory reason for its actions. McDonnell Douglas, 411 U.S. at 802-803. An employer satisfies this burden by introducing evidence which would permit a trier of fact to conclude that retaliation was not the true reason for the employment actions at issue. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142-43 (2000). 10. Once the employer meets its burden of articulating legitimate, non-retaliatory reasons for the challenged employment actions, the burden shifts back to the plaintiff, who must
17

prove by a preponderance of the evidence that the articulated reasons are not the true reasons for the employer’s actions, but rather were merely a pretext for unlawful retaliation. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993).
11. The Court finds and rules that EEOC has simply failed to present any credible evidence to show that Novartis took any retaliatory “adverse action” against Brandstatter because she engaged in protected activity, i.e., complaining to Human Resources about Gethers. Accordingly, the Court will grant enter judgment in favor of Novartis.
12. However, assuming arguendo that the EEOC has established a prima facie case of discrimination, the Court would nevertheless enter judgment in favor of Novartis because the Court finds and rules that the EEOC has failed to adduce any evidence from which a reasonable factfinder could disbelieve Novartis’ articulated legitimate, non-retaliatory reasons for placing Brandstatter on a TCP and for giving Brandstatter a “2-1" on her 2002 annual written performance evaluation. See Fuentes, 32 F.3d at 764.
13. The credible evidence presented at trial clearly demonstrates that Novartis had legitimate, non-retaliatory reasons for placing Brandstatter on a TCP. The evidence shows that she was placed on a TCP due, in part, to her below average number of physician calls. Brandstatter was making 8.2 physician calls per day when the district expectation was 10.0 per day.
14. In addition, Gethers observed other performance deficiencies of Brandstatter, to wit: she had been late for a meeting and did not call Gethers to let him know she would be late; she did not organize and use her territory binder and DAM reports effectively; and she needed coaching with respect to her pre-call planning.
18

15. The Court finds that the EEOC did not prove by a preponderance of the evidence that the legitimate, non-retaliatory reasons asserted by Novartis for placing Brandstatter on a TCP were a pretext for unlawful retaliation.
16. The Court also finds and rules that Novartis has articulated legitimate, nonretaliatory reasons for giving Brandstatter a “2-1" on her 2002 annual written performance evaluation.
17. Specifically, Novartis produced credible evidence at trial that in 2002, Brandstatter was not making the requisite number of physician calls, she needed to improve her communication skills by timely responding to voice mail messages, she was not effectively using her territory binder (including the DAM reports) and she did not appropriately conduct all of her pre-call planning.
18. The EEOC did not prove by a preponderance of the evidence that these legitimate, non-retaliatory reasons were a pretext for discrimination. Rather, the evidence offered by the EEOC in an attempt to prove pretext was refuted by credible evidence.
19. Branch and LaRosa reviewed Brandstatter’s performance review before it was presented to her. They discussed the review and determined that the comments and ratings in the review were entirely justified and warranted based on her actual performance in 2002.
20. Mr. Gethers also credibly testified that Brandstatter’s internal complaints did not influence his rating of her 2002 performance.
21. In conclusion, the Court finds and rules that the EEOC has not proven by a preponderance of the evidence that the legitimate, non-retaliatory reasons articulated by Novartis for Brandstatter having received a 2-1 evaluation were a pretext for unlawful retaliation.
19

22. Accordingly, the Court finds that there is insufficient credible evidence to find that Novartis has intentionally engaged in, or is intentionally engaging in, an unlawful employment practice as charged in the complaint, i.e., retaliation.
23. Because the Court has ruled that the EEOC has not carried its burden on the merits of its retaliation claims, the Court does not need to reach the issue of whether the EEOC is entitled to any of its requested injunctive relief.
CONCLUSION For the reasons hereinabove set forth, the Court finds and rules that a verdict and judgment is hereby entered in favor of Defendant, Novartis Pharmaceuticals Corporation, and against Plaintiff, Equal Employment Opportunity Commission. An appropriate Order follows.
McVerry, J.
20

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

NOVARTIS PHARMACEUTICALS

)

CORPORATION,

)

)

Defendant.

)

02: 05-cv-0404

ORDER OF COURT

AND NOW, this 15th day of October, 2008, in accordance with the foregoing

Findings of Fact and Conclusions of Law, is it ORDERED, ADJUDGED, AND DECREED

that a verdict and judgment in this action is hereby entered in favor of Defendant, Novartis

Pharmaceuticals Corporation, and against Plaintiff, Equal Employment Opportunity

Commission.

BY THE COURT:

s/Terrence F. McVerry United States District Court Judge

cc:

Jacqueline H. McNair, Esquire

Equal Employment Opportunity Commission

Email: Jacqueline.McNair@eeoc.gov

Judith A. O'Boyle, Esquire Equal Employment Opportunity Commission Email: Judith.Oboyle@EEOC.gov

M. Jean Clickner, Esquire Equal Employment Opportunity Commission Email: jean.clickner@eeoc.gov

Rachel M. Smith, Esquire Equal Employment Opportunity Commission Email: rachel.smith@eeoc.gov
Abigail D. Flynn-Kozara, Esquire Reed Smith Email: aflynn-kozara@reedsmith.com
Martha Hartle Munsch, Esquire Reed Smith Email: mmunsch@reedsmith.com
Kim M. Watterson, Esquire Reed Smith Email: kwatterson@reedsmith.com

 
 Case 2:05-cv-00404-TFM Document 1 Filed 03/24/05 Page 1 of 10

1:1: TilE UNITED STATES DISTRICT COURT FOR TilE WESTER.'i DISTRICT OF PENNSYLVANIA

EQUAL E:'>IPLOYMEr-.'T OPPORnn-.m·
CO~f~IISSIO:'\,
Plaintiff,
\'.
NO\'ARTIS PHAR.\fACEUTICALS CORPORA TIO~.
Defend3nt.

) ) )
05 04 0 4 }
) CIVIL ACTIO:-i 1':0.
) )
) CO:\JPLAINT
) ) ) JUR\' TRIAL Df.MAJiiD

NATURE OF TilE ACT!Q;..1 This is an action under Title VII of the ChiI Rights Act of 1964 and Title I of the Ch·it Rights Act of 1991 to correct unlawful emplo}ment practices on the basis of retaliation and to p:tl\ide appropriate relief to Ch:u-ging Party Bethany Brandstatter who was adversely affected by ncb practices. As articulated ''ith gre3tcr p3.rlicularity in Paragraph 7 below, the Commission alleges that ~Is. Bra..1dstatter, a Sales Representath·e, was subjected to illegal retaliation after she enpged in protected acthityunderTitle\'U when she complained to Defendant's Human Resources office ofsexual harassment by her m01le supmisor,lhe District Manager. The adrerse action ta.ken by Defendant included the District Manager placing her on a Territory Coaching Pllll, den)ing her requests for required training, which, in tum, denied her the ability to be promoted, the denial ofsalary increases, exclusion from group e-mails and \·oice-mails, and general isolation from her colleagues and District Manager. As a result ofthe retaliation, which dl!'trimentally affected her work environment, as well as the terms and conditions ofheremployment, Ms. Brandstatter was eonstructi\'ely discharged on August 29, 2003. Ms. Brandstatter suffered

Case 2:05-cv-00404-TFM Document 1 Filed 03/24/05 Page 2 of 10
extreme physical and emotional distress damages. as well as backpay losses. as a result ofthe illegal emplo)ment practices ofDefendant.
JQRJSDICJIO~ AND VEl\lJE I. Jurisdiction ofthis Coun is im·oked pursuantlo 28 U.S.C. §§ 451, 1331, 1337, 1343 and IJ-.15. This action is authorized and instituted pursuant to Section 706(1)( I) and (3) ofTitlc VII ofthe Chit Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(1)(1) and (3) ("Title VII"). This
action is also authorized and instituted pursuant to Section 102 ofTitle I ofthe Civil Rights Act of
1991,42 U.S.C.§ 19Sia.. 2. The emplo)ment practices alleged to be unlawful were and are now being committed
\\ithin the jurisdiction ofthe United Sutes District Coun for the Western District ofPennsylvania. PARTIES
3. Plaintiff, the Equal Emplo)ment Opportunity Commission (the "Commission"), is the agency of the United Sutes of America charged with the administration, interpretation and crJorccmcnt of Title \'D, 42 U.S.C. § 2000c-5(1)(1)and (3).
4. At all rele..-ant times, Defendant Novartis Pharmaceutical Corporation (the •Employer"), has continuously been a Delaware corporation doing business in the State of Pennsylvania and the City of Pittsburgh, and has continuously had at least 15 employees.
5. At all rele.,.ant times, Defendant Employer has continuously been an employer engaged in an industry affecting commerce within the meaning ofSections 701(b), (g) and (h) of Title \'II, 42 U.S.C. §§ 2000c(b), (g) and (h).

Case 2:05-cv-00404-TFM Document 1 Filed 03/24/05 Page 3 of 10
STATEMEJ'\'T OF CLAI\1$ 6. More tlun thiny days prior to the institution ofthis lawsuit, Ch:trging Pany Bethany Bra..'"ldstaller tiled a charge ofdiscrimination \\ith the Commission alleging ,·iolations ofTitlc \'II by Dcfcnd.lr.t Employer. All conditions precedent to the institution of this lawsuit have been fulfilled.. 7. Sinc;e at least October 7, 2002, Defendant Employer has engaged in unlawful emplo)ment pr.~c:tic;es at its Pittsburgh, Pennsylvania location, in violation ofSection 70-t(a) ofTitlc \'IL -42 U.S.C. § 2()()()e-2000e·2, as follows: (a) On September 3, 2002, Ms. Brandstattercomplained to Defendant's Human Resources M.t."l.l£er th.:u she was being subjected to sexual harassment from her direct supervisor, District Ma."l.lger, h"ory Gethers. On October 2, 2002, Defendant's officials met \\ith Gethers, and soon there;:iller, issued a stem warning letter to him. (b) On October 7, 2002, while on a sales call ride-along. Gethers ad,ised Ms. Brandstatter th:ll he was aware she had complained about his conduct and told her that she should not have
complained directly to Human Resources. During this ride-along, Gethers announced to Ms. Brandstatter that he would be placing her on a Territory Coaching Plan ("TCP.}
(c) On December9,2002, District Manager Gethers placed Ms. Brandstatteron a Territory Coa::hing Plan. The Plan was to run from December IS, 2002 until March IS, 2003.
(d) On January 28. 2003, during a ride-along session between Ms. Brandst:lttcr and District ~fa.."l.lger Gethers, he ad,·ised herth:1t he was reducing herperform.:mce r.lting for 2002 to a "panially meets- rating because she had complained to Human Resources about his conduct. In January 30,

Case 2:05-cv-00404-TFM Document 1 Filed 03/24/05 Page 4 of 10
2003, Ms. Br.mdst.ltter contacted Defendant's Human Resources office and len a message because she was concerned about possible retaliation by Gethers. Her call was not returned.
(c) On Febrw.ry 4, 2003,1\ls. Br.mdst.lttcr again called and complained to Defendant's Hum:t.1 Resoun:es official, Maria LaRosa, that Gethers was subjecting her to retaliation with regard to her perfo!"Til.lllce re\iew. LaRosa advised l\fs. Br.mdst:llter that she did not have a basis for a compllint b«'.:luse the se:o<lL"ll harassment had ceased. Nonetheless, !\Is. Brandst.lttcr continued to complain ofreuliation to Defendant's Human Resources office.
(I) On February 18, 2003, Ms. Brandst.ltter complained to Gary Branch, Defendant's Regional Director, that Gethers was subjecting her to reuliation in the form ofexcess scrutiny and criticism o,·er her performance.
(g) On March 7, 2003, during a ride-along with Gethers, Ms. Brandst.ltter asked ifshe would rttei\·e a sala:y increase, as several sales represent.ltives in the same district had ad,ised her that they were rttei,ing raises. Gethers responded that she would not receh·e a raise because she was on a coaching plan. On that day, Ms. Brandst.ltteragain complained ofretaliation to Defendant's Human Resoun:e office.
(h) On .March 14,2003, Branch asked Ms. Br.mdstatter to meet with Defendant's District l\l.ll"lager, Joseph Hazelton, who co,·ered the York., Pennsylvania district, to contemplate a transfer. On March 16, 2003,1\fs. Brandstatter met \\ith Hazelton, but she ultimately decided to reject the tra.1Sfer, as it would cause her a hardship.
(i) Although Ms. Brandstatler's TCP was to end on March 18, 2003, Gethers did not remo,·e her from the plan until April II, 2003, when he ad\·ised her she had successfully completed theTCP.

Case 2:05-cv-00404-TFM Document 1 Filed 03/24/05 Page 5 of 10
(j) In or about late April2003, Ms. Brandstatter obser\'ed that her name was not included on the Ph.ase Ill Training list, and inquired why. She asked a Training Manager why she was not includ.:d on the list for the training, and was ad,·ised her to speak with Gethers. When Ms.
Brandst.ltter asked Gethers why she was not included on the Pluse mtraining list, he advised her
th.at he could not gi,·e her any information about why it was not. Further inquiries by Ms.
Brandstatter about the training were also directed back to Gethers.
(k) After her numerous complaints ofret.lliation, in April2003, Ms. Brandstatter began to
be ostracized and isolated by Gethers, who failed to include her in group \'Oice-mails and e-mails
m sent to otherSales Represent.lti\'es in her unit. In June 2003, Phase training took place and sen:ral
Sales Represent.lth·es in Ms. Brandst.ltter's di\ision attended. Upon information and belief; three of~ls. Brandst.lner's colleagues who attended the training were promoted to Sales Consultant, with concurrent salll'}· raises.
(I) On August 29, 2003, Ms. Brandstatter was forced to resign due to the continuing retaliation caused by Gether's conduct, of which Defendant's managers were aware, but failed to Ule any remedial action to correct.
S. The effect of the practices complained of in paragraph 7 (a) through (I) abo\'e has been to deprive Ms. Brandst.ltterofequal emplo)ment opportunities and othenvise adYersely affect her st.ltus as an employee, because she eng:~ged in protected acthity under Title Vll.
9. The unlawful emplo)ment pr:1ctices complained of in paragr:~ph 7 (a) through (I) above were and are intentional.
10. The unlawful emplo)ment practices complained of in paragr:~ph 7 (a} through (I) abo,·e were done with malice or with reckless indifference to the federally protected rights of Ms.

Case 2:05-cv-00404-TFM Document 1 Filed 03/24/05 Page 6 of 10
..
Br:md31J.ll<!'l' b..-cause she eng:~ged in protected activity under Title \'II. PRAYER FOR RELIEF
Wherefore, the Commission requests th3t this Court: A. Gr:mt a perm:~nent injunction enjoining the Defend;mt Employer, its officers, successors, assigns and all persons in active concert or participation with it, from retali:tting against employees who complain ofsuch and in any other emplojment practice which operates to reuliate agai..'Ut employees. B. Gr:mt a permanent injunction enjoining the Defendant Employer, its officers,
successors, assigns and all persons in acti\·e concert or participation "ith it, from discriminating
within any ofits esiJ.blishments between employees on the basis ofretJ.liation. C. Order Defend;mt Employer to institute and carry out policies, practices and programs
which pro\idec:qual emplo)ment opportunities for women, and which eradicate the effects ofits past a::d present unl:~wful c:mplojment practices.
D. Order Defendant Employer to m:lke whole Bethany Br:~ndstatter by pro\iding apj)ropriate bad;p:l)'\\ith prejudgment interest, in amounts to be proved at trial, and other affirm:~tive relief necess3!)· to c:radicate the effects of its unlawful emplojment practices, including but not limited to back pay, front pay, and reinsiJ.tement.
E. Order Defend;mt Employer to m:lke whole Beth:~ny Br:mdstatter by providing compensation for past and future pccuni:trj·losses resulting from the unl:~wful practices described in p.lr3graph 7 (a) through (I) abo,·e, including medical expenses, in amounts to be determined at trial.
F. Ord~'f D<:fendant Employer to make whole Bethany Br:mdst:ltter and other affected

Case 2:05-cv-00404-TFM Document 1 Filed 03/24/05 Page 7 of 10

female: employees, to be identified through this litigation, by providing compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of in paragraph 7 (a) 11-.rough (I) above, inc:luding emotion:ll pain, suffering, inconvenience, Joss ofenjojment oflife, and humiliation. in a."llounts to be determined at tti:ll.

G. Order Defendant Employer to pay Bethany Brandstatter punitive damages for its malicious and'or reckless conduct described in paragraph 7 (a) through (I) above, in an amount to be determined at trial.

H. interest.

Grant such further relief as this Court deems necessary and proper in the public

l

Award the Commission its costs of this action.

Case 2:05-cv-00404-TFM Document 1 Filed 03/24/05 Page 8 of 10
JURY TRIAL DE~lA!\'D The Commission requests a jury trial on all questions of fact raised by its Complaint.
ERIC S. DREffiAND General Counsel JA.\fES L. LEE Deputy General Counsel GWE\'DOLYN YOUNG REA.\fS
Regional Al1omey
~~t"Z0 0. (JI£'-J L
ITH A. O'BOYLE SupenisoryTrial Al1omey
}1J41& -
M. JEiAN 'CUCKNER Trial Attorney Pa. I.D. No. 4273$
EQUAL E.\IPLOY'MENT OPPORnn-'ITY CO~t\USSIO~
Pittsburgh Area Office Liberty Center, Suite 300 tOOt Liberty A\'enue Pittsburgh, PA I 5222 (412) 644-6439 (•tr:>) (·•N- •/'iJ~-ft~')

Case 2:05-cv-00404-TFM Document 1 Filed 03/24/05 Page 9 of 10 CI\'IL CO\'ER SHEET

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Area 05ce.t.Urty Center, Su~e 300, 1001 Liberty
Avenue. Pi::sttrgh. PA 15222

NOVARTIS PHARMACEUTICALS CORPORATION,

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 Case 2:05-cv-00404-TFM Document 9 Filed 05/06/05 Page 1 of 11
v

A.J o S u,-,., .

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
and
BETHANYL.BRANDSTATTER Plaintiff Intervenor,
v.
NOVARTIS PHARMACEUTICALS CORPORATION,
Defendant

)

)

)

)

) CIVIL ACTION NO. 05-0404

)

) The Honorable Terrence F. McVerry

)

)

)

)

)

)

JURY TRIAL DEMAN

)

)

INTERVENOR COMPLAINT
Plaintiff Intervenor, Bethany L. Brandstatter, by and through her attorneys, Griffith, McCague & Wallace, P.C. files the within Complaint against Novartis Pharmaceuticals Corporation and makes the following statement:
INTRODUCTION 1. Plaintiff Intervenor, Bethany L. Brandstatler (hereinafter "Plaintiff Brandstatter"), brings this action against Defendant, Novartis Pharmaceuticals Corporation (hereinafter "Defendant Novartis"), under Title VII of the Civil Rights Act of 1964, Title I of the Civil Rights Act of 1991, the Pennsylvania Human Relations Act, 43 P.S. 551 et. seq., and Pennsylvania Common Law to seek redress for discrimination based on her sex, sexual harassment, and retaliatory conduct to which she was subjected during her employment \\ith Defendant Novartis.

Case 2:05-cv-00404-TFM Document 9 Filed 05/06/05 Page 2 of 11
v
JURISDICTION AND VENUE
2. Plaintiff invokes jurisdiction of this Court pursuant to 28 U.S.C. §§ 451, 1331, 1332, 1337, 1343, and 1345 and 42 U.S.C. § 2000e-5(f).
3. Plaintiff Brandstatter requests that this Court exercise supplemental jurisdiction over her state law daims under the Pennsylvania Human Relations Act, 43 P.S. 951 et. seq., and Pennsylvania Common Law pursuant to 28 U.S.C. §1367(a). Plaintiff Brandstatter's state law daims are related to her federal claims and arise from the same nucleus of operative facts. 4. Plaintiff Brandstatter has complied with all jurisdictional prerequisites, including
those set forth in 42 U.S.C. § 2000e-5.
5. The amount in controversy exceeds S75,000.00, exclusive of interest and costs. 6. The unlawful employment practices alleged in this Complaint were committed v.ithin the jurisdiction of the Western District of Pennsylvania.
PARTIES 7. Plaintiff Brandstatter is a female citizen of the United States of America and is currently a resident of Washington County, Pennsylvania. 8. At all relevant times, Defendant Novartis has been a New Jersey corporation doing business in the Commonwealth of Pennsylvania and the County of Allegheny and has had at least fifteen (15) employees. 9. At all relevant times, Defendant Novartis has continuously been an employer
engaged in an industry affecting commerce within the meaning of 42 U.S.C. §§ 2000e(b), (g), and (h) and the Pennsylvania Human Relations Act, 43 P.S. § 954.

Case 2:05-cv-00404-TFM Document 9 Filed 05/06/05 Page 3 of 11
v
ADMINISTRATIVE PROCEDURES 10. Plaintiff Brandstatter timely filed a charge of discrimination against Defendant Novartis with the Equal Employment Opportunity Commission (hereinafter "EEOC") on or about Apn117, 2003. 11. On August 26, 2004, the EEOC made a Determination that Defendant Novartis, in violation of Trtle VII, engaged in sexual harassment and retaliated against Plaintiff Brandstatter for reporting the harassment. 12. Plaintiff Brandstatter has complied with all administrative and judicial prerequisites for the institution of this Complaint under federal and state law.
FACTUAL BACKGROUND 13. On Apn119, 2002, Defendant Novartis hired Plaintiff Brandstatter to serve as a sales representative and assigned District Manager Mr. Ivory Gethers (hereinafter "Gethers") to be her manager shortly thereafter. 14. Gethers was Plaintiff Brandstatter's supervisor and exercised control over her employment with Defendant Novartis. 15. On June 18, 2002, Gethers said to Plaintiff Brandstatter during a telephone conversation regarding business issues, "I bet you're a freak", referring to her sexual behavior. 16. On July 19,2002, Gethers said to Plaintiff Brandstatter during a telephone conversation regarding business issues, 'Would you be offended if I said I wanted to tuck the shit out of you?"

v v Case 2:05-cv-00404-TFM Document 9 Filed 05/06/05 Page 4 of 11
17. On August 22, 2002, Plaintiff Brandstatter introduced another female sales representative to Gethers at a company event at which time he said, "Is she a present forme?" 18. In September of 2002, Plaintiff Brandstatter telephoned the Human Resources Department of Defendant Novartis to file a complaint (hereinafter the ·sexual Harassment Complaint") that she was being subjected to sexual harassment by her direct supervisor, Gethers. 19. On October 2. 2002, Defendant Novartis officials met with Gethers. Upon information and belief, Gethers admitted to making the comments described in paragraphs 15, 16, and 17. 20. Defendant Novartis thereafter issued a warning letter to Gethers for his actions. 21. On October 7, 2002, while accompanying Plaintiff Brandstatter on sales calls, Gethers told Plaintiff Brandstatter that a mature sales representative would have gone to the supervisor as opposed to going to the Human Resources Department. alluding to her Sexual Harassment Complaint, and that he would be putting her on a Territory Coaching Plan (hereinafter "TCP"). 22. On December 9, 2002, Gethers placed Plaintiff Brandstatter on a TCP. After alterations initiated by Plaintiff Brandstatter, the final draft of the TCP was issued on December 18, 2002 and was scheduled to end on March 18,2003. 23. During her annual review on January 28, 2003, Gethers advised Plaintiff Brandstatter that he had reduced one of her scores to "partially met expectations· as opposed to "met expectations· because she had ·acted unethically" by contacting the Human Resources Department with her Sexual Harassment Complaint.

Case 2:05-cv-00404-TFM Document 9 Filed 05/06/05 Page 5 of 11
u
24. On January 30, 2003, Plaintiff Brandstatter began leaving messages with Defendant Novartis' Human Resources Department because she was concerned about Gethers' conduct and possible retaliation by Gethers in response to her Sexual Harassment Complaint After several calls and no response, Plaintiff Brandstatter reported to Ms. Maria LaRosa, an official in Defendant Novartis' Human Resources Department, that Gethers was subjecting her to retaliation for filing the Sexual Harassment Complaint by placing her on the TCP and reducing her performance reviews. Ms. LaRosa advised Plaintiff Brandstatter that she did not have any basis for redress because the sexual harassment had ceased. Plaintiff Brandstatter spoke to Ms. LaRosa again on February 7, 2003 to discuss Defendant Novartis' position with respect to these matters. 25. On February 18, 2003, Plaintiff Brandstatter contacted Regional Director Gary Branch (hereinafter "Regional Director Branch"), a senior management employee of Defendant Novartis, to report that Gethers was subjecting her to retaliation for filing the Sexual Harassment Complaint with the Human Resources Department by reducing her score on her annual review, placing her on a TCP and treating her differently than other sales representatives by being hypercritical of her performance. 26. On March 7, 2003, during a "ride along" with Gethers, Plaintiff Brandstatter asked
if she would be receiving a salary increase as many other representatives advised her
that they were receiving raises. Gethers told her that she would not receive a raise because she was on a TCP. Plaintiff Brandstatter questioned why other representatives on TCPs received raises in spite of this fact. Gethers thereafter changed his response and said she was not getting a raise because of her "core competencies" and her TCP.

Case 2:05-cv-00404-TFM Document 9 Filed 05/06/05 Page 6 of 11
v
During this conversation Gethers screamed at Plaintiff Brandstatter, and she eventually asked him to get out of her car because she was uncomfortable with his hostile demeanor. Plaintiff Brandstatter contacted Ms. LaRosa of Defendant Novartis' Human Resources Department later that day to inform her of Gethers' retaliatory conduct. 27. Plaintiff Brandstatter did not hear back from Defendant Novartis until March 17, 2003 when Regional Manager Branch contacted her and offered to begin discussions a».rt transferring her to another territory. 28. Although Plaintiff Brandstatter's TCP was scheduled to end on March 18, 2003, Gethers, in continuation of his retaliatory conduct, continued the plan until April11,
2003.
29. On April 14, 2003, Plaintiff Brandstatter was informed via e-mail that her registration had been cancelled for two training sessions commonly known as 1-Leam training sessions for which she had previously registered on March 31, 2003. Plaintiff Brandstatter reasonably believes and therefore avers that Gethers was initially notified of her registration and subsequently directed that her registration be cancelled. 30. In or about late April 2003, Plaintiff Brandstatter learned that she was not registered to participate in a training program commonly known as Phase Ill Training. Gethers had previously told Plaintiff Brandstatter on March 7, 2003 that she was eligible to attend the training. 31. Plaintiff Brandstatter contacted Mr. Dick Decker, the Novartis employee responsible for organizing the training, to ask for the reason for her absence from the registration list. She was directed to speak with Gethers who, after several contacts,

v Case 2:05-cv-00404-TFM Document 9 Filed 05/06/05 Page 7 of 11
refused to give her any explanation for her current lack of eligibility to attend the t-aining. 32. Beginning in April 2003 and continuing until the time her employment with Defendant Novartis was terminated, Plaintiff Brandstatter was ostracized and isolated by Gethers, who (i.) failed to include her in group voice-mails and e-mails sent to other sales representatives in her unit, (ii.) reduced company communications with her, and (iii.) failed to give her necessary coaching and marketing instruction. 33. In June 2003, Phase Ill training took place and several sales representatives in Plaintiff Brandstatter's division attended. Plaintiff Brandstatter reasonably believes and therefore avers that three of her colleagues who attended the training were promoted to sales consultant with concurrent salary raises. Because Gethers did not permit Plaintiff Brandstatter to attend Phase Ill training, she was refused a promotion and salary increase. 34. As a result of the sexual harassment and continued retaliation, Plaintiff Brandstatter developed physical ailments for which she received medical treatment. 35. As a result of the ongoing retaliatory conduct by Gethers and the unbearable conditions of her employment including the adverse employment action taken against her Defendant Novartis, Plaintiff Brandstatter had no recourse but to resign on August 29,2003. 36. Defendant Novartis was at all times aware of the sexual harassment, adverse employment actions, and continued retaliatory conduct of Gethers, but refused or failed to take any remedial action.

Case 2:05-cv-00404-TFM Document 9 Filed 05/06/05 Page 8 of 11

v

v

37. The aforementioned unlawful employment practices, taken by or on the part of Defendant Novartis officials and managers, were and are intentional and were done with malice or reckless indifference to Plaintiff Brandstatter's rights protected by the laws of the United States and the laws of the Commonwealth of Pennsylvania. These unlav.ful acts and employment practices were committed because of her sex and, subsequently, because she engaged in the protected activity of filing a claim of sexual harassment with Defendant Novartis. 38. The effect of the aforementioned practices has been to deprive Plaintiff Brandstatter of equal employment opportunities and otherwise adversely affected her status as an employee.
CLAIMS COUNT I 39. Paragraphs 1 through 38 are incorporated herein by reference as if stated herein in full.
40. The acts, fanures to act, practices and policies of the Defendant Novartis set forth
aXIve constitute sexual harassment of Plaintiff Brandstatter on the basis of her sex in
violation of section 703 of Title VII, 42 U.S.C. § 2000e-2.
COUNT II 41. Paragraphs 1 through 38 are incorporated herein by reference as if stated herein in full. 42. The acts, failures to act, practices and policies of Defendant Novartis set forth aXIve constitute hostile environment sexual harassment of Plaintiff Brandstatter on the
basis of her sex in violation of Pennsylvania Human Relations Act, 43 P.A. § 955.

Case 2:05-cv-00404-TFM Document 9 Filed 05/06/05 Page 9 of 11
v
COUNT Ill 43. Paragraphs 1 through 38 are incorporated herein by reference as if stated herein
in tun.
44. The acts, failures to act, practices and policies of Defendant Novartis set forth a!xlve constitute retaliation for engaging in protected activity in violation of section 704
of Trtle VII, 42 U.S.C. § 2000e-3.
COUNT IV
45. Paragraphs 1 through 38 are incorporated herein by reference as if stated herein
in tun.
46. The acts, failures to act, practices and policies of Defendant Novartis set forth a!xlve constitute retaliation for engaging in protected activity in violation of Pennsylvania
Human Relations Act, 43 P.S. § 955(d).
COUNTV
47. Paragraphs 1 through 38 are incorporated herein by reference as if stated herein
in full. 48. The acts, failures to act, practices and policies of Defendant Novartis set forth a!>ove constitute constructive discharge of Plaintiff Brandstatter in violation of Section
703 of Trtle VII, 42 U.S.C. § 2000e-2.
COUNT VI
49. Paragraphs 1 through 38 are incorporated herein by reference as if stated herein
in full.

Case 2:05-cv-00404-TFM Document 9 Filed 05/06/05 Page 10 of 11

u

v

50. The acts, failures to act, practices and policies of Defendant Novartis set forth above constitute constructive discharge of Plaintiff Brandstatter in violation of the
Pennsylvania Human Relations Act, 43 P.S. § 955.
COUNT VII
51. Paragraphs 1 through 38 are incorporated herein by reference as if stated herein
in full. 52. The acts, failures to act, practices and policies of Defendant Novartis set forth above constitute intentional infliction of emotional distress of Plaintiff Brandstatter.
PRAYER FOR RELIEF For each of the above daims, Plaintiff Brandstatter respectfully requests that this Court grant judgment in her favor and against Defendant Novartis and award her relief induding, but not limited to, the following:

53. Dedaratory relief dedaring the acts and practices of Defendant Novartis to be in violation of the statutes cited above; ~- Injunctive relief enjoining Defendant Novartis, its officers, and employees from engaging in discrimination on the basis of gender against its employees; 55. Injunctive relief enjoining Defendant Novartis, its officers, and employees from retaliating against its employees for engaging in protected activity under Title VII and the Pennsylvania Human Relations Act; 56. Reimbursement to make Plaintiff Brandstatter whole including back pay with prejudgment interest. in amounts to be proven at trial;

u v Case 2:05-cv-00404-TFM Document 9 Filed 05/06/05 Page 11 of 11
57. Reimbursement of all expenses and financial losses Plaintiff Brandstatter has
incurred as a result of Defendant Novartis' actions including medical expenses and
other pecuniary losses in amounts to be determined at trial;
58. Compensatory damages or other reimbursement for past and future nonpecuniary losses resulting from the unlawful practices of Defendant Novartis
including emotional pain, suffering, inconvenience, loss of enjoyment of life, and
humiliation in amounts to be determined at trial;
59. Punitive damages for Defendant Novartis' malicious and/or reckless conduct described herein in an amount to be determined at trial;
60. Reasonable attorneys fees plus costs and expenses, pre and post judgment
interest and any delay damages as are allowed by law; and
61. Such other relief as the Court shall deem appropriate.
JURY TRIAL DEMAND
The Plaintiff requests a jury trial on all questions of fact raised in this Complaint.
Respectfully submitted, GRIFFITH, MCCAGUE & WALLACE, P.C.
~"[~ i'iitellT:Fawcett PA I.D. # 92027 Mark A. Griffith PA I.D. # 37581 Griffith, McCague & Wallace, P.C. The Gulf Tower, 38th Floor 707 Grant Street Pittsburgh, PA 15219 ph: 412-803-3690 fax: 412-803-3678

 
 Case: 2:05-cv-404 As of: 06/19/2018 12:30 PM EDT 1 of 13
U.S. District Court Western District of Pennsylvania (Pittsburgh) CIVIL DOCKET FOR CASE #: 2:05−cv−00404−TFM

CLOSED

EQUAL EMPLOYMENT OPP v. NOVARTIS PHARMACEUTI, et al Assigned to: Judge Terrence F. McVerry Demand: $0 Cause: 42:2000 Civil Rights: Other
Plaintiff
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Date Filed: 03/24/2005 Date Terminated: 10/15/2008 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff
represented by Jacqueline H. McNair Equal Employment Opportunity Commission 21 South Fifth Street Suite 400, The Bourse Building Philadelphia, PA 19106 (215) 440−2666 Email: Jacqueline.McNair@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Judith A. O'Boyle Equal Employment Opportunity Commission 21 South Fifth Street Suite 400, The Bourse Building Philadelphia, PA 19106 (215) 440−2666 Email: Judith.Oboyle@EEOC.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

M. Jean Clickner Equal Employment Opportunity Commission 1000 Liberty Avenue William S. Moorhead Federal Building, Suite 1112 Pittsburgh, PA 15222 (412) 395−5843 Fax: (412) 395−5749 Email: jean.clickner@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel M. Smith United States Equal Employment Opportunity Commission 801 Market Street Suite 1300 Philadelphia, PA 19107 215−440−2642 Fax: 215−440−2848 Email: rachel.smith@eeoc.gov ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff

represented by

Case: 2:05-cv-404 As of: 06/19/2018 12:30 PM EDT 2 of 13

BETHANY L. BRANDSTATTER TERMINATED: 02/14/2006

BETHANY L. BRANDSTATTER PRO SE

Kristen T. Fawcett Griffith, McCague & Fernsler 707 Grant Street The Gulf Tower, 38th Floor Pittsburgh, PA 15219 (412) 803−3690 Fax: (412) 803−3678 Email: ktf@gmwpclaw.com TERMINATED: 02/14/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark A. Griffith Griffith, McCague & Wallace 707 Grant Street The Gulf Tower, 38th Floor Pittsburgh, PA 15219 (412) 803−3690 Email: mag@gmwpclaw.com TERMINATED: 02/14/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter G. Nychis Griffith, McCague & Wallace 707 Grant Street The Gulf Tower, 38th Floor Pittsburgh, PA 15219 (412) 803−3690 Email: pgn@gmwpclaw.com TERMINATED: 02/14/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
NOVARTIS PHARMACEUTICALS CORPORATION

represented by Abigail D. Flynn−Kozara Damon Morey LLP 200 Delaware Avenue Suite 1200 Buffalo, NY 14202−2150 716−856−5500 Fax: 716−856−5510 Email: akozara@damonmorey.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Martha Hartle Munsch Reed Smith 225 Fifth Avenue Pittsburgh, PA 15222 412−288−4118 Fax: 412−288−3063 Email: mmunsch@reedsmith.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Virginia Lazala Novartis Pharmaceuticals Corporation One Health Plaza

Case: 2:05-cv-404 As of: 06/19/2018 12:30 PM EDT 3 of 13
East Hanover, NJ 07936 TERMINATED: 12/29/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kim M. Watterson Reed Smith LLP Reed Smith Centre 225 Fifth Avenue Suite 1200 Pittsburgh, PA 15222 (412) 288−3131 Email: kwatterson@reedsmith.com ATTORNEY TO BE NOTICED

Date Filed 03/24/2005 04/11/2005 04/12/2005
04/14/2005 04/20/2005
04/20/2005 04/21/2005 04/22/2005 04/22/2005
04/22/2005
04/29/2005 05/06/2005 05/25/2005 05/25/2005
07/05/2005

# Docket Text
1 COMPLAINT with summons issued; jury demand (ces) (key, ). (Entered: 03/24/2005)
2 MOTION by BETHANY L. BRANDSTATTER to Intervene with Proposed Order. (ces) (key, ). (Entered: 04/11/2005)
3 ORDER, Response to Motion set to 4/25/05 for 2 motion to Intervene ( signed by Judge Terrence F. McVerry on 4/12/05 ) CM all parties of record. (ces) (key, ). (Entered: 04/12/2005)
4 NOTICE of Attorney Appearance for NOVARTIS PHARMACEUTI by Martha Hartle Munsch (ces) (key, ). (Entered: 04/14/2005)
6 Stipulation by EQUAL EMPLOYMENT OPP, NOVARTIS PHARMACEUTI Extending Time to 5/25/05 for deft to answer complaint with proposed order. (ces) (key, ). (Entered: 04/21/2005)
Deadline updated; reset Answer deadline to 5/25/05 for NOVARTIS PHARMACEUTI (ces) (Entered: 04/21/2005)
5 RESPONSE by EQUAL EMPLOYMENT OPP to 2 motion to Intervene by BETHANY L. BRANDSTATTER (ces) (key, ). (Entered: 04/21/2005)
7 RESPONSE by NOVARTIS PHARMACEUTI to 2 motion to Intervene by BETHANY L. BRANDSTATTER (jsp) (key, ). (Entered: 04/22/2005)
ORDER upon stipulation granting 6 stipulation Extending Time to answer ; reset Answer deadline to 5/25/05 for NOVARTIS. ( signed by Judge Terrence F. McVerry on 4/22/05 ) CM all parties of record. (tt) Modified on 12/29/2009. (jv) (Entered: 04/25/2005)
ORDER upon motion granting 2 motion to Intervene and the movant is instructed to file her complaint by 5/6/05 and properly serve the parties. ( signed by Judge Terrence F. McVerry on 4/22/05 ) CM all parties of record. (ksa) (Entered: 04/25/2005)
8 RETURN OF SERVICE executed as to NOVARTIS PHARMACEUTI 4/6/05 Answer due on 4/26/05 for NOVARTIS PHARMACEUTI (ces) (key, ). (Entered: 04/29/2005)
9 Intervenor's COMPLAINT by BETHANY L. BRANDSTATTER against NOVARTIS PHARMACEUTI (ces) (key, ). (Entered: 05/09/2005)
10 ANSWER to Complaint by NOVARTIS PHARMACEUTI (Attorneys Abigail D. Flynn−Kozara and Virginia Lazala) (ces) (key, ). (Entered: 05/25/2005)
11 WAIVER OF SERVICE Returned Executed as to NOVARTIS PHARMACEUTI on 5/6/05 Answer due on 7/5/05 for NOVARTIS PHARMACEUTI (ces) (key, ). (Entered: 05/25/2005)
12 Defendant's ANSWER to Complaint of Intervenor by NOVARTIS PHARMACEUTICALS CORPORATION.(Munsch, Martha) (Entered: 07/05/2005)

Case: 2:05-cv-404 As of: 06/19/2018 12:30 PM EDT 4 of 13

07/11/2005 07/12/2005 07/28/2005 08/05/2005 08/05/2005 08/08/2005 09/08/2005 09/13/2005 10/14/2005 10/17/2005
11/21/2005 11/21/2005
12/29/2005 01/11/2006 01/12/2006

13 SCHEDULING ORDER/INITIAL CASE MANAGEMENT CONFERENCE set for 7/22/2005 11:30 AM in Courtroom 6C before Terrence F. McVerry.Signed by Judge Terrence F. McVerry on 7/11/2005. (Attachments: # 1 Exhibit Proposed Case Management Order)(kll) (Entered: 07/11/2005)
TEXT NOTICE of Hearing: Case Management reset from 7/22/2005 11:30 to 8/5/2005 08:30 AM in Courtroom 6C before Terrence F. McVerry. (Per telephone request of Pltf's counsel with consent from dft's counsel) Text only entry; no PDF document will issue.(kll) (Entered: 07/12/2005)
16 NOTICE of Change of Address by Mark A. Griffith to read Griffith, McCague & Wallace, Gulf Tower, 38th Floor, 707 Grant St., Pgh., PA 15219 (412) 803−3690 (ces, ) (Entered: 08/09/2005)
Text Minute Entry for proceedings held before Judge Terrence F. McVerry : Case Management Conference held on 8/5/2005. Text only entry; no PDF document will issue. (Court Reporter none.) (kll) (Entered: 08/08/2005)
15 NOTICE of Appearance by Peter G. Nychis on behalf of BETHANY L. BRANDSTATTER (ces, ) (Entered: 08/08/2005)
14 ORDER STAYING CASE, Case stayed for thirty days. Counsel shall report their progress to the Court on or before the expiration of said thirty days.Signed by Judge Terrence F. McVerry on 8/8/2005. (kll) (Entered: 08/08/2005)
17 STIPULATION of Counsel for all parties, filed by NOVARTIS PHARMACEUTICALS CORPORATION. (Attachments: # 1 Proposed Order)(Munsch, Martha) (Entered: 09/08/2005)
18 ORDER re 17 Stipulation filed by NOVARTIS PHARMACEUTICALS CORPORATION, counsel shall report their progress to the Court on or before October 31, 2005.Signed by Judge Terrence F. McVerry on 9/13/2005. (kll) (Entered: 09/13/2005)
TEXT NOTICE of Hearing: Settlement Conference set for 11/21/2005 09:00 AM in Courtroom 6C before Terrence F. McVerry. Text only entry; no PDF document will issue.(kll) (Entered: 10/14/2005)
19 SETTLEMENT CONFERENCE ORDER re Notice of Hearing. ?No later than November 15, 2005, each party shall submit a confidential settlement statement to the judge. The settlement statement shall not become part of the file of the case, but shall be for the exclusive use of the judge in preparing for and conducting the settlement conference. Signed by Judge Terrence F. McVerry on 10/17/2005. (kll) (Entered: 10/17/2005)
Text Minute Entry for proceedings held before Judge Terrence F. McVerry : Settlement Conference held on 11/21/2005. Order will follow. Text only entry; no PDF document will issue. (Court Reporter None.) (kll) (Entered: 11/21/2005)
20 CASE MANAGEMENT/SCHEDULING ORDER: Exchange of required Rule 26(a)(1) information due by 12/5/2005. Amended Pleadings due by 2/17/2006. Joinder of Parties due by 12/21/2005. Discovery due by 3/21/2006. Post Discovery Status Conference set for 3/24/2006 08:30 AM in Courtroom 6C before Terrence F. McVerry.Signed by Judge Terrence F. McVerry on 11/21/2005. (kll) (Entered: 11/21/2005)
21 NOTICE by NOVARTIS PHARMACEUTICALS CORPORATION of Withdrawal of Appearance of Attorney Lazala (Munsch, Martha) (Entered: 12/29/2005)
22 STIPULATION And Protective Order by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, NOVARTIS PHARMACEUTICALS CORPORATION, BETHANY L. BRANDSTATTER. (Munsch, Martha) (Entered: 01/11/2006)
23 ORDER granting 22 Stipulation filed by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, NOVARTIS PHARMACEUTICALS CORPORATION, BETHANY L. BRANDSTATTER . Signed by Judge Terrence F. McVerry on 1/12/2006. (kll) (Entered: 01/12/2006)

Case: 2:05-cv-404 As of: 06/19/2018 12:30 PM EDT 5 of 13

01/31/2006 02/01/2006 02/13/2006 02/14/2006 03/16/2006 03/20/2006
04/06/2006 04/06/2006 04/06/2006 04/07/2006 04/12/2006 04/13/2006 04/20/2006 04/25/2006 04/26/2006 04/26/2006

TEXT NOTICE of Hearing: Settlement Conference set for 2/1/2006 09:00 AM in Courtroom 6C before Terrence F. McVerry. Text only entry; no PDF document will issue. This text only entry constitutes the Court's notice on the matter.(kll) (Entered: 01/31/2006)
Text Minute Entry for proceedings held before Judge Terrence F. McVerry : Settlement Conference held on 2/1/2006. Text only entry; no PDF document will issue. This text only entry constitutes the Court's notice on the matter. (Court Reporter None.) (kll) (Entered: 02/01/2006)
24 MOTION to Dismiss Intervenor's Complaint filed by Intervenor Bethany L. Brandstatter and by NOVARTIS PHARMACEUTICALS CORPORATION. (Attachments: # 1 Proposed Order)(Munsch, Martha) (Entered: 02/13/2006)
25 ORDER granting 24 Motion to Dismiss . Bethany L. Brandstatter's claims in this case are dismissed with prejudice. Signed by Judge Terrence F. McVerry on 2/14/2006. (kll) (Entered: 02/14/2006)
26 MOTION for Extension of Time to Complete Discovery by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Proposed Order Proposed order)(Clickner, M.) (Entered: 03/16/2006)
27 AMENDED CASE MANAGEMENT/SCHEDULING ORDER granting 26 Motion for Extension of Time to Complete Discovery: Amended Pleadings due by 6/21/2006. Discovery due by 7/21/2006. Post Discovery Status Conference set for 7/28/2006 09:30 AM in Courtroom 6C before Terrence F. McVerry. Signed by Judge Terrence F. McVerry on 3/20/2006. (kll) (Entered: 03/20/2006)
28 MOTION to Dismiss for Lack of Jurisdiction Pursuant to Federal Rule of Civil Procedure 12(b)(1) by NOVARTIS PHARMACEUTICALS CORPORATION. (Attachments: # 1 Proposed Order)(Munsch, Martha) (Entered: 04/06/2006)
29 BRIEF in Support re 28 MOTION to Dismiss for Lack of Jurisdiction Pursuant to Federal Rule of Civil Procedure 12(b)(1) filed by NOVARTIS PHARMACEUTICALS CORPORATION. (Munsch, Martha) (Entered: 04/06/2006)
30 AFFIDAVIT re 28 MOTION to Dismiss for Lack of Jurisdiction Pursuant to Federal Rule of Civil Procedure 12(b)(1) by NOVARTIS PHARMACEUTICALS CORPORATION. (Munsch, Martha) (Entered: 04/06/2006)
31 ORDER Response/Briefing Schedule re 28 Motion to Dismiss/Lack of Jurisdiction. Plaintiff's Response and brief to Motion due by 5/8/2006. Signed by Judge Terrence F. McVerry on 4/7/06. (cc) (Entered: 04/07/2006)
32 MOTION for Discovery −−For Stay of Discovery Pending Disposition Of Defendant's Motion To Dismiss −− by NOVARTIS PHARMACEUTICALS CORPORATION. (Attachments: # 1 Proposed Order)(Munsch, Martha) (Entered: 04/12/2006)
TEXT ORDER Response/Briefing Schedule re 32 Motion for Discovery. Response to Motion due by 4/24/2006. Signed by Judge Terrence F. McVerry on 4/13/2006. Text only entry; no PDF document will issue. This text only entry constitutes the Court's notice on the matter.(kll) (Entered: 04/13/2006)
33 RESPONSE to Motion re 32 MOTION for Discovery −−For Stay of Discovery Pending Disposition Of Defendant's Motion To Dismiss −− Response on Opposition filed by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Clickner, M.) (Entered: 04/20/2006)
34 REPLY to Response to Motion re 32 MOTION for Discovery −−For Stay of Discovery Pending Disposition Of Defendant's Motion To Dismiss −− filed by NOVARTIS PHARMACEUTICALS CORPORATION. (Munsch, Martha) (Entered: 04/25/2006)
35 BRIEF in Opposition re 28 MOTION to Dismiss for Lack of Jurisdiction Pursuant to Federal Rule of Civil Procedure 12(b)(1) filed by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Clickner, M.) (Entered: 04/26/2006)
36 Appendix to 35 Brief in Opposition to Motion by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Affidavit of M. Jean Clickner # 2

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04/28/2006 05/02/2006 05/05/2006 07/11/2006 07/18/2006 07/18/2006 07/19/2006 07/20/2006 07/20/2006 08/08/2006 08/24/2006 08/25/2006

EEOC Exhibit A # 3 EEOC Exhibit B # 4 EEOC Exhibit C # 5 EEOC Exhibit D # 6 EEOC Exhibt E # 7 EEOC Exhibit G # 8 EEOC Exhibit F # 9 EEOC Exhibit H # 10 EEOC Exhibit I # 11 Certificate of Service)(Clickner, M.) Modified on 4/28/2006 (jv). (Entered: 04/26/2006)
CLERK'S OFFICE QUALITY CONTROL MESSAGE. re 36 Appendix,. ERROR: Attachments not described correctly or no description was provided. CORRECTION: Attachment description corrected. Please Describe Attachments with future documents that have attachments. This message is for informational purposes only. (jv) (Entered: 04/28/2006)
37 MOTION for Leave to File Reply To Plaintiff's Memorandum In Opposition To Defendant's Motion To Dismiss Plaintiff's Complaint Pursuant To Federal Rule Of Civil Procedure 12(b)(1) by NOVARTIS PHARMACEUTICALS CORPORATION. (Attachments: # 1 Proposed Order # 2 Exhibit)(Munsch, Martha) (Entered: 05/02/2006)
TEXT ORDER granting 37 Motion for Leave to File Reply to Plaintiff's Memorandum in Opposition to Defendant's Motion to Dismiss. NOVARTIS PHARMACEUTICAL CORPORATION SHALL FILE SAID REPLY FORTHWITH. Signed by Judge Terrence F. McVerry on 5/5/2006. Text only entry; no PDF document will issue. This text only entry constitues the Court's order on the matter. (kll) (Entered: 05/05/2006)
38 REPLY BRIEF by NOVARTIS PHARMACEUTICALS CORPORATION re 35 Brief in Opposition to Motion To Dismiss Plaintiff's Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(1) filed by NOVARTIS PHARMACEUTICALS CORPORATION. (Munsch, Martha) (Entered: 07/11/2006)
39 MOTION for Extension of Time to Complete Discovery by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Proposed Order)(Clickner, M.) (Entered: 07/18/2006)
40 RESPONSE to Motion re 39 MOTION for Extension of Time to Complete Discovery filed by NOVARTIS PHARMACEUTICALS CORPORATION. (Munsch, Martha) (Entered: 07/18/2006)
CLERK'S OFFICE QUALITY CONTROL MESSAGE. re 39 MOTION for Extension of Time to Complete Discovery. ERROR: Typed name omitted by s/. CORRECTION: Attorney advised of signature requirements. Attorney to resubmit with signature, using Errata event. This message is for informational purposes only. (jv) (Entered: 07/19/2006)
TEXT ORDER granting 39 Motion for Extension of Time to Complete Discovery. Discovery due by 8/21/2006. Signed by Judge Terrence F. McVerry on 7/20/2006. Text only entry; no PDF document will issue. This text only entry constitutes the Court's order on the matter. (kll) (Entered: 07/20/2006)
TEXT NOTICE of Hearing: Post Discovey Status Conference reset from 7/28/2006 to 8/25/2006 01:30 PM in Courtroom 6C before Terrence F. McVerry. Text only entry; no PDF document will issue. This text only entry constitutes the Court's notice on the matter.(kll) (Entered: 07/20/2006)
41 MEMORANDUM OPINION AND ORDER OF COURT denying 28 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Terrence F. McVerry on 08/08/2006. (bsc) (Entered: 08/08/2006)
42 MOTION to Compel Response to Commission's Third Request for Production of Documents by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Affidavit Certificate of Compliance w/ LR 37.1# 2 Exhibit Proposed Order of Court# 3 Exhibit Exhibit A)(Clickner, M.) (Entered: 08/24/2006)
Text Minute Entry for proceedings held before Judge Terrence F. McVerry : Status Conference held on 8/25/2006. Plaintiffs Motion to Compel will be held in abeyance. Defendants are given until 9/30/2006 to provide information to Plaintiffs. (Court Reporter None.) Text only entry; no PDF document will issue. This text only entry constitutes the Court's notice on the matter. (kll) (Entered: 08/25/2006)

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09/01/2006 09/01/2006 09/08/2006
09/15/2006
09/18/2006 09/19/2006
11/03/2006 11/03/2006 11/06/2006 11/08/2006 11/08/2006 01/08/2007 01/08/2007 01/08/2007 01/08/2007

43 MOTION to Modify 41 Order on Motion to Dismiss/Lack of Jurisdiction by NOVARTIS PHARMACEUTICALS CORPORATION. (Attachments: # 1 Proposed Order)(Munsch, Martha) (Entered: 09/01/2006)
44 BRIEF in Support re 43 MOTION to Modify 41 Order on Motion to Dismiss/Lack of Jurisdiction filed by NOVARTIS PHARMACEUTICALS CORPORATION. (Attachments: # 1 Exhibit)(Munsch, Martha) (Entered: 09/01/2006)
ORDER Response/Briefing Schedule re 43 Motion to Modify. Plaintiff shall file a response to Defendant's Motion to Amend the Court's August 8, 2006 Order to Certify An Issue for Interlocutory Appeal on or before 9/15/2006. Text only entry; no PDF document will issue. This text−only entry constitutes the Court's Order on the matter. Signed by Judge Terrence F. McVerry on 09/08/2006. (bsc) (Entered: 09/08/2006)
45 BRIEF in Opposition re 43 MOTION to Modify 41 Order on Motion to Dismiss/Lack of Jurisdiction filed by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1Letter to Attorney Clickner from Mr Cipoletti # 2Exhibit B, Commission's First Request For Production of Documents to Deft.)(Clickner, M.) Modified on 9/18/2006 (jv). (Entered: 09/15/2006)
CLERK'S OFFICE QUALITY CONTROL MESSAGE. re 45 Brief in Opposition to Motion,. ERROR: Attachments not described correctly or no description was provided. CORRECTION: Attachment description corrected. This message is for informational purposes only. (jv) (Entered: 09/18/2006)
46 AMENDED ORDER OF COURT granting 43 Motion to Modify Order of Court issued 8/8/06. This litigation is hereby stayed pending resolution of the application of Novartis Pharmaceuticals Corporation for leave to appeal this Order to the United States Court of Appeals for the Third Circuit. Signed by Judge Terrence F. McVerry on 9/19/2006. (kll) (Entered: 09/19/2006)
47 ORDER OF USCA denying Petition for Leave to Appeal filed by Novartis Pharmaceuticals Corp. (Attachments: # 1 Information Sheet) (carh3, ) Filed in Error: Correction: Removed from public view and refiled at 48 ORDER of USCA denying Petition for Leave to Appeal Modified on 11/6/2006 (jv). (Entered: 11/03/2006)
48 ORDER OF USCA denying Petition for Leave to Appeal filed by Novartis Pharmaceuticals Corp. (carh3, ) Additional attachment(s) added on 11/6/2006 (jv) (Attachments # 1 Information Sheet). (Entered: 11/06/2006)
TEXT NOTICE of Hearing: Telephone Status Conference set for 11/8/2006 10:00 AM in Courtroom 6C before Terrence F. McVerry. Text only entry; no PDF document will issue. This text only entry constitutes the Court's notice on the matter.(kll) (Entered: 11/06/2006)
Text Minute Entry for proceedings held before Judge Terrence F. McVerry : Telephone Conference held on 11/8/2006. (Court Reporter None.) Text only entry; no PDF document will issue. This text only entry constitutes the Court's notice on the matter. (kll) (Entered: 11/08/2006)
49 ORDER OF COURT: Summary Judgment due by 1/8/2007. Response to Summary Judgment due by 3/9/2007. Signed by Judge Terrence F. McVerry on 11/8/2006. (kll) (Entered: 11/08/2006)
50 MOTION for Summary Judgment by NOVARTIS PHARMACEUTICALS CORPORATION. (Attachments: # 1 Proposed Order)(Munsch, Martha) (Entered: 01/08/2007)
51 STATEMENT OF FACTS In Support of Defendant's 50 Motion for Summary Judgment. by NOVARTIS PHARMACEUTICALS CORPORATION.. (Munsch, Martha) (Entered: 01/08/2007)
52 BRIEF in Support re 50 MOTION for Summary Judgment filed by NOVARTIS PHARMACEUTICALS CORPORATION. (Munsch, Martha) (Entered: 01/08/2007)
53 Appendix to 50 Motion for Summary Judgment by NOVARTIS PHARMACEUTICALS CORPORATION. (Attachments: # 1 Appendix, Volume II of V# 2 Appendix, Volume III of V# 3 Appendix, Volume IV of V# 4 Appendix, Volume V of V)(Munsch, Martha) (Entered: 01/08/2007)

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03/09/2007 03/09/2007 03/09/2007 03/09/2007
03/12/2007 03/12/2007
03/13/2007 03/20/2007 03/22/2007 03/26/2007 03/26/2007 09/28/2007
09/28/2007

54 RESPONSE to Motion re 50 MOTION for Summary Judgment filed by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Clickner, M.) (Entered: 03/09/2007)
55 RESPONSE to Motion re 50 MOTION for Summary Judgment filed by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Clickner, M.), Document removed from public view and ORIGINALLY Docketed at 54 RESPONSE to 50 MOTION for Summary Judgment Modified on 3/12/2007 (jv). (Entered: 03/09/2007)
56 RESPONSE In Opposition to Defendant's Statement of Undisputed Facts and EEOC's Counter Statement of Facts to 51 Statement of Facts filed by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Clickner, M.) (Entered: 03/09/2007)
57 EEOC's APPENDIX to 56 Response To filed by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Appendix Appendix to Commission's Response to Defendant's Statement of Undisputed Facts and EEOC's Counterstatement of Facts # 2 Exhibit # 3 Exhibit 1a # 4 Exhibit 2 # 5 Exhibit 2a # 6 Exhibit 2b # 7 Exhibit 2c # 8 Exhibit 3 # 9 Exhibit 4 # 10 Exhibit 5 # 11 Exhibit 6 # 12 Exhibit 7 # 13 Exhibit 8 # 14 Exhibit 9 # 15 Exhibit 10 # 16 Exhibit 11 # 17 Exhibit 12 # 18 Exhibit 13 # 19 Exhibit 14 # 20 Exhibit 15 # 21 Exhibit 16 # 22 Exhibit 17 # 23 Exhibit 18)(Clickner, M.), Eliminated double entry of Exhibit on each attachment and eliminated the word Response for Title of Entry (this is an Appendix) Modified on 3/12/2007 (jv). (Entered: 03/09/2007)
CLERK'S OFFICE QUALITY CONTROL MESSAGE. re 55 Response to Motion ERROR: Document was duplicate to 54 RESPONSE to MOTION. CORRECTION: Duplicate document No. 55 RESPONSE to 50 MOTION for Summary Judgment removed from public view. This message is for informational purposes only. (jv) (Entered: 03/12/2007)
CLERK'S OFFICE QUALITY CONTROL MESSAGE. re 57 Response To. ERROR: Attachments not described correctly (double entry of "Exhibit"). CORRECTION: Attachment description corrected. This message is for informational purposes only., CLERK'S OFFICE QUALITY CONTROL MESSAGE. ERROR: Wrong event selected. CORRECTION: ORIGINAL entry Re−docketed as an Appendix. This message is for informational purposes only. (jv) (Entered: 03/12/2007)
58 MOTION for Extension of Time to File Response/Reply by NOVARTIS PHARMACEUTICALS CORPORATION. (Attachments: # 1 Proposed Order)(Munsch, Martha) (Entered: 03/13/2007)
59 BRIEF in Opposition re 58 MOTION for Extension of Time to File Response/Reply filed by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Clickner, M.) (Entered: 03/20/2007)
TEXT ORDER granting 58 Motion for Extension of Time to File Response/Reply re 50 MOTION for Summary Judgment. Responses due by 3/26/2007. Signed by Judge Terrence F. McVerry on 3/22/2007. Text only entry; no PDF document will issue. This text only entry constitutes the Court's orderon the matter.(kll) (Entered: 03/22/2007)
60 NOTICE of Appearance by Kim M. Watterson on behalf of NOVARTIS PHARMACEUTICALS CORPORATION (Watterson, Kim) (Entered: 03/26/2007)
61 REPLY BRIEF by NOVARTIS PHARMACEUTICALS CORPORATION re 50 Motion for Summary Judgment filed by NOVARTIS PHARMACEUTICALS CORPORATION. (Watterson, Kim) (Entered: 03/26/2007)
62 MEMORANDUM OPINION AND ORDER denying 50 Motion for Summary Judgment. Plaintiff shall file its Pretrial Statement on or before October 18, 2007. Defendant shall file its Pretrial Statement on or before November 7, 2007. The Court shall conduct a Pretrial Conference on November 9, 2007 at 2:30 P.M. in Courtroom 6C, 6th Floor, U.S. Courthouse, 700 Grant Street, Pittsburgh, Pennsylvania 15219. Signed by Judge Terrence F. McVerry on 9/28/2007. (kll) (Entered: 09/28/2007)
Defendant Pretrial Statement due by 11/7/2007.,Plaintiff Pretrial Statement due by 10/18/2007. (kll) (Entered: 09/28/2007)

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09/28/2007 10/17/2007 10/18/2007
10/29/2007 11/15/2007 11/16/2007 12/07/2007
12/14/2007 12/27/2007 12/28/2007 01/03/2008 01/07/2008 01/08/2008
01/14/2008

Calendar Entry :Pretrial Conference set for 11/9/2007 02:30 PM in Courtroom 6C before Terrence F. McVerry. Text only entry; no PDF document will issue. This text only entry constitutes the Court's notice on the matter. (kll) (Entered: 09/28/2007)
63 Unopposed MOTION to Extend Time to File Pretrial Statements by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Proposed Order)(Clickner, M.) (Entered: 10/17/2007)
TEXT ORDER granting 63 Motion to Extend Time for Filing Pretrial Statements. Plaintiff Pretrial Statement due by 10/29/2007. Defendant Pretrial Statement due by 11/16/2007. Pretrial Conference reset for 11/16/2007 10:30 AM in Courtroom 6C before Terrence F. McVerry. Signed by Judge Terrence F. McVerry on 10/18/2007. Text only entry; no PDF document will issue. This text only entry constitutes the Court's order on the matter. (kll) (Entered: 10/18/2007)
64 PRETRIAL STATEMENT filed by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Clickner, M.) (Entered: 10/29/2007)
65 PRETRIAL STATEMENT filed by NOVARTIS PHARMACEUTICALS CORPORATION. (Munsch, Martha) (Entered: 11/15/2007)
Text Minute Entry for proceedings held before Judge Terrence F. McVerry : Final Pretrial Conference held on 11/16/2007. A bench trial will be scheduled in early February 2008. Trial estimated to last 4 days. (Court Reporter: None) Text only entry; no PDF document will issue. This text only entry constitutes the Court's notice on the matter. (kll, ) (Entered: 11/16/2007)
66 TRIAL SCHEDULING ORDER − NON−JURY: Plaintiffs witness list due by 1/14/2008, Defendants Witness list due by 1/21/2008, Designation of discovery due by 1/21/2008, Motions in Limine due by 1/14/2008, Response to Motions in Limine due by 1/21/2008, Bench Trial set for 2/4/2008 08:30 AM in Courtroom 6C before Terrence F. McVerry. Exhibit List due by 1/28/2008. Signed by Judge Terrence F. McVerry on 12/7/2007. (kll) (Entered: 12/07/2007)
67 NOTICE of Appearance by Rachel M. Smith on behalf of EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (Smith, Rachel) (Entered: 12/14/2007)
68 MOTION to Take Deposition from Ivorey Gethers by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Proposed Order # 2 Appendix) (Clickner, M.) Modified by removing Appendix from public view since it was refiled at 70 Errata on 1/8/2008 (jv). (Entered: 12/27/2007)
TEXT ORDER: Response re 68 Motion to Take Deposition. Defendant's Response to Motion due by 1/3/2008. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (cc) Signed by Judge Terrence F. McVerry on 12/28/07. (cc) Modified on 12/28/2007 (cc, ). (Entered: 12/28/2007)
69 BRIEF in Opposition re 68 MOTION to Take Deposition from Ivorey Gethers filed by NOVARTIS PHARMACEUTICALS CORPORATION. (Attachments: # 1 Exhibit A # 2 Exhibit B # 3 Exhibit C # 4 Proposed Order) (Munsch, Martha) (Entered: 01/03/2008)
70 Errata re 68 MOTION to Take Deposition from Ivorey Gethers by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. Reason for Correction: Amendment to Appendix. (Smith, Rachel) (Entered: 01/07/2008)
71 ORDER granting in part and denying in part 68 Motion to Take Deposition of Ivory Gethers. Plaintiff may proceed to take the deposition of Ivory Gethers either in South Carolina or Pittsburgh, PA. It is further ORDERED that Exhibit C of the original Appendix to EEOC's Motion to Reopen Discovery for the Limited Purpose of Taking the Deposition Testimony of Ivory Gethers is hereby stricken from the record and the Clerk of Court shall remove it from the docket because it violates both the Protective Order entered by this Court and Local Rule 5.1.1.D. Signed by Judge Terrence F. McVerry on 1/8/2008. (kll) (Entered: 01/08/2008)
72 MOTION in Limine to Exclude Testimony and Report of Plaintiff's Proposed Expert by NOVARTIS PHARMACEUTICALS CORPORATION. (Attachments: # 1

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01/14/2008 01/14/2008 01/14/2008 01/14/2008 01/14/2008 01/14/2008 01/15/2008 01/22/2008 01/22/2008 01/22/2008 01/22/2008 01/22/2008 01/22/2008 01/23/2008 01/24/2008 01/24/2008

Proposed Order) (Flynn−Kozara, Abigail) Modified to title description field for Attachment 1 on 1/15/2008 (jv). (Entered: 01/14/2008)
73 BRIEF in Support re 72 MOTION in Limine to Exclude Testimony and Report of Plaintiff's Proposed Expert filed by NOVARTIS PHARMACEUTICALS CORPORATION. (Attachments: # 1 Exhibit A # 2 Exhibit B) (Flynn−Kozara, Abigail) (Entered: 01/14/2008)
74 First MOTION in Limine by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Proposed Order) (Clickner, M.) (Entered: 01/14/2008)
75 Second MOTION in Limine by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Proposed Order) (Clickner, M.) (Entered: 01/14/2008)
76 Third MOTION in Limine by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Proposed Order # 2 Appendix Unified Appendix−Part 1 # 3 Appendix Unified Appendix − Part 2 # 4 Appendix Unified Appendix−Part 3) (Clickner, M.) (Entered: 01/14/2008)
77 Fourth MOTION in Limine by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Proposed Order) (Clickner, M.) (Entered: 01/14/2008)
78 PRETRIAL STATEMENT filed by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Clickner, M.) (Entered: 01/14/2008)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 72 MOTION in Limine to Exclude Testimony and Report of Plaintiff's Proposed Expert. ERROR: Attachment not described. CORRECTION: Attachment description corrected. This message is for informational purposes only. (jv) (Entered: 01/15/2008)
79 RESPONSE to Motion re 72 MOTION in Limine to Exclude Testimony and Report of Plaintiff's Proposed Expert filed by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1Appendix) (Clickner, M.) Modified by naming Attachment on 1/23/2008 (jv). (Entered: 01/22/2008)
80 RESPONSE to Motion re 74 First MOTION in Limine filed by NOVARTIS PHARMACEUTICALS CORPORATION. (Flynn−Kozara, Abigail) (Entered: 01/22/2008)
81 RESPONSE to Motion re 75 Second MOTION in Limine filed by NOVARTIS PHARMACEUTICALS CORPORATION. (Flynn−Kozara, Abigail) (Entered: 01/22/2008)
82 RESPONSE to Motion re 76 Third MOTION in Limine filed by NOVARTIS PHARMACEUTICALS CORPORATION. (Flynn−Kozara, Abigail) (Entered: 01/22/2008)
83 RESPONSE to Motion re 77 Fourth MOTION in Limine filed by NOVARTIS PHARMACEUTICALS CORPORATION. (Flynn−Kozara, Abigail) (Entered: 01/22/2008)
84 AMENDED 65 PRETRIAL STATEMENT filed by NOVARTIS PHARMACEUTICALS CORPORATION. (Flynn−Kozara, Abigail) Modified entry to reflect title of Actual Document on 1/23/2008 (jv). (Entered: 01/22/2008)
85 REPLY to Response to Motion re 82 Response to Motion in limine, filed by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Proposed Order) (Clickner, M.) Modified by naming attachment on 1/24/2008 (jv). (Entered: 01/23/2008)
CLERK'S OFFICE QUALITY CONTROL MESSAGE re 85 Reply to Response to Motion. ERROR: Attachments not described. CORRECTION: Attachment description corrected. This message is for informational purposes only. (jv) (Entered: 01/24/2008)
86 REPLY to Response to Motion re 80 Response to Motion in Limine (First), filed by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1

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01/24/2008 01/25/2008 01/25/2008 01/28/2008 01/29/2008
01/29/2008 02/03/2008 02/04/2008 02/04/2008
02/05/2008
02/06/2008 02/07/2008 02/07/2008 02/08/2008

Appendix) (Clickner, M.) (Entered: 01/24/2008)
87 MOTION for Leave to File Surreply to EEOC's Reply to Defendant's Response to EEOC's Third Motion in Limine to Exclude D−1958 by NOVARTIS PHARMACEUTICALS CORPORATION. (Attachments: # 1 Exhibit A − Surreply # 2 Proposed Order) (Flynn−Kozara, Abigail) (Entered: 01/24/2008)
TEXT ORDER granting 87 Motion for Leave to File Surreply. Counsel shall file said surreply forthwith as a separate document. Signed by Judge Terrence F. McVerry on 1/25/2008. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (kll) (Entered: 01/25/2008)
88 Sur−Reply Brief by NOVARTIS PHARMACEUTICALS CORPORATION re 85 Reply to Response to Motion in Limine to Exclude D−1958 (Third) filed by NOVARTIS PHARMACEUTICALS CORPORATION. (Flynn−Kozara, Abigail) (Entered: 01/25/2008)
89 STIPULATION Joint Stipulation by NOVARTIS PHARMACEUTICALS CORPORATION. (Flynn−Kozara, Abigail) (Entered: 01/28/2008)
90 MEMORANDUM ORDER denying 74 EEOC'S First Motion in Limine; denying as moot 75 EEOC's Second Motion in Limine; denying 76 EEOC's Third Motion in Limine; denying as moot 77 EEOC's Fourth Motion in Limine. See Memorandum Order for details. Signed by Judge Terrence F. McVerry on 01/29/08. (bsc) (Entered: 01/29/2008)
91 MEMORANDUM ORDER denying 72 Defendant's Motion in Limine To Exclude Testimony and Report of Plaintiff's Proposed Expert. See Memorandum Order for details. Signed by Judge Terrence F. McVerry on 1/29/08. (bsc) (Entered: 01/29/2008)
92 MOTION sequester witnesses by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Proposed Order) (Clickner, M.) (Entered: 02/03/2008)
ORAL ORDER granting 92 Motion to Sequester Witnesses. Signed by Judge Terrence F. McVerry on 2/4/2008. Text−only entry; no PDF document will issue. This text−only entry constitutes the Order of the Court or Notice on the matter. (kll) (Entered: 02/04/2008)
Text Minute Entry for proceedings held before Judge Terrence F. McVerry : Bench Trial held on 2/4/2008. 92 Granted. Witnesses − Bethany Brandstatter by deposition. Joseph Palumbo and Maria Larosa. (Court Reporter: Virginia Pease) Text only entry; no PDF document will issue. This text only entry constitutes the Court's notice on the matter. (kll) Modified on 2/6/2008 (kll). (Entered: 02/05/2008)
Text Minute Entry for proceedings held before Judge Terrence F. McVerry : Bench Trial completed on 2/5/2008. Witnesses − Maria Larosa, Gary Bench. EEOC rests. The record shall remain open for the Court to review 2 video depositions (Richard Cipoletti and Ivory Gethers). The Transcript will be ordered and Proposed Findings of Fact and Conclusions of Law will be due 20 days thereafter. (Court Reporter: Virginia Pease) Text only entry; no PDF document will issue. This text only entry constitutes the Court's notice on the matter. (kll) Modified on 2/6/2008 (kll). (Entered: 02/06/2008)
93 TRIAL BRIEF re: objections to portions of Gethers' testimony and exhibits by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Clickner, M.) (Entered: 02/06/2008)
94 RESPONSE to EEOC's Objections to Portions of Ivory Gethers' Trial Testimony to 93 Trial Brief, filed by NOVARTIS PHARMACEUTICALS CORPORATION. (Flynn−Kozara, Abigail) (Entered: 02/07/2008)
95 TRIAL BRIEF Objections to Defendant's designations of Bethany Brandstatter's deposition by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Clickner, M.) (Entered: 02/07/2008)
96 RESPONSE to Plaintiff's Objections to Defendant's Designations of Bethany Brandstatter's Deposition Transcript to 95 Trial Brief, filed by NOVARTIS

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04/03/2008
04/03/2008
04/09/2008 04/09/2008 04/09/2008 04/09/2008 05/05/2008 05/05/2008 05/19/2008 10/15/2008 10/15/2008 12/23/2008 12/29/2008

PHARMACEUTICALS CORPORATION. (Flynn−Kozara, Abigail) (Entered: 02/08/2008)
97 TRANSCRIPT of Non−Jury Trial Proceedings held on 2/4/08 before Judge Terrence F. McVerry. Court Reporter: Virginia Pease. The parties have five (5) business days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely, electronically available to the public without redaction after 90 calendar days. For redaction purposes, or otherwise, during this 90 day period a copy of the transcript may be purchased from the court reporter/transcriber or viewed at the clerk's office public terminal. Notice of Intent for Redaction of Personal Data Identifiers due by 4/14/2008, Transcript to be made public on 7/3/2008 (jv) (Entered: 04/03/2008)
98 TRANSCRIPT of Non−Jury Trial Proceedings held on 2/5/2008 before Judge Terrence F. McVerry. Court Reporter: Virginia Pease. The parties have five (5) business days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely, electronically available to the public without redaction after 90 calendar days. For redaction purposes, or otherwise, during this 90 day period a copy of the transcript may be purchased from the court reporter/transcriber or viewed at the clerk's office public terminal. Notice of Intent for Redaction of Personal Data Identifiers due by 4/14/2008, Transcript to be made public on 7/3/2008 (jv) (Entered: 04/03/2008)
99 ORDER OF COURT: Proposed Findings of Fact and Conclusions of Law due by 5/5/2008. Rebuttal or Response due by 5/19/2008. Signed by Judge Terrence F. McVerry on 4/9/2008. (kll) (Entered: 04/09/2008)
100 RULINGS ON OBJECTIONS TO DEPOSITION EXHIBITS AND TESTIMONY OF BETHANY LYNN BRANDSTATTER re 95 Trial Brief filed by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. Signed by Judge Terrence F. McVerry on 4/9/2008. (Attachments: # 1 Exhibit Submissions) (kll) (Entered: 04/09/2008)
101 RULINGS ON OBJECTIONS TO DEPOSITION EXHIBITS AND TESTIMONY OF IVORY GETHERS. Signed by Judge Terrence F. McVerry on 4/9/2008. (kll) (Entered: 04/09/2008)
102 RULINGS ON ADMISSIBILITY OF EXHIBITS. Signed by Judge Terrence F. McVerry on 4/9/2008. (kll) (Entered: 04/09/2008)
103 EEOC's Proposed Findings of Fact and Conclusions of Law by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Proposed Order) (Clickner, M.) (Entered: 05/05/2008)
104 Proposed Findings of Fact and Conclusions of Law by NOVARTIS PHARMACEUTICALS CORPORATION. (Munsch, Martha) (Entered: 05/05/2008)
105 RESPONSE to 103 Proposed Findings of Fact, filed by NOVARTIS PHARMACEUTICALS CORPORATION. (Munsch, Martha) (Entered: 05/19/2008)
106 FINDINGS OF FACT AND CONCLUSIONS OF LAW. Judgment is entered in favor of Defendant, Novartis Pharmaceuticals Corporation, and against Plaintiff, Equal Employment Opportunity Commission. Signed by Judge Terrence F. McVerry on 10/15/08. (bsc) (Entered: 10/15/2008)
107 JUDGMENT in favor of Defendant, Novartis Pharmaceutical Corporation, and against Plaintiff, Equal Employment Opportunity Commission. Signed by Judge Terrence F. McVerry on 10/15/08. (bsc) (Entered: 10/15/2008)
108 BILL OF COSTS by NOVARTIS PHARMACEUTICALS CORPORATION in the amount of $6675.04 against Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Itemization of costs) (Munsch, Martha) (Entered: 12/23/2008)
109 Letter from the Clerk of Court calling for objections to the Bill of Costs. Objections to Bill of Costs due by 1/16/2009. (jv) (Entered: 12/29/2008)

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01/08/2009 01/08/2009 01/12/2009
01/13/2009 01/15/2009 01/21/2009

110 RESPONSE in Opposition to 108 Bill of Costs, filed by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Clickner, M.) (Entered: 01/08/2009)
111 MOTION to Strike 108 Bill of Costs by EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. (Attachments: # 1 Proposed Order) (Clickner, M.) (Entered: 01/08/2009)
112 OPPISITION to 111 MOTION to Strike regarding 108 Bill of Costs, filed by NOVARTIS PHARMACEUTICALS CORPORATION. (Attachments: # 1 Exhibit) (Munsch, Martha) Modified to reflect document Title on 1/13/2009. (jv) (Entered: 01/12/2009)
113 Costs Taxed in the amount of $3,863.60 against Pltf, Equal Employment Opportunity Commission and in favor of Deft. Novartis Pharmaceuticals Corporation. (jv) (Entered: 01/13/2009)
114 Remark: Items returned to Marhta Hartle Munsch, Esquire. (kly) (Entered: 01/15/2009)
115 ORDER denying 111 Motion to Strike Defendant's Bill of Costs Pursuant to F.R.C.P. 54(d) filed by Plaintiff. Signed by Judge Terrence F. McVerry on 1/21/09. (bsc) (Entered: 01/21/2009)