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Agard v. Mallinckrodt Enterprises, LLC

United States District Court, E.D. Missouri, Eastern Division

January 19, 2018

LAMAR AGARD, Plaintiff,



         This matter is before the Court on Defendant's Motion for Summary Judgment, [Doc. No. 42]. Plaintiff opposes the motion and has filed a written response thereto, to which Defendant has filed a reply. For the reasons set forth below, the Motion will be granted.

         Facts and Background

         Defendant has, in accordance with the Court's Local Rules, submitted a Statement of Uncontroverted Material Facts. Although Plaintiff has filed a response to Defendant's Statement, he fails to support his denials with any specific references to admissible evidence in the record. Pursuant to Rule 56 of the Federal Rules of Civil Procedure and Rule 7-401(E) of this Court's Local Rules, Defendant's facts are therefore deemed admitted. Local Rule 7-401(E) provides:

         Rule 7-4.01 Motions and Memoranda.

(E) A memorandum in support of a motion for summary judgment shall have attached a statement of uncontroverted material facts, set forth in a separately numbered paragraph for each fact, indicating whether each fact is established by the record, and, if so, the appropriate citations. Every memorandum in opposition shall include a statement of material facts as to which the party contends a genuine issue exists. Those matters in dispute shall be set forth with specific references to portions of the record, where available, upon which the opposing party relies. The opposing party also shall note for all disputed facts the paragraph number from movant's listing of facts. All matters set forth in the statement of the movant shall be deemed admitted for purposes of summary judgment unless specifically controverted by the opposing party.

         Facts and Background

         Mallinckrodt Enterprises, LLC ("Mallinckrodt") is a specialty pharmaceutical company that develops, manufactures, markets, and distributes specialty pharmaceutical products.

         Plaintiff Lamar Agard ("Agard") is an African American male who was hired by Mallinckrodt's predecessor, Covidien, on January 14, 2013, as a Senior Treasury Manager, Cash Management in the Finance Department. As a senior treasury manager, Agard was responsible for cash management operations for the United States and Latin America, including monitoring global liquidity, authorizing payments and disbursements, ensuring payments were received, ensuring bank accounts had the correct signatories, and performing other treasury-related functions.

         At the time, Covidien was preparing to spin off Mallinckrodt into a standalone company and, in preparation, needed to substantially staff up its Finance- Treasury function. The intention was that Agard would continue in the Senior Treasury Manager-Cash Management role after Mallinckrodt spun off from Covidien, which he did.

         Agard had initially applied, but was not selected, for the Director of Risk Management position; he was instead offered and accepted the Senior Treasury Manager - Cash Management position. Einwalter offered Agard a Senior Treasury Manager position, despite the fact that Agard had not applied for such position. Although Agard did not have the ideal cash management background for the job, Einwalter recognized Agard had some prior treasury experience and was immediately available to join the Finance team.

         In January 2013, Einwalter made the decision to hire Wescott as the Director of Risk Management. Agard did not know who besides himself and Wescott had applied for the Director of Risk Management position. Wescott had prior experience in risk management at Sigma Aldrich, a life science and biotechnology company, which gave her a subject matter background that poised her well for Mallinckrodt's area of business. Wescott was a well-respected professional in the St. Louis area in terms of risk management. Wescott had prior experience working for Covidien, which gave her unique insight into the Company's particular insurance risks. Agard had no prior experience working for Covidien.

         In January 2013, Einwalter also hired Matt Mainer as Assistant Treasurer, who would be Agard's direct supervisor.

         In June 2013, Mallinckrodt spun off from Covidien into a standalone company.

         In August 2013, Wescott resigned from the Director of Risk Management position to accept a job opportunity at another company. Wescott's resignation occurred after the successful spinoff of Mallinckrodt, such that key initial risk management functions had already been completed by Wescott. For example, all lines of insurance had been renewed at the time of spinoff and would not have to be renewed again until June 2014. Given the current size of the Company, the slow time of year relative to risk management functions (i.e., insurance renewal), and the capacity of the existing staff to absorb Wescott's remaining duties, Mallinckrodt determined the Finance-Treasury Department did not require a full time Director of Risk Management such that it did not need to immediately fill Wescott's vacated position.

         Mainer and Einwalter had prior experience managing insurance functions at their prior companies (including Einwalter at Belden, a similarly sized company, without having a dedicated Director of Insurance), so the Company believed the function could be supported by existing staff, which it was.

         Knowing Agard had some prior history in risk management and had expressed an interest in the Director position, Einwalter and Mainer did give Agard the opportunity to assume some of the Director duties on an interim basis, to show he could satisfy the requirements of the position in the event the Company later recreated the position. Agard was not given all of the duties of the Director of Risk Management position and many of the duties that remained were assumed by Mainer.

         At the time, Mallinckrodt did not hire anyone to fill the Director of Risk Management position.

         In 2014 and beyond, Agard reported to Mainer who reported to Einwalter. One of the key responsibilities of the Director of Risk Management position was handling the yearly insurance renewal process; Agard was tasked with leading the process for 2014. During the June 2014 insurance renewal process, both Einwalter's and Mainer's experience with Agard was that he was not proactive, failed to timely respond to requests from insurance companies, and failed to effectively communicate with his Finance team members. Einwalter received direct feedback from the Company's primary insurance broker during the insurance renewal process that Agard was "not responsive." Mainer and Einwalter received complaints from inside the Finance Department that Agard was not timely in responding to communications. As a result of these issues, Mainer was forced to step in and guide completion of the insurance renewal process.

         Following Mainer's and Einwalter's concerns with Agard's substandard contribution during the insurance renewal process, they continued to note shortcomings regarding his performance, and reflected the same in completing his fiscal year 2014 Performance Review.

         On October 23, 2014, Agard received his fiscal year 2014 Performance Review with an overall rating of "Partially Achieving" - this was the second lowest possible rating. Agard's Performance Review included, without limitation, the following negative comments:

         Under the performance goal of assuming interim role of Risk Manager until Director of Risk is hired:

- "Rating: Partially Achieving"
- "On a day to day basis Lamar is responsible for claims management, loss control site visits oversight, fielding daily questions and requests including certificates of insurance, premium coordination and allocation and acquisition integration. In several of these areas I have received negative feedback about Lamar's performance including lack of visibility and communication and general lack of expected responsiveness."
- "Overall he has made some good contributions in this area, specifically becoming the primary risk management contact and assisting in a successful renewal process. Where his performance has not met expectations is lack of communication of clear deadlines and accomplishment of those deadlines. In addition there has been negative feedback regarding his responsiveness to requests in this area."

         Under the performance goal of driving automation of the payment process in LATAM, significantly ...

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