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Roussin v. Covidien LP

United States District Court, D. Massachusetts

February 1, 2016

COVIDIEN LP, Defendant.


F. DENNIS SAYLOR, IV, District Judge.

This is an action alleging unlawful employment discrimination on the basis of age. Plaintiff Leonard Roussin was employed as a director in the federal tax compliance group at defendant Covidien LP in Mansfield, Massachusetts. He alleges that he was unlawfully terminated from his position because of his age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 623(a)(1) ("ADEA"), and Mass. Gen. Laws ch. 151B § 4. Covidien has moved for summary judgment in its favor. For the reasons described below, the motion will be granted.

I. Factual Background

The following facts are undisputed unless otherwise noted.

A. Roussin's Hiring and Job Duties

Covidien is a large manufacturer of medical devices and supplies. Leonard Roussin is a certified public accountant.

Roussin was hired by Covidien as Director, Federal Tax Compliance in November 2007. (Pl.'s SOF ¶ 4). Stephen Carey, Vice President of Tax, and Sean Healy, Director of U.S. International Tax Compliance, interviewed Roussin for the position and supported his hiring. ( Id. ¶¶ 2, 3). At the time Roussin was hired, he was 57 years old; Carey was 51; and Healy was 42. ( Id. ¶ 5).

Roussin's duties included reviewing and preparing federal tax returns, working on quarterly estimated payments, preparing federal tax return extensions, reviewing pre-acquisition tax returns, coordinating work on the research and development tax credit and the Section 199 tax deduction, and providing the Tax Accounting group with tax differences on a quarterly basis. (Roussin Dep. at 27-28, 37).[1] Roussin was responsible for ensuring that all requirements of such projects were satisfied and for reviewing the work of senior managers and managers on tax returns, estimates, and tax extensions. ( Id. at 55). Once Roussin reviewed the work, the work product went to Healy for a second review. ( Id. ).

One of Roussin's duties was to help ensure the accurate preparation and filing of all federal income tax returns, estimates, and extensions. (Healy Aff. ¶ 7). The Federal Tax Compliance group was required to meet various internal deadlines to ensure that tax documents were ultimately accurately and timely filed with the tax authorities. ( Id. ).

Roussin's first supervisor at Covidien was Greg Schmeichel, who held the position of Senior Director, Federal Tax Compliance. ( Id. ¶ 4). Schmeichel reported directly to Carey. ( Id. ). Other members of the Federal Tax Compliance group included Senior Managers Nancy Medeiros and Debbie McNamara and Manager Ericke Schulze. ( Id. ¶ 16). As a director, Roussin was considered senior to all three. ( Id. ).

From November 2007 until October 2010, Schmeichel served as Roussin's immediate supervisor. He completed annual assessments of Roussin's performance in which he rated Roussin as "Meets Expectations" and "At Covidien Standards." Schmeichel's assessments also contained comments that were generally positive as to Roussin's performance. For example, Schmeichel noted in Roussin's fiscal year 2009 assessment that Roussin possessed "[a] good understanding of deadlines and delivers on time." (Trombetta Aff. Ex. I, at 5). For fiscal year 2010, Schmeichel reported that Roussin "continues to be an excellent contributor to the compliance group... [and] continues to timely calculate and process all quarterly estimates and tax returns." (Trombetta Aff. Ex. J, at 6).[2]

B. Healy's Direct Supervision of Roussin

In October 2010, Healy replaced Schmeichel and became Roussin's new direct supervisor. (Healy Aff. ¶ 5). Roussin reported to Healy until he was terminated in November 2012. ( Id. ).

The Federal Tax Compliance group assumed more responsibilities at the time Healy became Senior Director. (Healy Dep. at 51; Roussin Dep. at 50). One of Carey's concerns was that Deloitte, which provided tax consulting services to Covidien, was too involved in the compliance process and that Covidien should manage or "own" the process. (Carey Dep. at 64). During the first year that Healy was the Senior Director, the Federal Tax Compliance group assumed more compliance responsibilities, including some from Deloitte. (Healy Dep. at 51; Roussin Dep. at 50). In July 2011, Covidien implemented cost-cutting measures. (Roussin Dep. at 48). As a result, the Federal Tax Compliance group had to rely even less on outside consultants and take on more responsibilities. ( Id. ).

C. The Research and Development Survey E-Mails

One of Roussin's responsibilities was coordinating the collection of information necessary to calculating Covidien's tax credits for research and development. (Roussin Dep. at 30-35). Part of Roussin's role was to coordinate between Deloitte, the accounting firm that actually performed the tax-credit calculations, and Covidien's payroll department, which provided Deloitte with the payroll data on which the calculations were partly based. ( Id. at 30-35).

On February 2, 2011, Deloitte consultant Kristin Sieminski e-mailed a number of Covidien employees with a request for information relevant to the R&D credit. (Rigby Aff. Ex. I) The e-mail began with a bolded sentence stating, "The below email is sent on behalf of Len Roussin, Director of Federal Compliance at Covidien." ( Id. ). Although the e-mail concluded with "Best regards, Len, " it was sent by Sieminski with a "cc" to Roussin. ( Id. ).

On February 14, Sieminski e-mailed a similar survey request to Mike Sgrignari, Covidien's Senior Vice-President of Global Operations, without including Roussin on the "cc" line. (Rigby Aff. Ex. J, at 3).[3] Sgrignari e-mailed Roussin to confirm that the survey was necessary, stating that "I am not in the habit of taking direction from consultants." ( Id. at 1). When Roussin confirmed that the survey was legitimate, Sgrignari replied that "[w]hoever is responsible [for the survey] within Covidien Tax should email the recipients, or at [a] minimum, Deloitte should be copying [the] internal Covidien Tax sponsor." ( Id. at 1). Eventually, Healy felt the need to "apologize" to Sgrignari for the "miscommunication" concerning the survey. (Rigby Aff. Ex. K, at 1).

For fiscal year 2011, the first full year for which Healy supervised Roussin, Healy rated Roussin as "At Covidien Standards." (Rigby Aff. Ex. L, at 9). Healy described Roussin as "a key member [who] can always be counted on to provide his deliverables in a timely fashion." ( Id. at 6). The assessment did not contain any reference to the Sieminski e-mails in February 2011.

In October 2011, as part of a Section 199 tax project, Roussin was again responsible for sending out an information request to various Covidien employees. Although Roussin sent the request by e-mail from his own account, it was signed by a Deloitte consultant. (Rigby Aff. Ex. M, at 3). Roussin later acknowledged that the e-mail was improper and that he had simply forwarded it on from the consultant. (Roussin Dep. at 126-27). When the e-mails came to Healy's attention, he instructed Roussin to put the project on hold until he and Roussin could discuss it. (Rigby Aff. Ex. M).

D. Roussin's Review of Subordinates' Work

In 2012, some of the junior members of the tax compliance group reported to Healy that they had concerns about Roussin's review of their work. For example, Debbie McNamara directly expressed to Healy her opinion that Roussin was not performing an adequate review of her work related to certain pre-acquisition tax returns. (McNamara Dep. at 32). Ericke Schulze also reported to Healy that she did not feel as if she could go to Roussin with questions because his answers were sometimes incorrect or in conflict with what Healy would want done. (Schulze Dep. at 38-39).

E. The R&D Credit Issue

At some point in early January 2012, Deloitte gave Roussin an estimated calculation for the fiscal year 2011 R&D tax credit. Roussin noticed that it was significantly lower than the tax credit amount from previous years. ( Id. at 96). After some investigation, Roussin and Deloitte discovered that payroll information for approximately 100 employees, which was necessary to calculate the credit, had not been included in Deloitte's calculations. ( Id. at 97). The information, however, was deemed "confidential, " meaning that Roussin himself was not able to access it. ( Id. at 96). Roussin coordinated with Covidien's payroll department to provide the data to Deloitte. ( Id. 97-104). The delay ultimately required the involvement of Healy and McNamara in the project, which was not completed in April 2012, well past the March 2012 deadline. ( Id. 98-99, 112).

F. The Airox Extension

Roussin was given the task of preparing a request for an extension for federal tax filing for Airox, a Covidien subsidiary, which was to be filed on March 15, 2012. (Roussin Dep. at 70). On March 16, Healy e-mailed Roussin to ask whether he had filed the extension request. ( Id. at 71-72). Roussin tersely responded in an e-mail, "No, we didn't." ( Id. at 72). Healy considered that to be an inadequate response and went to Roussin's office, where the two had a "heated discussion." ( Id. at 74).

G. Healy's Question to Roussin

Roussin contends that at some point in 2012, Healy asked him, "How long do you intend to work?" ( Id. at 148). Roussin replied that he intended to work five more years. ( Id. at 149). Roussin testified that he could not remember the date of the conversation; he testified at his deposition that he "want[ed] to say sometime in... early 2012, " but "maybe it was later than that." ( Id. at 148).[4]

Roussin also testified that he did not remember the context in which the question was asked. ( Id. at 149). He does not recall if Healy said anything in response when he said he wanted to work for five more years. ( Id. ). Healy never raised the topic on any other occasion. ( Id. ).[5]

H. Fiscal Year 2012 Mid-Year Performance Evaluation

Beginning in fiscal year 2012, Covidien added a mid-year performance evaluation to its existing performance-assessment process. Healy completed Roussin's mid-year evaluation on April 19, 2012. He wrote:

As a Director [Roussin] needs to lead by example. Len needs to be willing to work on projects/issues that are outside of his comfort zone and be willing to direct others in the effort. He needs to be a resource of help and information for Senior Managers... and for other members of the Tax Department.

(LeFleur Aff. ¶ 8; Healy Aff. ¶ 12, Ex. D). Healy also told Roussin that his behavior and response concerning the tax-deadline extension was unacceptable and unprofessional, and that he expected better from a director-level employee. (Healy Aff. ¶ 12).

Around the same time, Healy and Carey began discussing Healy's dissatisfaction with Roussin's performance. Both men expressed concern that Roussin was not showing the leadership or mentoring skills desired of a director. (Healy Dep. at 162-67).

I. The United States Surgical Corporation Return

Roussin was also responsible for preparing the fiscal year 2011 tax return for United States Surgical Corporation, a Covidien subsidiary. (Roussin Aff. ¶ 94). Roussin completed most of the return, which was finished by Deloitte while Roussin dealt with an illness. ( Id. ). In May 2012, Healy reviewed the tax forms and Roussin's work papers covering the return and found a total of 69 "review points." ( Id. ¶ 93).[6]

J. The Missed $100 Million Adjustment

In late May 2012, Roussin prepared a third-quarter tax estimate for Tyco Healthcare Group LP, another Covidien subsidiary. (Roussin Dep. at 131-32). He failed to include a cost-sharing adjustment that resulted in the calculation being off by more than $100 million. He did so despite being made aware of the adjustment in advance by Healy. ( Id. at 132-33). According to Roussin, such mistakes were not uncommon; Healy and Medeiros had both previously made a similar error by missing ...

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