United States District Court, E.D. Virginia, Alexandria Division
M. Brinkema, United States District Judge
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.
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 ].
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
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.
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.
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]
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 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
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.
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.
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.
the August Field Visit, Downs gave plaintiff her third
successive "1" for "Administrative"
performance, and downgraded her "Competitive
Selling" mark from "2"-i.e.,
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.
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.
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. 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.
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.
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,
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.
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.
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 ...