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Bernard v. St. Jude Medical S.C., Inc.

United States District Court, D. Minnesota

July 10, 2019

Craig Bernard, Plaintiff,
v.
St. Jude Medical S.C., Inc., Defendant.

          James H. Kaster and Laura Farley, Nichols Kaster PLLP, for Plaintiff.

          JoLynn M. Markison, Briana Al Taqatqa, and Trevor C. Brown, Dorsey & Whitney LLP, for Defendant.

          MEMORANDUM OPINION AND ORDER

          SUSAN RICHARD NELSON, UNITED STATES DISTRICT JUDGE.

         Defendant St. Jude Medical S.C., Inc., a medical device manufacturer, fired its most senior sales representative in the Birmingham, Alabama region, Plaintiff Craig Bernard, on September 6, 2016. Bernard claims that St. Jude did this because of his age and his ongoing health problems, or, at the least, because, prior to his termination, he accused St. Jude of discriminating against him on such grounds (which would then make his firing impermissible “retaliation”). Bernard subsequently filed a lawsuit against St. Jude in federal court, and alleged violations of (1) the Age Discrimination in Employment Act; (2) the Americans with Disabilities Act; and (3) the Minnesota Human Rights Act.

         St. Jude now moves for summary judgment, arguing that, even when the evidence is viewed in the light most favorable to Bernard, a reasonable juror could only conclude that St. Jude fired Bernard for legitimate business reasons, namely, because Bernard (an at-will employee) failed to adequately perform as either a sales person or a team leader in his final year of employment, and then failed to adhere to the “performance improvement plan” St. Jude gave him as a means to remedy those performance problems. Bernard vigorously opposes the motion, and contends that the facts underlying his claims raise genuine issues of material fact such that a jury, rather than this Court, must be the one to determine if St. Jude violated the law.

         The Court agrees with St. Jude, and will accordingly enter judgment in its favor. The Court explains its reasoning below.

         I. BACKGROUND

         A. The Parties

         Plaintiff Craig Bernard (hereinafter “Bernard”) is a 62-year-old man who worked at St. Jude from August 20, 2003 (when he was 46 years old) to September 6, 2016 (when he was 59 years old). (See Bernard Dep. [Doc. No. 38-2] at 24, 113; see also Defs.' An. [Doc. No. 8] ¶ 6 (providing birth date).) Bernard primarily worked in Birmingham, Alabama, and continues to reside there to this day. (See Bernard Dep. at 11-12.) Notably, in March 2005, during his time working for St. Jude, Bernard was diagnosed with “Chronic Lymphocytic Leukemia.” (See Pl.'s Responses to Def.'s Interrogatories [Doc. No. 58-1] at 10.) Although the cancer has been in “remission” for years (because of chemotherapy Bernard received in 2008), Bernard still feels the effect of this diagnosis, particularly in his (weakened) immune system. (See generally id. at 9-12.)

         Defendant St. Jude Medical S.C., Inc. (hereinafter “St. Jude”) is a Minnesota-based medical device company. (See An. ¶ 2.) More specifically, St. Jude “develops, manufactures, sells, and provides clinical support for . . . medical devices, ” which in turn assist “cardiac, neurological, and chronic pain patients.” (Kieck Dec. [Doc. No. 36] ¶ 2.)

         B. Factual Background

         1. Bernard Works as a Sales Representative at St. Jude from August 2003 through January 2015, When He Is Promoted to Territory Manager

         In broad strokes, Bernard's employment history with St. Jude went as follows. On August 20, 2003, St. Jude hired Bernard as a “direct sales representative, ” based in Gulfport, Mississippi. (See August 20, 2003 Offer of Employment [Doc. No. 38-1].) In April 2005, St. Jude transferred Bernard to Birmingham, Alabama, where he continued to work as a direct sales representative. (See Bernard Dep. at 26; accord Def.'s Answers to Pl.'s Interrogatories [Doc. No. 58-4] at 5.) In July 2007, St. Jude promoted Bernard to “senior sales consultant.” (See Bernard Dep. at 62; accord Def.'s Answers to Pl.'s Interrogatories at 5.) And, as will be explored in more detail below, in January 2015, St. Jude again promoted Bernard, this time to be one of two “territory managers” for the Birmingham region. (See Bernard Dep. at 61; accord Def.'s Answers to Pl.'s Interrogatories at 5; Bernard Territory Manager Contract [Doc. No. 38-5].) Bernard was a “territory manager” until his termination on September 6, 2016.

         During his years at St. Jude, Bernard's primary responsibility was to manage certain hospital “accounts” in his region, and then sell “cardiac rhythm management” (“CRM”) devices, i.e., pacemakers and defibrillators, to physician “clients” working at those accounts. (See Bernard Dep. at 159-61.) While working in Birmingham, for instance, Bernard focused almost exclusively on generating CRM sales (and, in turn, earning commissions) at the following four “accounts”: (1) University of Alabama in Birmingham Medical Center (“UAB”); (2) Brookwood Medical Center; (3) Grandview Medical Center (called Trinity Medical Center until July 2015); and (4) the VA Medical Center. (See Pl.'s Responses to Def.'s Interrogatories at 16; Bernard Dep. at 162; see also Bernard Employment Contracts [Doc. Nos. 38-3 to 38-4] (stating that Bernard's income was to be based on “commissions” and “bonuses, ” in addition to a base salary).)

         Importantly, however, Bernard did not work as an independent salesperson. Rather, he, like many employees of large corporations, worked within a larger “team” structure, with co-workers situated both “below” and “above” him. On the one end of this spectrum, Bernard was responsible for supervising two to three “technical support specialists, ” or “TSSs.” (See Bernard Dep. at 126.) Although TSSs differ somewhat from sales representatives, in that they focus on installing and maintaining CRM devices, rather than on “building and maintaining and managing” accounts and client relationships (see id. at 105), at least in Bernard's case, the line between sales representative and TSS sometimes blurred, which meant that Bernard had to work closely with his TSSs to ensure that everyone functioned well together. (See, e.g., Mouron Dep. [Doc. No. 38-12] at 18-19, 35 (describing the “daily” communications Bernard's TSSs had with each other, as well as with Bernard himself).) On the other end of the spectrum, Bernard also worked under various managers, to ensure that he was meeting his sales goals and fulfilling the company's mission. Specifically, Bernard worked under a “regional sales director, ” who in turn worked under an “area vice president, ” who in turn worked under a “divisional vice president.” (See Bernard Dep. at 29-40.)

         With that general background in mind, the Court will now turn to the specific facts underlying this litigation. With respect to the “August 2003 to January 2015” time period, the following three facts are most worth noting.

         First, during this time period, Bernard was a highly successful salesperson. For instance, Bernard's “regional sales director” from 2006 to 2015, James Brennan, testified that Bernard's “sales performance was always at a high level or consistently at a high level.” (Brennan Dep. [Doc. No. 38-37] at 87.) Brennan also testified that, as a general matter, he had a “a high level of respect” “for the way [Bernard] built a business” in Birmingham. (Id. at 91.) Indeed, in late 2014, St. Jude commended Bernard for being one of the company's highest-performing CRM salespersons in the entire southern United States. (See generally CRM November 2014 Sales Excellence Awards Program [Doc. No. 60].)

         Second, despite Bernard's sales success during this time period, some of Bernard's colleagues were dissatisfied with Bernard's approach to leadership and communication. For instance, Brennan testified, as early as “2007/2008, ” Bernard began to develop “a pattern of challenging relationships with his support staff, ” i.e., his TSSs, in large part because of Bernard's “very direct, demanding, and sometimes . . . abrasive[]” “communication style.” (Brennan Dep. at 37-40.) In particular, Brennan recalled, two TSSs made comments about “interpersonal challenges” with Bernard when they left their positions. (Id. at 39, 67-68; but cf. Bernard Dep. at 125 (stating that he “did not know” if either of those individuals left because “they wanted to be off [his] team”).)

         Third, although St. Jude did promote Bernard to “territory manager” in January 2015, this promotion proved somewhat controversial. This was so because, only a month prior to Bernard's promotion, Bernard's direct supervisors (Brennan and John Caldwell, the “area vice president” at the time) promoted St. Jude's other Birmingham “sales representative, ” Brian Faulknier, to the position of Birmingham “territory manager.” (See Brennan Dep. at 78.)[1] Moreover, Brennan and Caldwell promoted Faulknier after considering (and then rejecting) Bernard's candidacy for that same position, which “greatly disappointed” Bernard. (See id. at 77-79.) However, due to pressure from Brennan and Caldwell's boss, the then-“divisional vice president, ” Jeff Powell, Brennan and Caldwell quickly promoted Bernard to “territory manager” as well. (See id. at 77.) In other words, although Brennan personally believed that St. Jude needed just “one territory manager in Birmingham, ” i.e., Faulknier, he nonetheless promoted Bernard “because [he] was directed to do so” by Powell. (Id.)

         This decision resulted in a somewhat awkward preservation of the status quo. That is, although Bernard and Faulknier were both now “territory managers” (and hence earning larger salaries and holding somewhat greater leadership responsibilities), they essentially continued doing what they had been doing previously: acting as sales representatives for their specific accounts in Birmingham, and then managing a team of TSSs beneath them. (See, e.g., Mouron Dep. at 68 (describing the new “territory managers” in Birmingham as “more like” “glorified sales reps”).)

         This situation proved challenging for all parties. On the one hand, Faulknier, like Brennan, believed that it was “counterproductive” for St. Jude to employ two territory managers in Birmingham, on grounds that it led to “two sales teams somewhat competing against each other in this geography working for the same organization.” (Faulknier Dep. [Doc. No. 58-2] at 40.) Moreover, Faulknier thought, Bernard's (allegedly subpar) teamwork skills made the duel leadership model particularly “counterproductive.” (See, e.g., Faulknier Dep. at 105 (stating that, in his view, Bernard “belittle[d] people” and engaged in “narcissistic behavior”).)

         On the other hand, Bernard felt frustrated because he had been asking for more support staff for months, and this “preservation of the status quo” did not result in that favorable allocation of resources. (See, e.g., Bernard Dep. at 83, 93, 123-24 (describing how the “other team in town, ” i.e., Faulknier's team, consistently received more staffing resources than his team, especially after 2013).) Bernard was also frustrated because he believed that St. Jude's (alleged) preference for Faulknier stemmed from Faulknier's (presumably younger) age and (presumably better) health. (See, e.g., Bernard Dep. at 93-94.)[2]

         2. Bernard Faces a Variety of Work and Health-Related Challenges During His Time as Territory Manager

         The year and a half following this promotion was marked by a series of increasingly negative events for Bernard, on both a personal and professional level.

         For starters, approximately six months after Bernard's promotion, in July 2015, Greg Kieck, a St. Jude employee in his late 30s, replaced Brennan as Bernard's “regional sales director.” (Kieck Dep. at 10; see also id. at 15 (Kieck's age).) Although Kieck claimed to initially view Bernard with a “clean slate, ” Kieck testified at his deposition that, after a few months on the job, he came to believe that Bernard's team was “dysfunctional, ” and that “some of these dysfunctions within [Bernard's] team had been going on for a long period of time.” (Id. at 13-14, 17.) Kieck apparently gleaned this negative perspective of Bernard from Brennan and Faulknier, as well as from conversations with “competitors” and “customers.” (Id. at 13-14, 60-61.) Moreover, in a September, 282015 e-mail Kieck received from Ben Royster (who had replaced Caldwell as area vice president), Royster referred to Bernard as someone who was (allegedly) using his “territory manager” position to “line [his] pockets” and “assert [his] control over others.” (Sept. 28, 2015 E-mail from Royster to Kieck et al [Doc. No. 58-3].)

         That said, it is unclear how strongly Kieck held this belief at the time. Most notably, despite apparently receiving these negative assessments of Bernard throughout the second half of the 2015 year, on March 14, 2016, Kieck gave Bernard a “meets expectations, ” or “3/5, ” performance evaluation for the year, and did not mention any “dysfunction” on Bernard's team in the evaluation. (See Mar. 14, 2016 Performance Evaluation for 2015 Year [Doc. No. 58-5].)

         Regardless of Kieck's feelings about Bernard, though, it is undisputed that Bernard did not enjoy working under Kieck. Not only did Bernard find that he and Kieck had “differences of opinions” on critical business issues (see Bernard Dep. at 34), but he also did not like that Kieck “rarely reached out regarding [Bernard's] performance, day-to-day activities, or about big-picture strategy at [St. Jude].” (Bernard Dec. [Doc. No. 57] ¶ 4; compare with Bernard Dep. at 31 (describing his “working relationship” with Brennan as “very good”).)

         Apart from these interpersonal tensions, Bernard's CRM sales declined significantly in 2015, as well as in the first quarter of 2016, which Kieck noted in various e-mails to Bernard. (See Jan. 14, 2016 E-mail from Pai to Kieck [Doc. No. 65-1] (showing an 18% decline in Bernard's sales from 2014 to 2015); Apr. 19, 2016 E-mail from Kieck to Bernard [Doc. No. 43] (highlighting further sales decline in Bernard's accounts for “Q1 2016, ” and noting that “Brookwood Medical Center, ” one of Bernard's most important accounts, was “one of the region's top decliners”); accord Bernard Dep. at 182-83 (acknowledging that these numbers are accurate).)

         It is not clear why this decline occurred. There is some evidence that Bernard's sale drops stemmed from competitive pressures that St. Jude was experiencing nationwide. (See, e.g., Faulknier Dep. at 107-09 (discussing “competitive” new “MRI- safe pacemakers” introduced by Medtronic and Boston Scientific in “2012, 2013, ” and how those devices caused St. Jude to see “losses in their pacemaker sales numbers worldwide”); Mouron Dep. at 60-61 (same).) However, there is other evidence that, competitive headwinds notwithstanding, Bernard's sales were particularly lackluster. (See, e.g., Jan. 14, 2016 E-mail from Pai to Kieck (showing that Faulknier boosted his sales by 8% from 2014 to 2015, in contrast to Bernard's 18% decline); Apr. 19, 2016 Email from Kieck to Bernard (pointing out that “Brookwood seems to be declining faster than other accounts and there are actually many accounts where the business is growing despite these same challenges”).)

         Ostensibly because of these declining sales, in February 2016 Bernard's supervisors (i.e., Kieck and Royster) unilaterally re-hired and then promoted one of Bernard's former TSSs, a (younger) woman named Rachelle Mouron, to serve as a “direct sales representative” alongside Bernard. (See Mouron Dep. at 48-51.)[3] Most importantly, to accommodate Mouron's promotion, St. Jude required Bernard to give Mouron half of all future sales commissions generated at the UAB Medical Center account; until this point, Bernard had been allowed to keep 100% of sales commissions generated at this account. (See Kieck Dep. at 103-04; Bernard Dep. at 95-96.)

         When Bernard learned of this arrangement, at a February 12, 2016 lunch meeting between him, Kieck, and Mouron, he openly expressed displeasure at Kieck and Royster's decision, on grounds that it removed one of his key sources of commissions “overnight.” (See Bernard Dep. at 186-87 (admitting that, although he was “very welcoming” to Mouron, he was “not happy about how” this decision was made); cf. Mouron Dep. at 95-98 (stating that Bernard was “not a happy camper” at this lunch meeting, and that he “made [her] feel as if . . . [she] was taking money out of his pocket, ” which “felt” “kind of disrespectful, ” given their “good relationship” in the past).)

         Kieck testified that he and Royster promoted Mouron because she was an experienced, highly competent employee who had worked in the UAB account for years, and was therefore well positioned to “turn the account around.” (See Kieck Dep. at 106; accord Dec. 15, 2015 E-mail from Kieck to Royster and Powell [Doc. No. 41] (contemporaneously describing Mouron's hire as a “bold move to change the perception of [St. Jude] in the Birmingham market, ” and noting that she could “drive growth at UAB”); see also Bernard Dep. at 46, 245 (conceding that Mouron was “top flight, ” a “great talent, ” and “one of [his] best hires [as a TSS]”).) Indeed, it is generally not disputed that Mouron had done a significant amount of the UAB account work over her years working for Bernard yet had not received any sales commissions for her efforts. (See Mouron Dep. at 127, 183-84 (stating that she was doing “90 to 95 percent of the work at UAB, ” even when she was just a TSS); Kieck Dep. at 104-05 (same); cf. Bernard Dep. at 104-05 (conceding that Mouron had been doing “75 to 80 percent of the day-today” work at UAB prior to her promotion, but adding that this did not account for the interpersonal work of “maintaining and managing” relationships with key physician-clients).)

         Moreover, Kieck and Royster apparently thought, handing some of Bernard's sales responsibility over to Mouron might help facilitate Bernard's transition into a “less stressful” “consulting” role, which Bernard had expressed interest in in late 2015 and early 2016. (See, e.g., Feb. 18, 2016 E-mail from Royster to Wilson [Doc. No. 38-7] (contemporaneously discussing this “Bernard consulting agreement” and “transition”); Dec. 16, 2015 E-mail from Kieck to Royster and Powell (same); accord Bernard Dep. at 286-88 (conceding that, in January and February 2016, he discussed with Powell (the divisional vice president) the possibility of receiving a “standard practice” “consulting agreement, ” similar to what other senior employees had received in the past).)

         In Bernard's view, however, regardless of any interest he had expressed in a transitory “consulting agreement, ” and regardless of Mouron's sales acumen, Kieck and Royster's decision to unilaterally give Mouron half of his sales commissions at UAB - one of his “top” accounts (Bernard Dep. at 162) - constituted blatant discrimination against a senior employee. (See, e.g., Bernard Dep. at 98-101, 302.) Indeed, Bernard viewed this particular employment decision as part of the same “systematic” campaign to “undermine him” that had allegedly been in place since the time of the “Faulknier promotion, ” discussed supra. (Id.)

         Bernard points to a few pieces of evidence in support of this contention. First, with respect to age discrimination, in October 2015, Royster allegedly told Bernard, in the context of Bernard inquiring about other employment options, “it's time to step aside and let the younger folks have a chance.” (Id. at 116.)[4] Second, also in October 2015, Kieck sent St. Jude's human resources department a “territory manager evaluation email, ” in which Kieck compared Bernard and Faulknier, and concluded that, although Faulknier (a younger employee) was on a “regional sales director” track, Bernard was simply on a “sr. sales rep [track].” (See Oct. 5, 2015 E-mail from Kieck to Comazzi [Doc. No. 61].) Third, with respect to disability, or “health, ” discrimination, the Mouron promotion occurred only two months after Bernard “underwent surgery” to remove a “non-cancerous tumor, ” which Royster and Kieck both allegedly knew about. (See Bernard Dec. [Doc. No. 57] ¶ 6.)[5] Fourth, as a general piece of “suspicious” circumstantial evidence, Kieck and Royster never included Bernard in Mouron's re-hiring process, and even appeared to actively avoid discussing the issue with Bernard, despite the fact that Mouron was ostensibly joining “Bernard's team” in Birmingham. (See, e.g., Jan. 20, 2016 E-mail from Bernard to Kieck [Doc. No. 58-15] (discussing his frustration that a new “sales representative” position was being created in Birmingham without his knowledge).) And, fifth, as another piece of general circumstantial evidence, this promotion occurred at the same time Bernard was transitioning from a “term contract” to an “at-will contract, ” and thus suggested that Kieck and Royster were intending to replace Bernard with Mouron, rather than use her as a supplement to him. (See Bernard Dep. at 95-96; see also Bernard March 3, 2014 Employment Agreement [Doc. No. 38-4] (showing that Bernard's “term of years” contract, which protected his commissions as a matter of contractual right, expired on February 17, 2016).)

         Regardless of the motivation behind Mouron's February 2016 promotion, though, it is undisputed that, two months after Mouron's return to St. Jude, Mouron and Todd Crawford (one of the two TSSs then working beneath Bernard) both e-mailed Kieck to discuss their frustrations with Bernard's communication and leadership. First, in a lengthy e-mail sent to Kieck on April 3, 2016, Crawford described multiple instances in which Bernard “yelled [at] and berated” him and his colleagues (Mouron and Jason Posey, Bernard's other TSS), as well as other instances in which Bernard had failed to “follow through” on his work responsibilities. (See Apr. 3, 2016 E-mail from Crawford to Kieck [Doc. No. 38-9].) Because these “frustrat[ing]” experiences were (allegedly) “impact[ing] [Crawford's] quality of work and [making] [him] question [his] longevity with” St. Jude, at the end of his e-mail, Crawford requested that he be “realigned” to work solely under Mouron. (Id.)

         Similarly, on April 12, 2016, Mouron sent Kieck a multi-paragraph e-mail explaining that “over the past few weeks, ” she had come to realize that the “longer this goes on, ” i.e., the longer Bernard worked as a territory manager in Birmingham, “the more our team will decline.” (Apr. 12, 2016 E-mail from Mouron to Kieck [Doc. No. 38-10].) Mouron then detailed specific instances of “poor communication” on Bernard's part, and criticized Bernard for his “irrational, controlling behavior that effects [sic] our team.” (Id.) She concluded by again emphasizing that “the accounts are on a steady decline and the longer this situation isn't dealt [with] the worst [sic] it will be.” (Id.)[6]

         Around the same time Kieck was learning about Mouron and Crawford's growing frustration with Bernard, Bernard was learning about medical treatment he needed to undergo in order to stabilize his immune system. (See supra at 2 (discussing Bernard's health background).) As such, on April 9, 2016, Bernard e-mailed Kieck, Mouron, Crawford, and Posey (his other TSS) and told them that, at the “recommendation of [his] oncologist, ” he was starting “immuno therapy” treatment “again, ” and that, accordingly, during the forthcoming months, he would need to take the occasional day off for treatment, i.e., “once every four weeks for the next four to five months.” (See April 9, 2016 Bernard E-mails to Team [Doc. Nos. 58-7 to 58-8].) Bernard then stated that he would take the entire next week of work off, i.e., April 11-15, “in preparation for [his] first treatment.” (Id.) However, Bernard added, he would still “be available by phone and email.” (Id.)

         Kieck quickly responded by expressing his condolences, and then stating, “let's talk when you have a minute next week so we can provide the resources needed to ensure everything is covered.” (Apr. 9, 2016 E-mail from Kieck to Bernard [Doc. No. 58-8]; see also Kieck Dep. at 65 (stating that this e-mail marked the first time he learned about Bernard's history of leukemia).) Bernard concedes that St. Jude allowed him to take all the time off for his treatment that he requested, and that any work he did during this period of time arose out of his personal desire to assist his clients. (See Bernard Dep. at 79-84; but cf. id. at 81 (nonetheless arguing that, as a general matter, he did not feel that he ever received “enough coverage, ” in terms of TSSs, from management).)

         However, it is undisputed that the tensions between Bernard, his supervisors, and his team did not recede in the weeks following this e-mail; in fact, they only accelerated. For one, when Kieck forwarded Bernard's April 9 e-mail to Royster, the two of them (Kieck and Royster) appeared to treat the requested accommodation as further evidence that Bernard might soon step down from his role. Specifically, Royster suggested that, because they had started “the process” of potentially moving Bernard to a different role (such as a consulting agreement) “prior to” Bernard's April 9 e-mail, “we may be ok.” (Apr. 9, 2016 E-mails Between Royster and Kieck [Doc. No. 58-9].) However, Royster added, the question was “what morally should we do.” (Id.) Kieck then responded that Bernard's poor health “may set up well for a move into a less stressful role.” (Id.)

         As for Bernard's team, Mouron testified that, because Bernard's “poor communication” habits continued to disrupt the team, even after the April 9 immuno therapy e-mail, she called Kieck at least once during the ensuing weeks to express further frustration about Bernard. For instance, at her deposition, Mouron recalled telling Kieck about one incident in “early May 2016, ” in which Bernard went on a “vacation” unrelated to his immuno therapy, but without telling her “when he was coming back, ” and without informing Posey or Crawford about his absence at all. (See Moron Dep. at 144-45; but cf. Bernard Dep. at 234-36 (stating that, although he didn't recall much “specifically” about this incident, he talked to Mouron and Posey “extensively” about “coverage issues” during this post-April 9 time period).)

         As such, immuno therapy treatment notwithstanding, in late April 2016 Kieck allegedly began drafting a formal “performance improvement plan, ” or “PIP, ” for Bernard, in hopes that it would help him “turn things around, ” in terms of both sales and team morale. (Kieck Dec. ¶ 10.)

         3. In early May of 2016, Bernard Formally Accuses St. Jude of Age and Disability-Based Discrimination

         Shortly thereafter, on May 5, 2016, Bernard had a meeting with Kieck, which Bernard had requested. At this meeting, Bernard “discussed [his] displeasure with [Kieck's] leadership and with the manipulation of [his] staff, ” and also stated “that [he] felt [he] was being discriminated against because of [his] health issues and [his] age and was being pushed out.” (Bernard Dep. at 193-94.)[7] Bernard then relayed to Keick what he (Bernard) viewed as the “three possible options” for his future at St. Jude: (1) “a new [contract] that we all could live with, ” (2) “the negotiation of a mutually beneficial separation agreement, ” or (3) “we just simply part ways and the risks are what they are.” (See May 25, 2016 Bernard E-mail to St. Jude HR [Doc. No. 38-18] (contemporaneously describing what he said to Kieck at this May 5 meeting); accord Bernard Dep. At 193 (confirming the accuracy of this contemporaneous e-mail).)

         For his part, Kieck adamantly denies that Bernard raised any discrimination complaints to him at this May 5 meeting. (See Kieck Dep. at 75; Kieck Dec. ¶¶ 11, 13.) Rather, Kieck claims, at this meeting, he (Kieck) re-iterated the ongoing concerns he had with Bernard about leadership and declining sales numbers. (Kieck Dec. ¶ 11.) Then, Kieck recalls, Bernard responded with his three-part “ultimatum.” (Id.) Kieck and Bernard's memory of this tripartite “ultimatum” roughly accord; however, in Kieck's telling, Bernard phrased his “three options” in the following, more demanding, manner: (1) “relocate [Bernard] to a different territory, ” (2) grant Bernard a consulting agreement for an “ungodly amount of money, ” or (3) do nothing, which would lead Bernard to sue the company and then “burn the city down on his way out.” (Id.) To Kieck, this meeting “solidified” his (allegedly pre-existing) desire to place Bernard on a PIP. (Id.)

         A few days later, on May 9, 2016, after receiving more calls from Bernard's team members complaining about Bernard's behavior (see id. ¶ 12), Kieck sent Bernard an email admonishing him for his (allegedly “disrespectful”) conduct at the May 5 meeting, as well as for his “consistent lack of communication and coordination of efforts within [his] team.” (May 9, 2016 E-mail from Kieck to Bernard [Doc. No. 46].) In this e-mail, Kieck also noted that “we are not meeting sales objectives in your accounts.” (Id.) Kieck concluded his message by requesting that Bernard meet with him and Royster on May 19, 2016 in Birmingham, “to further discuss this current situation.” (Id.; see also Kieck Dec. ¶ 12 (explaining that when he wrote “further discuss this current situation” he meant “present Bernard with a PIP”).)

         On May 14, 2016, Bernard responded to Kieck's e-mail with a lengthy e-mail of his own, and cc'ed both Royster and Chris Baier (who was the new divisional vice president). At the outset, Bernard declared Kieck's May 9 missive “factually wrong, ” and then proceeded to explain why he believed he had done a good job in terms of “planning, preparation, communication, and team support, ” even after his immuno therapy treatment began, and why legitimate business reasons explained his declining sales. (See May 14, 2016 E-mail from Bernard to Kieck [Doc. No. 45]; see also supra at 9-10 (detailing some of those legitimate business reasons).) Bernard also brought up his longstanding issues with the Mouron promotion, with Kieck's managerial approach, and with the Faulknier team, i.e., the “other, younger team in town, ” receiving more resources than his team. (Id.) Bernard then stated that “clearly there is a move afoot to push [him] out, ” because he is a “well compensated 59-year old with health challenges.” (Id.) In fact, in his next sentence, Bernard put the issue even more bluntly: “Clearly there is some age and health related discrimination issues here, and, now, based on the inaccurate statements in your email, some steps toward retaliation for bringing them to your attention.” (Id.) Bernard then concluded his e-mail with the following paragraph:

Gentleman [sic] we have been dancing around this for months. I get it, if you want to move in another direction, that's your prerogative as leadership, but let's do it with some honesty, integrity, and honor. I don't agree with the direction and don't think it is in the best interest of our business in Birmingham, but again this is your choice. If you want me out of the picture in Birmingham, let's be adults about it and work toward some equitable resolution that is in the best ...

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