Summary judgment is proper where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” FED R. CIV. P. 56(c). The moving party has the burden of demonstrating the absence of an issue of material fact. Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir.2001) (citing Logan v. Commercial Union Ins. Co., 96 F.3d 971, 978 (7th Cir.1996) (citation omitted)). This burden may be carried “by ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case.” Celotex v. Citrate, 477 U.S. 317, 325 (1986). If successful, the burden then shifts to the non-moving party to “set forth specific facts showing that there is a genuine issue for trial,” Outlaw, 259 F.3d at 837 (internal quotation omitted), in which the trier of fact could rationally render a verdict in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In the court's review of the record, it will draw all reasonable inferences in the light most favorable to the non-movant, here the Plaintiff. Metropolitan Life Ins. Co. v. Johnson, 297 F .3d 55, 563 (7th Cir.2002).

Most of the facts in this case are not in dispute; otherwise disagreements will be noted where they concern a material fact. The Plaintiff in this case, Ms. Bryant, was hired as a sales representative by Defendant Aventis, a national pharmaceuticals company, on March 8, 1999. Aventis Area Manager Dan Bitting was the person responsible for the hire. Ms. Bryant was forty-two years old at the time.

Plaintiff's job entailed making sales calls on doctors and other licensed prescribers to promote the Defendant's products. According to the Territory General Procedures manual provided by Aventis to all members of its sales force, a “sales call” is defined as a face-to-face interaction with a physician or other licensed prescriber. For this purpose, Defendant furnished Ms. Bryant with a portable computer with which to record her sales calls, any notes she might make regarding the calls (known as a Plan of Action or POA), and the electronic signature of all prescribers who accepted samples, which signatures had to be witnessed first-hand under company and FDA regulations. The Plaintiff was expected to transmit this information to her home office on a daily basis.

*2 During her subsequent tenure at Aventis, Ms. Bryant took two medical leaves of absence. The first, due to a work-related injury for which Plaintiff submitted a claim for worker's compensation, lasted around 90 days, from January 24, 2000, until the end of April, 2000. The second, caused by a non-work related injury, lasted approximately 30 days, starting September 16, 2000. (Def.'s Statement of Material Fact (“SMF”) at 22–26.)

Dan Bitting, Plaintiff's supervisor, first became aware of problems with Ms. Bryant in January 2001. On January 22, 2001, Mr. Bitting was informed at a meeting by another Area Manager, Trish Knight, that one of her sales representatives, Tom Frank, told her that he had asked Ms. Bryant to cover for him at a luncheon event and that she had declined due to illness, but requested that Mr. Frank not say anything to her boss, i.e., Dan Bitting. (Bryant Dep. at 116.) Report of this remark raised Mr. Bitting's suspicions because, according to him, “our policy is that if you are sick that you would tell your manager that.” (Bitting Dep. at 14.) Mr. Bitting attests that at that time he knew Plaintiff's sales results were substantially below par for the area, despite the high number of sales calls she was reporting. (Bitting Decl. ¶ 8.) These two factors lead him to contact Soni Cassidy, the Human Resources Generalist assigned to his sales region, to obtain full access to Ms. Bryant's sales records. According to Mr. Bitting, scrutiny of these records for the period of July 3, 2000, through January 24, 2001, confirmed his suspicion that the Plaintiff was reporting calls on physicians she had not in fact made. (Bitting Decl. ¶ 9.)

Specifically, four aspects of the reports seemed troubling. First, Ms. Bryant reported her calls in batches, instead of one at a time after each call as demanded by company policy. Second, she reported “sampling,” that is, successfully offering drug samples to prescribers, for which a signature is required, on only 17.5% of the 967 sales calls she recorded from July 3, 2000, to December 31, 2000. The operating guidelines recommend sampling at 60%, so 17.5% was a “significant deviation” from what Mr. Bitting expected. (Bitting Decl. ¶ 11.) Third, the Plaintiff attached a low percentage (20%) of POA notes to her recorded calls. Company policy recommends such notes after every call, and, according to Mr. Bitting, their presence indicates physician contact. (Bitting Decl. ¶ 12.) Fourth, Ms. Bryant's final sales results were poor, which contrasted with the high number of calls she recorded. (Bitting Decl. ¶ 13.)

Notably, on the days when Mr. Bitting accompanied Ms. Bryant on her sales calls as part of what the company terms a “work-with,” her records approached company standards. However, even on those days Mr. Bitting observed that on at least two occasions (August 2, 2000, and January 31, 2001) the Plaintiff reported visits with doctors which he specifically recalled they did not see. (Bitting Decl. ¶ 16.)

*3 Mr. Bitting relayed his concerns to his supervisor, Regional Manager Tracy Dahms, and Ms. Cassidy in Human Resources. On February 20, 2001, a meeting was convened with Mr. Bitting, Mr. Dahms, and Ms. Bryant to give the plaintiff a chance to explain herself. She admitted to recording calls on physicians she did not actually meet face-to-face with, and her explanations were not otherwise satisfactory. (Bitting Decl. ¶ 17; Bryant Dep. at 115–118.)

Aventis terminated Ms. Bryant on February 23, 2001. Defendant claims that Mr. Bitting discharged her (SMF at 4), but the Plaintiff disagrees. In his declaration, Mr. Bitting states that “immediately following our meeting with Ms. Bryant, Mr. Dahms and I agreed that Ms. Bryant should be discharged for falsification. We contacted Soni Cassidy who consulted with the legal department and approved our recommendation.” (Bitting Decl. ¶ 19.) When asked who made the decision to fire Ms. Bryant, Tracy Dahms confirmed Mr. Bitting's account: “That was ultimately HR and Legal, I recommended that we do that.” (Dahms Dep. at 37.) In his deposition, Mr. Bitting similarly answered yes to the question of whether the corporate office, and not himself, “ultimately made” the decision to fire Plaintiff. (Bitting Dep. at 13.) From this testimony, it would appear that, although Mr. Bitting did not make the final decision to discharge Plaintiff, he, along with Mr. Dahms, passed that recommendation along to the corporate departments entrusted with final authority over such employment actions.

But Plaintiff adduces two pieces of evidence which would deny Mr. Bitting even this diminished role in her discharge. First, Mr. Bitting admitted to having composed a written warning letter to Ms. Bryant prior to the February 20, 2001, meeting, which was never given her. (Bryant Dep. at 36.) Second, Ms. Bryant testified that Mr. Bitting went to her home shortly after apprising her of her dismissal in order to reclaim some company property where the following conversation transpired:

(Bryant Dep. at 146–147.) Clearly, the import of these pieces of evidence is ambiguous at best. Yet one possible inference to be drawn from them is that Mr. Bitting did not, in fact, recommend Ms. Bryant's dismissal, but rather, believed she should be given a warning. Thus, he might have been overruled in this course of action by Mr. Dahms or the relevant corporate departments. That could explain Mr. Bitting's profession of ignorance as to why the Plaintiff was ultimately terminated. Of course, other interpretations are perhaps more likely, but the court believes Plaintiff has produced sufficient evidence to create an issue of fact as to Mr. Bitting's credibility on this matter. For the purposes of Defendant's motion for summary judgment, in which all reasonable inferences from the record are made in favor of the Plaintiff, the court will proceed on the assumption that Mr. Bitting did not recommend Plaintiff's dismissal.

*4 Other factual assertions of the parties, including Ms. Bryant's defenses, are addressed as they arise in the course of the discussion of her claims.

In order to maintain a claim for age discrimination under the ADEA, a plaintiff must prove that “but-for” her age, she would not have been the subject of an adverse employment action. Taylor v. Canteen Corp., 69 F.3d 773, 779 (7th Cir.1995) (citations omitted). Plaintiffs may either produce direct evidence of discrimination or advance their claims under the burden-shifting McDonnell Douglas framework used to evaluate circumstantial evidence. Nawrot v. CPC Int'l, 277 F.3d 896, 905 (7th Cir.2002). In this case, the Plaintiff admits to lacking direct evidence of discriminatory animus (Pl.'s Resp. to SMF at 27), and, thus, the burden-shifting approach applies. Under this approach, Ms. Bryant must establish as part of her prima facie case (1) that she was in the protected age group; (2) performing her job satisfactorily; (3) subject to an adverse employment action; and (4) replaced by a “substantially younger” employee. O'Connor v. Consol. Coin Caters Corp., 517 U.S. 308, 313 (1996).

Defendant argues that Ms. Bryant has not even met these minimal requirements. Aventis first seeks to avail itself of the “common actor doctrine” which creates a presumption of non-discrimination in ADEA cases where the same person both hired and fired the plaintiff within a short period of time. See Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 399 (7th Cir.), cert. denied, 523 U.S. 1118 (1998). However, since the court is proceeding on the assumption that Mr. Bitting did not so much as recommend Ms. Bryant's dismissal (see supra at 7), that path is closed to Aventis. Next, Defendant claims that Plaintiff's replacement, Mark Robinson, age 33 at the time of hire, is not “substantially younger” than Plaintiff, who was 44. The Seventh Circuit rule that any age differential over ten years will qualify is fatal to this argument. Hoffman v. Primedia, 217 F.3d 522, 524 (7th Cir.2000); Hartley v. Wis. Bell, Inc., 124 F.3d 887 (7th Cir.1997); Fisher v. Wayne Dalton Corp, 139 F.3d 1137 (7th Cir.1998). Mr. Robinson is more than ten years younger than Ms. Bryant, and this court is not inclined to depart from the Circuit rule.

The burden of establishing a prima facie case is “not onerous,” see Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981) and the court finds that Ms. Bryant has carried it. The burden of production thereupon shifts to the Defendant to articulate a legitimate, non-discriminatory reason for the adverse employment decision. Burdine, 450 U.S. at 253–255; Taylor, 69 F.3d at 780. This the Defendant has done: Aventis states that Ms. Bryant was discharged because her employers believed she had falsified her call activity reports. At this point, Plaintiff must prove, by a preponderance of the evidence, that the non-discriminatory reason proffered by Aventis is merely a pretext for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973). The court's sole concern is thus not with the merit but the honesty of the employer's stated basis for the decision. Nawrot, 277 F.3d at 906 (citations omitted). Accordingly, Plaintiff will defeat Defendant's motion for summary judgment if she can demonstrate the existence of an issue of fact as to whether Defendant's asserted reason was the real reason for her discharge.

*5 Ms. Bryant does not succeed in this task. She has a number of responses to Aventis' charges concerning her misconduct, none of which are compelling. At times she denies falsifying records on the understanding that falsification means reporting a visit with a doctor in a clinic which she had not in fact visited. (Bryant Dep. at 122–123.) But the definition of a sales call, both under company guidelines and according to Mr. Bitting, is a face-to-face encounter with a prescriber. Reporting a visit to a clinic as a sales call on the physician, where the sales representative has not met with that person, is a misrepresentation. Plaintiff in fact openly admits to regularly reporting visits where she only spoke with the physician's nurse as calls on the physician. (Bryant Dep. at 43–44.) She defends herself on the grounds she would not otherwise get credit for her work because some institutions do not allow drug representatives to meet personally with doctors. Mr. Bitting responds that such interactions with nurses or receptionists could always be reported as “an institutional call on the clinic” (Bitting Decl. ¶ 23), but in any event it is not this court's position to sit in judgment on the reasonableness of Aventis' reporting policy. Defendant's assertion that Ms. Bryant falsified her records remains unrebutted by Plaintiff, and therefore, so does Defendant's good-faith belief as to the matter.

Plaintiff otherwise comes forward with two allegations she claims casts doubt on the veracity of Aventis' expressed reason for her dismissal. She first attests that, on one occasion when Mr. Bitting accompanied her as part of a “work-with,” the two of them visited a clinic which blocked access to its physicians. At that clinic Mr. Bitting allegedly instructed her to use a paper form to obtain the signature of a physician they did not meet, in derogation of company regulations requiring sales representatives to witness the prescriber's signature. (Bryant Dep. at 39.) In her subsequently filed affidavit, Ms. Bryant clarifies that this event took place during her training. She states that she recorded the transaction as a sales call, however, she does not claim that Mr. Bitting told her to do so, or indeed, gave her any indication as to how to report the visit. (Bryant Aff. ¶ 4.) As such, this event provides no support for her argument that Mr. Bitting endorsed her manner of recoding these types of visits. (Pl.'s Resp. to SMF at 11.) Ms. Bryant's claim might have had more force had she been terminated due to her failure to witness physician signatures, but Defendant's contention is that she was dismissed for falsification of her reports. Further, Plaintiff has cited no other instance in which Mr. Bitting encouraged her to bend the rules. Even assuming, for the sake of summary judgment, that Mr. Bitting did instruct Plaintiff this one time to disregard company policy, that is not enough to create a triable issue of fact as to the genuineness of Defendant's proffered reason for dismissal.

*6 The second allegation relates to Aventis' knowledge of others sales representatives' transgressions of its reporting policy. Plaintiff maintains that several colleagues confided in her that they engaged in the same practice of recording a sales call where they had not met with the physician (Bryant Dep. at 159–160.) However, Ms. Bryant has not supplied any proof that Defendant was aware of widespread violations for which she alone was singled out. The only item of evidence pertaining to Defendant's knowledge are the e-mails Plaintiff received from four co-workers in response to an inquiry she made on the eve of her dismissal, after meeting with Mr. Dahms and Mr. Bitting. Aventis retrieved these e-mails from her computer after it fired her. Plaintiff argues they show awareness on the part of Aventis of other offenders of its reporting policy, and Aventis' subsequent failure to discipline these persons casts suspicion on its stated reason for discharging her.

The content of the e-mails does not substantiate her claim. (Pl.'s Ex. at 14.) In response to Ms. Bryant's e-mail inquiring whether her co-workers ever counted as a call a visit where they never saw the doctor, Terry Smith offered a tip for obtaining access to restricted offices, but did not address the question. Jason Elmore flatly stated “I don't count it unless I get to see the doc and he gets to see me.” Julie Stis was coy, saying only “if access is not possible, you have to do the next best thing. You have spent appropriate time in the office and time out of your day that you had planned to see the physicians.... I am in the dark to the answers.” She seems to imply that the official policy is unfair in these situations, but stops just short of an admission. The court agrees with Plaintiff that it may be fairly inferred from Ms. Stis' response that on occasion she has reported such a visit as a sales call on the physician. Likewise, Jodi Metzger admitted that “every once in while,” where she has spoken extensively with the nurses, she will “call it a call.” At best, these e-mails reveal that, subsequent to Ms. Bryant's termination, the Defendant learned that one or two of its employees may have falsified an occasional sales report. That stands in contrast with Plaintiff, who seems to have made it a routine practice. And Plaintiff failed to produce evidence from which it could be inferred that the management of Aventis was aware of the e-mails or practices reflected in them, if any, prior to her termination. In short, these e-mails do not license a rational inference of discriminatory application of Defendant's reporting and disciplinary procedures.

Because Plaintiff has failed to create a genuine issue of fact as to whether “the employer's proffered reasons are factually baseless, were not the actual motivation for the discharge in question, or were insufficient to motivate the discharge,” Nawrot, 277 F.3d at 906 (quoting Testerman v. EDS Technical Prods. Corp., 98 F.3d 297, 303 (7th Cir.1996)), her ADEA claim is dismissed as a matter of law.

*7 Plaintiff also charges Defendant with retaliation for having exercised her right to medical leave under the FMLA for the period of January 24, 2000, until the end of April 2000, and again from mid-September to mid-October 2000. Aventis argues that the relevant FMLA-protected period is the earlier one, which lasted the full twelve week duration permissible under the Act. It may be true that Plaintiff was not entitled to further FMLA protection for her second leave of absence. But Plaintiff asserts she exercised her FMLA rights for this period (Pl.'s Resp. to SMF at 26), and it is undisputed that Defendant granted her the leave. Since the proper focus of the court's inquiry is the Defendant's intent, see King v. Preferred Technical Group, 166 F.3d 887, 891 (7th Cir.1999), Aventis could still be found liable for retaliation even if it acted under the erroneous belief the leave she requested was due her by law, so long as it possessed the requisite impermissible motive. Thus the latter period of leave will also be considered protected activity for the purpose of evaluating Ms. Bryant's claim. As a practical matter, it makes little difference because the record is devoid of any evidence of retaliation on the part of Aventis.

As the Seventh Circuit recently clarified, plaintiffs can withstand summary judgment on retaliation claims in one of two ways. Stone v. City of Indianapolis Pub. Util. Div., 281 F.3d 640 (7th Cir.2002). The first way is referred to as “the more straightforward” of the two and is unrelated to McDonnell Douglas. Id. at 644. It requires that a plaintiff “present direct evidence (evidence that establishes without resort to inferences from circumstantial evidence) that [s]he engaged in protected activity .... and as a result suffered the adverse employment action of which [s]he complaints.” Id. If the plaintiff's evidence is contradicted by the defendant, the case goes to trial unless “the defendant presents unrebutted evidence that [it] would have taken the adverse employment action even if [it] had had no retaliatory motive[.]” Id.

In this case, Ms. Bryant claims to possess “direct evidence” of Aventis' retaliatory animus and so the court follows the first approach outlined in Stone. Plaintiff contends, first, that Dan Bitting admitted to initiating his investigation into her sales call records upon learning she was sick.[2] According to Mr. Bitting's testimony, however, what concerned him was not her illness, but her attempt to conceal it from him when it caused her to miss a scheduled work luncheon. (Bitting Decl. ¶ 7; Bitting Dep. at 14.) Plaintiff has produced no evidence to contradict this statement, and no rational trier of fact could infer from it a retaliatory motive harbored by Mr. Bitting.

In addition, Plaintiff designates as direct evidence of retaliation handwritten notes by Soni Cassidy in Human Resources which memorialize phone conversations she had with Mr. Bitting regarding Ms. Bryant shortly before her termination. These notes allegedly show that the conversations centered around Plaintiff's state of health and the legitimacy of her FMLA leave. (Pl.'s Exs. 7–8.) First, Ms. Cassidy did not remember the specifics of the conversations and testified that Mr. Bitting was simply providing her with information about Ms. Bryant. (Cassidy Dep. at 22–23.) Second, the notes themselves are fragmentary and it is difficult to extract any clear-cut message from them. Third, they mention that Plaintiff was ill, but in the context of her request not to tell her manager. They also refer to Mr. Bitting's observation that Plaintiff has the “highest call activity in the district except when [mananger] does a work w[ith],” corroborating his deposition testimony and declaration. Fourth, the notes state that Ms. Bryant went on disability twice, the “1st time—legitimately,” underneath which is written “2nd time—“ with a blank space. Plaintiff cannot bootstrap her way into court on the basis of that blank space. More generally, Plaintiff's two leaves of absence form part of her background information, and therefore their appearance in Mr. Bitting's and Ms. Cassidy's conversation is not surprising. There is no indication that either Mr. Bitting or Ms. Cassidy viewed this protected activity negatively or otherwise used it as the basis of the decision to terminate her. Ms. Cassidy's notes are wholly innocuous. Thus, Plaintiff has failed to create an issue of fact as to whether, as a result of her protected activity, “[s]he suffered the adverse employment action of which [s]he complains.” Stone, 281 F.3d at 644.

*8 Plaintiff's circumstantial case for retaliation is equally unfounded. Stone cites as the second route to summary judgment the McDonnell Douglas burden-shifting approach. Stone, 281 F .3d at 644. Under this approach, a prima facie case of retaliatory discharge requires the plaintiff establish: (1) she engaged in protected activity; (2) she suffered an adverse employment action; and (3) “there is a causal connection between the employee's protected activity and the employer's adverse employment action.” King, 166 F.3d at 892 (citations omitted); Lewis v. Holsum of Fort Wayne, Inc., 278 F.3d 706, 710 (7th Cir.2002). Defendant does not dispute that Plaintiff has satisfied the first two parts of the test. However, Aventis maintains that the time lapse between Plaintiff's leave of absence (ending in mid-October 2000) and her termination (mid-February 2001) is too long to support an inference of causal connection. See Lewis, 278 F.3d at 711 (three month period, without more, too long to support inference of retaliation); accord Sauzek v. Exxon Coal USA, Inc., 202 F.3d 913, 918–919 (7th Cir.2000). Plaintiff counters that she has additional evidence of retaliatory motivation establishing the link between her FMLA leave and dismissal. The court finds that argument on this part of Plaintiff's prima facie case blends into the issue of pretext, and therefore, for the sake of clarity, will assume the Plaintiff has made her prima facie case and proceed directly to discuss pretext. At this stage, the burden is on Ms. Bryant to demonstrate that Aventis' stated reason for her discharge—her falsification of records—is merely a cover for retaliation. Lewis, 278 F.3d at 711.

Plaintiff claims that Mr. Bitting “reacted negatively” each time she returned from medical leave. As proof, she cites a conversation she had with Mr. Bitting, shortly after her return from her first medical leave of absence, in which, as she relates it, Mr. Bitting said to her, “Gosh, you just made it back in time because 90 days is the limit, 92 to 94 is where I had calculated.” (Bryant Dep. at 29.) In fact, Ms. Bryant admitted the possibility that Mr. Bitting could have made that comment just to remind her of the medical leave policy (Id.) In any event, the court is hard-pressed to see any connection between this stray remark and Ms. Bryant's eventual termination over ten months later. Plaintiff's second piece of evidence purporting to show a retaliatory motive on the part of Mr. Bitting is equally insubstantial. Ms. Bryant points to an alleged punishment in the form of a negative review she received from Mr. Bitting upon returning from her second leave of absence. The actual evaluation does not support that claim. It lists a number of things Ms. Bryant has been doing well and a number of areas in which she needs improvement. (Pl's Ex 11.) An employee evaluation letter which highlights certain areas for improvement is hardly a punishment. Cf. Hilt–Dyson v. City of Chicago, 282 F.3d 456, 466 (7th Cir.2002) (“[O]n numerous occasions, we have stated that negative evaluations, standing alone, do not constitute adverse employment actions.”) In sum, Plaintiff has failed to produce any credible evidence which would impugn, directly or indirectly, Aventis' proffered explanation for her dismissal.

*9 Finally, Ms. Bryant also raises, under Indiana law, a Frampton claim of retaliation for having filed for worker's compensation. See Frampton v. Cent. Ind. Gas Co., 260 Ind. 249 (1973) (creating a cause of action for persons retaliated against for making worker's compensation claims.) To prevail on a Frampton claim, a plaintiff must show that the employer's stated basis for the termination is “patently inconsistent with the evidence before the court.” Goetzke v. Ferro Corp., 280 F.3d 766, 774 (7th Cir.2002) (quoting Markley Enter., Inc. v. Grover, 716 N.E.2d 559, 565 (Ind.Ct.App.1999). The proof submitted by Plaintiff on this claim is identical to that relied upon for her other two counts, and is insufficient to defeat Defendant's motion for summary judgment for the same reasons.

In conclusion, Defendant's motion for summary judgment is GRANTED.

This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.

To the extent Plaintiff tries to establish a retaliatory motive on the part of Mr. Bitting, that position is at odds with Plaintiff's attempt elsewhere to relieve Mr. Bitting of responsibility for her discharge and pin it on Aventis corporate management. (See supra at 6.) Nonetheless, the court will consider Ms. Bryant's submission of evidence on the issue of Mr. Bitting's intent to retaliate.