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Kuhar v. Devicor Medical Products, Inc.

United States District Court, E.D. Virginia, Alexandria Division

October 24, 2016

JASNA KUHAR, Plaintiff


          Leonie M. Brinkema, United States District Judge

         On September 23, 2016, the Court issued an order granting defendants' Motion for Summary Judgment [Dkt. 43] and the Clerk of the Court entered judgment in favor of the defendants [Dkt. 44]. This memorandum opinion supplements the reasoning set forth in open court.

         I. BACKGROUND

         Plaintiff Jasna Kuhar filed this civil action on November 17, 2015, alleging age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 ("ADEA"), and sex discrimination in violation of Title VII of the Civil Rights Act of 1994, 42 U.S.C. § 20003 ("Title VII"), against her former employer, Devicor Products, Inc. ("Devicor"); and, defamation under Virginia common law against Devicor and Joseph Baia ("Baia"), her former supervisor. [Dkt. 1 ].

         Plaintiff is a 54-year-old female who began her employment with Devicor in November 2011 as a sales representative for Devicor's Mammotome Breast Biopsy System. [Dkt. 1] ¶1 5-6; Kuhar Dep., [Dkt. 36-1] Ex. 5. As a sales representative, plaintiff was responsible for increasing sales of Mammotome products by establishing new accounts, increasing utilization within existing accounts, and ensuring clinical and customer satisfaction. Garlock Dep., [Dkt. 36-3] at 19:21-20:4. Mammotome products included breast biopsy machines-"capital" equipment-and related "disposable" products necessary for each procedure (i.e., probes and tissue markers utilized in conjunction with the machine). [Dkt. 1] ¶¶ 7, 10; Def. Uncontested Facts 1 3. Disposables comprised the majority of Devicor's sales. Def. Uncontested Facts ¶ 3.

         Each of Devicor's sales representatives was assigned an annual sales quota, a figure determined by the corporate office based on a combination of the prior year's sales in a territory and the growth amount that Devicor expected in the coming year. Def. Uncontested Facts ¶ 7. The degree of expected growth was applied evenly to all territories. Id. Plaintiff admitted that meeting these annual quotas was "very important" for sales representatives. Kuhar Dep., [Dkt. 36-1] at 62:4.

         Upon joining Devicor, plaintiff was assigned to the Washington, D.C. territory, with which she was familiar based on her work from 1997 to 2003 with Ethicon Endo, the company from which Devicor acquired the Mammotome product line in 2010. [Dkt. 1] ¶¶ 6-7; Kuhar Dep., [Dkt. 36-1] at 74:3-6. Devicor's D.C. territory was without a sales representative for part of 2011, during which time Devicor lost several accounts. Downs Dep., [Dkt. 40-3] at 45:14-46:3. Upon her arrival in November 2011, plaintiff "quickly developed relationships and secured accounts that were at risk." Kuhar Dep., [Dkt. 36-1] Ex. 8.

         It is undisputed that in 2012, plaintiffs first full year on the job, she failed to meet her sales quota, achieving only 94% of her target. Def. Uncontested Facts ¶ 11. Mary Downs, plaintiffs direct supervisor as of February of that year, wrote in plaintiffs 2012 performance evaluation that plaintiff was "below" expectations in the "Sales v. Quota" category of performance. Kuhar Dep., [Dkt. 36-1] Ex. 8. Although plaintiff achieved 125% of her capital quota for 2012, disposables sales declined substantially from 2011-down 28% in markers and 14% in probes-causing her to finish below her annual quota. Id. Downs also commented in the 2012 performance evaluation that some of this erosion was due to external factors, including "accounts that were lost while the Territory was [without a sales representative] ¶ 2011, " id., and product defects, Id. Specifically, kinked tubing in one of the biopsy machines posed a challenge to both customers and sales representatives. Downs Dep., [Dkt. 40-3] at 16:14-17:6; Kuhar Dep., [Dkt. 36-1] at 127:17-32:18. The evaluation also pointed out specific deficiencies in plaintiffs performance: although plaintiffs territory was "one of the largest... in the country, " her sales of Elite-Devicor's newly launched Mammotome product line-were "slow, " placing her 52nd out of 59 sales representatives. Kuhar Dep., [Dkt. 36-1] Ex. 8.[1]

         In 2013, Downs conducted two in-person assessments of plaintiff s performance. During these Field Visits, regional sales managers spend multiple days in the territory visiting clients and reviewing sales, accounts, and opportunities with the sales representative. Def. Uncontested Facts ¶ 17. After visiting plaintiff in November and December 2013, Downs issued a Field Visit Letter[2] describing plaintiff as "not meeting" her performance objectives and advising her to "close competitive business" and improve completion of administrative responsibilities. Kuhar Dep., [Dkt. 36-1] at 144:6-145:20; Id. Ex. 9. The letter cautioned that, although plaintiff was excelling in capital sales, 'this may have caused [her] to sacrifice [her] Elite business." Kuhar Dep., [Dkt. 36-1] Ex. 9. At the time, plaintiff was only reaching 53% of her Elite quota, which placed her 45th among sales representatives. Id. Downs observed that "[plaintiff] must improve this performance if [she is] going to achieve success in 2014." Id.

         For 2013, plaintiff only achieved 96% of her sales quota. Def. Uncontested Facts ¶ 16. As a result, she again received a "below" expectations mark on her annual performance evaluation. Id. 119. In that evaluation, Downs commented that plaintiff "faced several losses during [the] year, " including a major competitor threat at Washington Radiology Associates (WRA), Kuhar Dep., [Dkt. 36-1] Ex. 10, her largest account (worth $500, 000, see Kuhar Dep., [Dkt. 36-1] Ex. 9). Plaintiff ultimately saved the WRA account but had to offer steep discounts, which impacted her total sales. Id. Although Downs recognized that plaintiff confronted a number of challenges, including competitive threats, the loss of a Kaiser account, price erosion, and product issues, she described plaintiffs quota performance as "disappointing." Id. Notwithstanding this criticism, Downs praised plaintiff for her dedication to her customers, business acumen, mentorship role among new sales representatives, and for helping to cover the open Baltimore territory. Id.

         The following year, Downs conducted three Field Visits with plaintiff, in February, April, and August 2014. Kuhar Dep., [Dkt. 36-1] Exs. 11-13. At the time of each of these visits, plaintiff was performing well-below her quota, with year-to-date sales of 83%, 80%, and 80%, respectively. Id. In a letter written after the February Field Visit, Downs suggested that plaintiffs close relationships with her clients "ma[d]e it difficult for [her] to have the challenging conversations with the customers." Kuhar Dep., [Dkt. 36-1] Ex. 11. Downs also gave plaintiff a rating of "1"- i.e., "Needs Development"-in the "Administrative" category, which assesses whether a representative "completes administrative responsibilities in an accurate and timely manner." Id. Downs recommended that plaintiff set aside more time for "Panorama, Sales Force, and Territory Management discussions, " software platforms that Devicor used to track daily sales, market trends, and emerging threats and opportunities in individual territories. Id. In keeping with these criticisms, the letter instructed plaintiff to focus on improving her competitive selling and administrative performance. Id.

         Plaintiff received another "1" in the "Administrative" category in Down's letter following her April Field Visit. Kuhar Dep., [Dkt. 36-1] Ex. 12. Downs again reminded plaintiff to use Sales Force and Panorama to monitor her day-to-day sales performance and analyze territory trends and reiterated that plaintiff needed to focus on "competitive selling, " particularly identifying new competitive targets. Id.

         After the August Field Visit, Downs gave plaintiff her third successive "1" for "Administrative" performance, and downgraded her "Competitive Selling" mark from "2"-i.e., "Skilled"-to "1"-"Needs Improvement." Kuhar Dep., [Dkt. 36-1] Ex. 13. Downs again emphasized that plaintiffs customer-focused style was both an asset and a liability. Although the letter recognized that plaintiff "spen[t] a great deal of time providing customer service to existing accounts, " it also cautioned plaintiff that she "must strategize and manage [her] time to insure [sic] that [she is] spending more time investing in competitive opportunities. Only these competitive opportunities will yield ... the growth [plaintiff] need[s] to close the gap." Id. Plaintiff admits that at the time of Downs' last field visit, she was "having a lot of erosions" and had "lost two big accounts" to competitors. Kuhar Dep., [Dkt. 36-1] at 165:14-66:8.

         Downs' August letter also commented that the WRA account had become a "complete distraction" due to competitive threats across various product lines. Kuhar Dep., [Dkt. 36-1] Ex. 13. Plaintiff had set up a series of free product evaluations at WRA, and the account, which brought in $490, 000 in 2012 and $248, 673 in 2013, had generated just $86, 584 as of August 2014. Id. To save the WRA account, plaintiff recommended a "dramatic discount" worth $180, 000 that needed high level approval. Downs Dep., [Dkt. 40-3] at 27:7-15; [Dkt. 1] ¶ 18. Downs concluded that, once the latest evaluation was completed at the end of the month, Devicor needed to initiate "aggressive negotiation across [its] complete product line." Kuhar Dep., [Dkt. 36-1] Ex. 13. Downs closed the letter by stating, "Significant and sustainable improvement in your performance and improved business results is imperative." Id. When Downs met with plaintiff to discuss the Field Visit Letter, Downs mentioned that a formal performance improvement process would be put in place if plaintiff did not start increasing her sales. Kuhar Dep., [Dkt. 36-1] at 164:21-65:13.

         In late 2014, Devicor restructured its sales regions to reduce the ratio between regional sales managers and their sales representatives. Def. Uncontested Facts ¶ 24. Following the restructuring, Downs was assigned to a different region and Joseph Baia, a 43-year-old male, became plaintiffs new manager. Def. Uncontested Facts ¶ 25. Before moving to her new territory, Downs notified Devicor's human resources director, Dana Bryan, that she was concerned about plaintiffs performance and wanted to put her on a Performance Improvement Plan. Bryan Dep., [Dkt. 36-6] at 25:1-19.[3] Bryan recommended that Downs hold off to let the new manager begin working with plaintiff before initiating a formal Performance Improvement Plan. Id. Baia began supervising plaintiff in September 2014. Def. Uncontested Facts ¶ 31. At their initial meeting, Baia emphasized the importance of plaintiff making her annual sales quota. Id. That same month, Baia placed plaintiff on a Performance Improvement Plan. Id. ¶ 42. As part of this process, Baia asked plaintiff to put together a development plan outlining performance objectives for the remainder of the year. Id. ¶ 41. They both worked together to prepare the final document, but plaintiff identified the accounts for which she planned to close deals. Id. Copies of the plan were sent to both Bryan and Mark Parisi, Baia's supervisor and Devicor's National Director of Sales. Id. 142.

         One of plaintiffs stated performance objectives in 2014 was to close an account on a new product line with WRA, her largest customer. Baia understood the strategic significance of this relationship, and in September 2014 he asked plaintiff to arrange a dinner for the two of them and Patrick Waring, the Chief Financial Officer (CFO) of WRA. Kuhar Dep., [Dkt. 36-1] at 169:8-20. Although plaintiff had told Waring that the dinner was just to meet her new manager, during the meal Baia asked a number business questions, at which point Waring insisted that he was not the decision-maker for the account. Kuhar Dep., [Dkt. 40-2] at 173:6-13. Later that week, Waring called Devicor and asked for a same-day price quote for the Revolve product line. Baia offered WRA a discounted price, but not as steep a discount as plaintiff had recommended. Def. Uncontested Facts 136. WRA ultimately rejected the Revolve line and signed with a competitor. Id. f 37.

         Baia conducted his first official Field Visit to plaintiffs territory in mid-October. In his ensuing letter, he identified several problems with her performance. Although Baia gave plaintiff "2's" in the Competitive Selling and Administrative categories, he gave her a "1" for "Territory Management." Kuhar Dep., [Dkt. 36-1] Ex. 19. During 2014, plaintiffs territory, which had previously included Washington, D.C., Fredericksburg, and part of southern Maryland, was expanded to include Richmond. She also continued to cover the open Baltimore territory for part of the year. Kuhar Dep., [Dkt. 36-1] at 74:3-11; id Ex. 13. Baia's letter observed that plaintiff "[had] a large territory that requires better efficiencies to maximize all [her] opportunities." Kuhar Dep., [Dkt. 36-1] Ex. 19. He emphasized that her "positive relationships need to be leveraged for business and execution of [her] business plan." Id. When assessing the phases of her sales process, he gave her a "1" for the "Close" phase, [4] explaining that opportunities "mean nothing if [plaintiff] [could not] close the business and have the customer order/start using the product without [plaintiff] being there." Id. He added that, although she had the skills to be successful, she needed to "focus on being more assertive." Id. "Prove to me and leadership, " wrote Baia, that "you have a process that can achieve repeatable positive results these next two months." Id.

         Midway through the performance improvement period, Baia met with Bryan to discuss plaintiffs progress. Bryan Dep., [Dkt. 36-6] at 33:1-16. Baia concluded that there was not enough business in plaintiffs pipeline to enable her to achieve her performance goals. Id. at 33:18-34:2. After verifying with Parisi and Brian Garlock, Devicor's Sales Operations Manager, Bryan agreed with Baia that there was not enough in plaintiffs pipeline to even get her "moving in the right direction towards her goal." Id. At the end of November, Baia, Parisi and Garlock decided to terminate plaintiff. Baia Dep., [Dkt. 36-4] at 128:17-29:21. Parisi advised Baia to act immediately, but Baia requested that they retain plaintiff through the new year and leadership agreed. Id. at 129:6-13. In his email to Bryan detailing the reasons for plaintiffs termination, Baia emphasized that plaintiff had missed her sales quota for three consecutive years and had failed to close accounts in accordance with plaintiffs September 2014 development plan. Email from Baia to Bryan on Jan. 6, 2015, [Dkt. 36-7] at DEF 000430. He also wrote that she was "clinically sound and relationship oriented. However, she is challenged with the process of closing business as evident by her sales history. Furthermore, I have lost confidence in her ability to cultivate, investigate and close enough business for her to make the annual quota required for the DC territory." Id. At his deposition, Garlock confirmed that plaintiff was terminated for "consistently being below her quota" and "not meeting the development objectives that could have closed her gap." Garlock Dep., [Dkt. 36-3] at 97:10-21.

         As Baia and Bryan predicted, plaintiff failed to meet her sales quota for 2014, achieving just 91% of her assigned quota of $1, 334, 625, a $114, 494 shortfall, Sales Force 2014 Scorecard (Jan.-Dec), [Dkt. 36-7] at DEF 000272, despite a company-wide sales quota reduction that management initiated in mid-2014 to "provide a realistic quota and expectation of incremental growth over the prior six-month period." Garlock Dep., [Dkt. 40-1] at 48:20-49:8. Under that reduction, plaintiffs quota for the second half of the year was reduced by $42, 213. Email from Baia to Bryan on Jan. 6, 2015, [Dkt. 36-7] at DEF 000430. (With this adjustment, she attained 97% of the quota for the second half of ...

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