Phoenix and Pfizer. After Phoenix pointed out in its brief that Phoenix employs fewer
than 20 people and thus is not an “employer” for purposes of liability under the ADEA,
Woodson voluntarily withdrew her ADEA claim against Phoenix. Accordingly, we
are left only to decide whether the section 1981 and 1985 claims can stand.

Now Phoenix and Pfizer have each brought motions to dismiss the claims
against them. Phoenix and Pfizer contend that Woodson has failed to allege any
disparate treatment based on her own race, and that she lacks standing to assert a claim
on behalf of the physicians in the affluent white communities in which Phoenix does
no business.

DISCUSSION

Section 1981 protects “the right to make and enforce contracts without regard
to race” including “the making, performance, modification, and termination of
contracts, and the enjoyment of all benefits, privileges, terms and conditions of the
contractual relationship.” 42 U.S.C. § 1981. Parties to a section 1981 suit may avail
themselves of the methods and order of proof applicable to a claim of disparate
treatment under Title VII. See Randle v, LaSalle Telecomm., Inc., 876 F.2d 563, 568
(7th Cir. 1989); Freidel v. City of Madison, 832 F.2d 965, 972 (7th Cir. 1987). To
prevail on a section 1981 claim, Woodson must show that Phoenix and Pfizer

intentionally discriminated against her because she is African-American. See

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The case at bar is not analogous to Vakharia. First, and most critical, at the
motion to dismiss stage Vakharia had a cognizable claim that the hospital was
discriminating against her because of her race. See id. at 463, 471-72. Woodson
cannot say the same. She challenges Phoenix’s and Pfizer’s policies about where they
do business, but her Complaint is silent as to any discrimination against her because
she is African-American. Furthermore, prior to the hospital’s allegedly discriminatory
conduct, Vakharia had forged contracts with assigned and referred patients. See id. at
463. The hospital’s alleged discrimination disrupted this established practice. See id.
Unlike Vakharia, however, Woodson has not alleged that she had previously made
contracts with physicians in affluent white neighborhoods. Indeed she cannot make
such allegations because Phoenix had never done business in such neighborhoods. As
a result, because those contracts never existed, neither Phoenix nor Pfizer could have
interfered with them. Woodson chose to ally herself with a company that limits itself
to working in particular neighborhoods and targeting a specific clientele. She cannot
now transform this own voluntary decision into a cause of action under section 1981
without alleging direct or circumstantial evidence of conduct that supports an inference
of racial animus directed toward Woodson.

Because Woodson’s claim under section 1985(3) is premised entirely on her

unsuccessful section 1981 claim, it too must fail. See Great Am. Fed. Sav & Loan

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resources in areas “without interest in our goals and mission which define our
competitive advantage in the marketplace.” (Id.) Phoenix would be unable to compete
in other more affluent territories, where “major pharmaceutical firms pour resources
into impacting the markets. ...” (Id.)

Plaintiff Rose Woodson (“Woodson”) worked for Phoenix from approximately
January 1998 to June 1999. An African-American female, Woodson alleges that the
agreements between Phoenix and Pfizer required assignment of Phoenix’s sales
representatives based on a territory’s racial composition. As a result, Phoenix
performed its obligations under the agreements by assigning its sales representatives,
including Woodson, to territories in which the population was predominantly African
American and Hispanic or perhaps racially mixed, but never to a predominantly white
territory. Woodson contends that this “racially segregated sales mechanism” deprives
her of the opportunity to work in predominantly white geographic areas. In turn, the
mechanism disables her from expanding her sales territory, increasing her sales
performance, advancing within Phoenix by position and salary, obtaining increased
salary bonuses, and gaining experience in the market as a whole.

Woodson filed this action against Phoenix and Pfizer on December 20, 2000.
The complaint alleges violation of the Age Discrimination in Employment Act

(“ADEA”) against Phoenix and violations of 42 U.S.C. sections 1981 and 1985 against

-3-


Yarbrough v. Tower Oldsmobile, Inc., 789 F.2d 508, 510 (7th Cir. 1986). In making

her case, Woodson can proceed by either of two paths: (1) by presenting direct
evidence that race was a determining factor in Defendants’ decision, or (2) by
tendering circumstantial evidence sufficient to “provide a basis for drawing an

inference of intentional discrimination.” Troupe v. May Dep’t Stores Co., 20 F.3d 734,

736 (7th Cir. 1994).

Woodson cannot state a claim under section 1981 because she has not alleged
that Phoenix or Pfizer intentionally discriminated against her because of her race. With
respect to Phoenix, her employer, Woodson has not alleged any direct evidence that
she was treated differently because of her race. Nor has she raised allegations of
circumstantial evidence of discrimination based on her race. That is, she does not
allege that she was treated differently than similarly-situated non-A frican-American
employees. Indeed she cannot, as Phoenix is comprised entirely of African-American
employees. Thus Woodson has not stated a claim because she has failed to allege that
she suffered discrimination because she is African-American.

In her papers, Woodson attempts to avoid this conclusion by challenging
Phoenix’s practice of concentrating its business in certain geographic locales.
However, Phoenix’s decision resulted from its assessment of which business market

it could best compete in -- not from racial animus. That this business decision may

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Ass’n v. Novotny, 442 U.S. 366, 372, 88 S.Ct. 2345, 2349, 60 L.Ed.2d 957 (1979)
(holding that claims under section 1985(3) provide no substantive rights themselves,
but merely furnish a remedy for violations of rights created elsewhere); Wesley v.
Howard Univ., 3 F. Supp. 2d 1, 3 (D.D.C. 1998) (holding that a section 1985(3) claim
premised on violations of section 1981 can succeed only to the extent the underlying
section 1981 claim is successful).
CONCLUSION

For the foregoing reasons, we dismiss the ADEA claim against Phoenix which

Woodson voluntarily abandoned. Furthermore, we convert the motions to dismiss into

motions for summary judgment and grant both in favor of Phoenix and Pfizer.

CR Qe f boeeran

Charles P. Kocoras
United States District Judge

Dated: June 13, 2001

-8- ceonsomasmem


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

a?
je¥
Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge Charles P. Kocoras than Assigned Judge
CASE NUMBER 00 C 7972 DATE 6/13/2001
CASE Woodson vs. Pfizer, Inc. et al
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]

DOCKET ENTRY:

courtroom
deputy’s
initials

(63) a Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due

(3) oO Answet brief to motion due. . Reply to answer brief due

(4) im} Ruling/Hearing on set for at

(5) QO Status hearing[held/continued to] [set for/re-set for] on set for at

(6) a Pretrial conference[held/continued to] [set for/re-set for] on setfor at

ie) Oo Trial[{set for/re-set for] on at

(8) Oo [Bench/Jury trial] [Hearing] held/continued to at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) (General Rule2! OO FRCP41(a\(1) OO FRCP41(a)(2).

(0) «xf {Other docket entry] Ruling held. ENTER MEMORANDUM OPINION: We dismiss the
ADEA claim against Phoenix which Woodson voluntarily abandoned. Further, we convert the motions
to dismiss into motions for summary judgment and grant both (Docs 12-1, 13-1 & 13-2) in favor of
Phoenix and Pfizer.

al) {For further detail see order attached to the original minute order.]

No notices required, advised in open court.
No notices required. umber of noice
Notices mailed by judge’s staff. gun 14 720
Notified counsel by telephone. date docketed
vw | Docketing to mail notices. ® \
JS | Mail AO 450 ym. docketing depty initials a 2
Copy to judg#/magistrate judge. TING

Gl JUN 13) PHI2: 57

Date/time received in
central Clerk’s Office

date mailed notice

mailing deputy initials

ad
ST


have prevented Woodson from expanding her sales territory, increasing her sales
performance, advancing within Phoenix by position and salary, obtaining increased
salary bonuses, and gaining experience in the market as a whole is simply not
actionable under section 1981 because Woodson has not alleged the requisite
discriminatory intent on the part of Phoenix.

With respect to Pfizer, Woodson apparently seeks to impose liability under a
theory that Pfizer interfered with her efforts to make contracts with physicians in
affluent white neighborhoods. In support of this argument, she relies on Vakharia v.
Swedish Covenant Hospital, 765 F. Supp. 461 (N.D. Il. 1991). In Vakharia, an
anesthesiologist alleged that the hospital had discriminatorily reduced the quantity and
quality of her caseload, classified her as “junior” and limited her procedures
accordingly, unofficially suspended her, removed her from the “first call” schedule,
and limited her caseload. See id. at 463. Because the anesthesiologist was able to
obtain patients only through assignment ofand referral by the hospital, and because she
regularly entered contracts to perform anesthesiology services through those
assignments and referrals, the Court concluded that she was entitled to proceed against
the hospital under section 1981 on a theory of interference with her ability to make

contracts with prospective patients. See id. at 472.


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
ROSE WOODSON, )
)
Plaintiff, )
)
vs. ) No. 00 C 7972

)
PFIZER, INC.,; WARNER LAMBERT-PARKE __)
DAVIS, INC.; PARKE-DAVIS, INC.; and )
PHOENIX PHARMACEUTICALS, )
)
Defendants. )

MEMORANDUM OPINION

CHARLES P. KOCORAS, District Judge:

Before the Court are the motions to dismiss of Defendants Pfizer, Inc. and
Phoenix Pharmaceuticals. We convert the motions into ones for summary judgment
and grant both of them.

BACKGROUND

Because the movants have attached and relied on documents outside of the
pleadings, we treat the instant motions to dismiss as ones for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 12(b)
(stating that “[i]f, on a motion asserting the defense numbered (6) to dismiss for failure

of the pleading to state a claim upon which relief can be granted, matters outside the

3


pleading are presented to and not excluded by the court, the motion shall be treated as
one for summary judgment and disposed of as provided in Rule 56. . . .”).
Defendant Phoenix Pharmaceuticals, Inc. (“Phoenix”) is a drug marketing
company. (Foster Decl. ¢ 3.) According to its president, Parran L. Foster III, the
company’s mission is to
(1) capture dollars generated within the urban community pharmaceutical
market through the promotion of ethical pharmaceutical products; and
(2) to return a portion of those dollars directly to the community which
generates them in the form of scholarships designated for deserving
disadvantaged students within those communities; and (3) to create job
opportunities for individuals in those communities.
(Id. ¢ 2.) In accordance with this mission, Phoenix entered an agreement with
Defendant Pfizer, Inc.' (“Pfizer”) whereby Phoenix marketed drugs manufactured by
Pfizer in mutually agreed upon target cities. (Id. 43.) Consistent with its mission,
Phoenix limited its operations to “ethnically diverse urban communities with a
significant segment of the indigenous populations made up of individuals from various
minority groups.” (Id. § 5.) Because the company’s purpose was to enhance

educational and economic benefits in inner cities, no Phoenix territory has ever existed

outside of an urban setting. (Id. 6.) By design, Phoenix refuses to expend its

‘At the time of the agreement, Pfizer was known as the Warner Lambert
Company, and Phoenix contracted with its Parke-Davis sales division.

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