United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY, UNITED STATES DISTRICT JUDGE.
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.
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)
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.
Enterprises, LLC ("Mallinckrodt") is a specialty
pharmaceutical company that develops, manufactures, markets,
and distributes specialty pharmaceutical products.
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
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.
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.
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.
January 2013, Einwalter also hired Matt Mainer as Assistant
Treasurer, who would be Agard's direct supervisor.
2013, Mallinckrodt spun off from Covidien into a standalone
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.
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.
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.
time, Mallinckrodt did not hire anyone to fill the
Director of Risk Management position.
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.
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.
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:
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."
the performance goal of driving automation of the payment
process in LATAM, significantly ...