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Henry v. Wyeth Pharmaceuticals

August 4, 2010



Plaintiff appeals from the adverse judgment of the United States District Court for the Southern District of New York (Conner, J.), following a jury verdict in favor of defendants on discrimination and retaliation claims. The Court of Appeals (Leval, J.) affirms the judgment with respect to plaintiff's discrimination claims, but vacates and remands for a new trial on the retaliation claims.

The opinion of the court was delivered by: Leval, Circuit Judge

Argued: May 29, 2009

Before: LEVAL, POOLER, and PARKER, Circuit Judges.

Plaintiff Howard Henry appeals from the adverse judgment of the United States District Court for the Southern District of New York (Conner, J.) in his suit against his former employer, defendant Wyeth Pharmaceuticals, Inc. ("Wyeth"), and former supervisors at Wyeth, following a jury verdict for defendants on his claims of racial discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et seq., 42 U.S.C. § 1981, and the New York State Human Rights Law, Exec. Law § 290, et seq. Henry contends that the district court erred in granting two of defendants' motions in limine; by improperly instructing the jury as to his burden of proof; and by failing to provide counsel with a written copy of the jury charge prior to summations. We find that any error committed by the district court with respect to Henry's discrimination claims was harmless, and thus affirm the judgment of the district court insofar as it relates to those claims. We find, however, that the district court instructed the jury improperly as to the facts Henry was required to prove to prevail on his retaliation claims. Accordingly, we vacate the portion of the judgment that relates to those claims, and remand for a new trial.


I. The Underlying Case

Plaintiff-appellant Howard Henry, an African-American male, began working for American Cyanamid, Wyeth's predecessor, in 1992, as a temporary employee in its Pearl River pharmaceutical manufacturing facility. The following year, he obtained a full-time position as a Chemist. In 1998, Henry was promoted to the position of Scientist II, and in 2000, he was promoted again, by defendant Walter Wardrop, to Production Engineer in the Consumer Health Division. After his promotion to Production Engineer, Henry's upward progress stalled, for reasons that form the basis of this dispute.

In December 2001, Henry applied for the position of Project Engineer. Hiring manager Kevin Costello selected Cara Muscolo, a white female, for the position. Costello stated that he selected Muscolo because, based on his prior experience with her, he believed that she would perform well, and because she had significant experience, including supervisory experience, which Henry lacked. Costello stated that he was also concerned that Henry, whom he had previously supervised, had difficulty multi-tasking. Henry testified that he believed Muscolo was qualified for the position, and that he did not attribute the decision to racial discrimination at the time it was made.

Henry received a year-end performance review from his supervisor, Wardrop, in 2001. Wyeth's practice was to break performance reviews down into several categories and provide employees with written feedback and a "rating" (between a low of "one" and a high of "five") in each category. Employees were also given composite ratings, which were intended to convey an overall impression of their performance throughout the year. Henry had received a composite rating of "three" in all but one year prior to 2000, and in 2000, the first year in which Wardrop reviewed his performance, he received a "three" again. In 2001, however, Wardrop gave Henry a composite score of "four," and provided substantial praise in the explanatory portions of the review.

In July 2002, Howard applied for a promotion to Product Coordinator. He was interviewed for the position by Andrew Schaschl, the hiring manager, and Todd Davenport, an African-American manager. The position was awarded to Chris DeFeciani, a white male. Henry testified that DeFeciani was a "shoe-in for the position," Trial Tr. 118, because DeFeciani had "backfilled" for the outgoing Product Coordinator-i.e., filled in while the Product Coordinator was out of the office-and because DeFeciani was close friends with Schaschl. Henry testified that, after DeFeciani was hired, Henry told Schaschl he would like to backfill for DeFeciani if the opportunity arose. He also testified that, at the time, he did not think the decision was a product of discrimination. For his part, Schaschl testified that DeFeciani was "far and above" the best candidate for the position, and that Henry lacked the experience and training to be competitive. Trial Tr. 766-67.

In October 2002, Henry's cousin, with whom he shared a close relationship, was murdered by the "D.C. Sniper." As a result, Henry took two months off from work under the Family Medical Leave Act, 29 U.S.C. § 2601, et seq. When he returned to work, he was given his 2002 year-end performance review, on which he again received an overall rating of "four." Henry testified that at that point, he began pressing Wardrop for advice on how to improve his rating to a "five" and how to obtain promotions.

Three months after Henry returned to work, DeFeciani went on extended medical leave, and his position became available to "backfill." Though Henry had previously expressed an interest in backfilling the position, he testified that he did not reiterate that wish before Richard Morgan, a white male, was selected to fill in for DeFeciani. Some time later, Henry confronted Schaschl, who had been responsible for choosing DeFeciani's temporary replacement, and expressed his displeasure that he had not been selected. Schaschl testified that, even if Henry had made a timely request to be considered for the position, he would have selected Morgan, because in order to backfill, an employee needed the skills to "hit the ground running," and Henry lacked the training to step immediately into the role. Trial Tr. 800.

Henry testified that his relationship with Wardrop remained strong until September 2003, when he received a written mid-year performance review. Although Wyeth encouraged all managers to give employees mid-year reviews, Henry had not previously received one from Wardrop. On the review, Henry received the equivalent of a "three" rating, and Wardrop provided more extensive criticism than he had in the past.In particular, Wardrop noted that Henry had become increasingly tardy with assignments; that he had excessive absences; that he had been spending too much time lingering in the infirmary; and that he had not been responsive to pages. Wardrop testified that, as a result of these performance issues, he no longer felt comfortable giving Henry a rating that indicated he had "exceeded expectations." Henry vigorously disputed each of these criticisms. He testified that he believed the performance review was a response to his inquiries into promotional opportunities, and presented evidence that Joanne Rose, an HR representative at Wyeth, had instructed Wardrop to include a note about Henry's nurse's office visits on the review.

In November 2003, Henry applied for the position of Process Engineer in the Vaccine Division.The position was awarded to Angel Montanez, a Hispanic male. Kirk Rokad, the hiring manager, said that he selected Montanez based on his superior experience and education.At his deposition, Henry explicitly testified that he did not believe he was denied the Process Engineer position because of his race.

Around the same time, Wyeth's Pearl River facility underwent a massive corporate restructuring known as the Organizational Cascade. A new corporate organizational chart was created, and all employees were reassigned from the top down, with each manager picking his direct reports. As a result of the Organizational Cascade, Henry was reassigned to the position of Packaging Supervisor, and to a new manager, Derek Burt. Wardrop testified that he chose not to retain Henry in his group because he was permitted to choose only one Production Engineer, and he selected Jean Colas, another African-American male, who had consistently outperformed Henry. Because the assignment did not affect Henry's salary or grade, Wyeth considered it a lateral move. Henry, however, considered it a demotion, because the position required a lower educational degree than his current position and involved tasks that he believed would not be as relevant for future promotions.

At the meeting where Henry received news of his reassignment, he was also given his year-end performance review, on which he received a "three." On it, Wardrop praised Henry in many areas, but noted that he was still failing to meet deadlines on a regular basis.Wardrop concluded that Henry was a "Solid Performer" overall but would "benefit from better reporting, attention to deadlines." J.A. 511. Wardrop testified that he was also concerned that Henry had failed to make any progress on training he had been asked to complete. Henry testified that he took strong exception to his review, because he believed that his performance had remained consistent or had improved over the year-and thus he expected to receive the same "four" rating he had in the past. He also testified that he believed that the lower rating would make it more difficult for him to obtain promotions in the future, and that he believed it was a direct result of his pressing more aggressively for promotions.

Following his year-end review, Henry met with a series of managers to complain about his performance review and his reassignment to Packaging Supervisor. He met with Wardrop on January 5, 2004. Unsatisfied with Wardrop's explanation for his mediocre review, he complained to Andrew Schaschl on January 9, and three days later, on Schaschl's recommendation, to Joanne Rose.Rose testified that she offered to help Henry find alternate placement in the company if he did not wish to take the position in packaging, which offer he declined.On January 16, Henry called Richard Gaskins, the Pearl River facility's head of diversity. Henry testified that during the call he raised the issue of discrimination for the first time.The two also discussed more generally Henry's unhappiness with his reassignment and performance review.

On January 22, 2004, Henry met with defendant Michael McDermott, who was the managing director for the Pearl River facility and Schaschl's supervisor. Besides picking his own direct reports, McDermott's only involvement with the Organizational Cascade had been to give final administrative approval to all assignments made. Henry testified that, at the meeting, he told McDermott, "It's going to be hard for me to explain how I go from this level going down to a packaging supervisor as an African-American." Trial Tr. 181. During his deposition, Henry testified that McDermott replied, "I'm all for diversity." Trial Tr. 429. However, at trial, he testified that McDermott responded, "I can see you are talking about diversity on campus, but I am not going to get into that silly discussion with you." Trial Tr. 181. McDermott testified that he had not called diversity "silly," and that he had not interpreted Henry's comments as an allegation of discrimination because they were oblique and casually made.

Finally, Henry met with Peter Bigelow, the head of manufacturing and vaccine operations at the Pearl River facility. At the meeting, Henry told Bigelow that he believed he was being subjected to racial discrimination and that he was extremely unhappy about his reassignment to packaging. In response, Bigelow reviewed Henry's prior performance reviews, which he told Henry he found to be "clear and objective." Trial Tr. 193. He also ordered an investigation into Henry's complaints, which was conducted over the course of a week by Eugene Sackett, an outside investigator, and which found no evidence of discrimination. Bigelow also offered Henry his choice of the Packaging Supervisor position or a Senior Validation Specialist position in the Vaccines Division, for which Henry had previously interviewed. Ultimately, Henry was granted a reprieve from his reassignment, and was permitted to remain in his Production Engineer position. However, he testified that he was not satisfied with that result, because he had hoped for a promotion.

Henry alleged that, in the wake of his complaints, his work environment changed, notwithstanding the fact that he was permitted to remain in his old position. Specifically, he testified that his new supervisor, Andrew Espejo, "wanted time lines for everything," gave him additional duties, wrote him up for absences Henry had cleared in advance, and "started to develop a paper trail." Trial Tr. 196-99. In essence, Henry alleges that this behavior was part of a campaign to manufacture pretenses for future adverse employment actions.

Also in January 2004, Henry applied for the Staff Engineer I position in the Vaccines Division.He was not selected for the position. It went instead to James Patch, a white male with a Ph.D. in Chemical and Biological Engineering from Northwestern University, after it was turned down by Beelin Cheang, an Asian female who held a Ph.D. in Chemical Engineering from the University of Delaware. Henry possessed no degree beyond a bachelor's.

In May 2004, Joe Vitanza, Espejo's supervisor, instructed Espejo to maintain careful records with respect to Henry's "development plan," and to review it with Rose "so that we can ensure that it is done in accordance with current policies and procedures and hopefully has a positive outcome." Trial Tr. 1142-43. Two weeks later, Henry retained an attorney, who sent a letter to Wyeth formally stating Henry's claims of discrimination.

On June 28, Espejo gave Henry his mid-year performance review. Espejo forwarded the performance review to Rose, whotestified that she had requested the review because there was "a higher level of concern" surrounding Henry's employment, stemming from Eugene Sackett's investigation. Trial Tr. 925. She testified that she "wouldn't say there would be a higher level of concern" owing to the receipt of the letter from Henry's attorney. Trial Tr. 926.

On September 24, 2004, Henry filed a formal charge of discrimination with the New York State Division of Human Rights and the U.S. Equal Employment Opportunity Commission ("EEOC").Rose testified that she became aware of the charge at some point during the EEOC's investigation, but she did not specify when.

On October 1, Henry applied for a promotion to Manager of Manufacturing Support. Henry was one of ten employees selected to interview for the position, out of twenty-six who applied. The interviews were conducted by a panel consisting of Espejo, Muscolo, DeFeciani, and Burt.Henry testified that he believed the position was awarded after a panel interview, rather than through a more typical appointment process, because he was one of the applicants.The position was awarded to Max Katz, a white male. Henry testified that he believed he was more qualified than Katz because he had been working in the area for four years, whereas Katz came from a different department.When Katz was promoted, he became Henry's immediate supervisor, reporting to Espejo.

Henry was once again given a year-end performance review in 2004, and once again received a "three." The performance review generally attested to the fact that Henry was competent at his job, but noted that "Setting objectives and commitment dates and meeting those dates needs improvement." J.A. 552. Espejo testified that Henry's tardiness had begun causing compliance problems for the company.Henry refused to sign the appraisal because he did not believe it provided an accurate picture of his work over the course of the year.

On June 21, 2005, the EEOC sent Henry a "right to sue" letter, and sent a copy to Wyeth. Wyeth's copy was dated received on June 27.Meanwhile, on June 24, Katz and Espejo informed Henry he was being placed on a 30-day "Performance Improvement Plan" ("PIP"), a detailed plan allegedly designed to help Henry bring his performance in line with company expectations.

Katz testified that Rose assisted them during the initial planning stages of the PIP, but that Stacy Marroso was the primary HR representative responsible for the PIP.Espejo testified that the plan was intended to address Henry's frequent absences and his habitual failure to meet deadlines. Katz and Espejo both testified that, at the time the PIP was created, they were unaware of any of Henry's complaints of discrimination. Henry refused to sign the PIP when he met with Katz on June 24; the managers signed it on June 29.Henry successfully completed the PIP and was removed from it on July 25.However, he testified that Marroso told him that it rendered him "unpromotable" for one year. At trial, Rose disputed this characterization, saying that an employee was only "unpromotable" during the time he or she was on a PIP. Shortly after Henry was taken off the plan, he took a medical leave of absence, and never returned to work.

II. Procedural History

A. Complaint

On September 19, 2005, after he began his leave of absence, Henry commenced this action in the United States District Court for the Southern District of New York, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; 42 U.S.C. § 1981; and New York State Executive Law, Human Rights Law § 290, et seq. by Wyeth in the form of denials of promotion, demotion, and retaliation. The complaint also alleged that three named individual defendants-Walter Wardrop, Andrew Schaschl, and Michael McDermott--aided and abetted violations of New York State Human Rights Law by participating in the denials of promotion, demotion, and retaliation. On December 19, 2005, defendant Schaschl filed a motion to dismiss the complaint, as it applied to him, for insufficiency of service of process.On February 8, 2006, the district court (Casey, J.) granted the motion by stipulation and order.

B. Summary Judgment Proceedings

Defendants then filed a motion for summary judgment. On July 30, 2007, the district court (McMahon, J.),*fn1 granted the defendants' motion in part. Henry v. Wyeth Pharms., Inc., No. 05 Civ. 8106 (CM), 2007 WL 2230096 (S.D.N.Y. July 30, 2007) ("Henry I"). The court dismissed as time-barred (a) Henry's Title VII claims based on instances of alleged discrimination occurring before November 24, 2003 and (b) his NYHRL claims based on events occurring before September 20, 2002. Id. at *29. The court also dismissed all of Henry's claims based on his applications for Process Engineer in 2003 and Staff Engineer I in 2004 because Henry explicitly testified that he did not believe he was denied those positions on account of his race. Id. at *32. Finally, the court dismissed the Title VII claims against the remaining individual defendants, on the ground that individual defendants are not subject to liability under that statute. Id. at *30.

The court, however, denied the motion with respect to Henry's remaining claims. It found that Henry had met his burden of establishing prima facie cases of discrimination and retaliation. Id. at *31. It also determined that his response to defendants' proffered non-discriminatory bases for the challenged employment decisions consisted of more than mere conclusory statements and should be considered by a jury. Id.

As a result of the district court's ruling, Henry proceeded with his non-time-barred discrimination claims based on nine events: (a) failure to promote him to the position of Project Engineer in December 2001; (b) failure to promote him to the position of Production Coordinator in July 2002; (c) failure to give him an interim appointment to the position of Production Coordinator in April 2003; (d) his receipt of an overall rating of "three" in his 2003 mid-year performance review; (e) his receipt of an overall rating of "three" in his 2003 year-end performance review; (f) his assignment to the position of Packaging Supervisor in the Organizational Cascade; (g) failure to promote him to the position of Manager Manufacturing Support in November 2004; (h) his receipt of an overall rating of "three" in his 2005 mid-year performance review; and (i) his placement on a PIP in June 2005. Henry was also permitted to maintain claims based on alleged acts of retaliation following his filing of an EEOC complaint on September 24, 2004, namely: (a) denial of the Manager Manufacturing Support position; (b) his placement on a PIP; and (c) his 2005 mid-year performance review.

C. Motions In Limine

The case was set for trial on February 4, 2008. Defendants filed five motions in limine, which were not fully briefed until January 23, 2008. In light of the proximity of the trial date and a request by the parties, the court (Conner, J.)*fn2 ruled on the motions in expedited fashion on January 29, when it issued an order in summary form granting four of the five motions. See Henry v. Wyeth Pharms., Inc., No. 05 Civ. 8106 (WCC), 2008 WL 294443 (S.D.N.Y. Jan. 29, 2008) ("Henry II"). In its memorandum, the court did not address the parties' arguments or explain the basis for its decisions, noting instead the parties' request that the court issue a decision as soon as possible so that they could adequately prepare for trial. Id. at *1.

Two of the motions in limine granted by the district court are at issue in this appeal: Motion No. 1, which concerned evidence of race-based remarks allegedly made by Wyeth managers to others at the Pearl River facility, and Motion No. 2, which concerned testimony by other ...

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