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Escalera v. Bard Medical

United States District Court, W.D. Kentucky, Owensboro Division

March 14, 2019



          Joseph H. McKinley, Jr., District Judge.

         This matter is before the Court on a motion by Defendant, Bard Medical, A Division of C.R. Bard, Inc. (“Bard Medical”), for summary judgment pursuant to Fed.R.Civ.P. 56. [DN 57]. Defendant also requests an oral argument on this matter. Fully briefed, this matter is ripe for decision.


         Before the Court may grant a motion for summary judgment, it must find that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ .P. 56(a). The moving party bears the initial burden of specifying the basis for its motion and identifying that portion of the record that demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies this burden, the non-moving party thereafter must produce specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

         Although the Court must review the evidence in the light most favorable to the non-moving party, the non-moving party must do more than merely show that there is some “metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the Federal Rules of Civil Procedure require the non-moving party to present specific facts showing that a genuine factual issue exists by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence . . . of a genuine dispute[.]” Fed.R.Civ.P. 56(c)(1). “The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252. It is against this standard the Court reviews the following facts.


         Plaintiff, Richard Escalera (“Escalera”), filed a race and national origin discrimination action pursuant to Title VII of the Civil Rights Act of 1964 and the Kentucky Civil Rights Act against Bard Medical. Escalera was employed by Bard Medical from December 1, 2008 until November 2, 2015. Escalera is Hispanic, of Mexican descent, and dark-skinned. Bard Medical terminated Escalera on November 2, 2015, for alleged poor sales performance after issuance of a performance improvement plan (“PIP”). At the time of his termination, Escalera was employed as a Senior Specialist in the Interventional Urology Division (“IVU”) and was the only member of the team who was not white.

         Escalera began working for Bard Medical's Statlock Division in December 2008 as a territory manager. In January 2010, he was awarded “Rookie of the Year” for his 2009 performance. In 2010, Escalera was identified as a candidate for promotion to field sales trainer and finished 13th out of 49 territory managers in his division. His 2010 performance evaluation reflected that he exhibited a “strong desire to succeed and can be relied upon to get the job done no matter the situation.” (DN 62, Exhibit 10.) In 2011, Escalera finished 10th in sales out of 49 territory managers. His 2011 performance review indicated that he had been “successful in bringing new life in a territory that had not seen this activity in many years.” (Smith Dep. Ex. 24.) In both his 2010 and 2011 performance evaluations, his manager rated him “Meets/Exceeds” expectations.

         In December 2011, Bard Medical sold the Statlock Division, and Escalera accepted a job with the Interventional Urology Division (“IVU”) of Bard Medical which required him to work a new territory and sell completely different products in 2012. The record reflects that Escalera's new territory had been vacant for six months and had “hemorrhaged” market share. (Smith Dep. Ex. 25; DN 63-6 at 14-15.) At the end of 2012, Brad Smith became Escalera's district manager. In the 2012 sales year, Escalera was ranked 24 out of 25 territory managers in his division and rated himself overall “Needs Improvement” on his 2012 Self-Assessment. While Escalera received an overall “Meets/Exceeds Expectations” in his performance evaluation, Smith identified several areas that “needs improvement” including the categories of Results Orientation, Innovation, Internal Collaboration, Perseverance, and Persuasiveness and Sales Ability. Additionally, Smith provided feedback regarding Escalera's performance noting that his “results in 2012 came up short” and the “strategy executed during that time frame did not yield results and this will have to change.” (Escalera Dep. Ex. 27.)

         Escalera testified that during his first meeting with Smith in 2013, Smith was combative with Escalera and attempted to convince Escalera to quit his position. In March of 2013, Smith sent a field visit letter to Escalera, copying Escalera's supervisors, reporting on Smith's visit with him and allegedly including inaccurate information that placed Escalera in a bad light. (Escalera Dep. Ex. 22.) Additionally, Escalera testified that while at a district sales meeting in Houston, Texas, Escalera asked Smith whether Smith lived in Houston. Smith responded that he did not because it was being taken over by Mexicans.

         In October 2013, Smith prepared a personal review of his territory managers. Escalera maintains that despite having better No. than a white territory manager Austin Ewing, who was rated by Smith as having “upside potential, ” and despite Escalera being ranked seventh overall in sales at that time, Smith rated Escalera as having “very limited potential upside.” (DN 63-14 and DN 63-15, Escalera Dep. Exs. 15 and 16.) At the end of 2013, Escalera ranked fifth out of a total of 26 sales representatives and first in his district. In his performance review, Smith stated that Escalera had a “tremendous year in 2013, exceeding quota in stents and EndoBeam.” Smith further stated that he did not “know if there is a person in the region that worked as hard as Richard did in 2013” and classified his overall performance rating as “Meet/Exceeds Expectations.” (DN 59, Escalera Dep. Exhibit 28.)

         In 2014, Escalera finished the year $112, 804 below quota in stone disease and $70, 100 below quota in the emphasis categories. (Escalera Dep. Ex. 29.) He ranked 11th out of a total of 23 sales representatives. Escalera's 2014 performance review assessed him overall “Meets/Exceeds Expectations” and stated that Escalera “works well with all members of the team.” (Escalera Dep. Ex. 29). However, the performance review indicated that he needed improvement in two of his three “Annual Individual Goals” of Quota Performance and Territory Growth, as well as Innovation, Technical/Professional Competence, and Problem Solving. Smith provided the following feedback:

Coming off of a Top Performance in 2013, Richard will be the first to tell you he is not happy with his results in 2014. Significant drops in stent/balloon business from his top 3 accounts hindered him from the start in 2015 [sic]. Richard was also set back with two stent losses but he refused to throw in the towel. Richard was able to maintain his laser fiber No. coming within $7500 from quota in spite of the massive loss of business from the Lifeline Medical situation. Richard was able to put together several wins in the last half of the year which will propel him forward in 2015.
Richard's sales funnel has the tendency to run thin at times. I believe this is the byproduct of the laser focus he puts on accounts to push them through to closure. The issue this causes is problems with his cadence as he has gone months between conversions. Richard is talented enough now to run multiple initiatives in different phases of the sales cycle and push them all forward so when one closes the next is in queue to close. I would like to see him close an account every 30 days as I believe he has the talent and market to allow this to happen.

(Id.) In the performance review, Smith also noted that “[d]emonstrating [his ability to navigate through and drive complicated sales processes] and delivering quota will be keys to Richard returning to the stage in 2015. I have full confidence in him and his ability to accomplish both of these.” (Id.) In explaining his 2014 performance, Escalera represents that while he was 107% to quota in sales in the first quarter of the year, he began to lose significant business from his largest customer, Maury Regional Medical Center, as a result of issues it was having with Bard Medical's laser fibers.

         Between October 2014 and January of 2015, Bard Medical released two new wires, the Solo Plus and Solo Flex, and a new basket, the Skylite basket, onto the market. However, due to production and design issues, the Solo Plus and Solo Flex wires were temporarily placed on a production hold in April 2015 and were not available to the territory managers to use or sale to their customers. At that time, Bard Medical made the decision to permit clients that were previously using the Skylite basket without incident prior to the production hold to continue to use and purchase the basket during the production hold. However, clients that were not existing users of the Skylite basket before the production hold or had had issues with the product were not permitted to use or purchase the Skylite basket during the production hold and were required to wait until a new model of the basket came out.

         At the end of May 2015, Escalera was $124, 446 below base in Core IVU and ranked 22nd out of 23 territory managers _ ahead of a single territory manager who had been with the company for less than two months. (Escalera Dep. Ex. 35.) Escalera was also the subject of a customer complaint in March 2015 for improperly placing a Bard Medical product on a King's Daughters' Hospital operating room shelf in violation of the customer's acquisition procedures which resulted in the ban of Escalera from that operating room for six months.

         In explaining his 2015 performance, Escalera contends that his sales performance was impacted significantly because Maury Regional Medical Center, Escalera's largest customer, decided to evaluate products produced by Bard Medical's competitor, Boston Scientific. Records reflect that the trial and the related loss of business was driven by either price or a supply chain agreement between Boston Scientific and Maury. (Smith Dep. Ex. 64, 68.) Escalera suggests that nothing in the record reflects that the loss of business was Escalera's fault. In early 2015, Escalera ranked seventh in the sale of one of Bard Medical's new products, the Skylite baskets. However, because of the product issues, two evaluations with Pikeville Medical Center and Owensboro Health did not occur in March of 2015 as planned. Instead, Pikeville Medical Center evaluated the products in July of 2015 and Owensboro Health did not evaluate the products at all. Additionally, Escalera represents that he lost significant business from Lifeline due to the failure of Bard Medical corporate and Lifeline to reach an agreement.

         On May 21, 2015, Smith's boss, Sandy Thompson, the Director of Sales for the entire IVU Division, emailed Smith about Escalera noting that his No. were significantly below quota for the quarter. Within three weeks of receiving Thompson's email, Smith drafted a performance improvement plan (“PIP”) for review by Bard Medical's human resource department. On June 30, 2015, Bard Medical placed Escalera on the PIP. The PIP showed Escalera below base through the end of May 2015 by approximately $79, 000. (Escalera Dep. at Exs. 10, 15.) Escalera contends ...

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