United States District Court, D. Massachusetts
PATRICK F. DOWNING, Plaintiff,
OMNICARE, INC., JEFFREY STAMPS, JOHN WORKMAN, NITIN SAHNEY, JOHN FIGUEROA, and PRISCILLA STEWART-JONES, Defendants.
MEMORANDUM AND ORDER
Patrick F. Downing was employed by Defendant Omnicare, Inc.,
a pharmacy services company, from 2004 until his termination
in 2012. Plaintiff alleges that, in terminating his
employment, Omnicare and Defendants Jeffrey Stamps, John
Workman, Nitin Sahney, John Figueroa, and Priscilla
Stewart-Jones, retaliated against him in violation of
Massachusetts General Laws Chapter 151B (Counts I and II).
Plaintiff asserts additional claims, including tortious
interference with his advantageous or contractual
relationship with Omnicare (Count III), breach of contract
(Count IV), breach of the covenant of good faith and fair
dealing (Count V), and violation of Chapter 93A (Count VI).
Omnicare, Stamps, Workman, Sahney, and Figueroa have moved
for summary judgment on all claims. After a hearing and
consideration of the parties' supplemental briefing,
Defendants' Motion for Summary Judgment (Docket No. 46)
is ALLOWED IN PART and
DENIED IN PART.
facts below are interpreted in the light most favorable to
the non-moving party. Many are undisputed.
purchased Plaintiff's family-run pharmacy business in
2004. As part of the Settlement and Release Agreement
(“the Agreement”), Omnicare granted shares of
restricted common stock to Plaintiff on April 1, 2008. The
Agreement specified that the stock would be distributed in
ten equal installments that would vest on the first ten
anniversaries of the grant date. The annual vesting of the
stock was “subject to and conditioned upon the
continued employment of Patrick F. Downing by Omnicare as of
each vesting anniversary date.” Settlement and Release
Agreement, Docket No. 56-44, ¶ 4. The simultaneous
execution of an employment contract between Plaintiff and
Omnicare was an additional condition of the Agreement.
became an Omnicare employee in 2005. From 2005 to his
termination, Plaintiff held multiple high-level positions
within Omnicare's Long Term Care Division
(“LTC”). Stamps, who was President of the LTC
Division, promoted Plaintiff to his final position, Division
President of the Northeast Division of LTC, in late 2010 or
early 2011. Throughout his entire term of employment with
Omnicare, from 2005 to 2012, Plaintiff reported to Stamps.
in turn, reported to Figueroa, who was Omnicare's Chief
Executive Officer (“CEO”) from January 2011 to
June 2012. Workman served as president and Chief Financial
Officer (“CFO”) from 2011 until June 2012, when
he was appointed interim CEO. During that same time period,
Sahney was the head of the “specialty pharmacy”
division, and Stewart-Jones was Omnicare's top human
Belief about Stamps-Burton Relationship
his employment, Plaintiff believed that Stamps and Karen
Burton, a member of Omnicare's clinical team, were
involved in an “inappropriate” relationship.
Downing Dep. at 82:13-83:9. He noticed that Stamps and Burton
engaged in “flirting” and touched arms while
speaking at work events. Downing Dep. at 85:23-87:7. Burton
personally informed Plaintiff that she was getting a bikini
wax in advance of a conference that Stamps also would be
attending. Burton mentioned that she drove Stamps around
Boston when he was in the city for work. Plaintiff became
aware that Burton and Stamps were speaking “on an
almost daily basis.” Downing Dep. at 83:8-9.
Stamps' assistant, Erla Burnside, told Plaintiff that
Burton “had strong influence over” Stamps.
Downing Dep. at 84:24-85:4. In addition, Plaintiff believed
that Burton had no business reason for attending events at
which Stamps also was present. Plaintiff also heard that
Stamps and Burton attended an event without their spouses,
when significant others were welcome. Mindy Ferris, the
former Senior Vice President of Operations for LTC, told
Plaintiff that she believed Burton and Stamps engaged in
sexual activity in a hotel room while at a conference in
Amelia Island, Florida.
dispute the existence of any inappropriate relationship,
explaining that Stamps and Burton were good friends and that
Stamps was supportive of Burton during difficult times in her
life. They also maintain that Burton worked on customer
accounts and had oversight responsibilities in New York City,
which explained her attendance at galas and events in the
2005 to 2007, Burton reported to Plaintiff. In late 2006,
Plaintiff recommended that Burton be terminated based on her
performance. After this recommendation, Stamps restructured
the clinical departments, and Burton no longer reported
directly to Plaintiff. According to Plaintiff, when he
recommended Burton's termination, Stamps responded,
“[i]f you terminate her, I'll save her.”
Downing Dep. at 98:5-14.
2011, two regional vice president (“RVP”)
positions opened up in the Northeast Division, one in New
York and one in New Jersey/Pennsylvania. Two women and five
men applied for the New York position, and on February 24,
2011, Plaintiff hired Paul Jacques for the position.
Plaintiff claims that he “sensed [Stamps']
disappointment” when the two finalists, Jacques and
Michael Rosenblum, were announced. Downing Dep. at
22:21-23:21. Two women and one man were considered for the
New Jersey/Pennsylvania position, and in September 2011,
Plaintiff hired Dale Lewis for the position.
was one of the women who applied for these positions, but she
was not hired for either one. Burton was not qualified for
the RVP positions, in Plaintiff's opinion. Stamps did not
directly lobby for Burton's promotion to an RVP position.
However, according to Plaintiff, he called Stamps after he
denied Burton the RVP position; while Stamps said he
understood, Plaintiff contends that Stamps acted “more
coolly” toward him thereafter. Downing Aff., Docket No.
56-43, ¶ 8. Figueroa, the CEO in 2011, told Plaintiff
that Stamps had made several negative statements about
Plaintiff after Burton was not promoted.
the New Jersey/Pennsylvania RVP hiring period, a new
interview process was established to insulate Plaintiff and
others involved from retaliation by Stamps in case Burton was
not promoted. Throughout this process, Stamps criticized the
candidates Plaintiff brought forward and indirectly advocated
for Burton's promotion to the New Jersey/Pennsylvania RVP
position by stressing the importance of “qualities that
were strengths of hers, ” including customer relations.
Downing Dep. at 61:10-21, 63:4-65:21. While Stamps did not
advocate for Burton by name, Plaintiff interpreted
Stamps' comments as his pushing for Burton to be promoted
instead of a more qualified male applicant. Operations
experience -- a qualification which both sides agree that
Burton was lacking -- was a priority for the New
Jersey/Pennsylvania RVP job.
the RVP positions were filled, Plaintiff felt that Stamps was
upset that he had not promoted Burton. Stamps made comments
about the competency of Jacques, Lewis, and Steve Rappa --
three male RVPs -- that Plaintiff interpreted as pressure to
terminate them from their jobs.
Performance and Reviews
quality of Plaintiff's performance is hotly contested.
Prior to 2012, Plaintiff had always received performance
evaluations of “exceeds requirements” and
“outstanding, ” raises, and incentive
compensation including cash bonuses and stock awards,
commensurate with those reviews. He met operational goals for
his division's budget in 2011, including bed retention.
Plaintiff's bed loss and retention percentages for 2011
were within one percent of all but one other LTC division.
present a very different account of Plaintiff's
performance. Figueroa became concerned with Plaintiff's
performance beginning in the summer of 2011. By the end of
2011 or early 2012, Figueroa told Stamps that if he did not
take action against Plaintiff, Stamps would be held directly
accountable for Plaintiff's poor results.
Omnicare's point of view, for calendar year 2011
Plaintiff's Northeast Division was the worst-performing
LTC division for bed loss, an important marker of
performance. In December 2011, Plaintiff received official
notice that a correctional facility with 11, 898 beds was not
renewing its bed contract with Omnicare effective February
15, 2012. Downing did not advise Figueroa, Stamps, or Workman
about this setback for nearly two months. Overall,
Plaintiff's 2012 bed loss through February 2012 totaled
17, 347 beds. The next lowest-performing region in the bed
loss category lost only 2, 373 beds.
time as Omnicare's CEO, Figueroa introduced an executive
talent review process to the company in which the senior
management team, including Workman, Stamps, and
Stewart-Jones, rated the executives reporting to them. In
January 2012, Stamps evaluated Plaintiff in the
“medium” performance level, indicating that he
was a “[s]olid performer.” As part of the 2012
Talent Review Summary dated April 16, 2012, Figueroa and the
rest of the senior team downgraded Stamps' rating of
Plaintiff to “attention needed, ” reflecting that
Plaintiff's performance was “inconsistent”
and “inadequate.” Stamps contends that, in
addition to retention concerns, Plaintiff had “two
significant compliance issues” in 2011. Stamps Decl.,
Docket No. 46-11, ¶ 9. First, Plaintiff backdated a
customer contract. The compliance department recognized the
issue and timely corrected it. Defendants do not provide any
detail concerning the second compliance issue. Furthermore,
Plaintiff maintains that Stamps never discussed either of
these compliance issues with Plaintiff.
gave Stamps his 2011 performance review on or about February
22, 2012 and scored him an average rating of “3”
on a five-point scale, which meant that he
“[c]onsistently met expectations.” In early March
2012, Plaintiff met with Stamps to receive his 2011
performance review. Plaintiff's overall performance
rating was the same as the one Stamps had received from
Figueroa: “3, Consistently Met Expectations.”
Figueroa suggested that Plaintiff receive a “2”
rating, but Stamps gave Plaintiff a “2.85” rating
which rounded up to a “3.” In their meeting,
Stamps told Plaintiff that he would be receiving nearly one
hundred percent of his projected cash bonus and one hundred
percent of his projected incentive stock awards, but no pay
raise. Figueroa told Stamps not to give a raise to the
lowest-performing division president, and Defendants say that
this was the reason Plaintiff did ...