Evelyn Essa, Plaintiff v. Genzyme Corporation, Defendant

2020 DNH 179

• Court: District Court, D. New Hampshire
• Decided: October 8, 2020
• Docket: 19-cv-222-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Evelyn Essa, Plaintiff

v. Case No. 19-cv-222-SM Opinion No. 2020 DNH 179

Genzyme Corporation, Defendant

O R D E R

Evelyn Essa brings this action against her former employer,

Genzyme Corporation, alleging that she was the victim of

unlawful age discrimination and wrongfully (constructively)

discharged from her job. Genzyme denies that it discriminated

against Essa in any way or that she was constructively

discharged. It moves for summary judgment on all claims in

Essa’s complaint. Essa objects.

For the reasons discussed, Genzyme’s motion for summary

judgment is granted.

Standard of Review

When ruling on a motion for summary judgment, the court is

“obliged to review the record in the light most favorable to the nonmoving party, and to draw all reasonable inferences in the

nonmoving party’s favor.” Block Island Fishing, Inc. v. Rogers,

844 F.3d 358, 360 (1st Cir. 2016) (citation omitted). Summary

judgment is appropriate when the record reveals “no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). In this

context, a factual dispute “is ‘genuine’ if the evidence of

record permits a rational factfinder to resolve it in favor of

either party, and ‘material’ if its existence or nonexistence

has the potential to change the outcome of the suit.” Rando v.

Leonard, 826 F.3d 553, 556 (1st Cir. 2016) (citation omitted).

“As to issues on which the party opposing summary judgment

would bear the burden of proof at trial, that party may not

simply rely on the absence of evidence but, rather, must point

to definite and competent evidence showing the existence of a

genuine issue of material fact.” Perez v. Lorraine Enters., 769

F.3d 23, 29–30 (1st Cir. 2014). In other words, “a laundry list

of possibilities and hypotheticals” and “[s]peculation about

mere possibilities, without more, is not enough to stave off

summary judgment.” Tobin v. Fed. Express Corp., 775 F.3d 448,

451–52 (1st Cir. 2014). See generally Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986).

2 Factual Background

The facts underlying Essa’s claims are somewhat

complicated. Consequently, they warrant a fairly detailed

recounting. Essa began working for Genzyme in 2013, with twenty

years of experience as a sales representative at other

pharmaceutical companies. Initially, she worked in the Southern

Arizona area, as a full-time Senior Area Business Manager – a

pharmaceutical sales representative position. In late 2014, she

requested a transfer to New Hampshire, which Genzyme approved.

Essa began working in New Hampshire in January of 2015.

She was 64 years old at the time. Her supervisor was Ryan

Emerson, the Regional Business Director responsible for Essa’s

new territory. As part of her job, Essa provided information to

healthcare providers and patients about a Genzyme product called

Aubagio, which is used to treat multiple sclerosis (“MS”). She

was responsible for organizing and attending informational

programs at which MS patients (whom Genzyme calls “Patient

Ambassadors”) shared their personal experiences with other

attendees, and physicians provided information about treatment

options.

During the period of Essa’s employment, Genzyme contracted

with two entities to help sales representatives organize those

3 educational programs: VPR Patient Outreach and American Health

Media. Parenthetically, the court notes that this area is

highly regulated and, while the parties do not discuss it in

detail, it is clear from the record that Genzyme had to be quite

careful about how it advertised and conducted those patient

outreach programs, how (and by whom) treatment information was

provided to attendees, and how (and by whom) information about

those attendees was collected.

After Essa transferred to New Hampshire, she asked her new

supervisor, Emerson, if she could continue to work with a man

named Wayne Twitchell, who runs an organization called MS

Encouragement Organization (“MSEO”). Twitchell and MSEO

organize support groups for MS patients in various states. Essa

had worked with Twitchell and his organization while she was in

Arizona to assist her in sharing information about Genzyme’s

products with MSEO members and MS patients who attended MSEO

support group meetings. Although Emerson was not familiar with

Twitchell or his organization, he agreed to allow Essa to

continue working with them. He did, however, send an email to

Twitchell to make clear the role that he expected Twitchell and

MSEO to play in Genzyme-sponsored patient programs, and to

ensure that neither Twitchell nor MSEO caused any regulatory

compliance issues for Genzyme. To that end, he explained that

4 Genzyme representatives “should have complete ownership of

program logistics” and those programs “can’t appear to be co-

sponsored” by MSEO. Rather, they must be marketed as Genzyme

events, using Genzyme-approved marketing and promotional

materials. Additionally, Emerson informed Twitchell that, as

required by Genzyme’s standard practices, all patient RSVP’s to

Genzyme-sponsored programs should be directed to American Health

Media (“AHM”), the entity with which Genzyme had contracted to

handle such matters. See Email from Emerson to Twitchell

(document no. 23-14).

As time went on, Emerson became increasingly concerned that

Twitchell was not complying with those instructions, which led

to friction between the two men. Given Essa’s close

relationship with Twitchell (and her reliance upon his services

to help her promote the Genzyme product she represented), Essa

perceived that friction as a threat to her ability to perform

her job.

About three months into her tenure in New Hampshire, in

March of 2015, Essa suffered what she describes as a cardiac

emergency. She was transported to the hospital, where she

remained for two days. At the same time, Essa alleges that

“Emerson started a dispute with Mr. Twitchell,” – that is, the

5 email referenced above - and made various “demands” about the

patient information programs. In Essa’s view, those “demands”

were unreasonable and aimed at undermining her relationship with

Twitchell and MSEO. She also ascribes significance to the

timing of Emerson’s actions, suggesting that he deliberately

waited until she was in the hospital to contact Twitchell. The

implications of that claim are unclear.

Essa’s characterization of Emerson’s email to Twitchell

(and her speculation about Emerson’s timing and underlying

motivation), is both odd and a bit misleading. See Plaintiff’s

Memorandum (document no. 23-1) at 5. Emerson merely stated how

he (and Genzyme) expected the Genzyme-sponsored patient programs

to be organized, marketed, and operated; it does not appear he

was trying to “start a dispute.” See Email from Emerson to

Twitchell dated March 21, 2015 (document no. 23-14). See also

Email from Emerson to Twitchell dated March 25, 2015 (document

no. 23-16) (“I will continue to assume you will be working on

all of Lynne’s programs now and moving forward.”); Email from

Emerson to various sales reps dated March 26, 2015 (document no.

23-17) (discussing the conditions under which Area Business

Managers other than Essa might employ MSEO’s services). Nor

does it appear that Twitchell interpreted Emerson’s March 21

6 email as hostile or threatening. See Twitchell Response

(document no. 23-15).

Nevertheless, Essa saw Emerson’s email as the start of his

efforts to “interfere with and/or terminate [her] relationship

with MSEO and Wayne Twitchell,” Plaintiff’s Memorandum at 6 –

presumably motivated by his alleged bias against her age. It

probably bears repeating that just weeks earlier, Essa asked

Emerson if she could continue to work with Twitchell and Emerson

granted that request. Why Essa believes Emerson would allow her

to continue her relationship with Twitchell only to immediately

seek to undermine it is unexplained.

In further support of her claim that Emerson was

undermining her career, creating an intolerable workplace,

and/or discriminating against her on the basis of her age, Essa

alleges that in or around April of 2015, she was not invited to

attend Genzyme’s “Circle of Excellence,” an annual event held

for the top 15 Genzyme sales representatives in the country.

She acknowledges that she and another employee finished the year

in a virtual tie for 15th place (Genzyme says Essa finished a

few percentage points behind the other employee so, actually, in

16th position). And, in her deposition, Essa conceded that she

did not know who determined which employees were invited to the

7 event, or what other factors Genzyme considered when trying to

distinguish between two employees who had finished the

competition in such close proximity. Essa Deposition, vol. I

(document no. 17-2), at 136-40. Nevertheless, Essa says she

should have been invited to the event and she blames Emerson for

the snub.

Essa’s speculation on that issue is unsupported and

inconsistent with the record. It is undisputed that the

decision to invite the other employee rather than Essa was made

by Genzyme employees other than Emerson; he played no role in

deciding which employees were selected for the award. See

Emerson Affidavit (document no. 18) at para. 21. See also Essa

Deposition, vol. I, at 137 (testifying, “I don’t know that” in

response to the question “Who determines who gets to go to the

Circle of Excellence?”). Indeed, Essa concedes that when she

raised the issue with Emerson, he told her to contact Gary Petit

– the person responsible for the event – with any questions she

might have about it. Id. at 139. Yet, Essa declined to do so.

Id. at 138. More importantly, even assuming (despite the lack

of supporting evidence) that Genzyme wrongfully omitted Essa

from that event, she has pointed to nothing in the record that

suggests her age played any role in that decision.

8 Given Essa’s relatively brief tenure in New Hampshire,

Emerson gave her only one performance evaluation (issued in

March of 2016, for the calendar year of 2015). In it, he rated

her an “8” on a scale of one to nine (meaning that Emerson

viewed her as having “exceeded expectations”). See Exhibit 9 to

Essa Deposition (document no. 17-4) at 18-24. By comparison,

the highest score Emerson gave to any of the other Area Business

Managers reporting to him was a “5.” From Emerson’s

perspective, Essa clearly stood out as an exceptional performer.

As part of his evaluation of Essa, Emerson wrote:

Lynne had a fantastic 2015. Though only her first year in the Manchester territory, Lynne is currently ranked #4 in the country for Aubagio sales performance. She was fully committed to KOL Engagement by increasing the access to and market share of Dr. Cabot, Lynne’s largest customer. Lynne led the region with programming and positively influenced every ABM [Area Business Manager] in their understanding of how impactful programming can be on sales results. Lynne’s direct questioning and efficient messaging allowed customers to quickly see the positive benefit/risk profile of Aubagio. Thank you for a great 2015 and for all you do!

* * *

Lynne completed an astonishing 48 patient and professional programs in 2015. This was the most programs done in the region by any ABM and the most I have seen during my time as an RBD.

Lynne’s commitment to patient programs and her strategic implementation of this important resource had a positive impact on the entire ABM team. Many

9 other ABMs increased their 2015 patient program volume, in part due to Lynne leading the way with her execution of these events. Thank you!

Id. In her response, authored on March 11, 2016, Essa wrote:

Ryan with your acceptance, leadership, and guidance, my return home to the New Hampshire territory from Arizona has been personally and professionally successful and rewarding. Thank you for your support and positive reinforcement. I look forward to working with you and the team to make 2016 the best year ever! Lynne.

Id. Emerson’s evaluation continues for several pages and speaks

of Essa’s performance in superlative terms.

Emerson’s glowing, near-hyperbolic, evaluation of Essa in

March of 2016, as well as her response to it, stand in sharp

contrast to the allegations in Essa’s complaint that, during the

period covered by that evaluation, Emerson was attempting to

undercut her sales and job performance, discriminating against

her on the basis of her age, and creating a toxic, intolerable

workplace. Essa provides no explanation for that apparent

conflict between the record and her claims.

A couple months after she received her annual review, in

May of 2016, Essa conducted three Genzyme-sponsored programs

with Twitchell/MSEO. Following those programs, VPR (Genzyme’s

10 agent) contacted Genzyme and reported that, of the ten Genzyme

“Ambassadors” in attendance at those programs, four provided

negative feedback about Essa and/or Twitchell. Emerson received

a copy of that report from VPR and, from it, he learned of the

criticisms directed at Essa. He also learned that Twitchell was

leading the Genzyme-sponsored programs and introducing speakers

– contrary to Genzyme policy, as well as Emerson’s clear

instructions to Twitchell about how such programs had to be

organized and run. See, e.g., Emerson Statement (document no.

23-11) at 15 (“I was concerned about [Essa’s] potential

treatment of this ambassador, but even more concerned about

[Twitchell] potentially running [Essa’s] events by introducing

speakers and blurring the lines between a Sanofi Genzyme program

and an MSEO program/meeting.”). See also Emerson Email to

Jennifer Pritchett (document no 23-46) (expressing concerns

about the possible appearance of a conflict of interest based

upon MSEO’s advertising practices and because no MSEO meetings

in New England were being held independently of Genzyme-

sponsored patient events).

Shortly after receiving that feedback from VPR, on June 1,

2016, Emerson met with Essa and spoke to her about it. She

became upset, called the criticisms of her lies, and had to go

to the restroom to compose herself.

11 Later that day, Essa contacted Carole Huntsman (seemingly

as a confidant or mentor. Huntsman’s role at Genzyme is

unclear. See Essa Deposition, vol I, at 102 and 138 (describing

Ms. Huntsman simply as “the worldwide leader in MS . . . the top

dog”)). In her note to Ms. Huntsman, Essa said she was “shocked

at the email [from VPR to Genzyme about negative feedback from

the Ambassadors] and that my manager asked for explanations of

the accusations. I thought he knew and respected me. I left

that meeting feeling defeated, confused, and not sure how to

move forward with my manager.” Essa email dated June 1, 2016

(document no. 23-25).

Emerson also spoke with his manager about the report from

VPR and, given Essa’s exceptional history with Genzyme,

expressed surprise that she had received any negative feedback.

Despite that negative feedback, Emerson said he did not believe

Essa should receive any form of discipline (an odd suggestion if

he were truly trying to undermine Essa’s career). Emerson’s

manager agreed and the two decided that no discipline was

warranted. Instead, Emerson was told that he should “verbally

coach” Essa about Genzyme’s expectations for interacting with

Ambassadors and MSEO’s involvement in Genzyme-sponsored

programs. To that end, Emerson scheduled another meeting with

Essa for June 6, 2016. Emerson and his supervisor also agreed

12 that Emerson would contact Twitchell to clarify (again)

Genzyme’s expectations regarding his (and MSEO’s) involvement in

Genzyme-sponsored patient programs. See, e.g., Email from

Emerson to Twitchell dated June 7, 2016 (document 23-31) at 1-2

(“Afternoon Wayne, Can we touch base on the phone this week to

revisit how to best and most compliantly work together?”).

A few days later, while driving to meet Essa for their

June 6 meeting, Emerson received a phone call from someone in

Genzyme’s human resources department, notifying him that Essa

had been taken to the hospital. Beginning that evening and

continuing over the next few days (before he learned that Essa

would be out on medical leave), Emerson sent Essa several texts

and a voicemail message expressing concern for her health,

wishing her well, and letting her know that the June 6 patient

program he handled in her absence had gone well. Because Essa

sees those texts as significant evidence supportive of her age

discrimination and/or wrongful termination claims, they are

probably worth recounting:

Monday [June 6, 2016] 5:16 PM Hope you feel better. I will take care of programs and let you know how it goes. No worries. Going to pick up Dr. B[andari] now.

Monday 7:46 PM Program went well. Good group of 16. Most importantly, hope you are feeling ok.

13 Tuesday 6:21 PM I have been and will continue to be a Lynne Essa advocate and hope I have the opportunity to continue to do so.

Today 7:45 PM Hope you are feeling better. Can we talk soon?

Emerson Text Messages (document no. 23-30). Despite the

seemingly benign and supportive tone of those messages, Essa

apparently saw them as something sinister and a source of

significant stress.

On June 9, 2016 (again, before Essa requested a medical

leave of absence, but after she had left the hospital), Emerson

attempted to reach Essa by telephone. Essa Deposition, vol. I,

at 82-83. Essa’s husband answered, saying, “This is Lynne’s

husband. Do not contact, call, text or email my wife again!

You hear me? Take this to heart, son.” Emerson email dated

June 10, 2016 (document no. 23-35). Emerson complied with that

request and never contacted, or had any communication with, Essa

again. The following day, Essa emailed Meredith Bowman in

Genzyme’s human resources department, writing, “Ryan Emerson is

texting me. You need to have him cease any communications with

me immediately.” (document no. 23-34).

A day earlier, Essa had written another email to Bowman,

recounting her original (June 1) meeting with Emerson at which

14 the two discussed the report from VPR and the negative feedback

it had received from participants at three of Essa’s patient

programs. See Essa email to Bowman dated June 8, 2016 (document

no. 23-33). In it, Essa accused Emerson of having played a role

in fabricating one of the negative reviews that was submitted

about her. Emerson denies any role in soliciting or writing any

of the feedback related to Essa’s patient programs. See

Affidavit of Ryan Emerson (document no. 18) at para. 12. 1

1 Several of the “concerns” and “facts” upon which Essa relies in her papers are unsupported by admissible evidence of record or, worse, are demonstrably false. This is one of them. Essa repeatedly claims that Emerson coached/instructed a woman named Laurie Jewers to write one of the negative reviews. All admissible evidence of record related to that issue reveals that claim to be untrue.

Ms. Jewers is an MS patient and has been a Genzyme Patient Ambassador for six years. She has worked with more than fifty Genzyme sales representatives, and she has participated in over one hundred patient outreach programs (including about ten with Essa). In her deposition, Ms. Jewers unequivocally denied that Emerson played any role in her decision to submit the negative feedback about Essa. She also denied that Emerson had any part in actually writing or editing her feedback. Deposition of Laurie Jewers (document no. 17-7) at 52-53. Indeed, she explained at some length why she decided to submit the negative review of Essa – something she had never done with respect to any Genzyme sales representative in the past.

As an aside, the court notes that, as a long-time Genzyme Ambassador, Ms. Jewers is well aware of the Genzyme policies (and FDA regulations) that govern what she may and may not discuss in her public presentations as a Genzyme Ambassador. See, e.g., Id. at 37-38. Her testimony, combined with her knowledge in that realm, supports Emerson’s growing concerns that Twitchell was violating Genzyme’s policies when participating in those Genzyme-sponsored patient programs. See, e.g., Jewers’ Deposition at 28-29, 33-34, 48-50.

15 In that same email to Bowman, Essa complained that Emerson

had informed her that he would be attending the June 6 patient

program in Concord, New Hampshire. According to Essa, Emerson

“sent me a meeting reminder to meet him before the dinner

program even though I was scheduled to pick Dr. Bandari up at

his hotel and drive him to the dinner.” Id. Essa implies that

Emerson purposefully scheduled their meeting at a time designed

to interfere with her plans and put unnecessary pressure on her.

That does not appear to be the case. See Email from Emerson to

Essa dated June 6, 2016 (document no. 23-26) (“When would be the

best time to catch up today? . . . I am fairly free after lunch.

I also plan to attend your PEP tonight in Bedford N.H. I can

arrive early or stay after, if that works best.”). In any

event, Essa apparently found that all quite stressful, telling

Bowman:

By the time I picked up Dr. Bandari at his hotel, I was short of breath, experiencing jaw pain, and chest tightening. Dr. Bandari took my pulse and agreed that I should go to the emergency room. I was admitted to Elliot hospital for observation and tests for a heart attack. When I was asked by the emergency room physician what I was doing before the symptoms appeared, I said I was under extreme pressure to meet with my manager who I am not comfortable with.

June 7th – before I was released from the hospital, Ryan Emerson called and left a message on my personal phone regarding my coverage next week on my four upcoming patient programs.

16 I do not see how I can continue to report to a manager that is sabotaging my reputation, performance, success, and adversely affecting my health.

Essa Email dated June 8, 2016 (document no. 23-33). Bowman

responded saying, among other things, “[A]s I stated on the

phone, we take all allegations seriously and are committed to

providing a safe work environment free of unlawful

discrimination and retaliation. As a follow up to that point, I

wanted to share the link to our Issue Resolution Policy.”

Bowman Email dated June 6, 2016 (document no. 23-36).

Essa never returned to work after the June 6, 2016, medical

incident. On June 10, 2016, she requested, and was granted, a

medical leave of absence. During Essa’s medical leave, Emerson

either personally covered, or arranged for another employee to

cover, the several patient programs that Essa had scheduled

prior to her leave. As noted above, Emerson had no contact with

Essa after texting her on June 8, 2016.

On July 12, 2016 – one month into Essa’s medical leave of

absence - Twitchell emailed Emerson, noting that he had not been

able to get in touch with Essa and asking if she would be

attending the programs scheduled for the following week. He

asked, “If Lynne is not doing the programs in New England, who

17 will we be working with and who should we give the information

to about attendance at the meetings.” Email chain (document no.

23-38) at 2. Emerson responded, saying:

Lynne is on medical leave. That is all I know, but I am hoping she is ok.

I will be covering the programs next week and all communication should go through me. . ..

Jenn and I will be covering the programs in August. We plan to cover all programs Lynne set up (though may change product focus) through October.

My assumption is that Lynne is not going to return and if so, we would not plan to continue the regular monthly meetings [beyond October].

Id. at 1 (emphasis supplied). Essa points to that email for

several reasons. First, she says Emerson should not have

disclosed to Twitchell that she was on medical leave. Although

Essa refers to that disclosure as “unlawful” and “wrongful,” she

does not elaborate on that assertion. Nor, more importantly,

does she tether it to her wrongful termination or age

discrimination claims. Second, she seems to suggest that

Emerson’s decision to change the focus of those programs from

one Genzyme product to another is indicative of his efforts to

undermine her career. And, finally, she says the last sentence

– “my assumption is that Lynne is not going to return” – is

evidence of Emerson’s age bias against her.

18 A few weeks later, Essa says she noticed that her work

territory assignment was listed as “vacant” on a Genzyme

internal website. She brought that fact to the attention of a

Genzyme employee, who expressed surprise, noted that should not

be the case, and said she would look into it. Essa repeatedly

claims that Emerson was personally responsible for marking her

territory as vacant. See, e.g., Plaintiff’s Memorandum

(document no. 23-1) at 19; Plaintiff’s Sur-reply (document no.

26) at 3 and 4. Yet, she has pointed to no evidence linking

Emerson to what appears more likely to have been an

administrative error. Her allegations against Emerson in that

regard are speculative and unsupported by any admissible

evidence.

Prior to her medical leave, Essa had scheduled six programs

in September and October of 2016, at which she planned to

provide attendees with information about Aubagio (those are the

programs referenced in Emerson’s email to Twitchell, above).

But, due to changing market conditions, Emerson switched the

topic of those programs to another Genzyme MS treatment called

Lemtrada. And, given Essa’s absence, each of those programs was

covered by another Genzyme employee. Essa claims Emerson

“cancelled” her programs while she was on medical leave, see,

e.g., Plaintiff’s Memorandum at 19; Plaintiff’s Sur-reply at 3,

19 4, and 5, but that does not appear to have been the case. There

was, to be sure, some confusion surrounding the scheduling of

those programs (seemingly because of the change in focus from

one drug to another, which meant new invitations had to be

prepared, approved, printed, and distributed). But, those

patient programs appear to have been held (though perhaps

without the involvement of Twitchell – the record is not clear).

See, e.g., Emerson Email to Twitchell dated August 22, 2016

(document no. 23-45) (“Below is a list of the events we will be

completing. We changed all of Dr. Cabot’s programs to Lemtrada,

due to market dynamics. All other details have remained the

same. We will give you updated invites once they are

generated.”). See also Affidavit of Ryan Emerson at para. 19

(discussing the six programs, noting the change in focus from

one drug to another, and stating that each was covered by

another Genzyme sales representative). While there was (and

remains) some confusion surrounding those programs, it is clear

that Essa perceived the changes to them as another effort by

Emerson to undermine her career.

About three months into her medical leave, on September 26,

2016, Essa sent an email to the head of Genzyme’s human

resources department. In it, she accused Emerson of having

engaged in “unwelcome touching and hugging” at company meetings

20 and claimed he had asked her “offensive personal questions.”

Essa Email dated September 26, 2016 (document no. 17-4) at 35.

She explained her failure to report those incidents in a more

timely manner as the product of fear that she might suffer some

form of retaliation. Id. But, nowhere in that email – indeed,

at no time prior to filing her complaint with the New Hampshire

Human Rights Commission - did Essa ever complain of any age-

based discrimination.

For the record to be clear, further explanation of Essa’s

accusations against Emerson is required. Emerson’s “offensive

personal questions” occurred in a group “team building” meeting

that included Essa and seven or eight other Area Business

Managers. Emerson presented each with an open-ended request:

give a brief timeline of your life, from childhood to adulthood.

Essa Deposition, vol. I, at 111. It is unclear why Essa would

find that question “offensive” and overly personal, but it is

evident that she did not want to provide such information in

that setting. So, she says she “kind of did an overview” of her

life. Id. at 112-13.

As for Emerson’s alleged inappropriate hugging, Essa says

he would hug her and other Area Business Managers at various

meetings. According to Essa, it only occurred at group meetings

21 (never when the two were alone) and it was not “in a sexual

manner.” Nevertheless, she did find it unpleasant and

unwelcome. So, after the second time Emerson allegedly hugged

her, she says she asked him to stop. Despite that request, Essa

claims Emerson hugged her two or perhaps three more times. See

Essa Deposition, vol. I, at 93-94, 110. Essa has not linked the

alleged hugging in any way to her age.

Genzyme responded immediately to Essa’s email. Maya

McLean, of the human resources department, contacted Essa about

her charges. But, Essa refused to discuss those claims while

she was on medical leave. Instead, Essa suggested they speak on

November 18 (the date she was originally scheduled to return to

work). Subsequently, however, she decided not to cooperate with

McLean’s investigation into her charges against Emerson.

On October 9, 2016, Emerson was promoted to the position of

Director of Commercial Operations. Essa learned of Emerson’s

promotion and understood that, upon returning to work, she would

no longer report to Emerson and that he would have no

supervisory responsibility over her (or any other Area Business

Managers in Essa’s region). Essa’s new supervisor was (or would

have been) Teresa Marin. Nevertheless, Essa says she was

concerned because Emerson’s new job description stated that he

22 would, among other things, “serve as the main liaison between

the US MS team and compliance.” Promotion Announcement

(document no. 17-6) at 27. Given Emerson’s earlier concerns

about Twitchell/MSEO and their potential failure to adhere to

Genzyme policies, Essa says she feared that, upon her return to

work, Emerson would target her for “compliance” issues – even

though Emerson never raised any such issues with her, or about

her, in the past. Again, the admissible evidence of record

reveals that Emerson’s “compliance” concerns related exclusively

to Twitchell and MSEO when participating in Genzyme-sponsored

events. See, e.g., Emerson Statement (document no. 23-11) at 3

(“I was uncomfortable with how the programs would be set up and

knew we would have to take more control of the program details

if we were going to work with Wayne; however, I did want to give

Lynne the opportunity to work with a resource she found so

helpful in the Arizona market. I decided we would test drive

this working relationship, but just with Lynne’s territory.”);

Emerson Email (document no. 23-46) (after covering six events

with Twitchell/MSEO, Emerson summarized his concerns with MSEO’s

involvement in Genzyme-sponsored events; no mention is made of

any concerns about Essa’s behavior, performance, or compliance

with Genzyme policies). Consequently, while the court has no

reason to doubt that Essa’s fears were real, they do not appear

to have been well-founded.

23 Essa’s medical leave was extended to January 2, 2017. A

few weeks prior to that date, on December 21, 2016, Essa’s legal

counsel sent a letter to Genzyme, stating:

Ms. Essa is scheduled to return to work from her medical leave on January 2, 2017. Ms. Essa has been medically released and is ready and able for her return. . . .

While it is certainly possible to review the details of Ms. Essa’s workplace complaints involving Mr. Emerson, the purpose of this letter is an attempt to look beyond those issues to reach a fair accommodation of the interests of both Ms. Essa and Genzyme.

While Ms. Essa is prepared to return on January 2, 2017, and devote her full efforts to achieving her record of success, we propose a resolution along the following terms.

Counsel’s Letter (document no. 17-4) at 41-42 (emphasis

supplied). In short, Essa’s counsel proposed that Genzyme

provide Essa with a severance payment of slightly more than a

quarter million dollars. Genzyme declined Essa’s proposal and

informed her that, upon her return to work, she would again be

contacted by Maya McLean to follow up on her investigation into

Essa’s reports of Emerson’s inappropriate workplace conduct.

Indeed, to that end, McLean reached out to Essa again and left

her a voicemail, but Essa “chose not to [call her back].” Essa

Deposition, vol. II (document no. 17-5) at 220.

24 After her “severance package” proposal was rejected, and

just nine days after having expressed her readiness,

willingness, and ability to return to work, Essa had a change of

heart. She resigned. In her resignation letter to Genzyme,

Essa wrote that “the conditions created by my supervisor, Ryan

Emerson, became so intolerable that I am unable to execute my

duties and fear for my health and safety.” Essa Letter of

Resignation, dated December 30, 2016 (document no. 23-51). She

went on to characterize Emerson’s behavior as “predatory.” She

also criticized Genzyme’s decision to promote Emerson, and she

declared that “I am left with no choice but to resign from

Sanofi Genzyme whose culture supports a poisonous work

environment.” Id.

On March 10, 2017, Essa filed a charge of discrimination

with the New Hampshire Commissioner for Human Rights and the

EEOC.2 This litigation ensued.

2 New Hampshire law requires individuals to file complaints within 180 days of any alleged acts of discrimination. Consequently, barring limited exceptions which do not appear to apply in this case, any claims arising from conduct prior to September 11, 2016, are time-barred. Essa’s last contact with Emerson was more than three months prior to that date (i.e., the text message Emerson sent to Essa on June 8, 2016). Thus, says Genzyme, because Essa’s age discrimination claim under the NHLAD derives entirely from her interactions with Emerson, that NHLAD claim is timed-barred. Genzyme is likely correct, but the court need not resolve that issue.

25 Discussion

I. Age Discrimination.

To prevail on an age discrimination claim under either New

Hampshire’s Law Against Discrimination or the federal Age

Discrimination in Employment Act, Essa must establish that she

would not have experienced an “adverse employment action” if it

were not for her age. The Court of Appeals recently discussed

the analytical framework this court must employ when addressing

such claims on summary judgment:

The employee who brings the ADEA claim bears the burden of proving that the age discrimination that the statute bars was the but-for cause of his termination. To determine whether an ADEA claim may survive summary judgment when there is no direct evidence of such age discrimination, we apply a burden-shifting framework akin to the one that the United States Supreme Court set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to determine whether a claim of race discrimination in employment under Title VII of the Civil Rights Act of 1964 may survive summary judgment.

The focus at the first step of the inquiry under this burden-shifting framework is on whether the plaintiff has put forth evidence from which a juror reasonably could find that a prima facie case of age discrimination has been established. To pass this first step of the inquiry, the plaintiff-employee must provide evidence from which a juror reasonably could find that: (1) he is at least forty years old; (2) his work was sufficient to meet the employer’s legitimate expectations; (3) his employer took adverse action against him; and (4) either younger persons were retained in the same position upon his termination or the employer did not treat age neutrally in taking the adverse action.

26 If the plaintiff succeeds in getting past this first step of the inquiry, then, at the second step, the defendant must proffer a legitimate, nondiscriminatory reason for the employee’s termination. If the defendant puts forth such a reason, then, at the third step of the inquiry, the burden of production shifts back to the plaintiff, who must then show, by a preponderance of the evidence, that the employer’s articulated reason for the adverse employment action is pretextual and that the true reason for the adverse action is discriminatory, for, otherwise, the defendant is entitled to summary judgment.

Notably, to satisfy this burden with respect to pretext, the plaintiff must elucidate specific facts which would enable a jury to find that the reason given by the defendant for the adverse employment action is not only a sham, but a sham intended to cover up the employer’s real motive: age discrimination. Thus, at this third step, the plaintiff must point to evidence that creates a genuine issue of disputed material fact as to whether the proffered reason was a pretext for an age-based motive.

Zabala-De Jesus v. Sanofi-Aventis Puerto Rico, Inc., 959 F.3d

423, 428–29 (1st Cir. 2020) (citations and internal punctuation

omitted). See also Sabinson v. Trustees of Dartmouth Coll., No.

CIV. 05-CV-424-SM, 2007 WL 4191943, at *14–15 (D.N.H. Nov. 21,

2007).

In her opposition memorandum (document no. 23-1), Essa does

not point to specific evidence she believes establishes a prima

facie case of age discrimination – that is, evidence that

Genzyme did not treat age neutrally in taking an adverse action

against her. Instead, she presents a lengthy narrative of

27 alleged slights and sources of stress and discomfort. She then

blends them together to suggest that the evidence, viewed as a

whole, is sufficient to support all claims in her complaint.

See Plaintiff’s Memorandum at 13-19 (pointing to her exclusion

from the “Circle of Excellence” awards; Emerson’s allegedly

“offensive” personal questions; Emerson’s alleged unwelcomed

hugging; Emerson’s texts and telephone call to her while, or

shortly after, she was in the hospital; Emerson’s alleged

“cancellation” of the programs she had organized; Emerson’s

alleged efforts to undermine her relationship with

Twitchell/MSEO). Given that scattershot approach, it is

difficult to tell precisely what evidence she believes supports

her age discrimination claims.

Her sur-reply memorandum is more focused. In it, Essa has

attempted to identify the specific evidence upon which she

relies in support of her age discrimination claim, saying:

The facts presented by the plaintiff include, in addition to the noted fact that Ms. Essa was 65 years old and 10 years older than any other employee in her region, and one of two employees over 42 years old, Exhibit 50 (Doc. 23-51, under seal) – the following additional facts to support the nexus between the hostile work environment and age animus:

a) Mr. Emerson’s email to Mr. Twitchell indicated that Mr. Emerson’s “assumption is that Lynne is not going to return [to work]”, despite her participation in an approved leave, her stated intent that she was in

28 fact going to return, and her important relationship with Mr. Twitchell and MSEO; Exhibit 36 (Doc. 23-37);

b) Mr. Emerson’s “unlawful” disclosure to Mr. Twitchell that Ms. Essa was on medical leave, id.;

c) Mr. Emerson’s indication to Mr. Twitchell that Ms. Essa is going to retire and saying “that Lynne will not be coming back,” Exhibit 41 (Twitchell E-Mail) (Doc. 23-42);

d) on Ms. Essa’s 65th birthday, on October 7, 2015, Teresa Marin, who would have taken over for Mr. Emerson as Ms. Essa’s supervisor, called [to wish Essa happy birthday] and asked when Ms. Essa was going to retire, Exhibit 1 (Essa Depo.), at 98-100 (Doc. 23-2, at 18-20);

e) despite Ms. Essa being promised a role selling the new drug Lemtrada when approved, Doc. 17-1, at 26, when the drug was approved, Mr. Emerson announced employee J.J. would have the position, and when he changed Ms. Essa’s programs to Lemtrada while she was on leave, Mr. Emerson gave these programs (and Ms. Essa’s most important physician contact) to employee J.J. [Jennifer Joscelyn]. Exhibit 43 (Doc 23-44), at 1; Exhibit 9 (Doc 23-10), at 23. Employee J.J. is 36 years old to Ms. Essa’s 66 years old.

Plaintiff’s Sur-reply at 2. Taken at face value, the allegation

most supportive of her age-discrimination claim is plainly the

last. But, because Essa has presented it in a way that might be

misconstrued, it does require some clarification.

Initially, the court notes that Essa’s reference in her

sur-reply memorandum to her alleged denial of the Lemtrada sales

position is the first in any of her papers. Neither the

Lemtrada sales representative, Ms. Joscelyn, nor the sales

29 position itself, is mentioned in Essa’s Amended Complaint, or

her deposition, or her memorandum opposing summary judgment.

Consequently, Genzyme has not had the opportunity to respond to

Essa’s claim.

Nevertheless, the implication is plain: Emerson

discriminated against Essa on the basis of age by wrongfully

awarding the Lemtrada sales position to a younger employee

rather than Essa and he subsequently made Essa’s job more

difficult by “giving” that younger employee Essa’s most

important physician contact. If that were true, it might be

fairly compelling evidence in support of Essa’s prima facie age

discrimination claim. Yet, Essa’s recounting of those events

does not appear to be accurate.

First, Essa has cited no record support for Emerson’s

alleged “announcement” that Ms. Joscelyn, rather than Essa, was

awarded the position of Lemtrada sales representative. Nor has

she suggested that Emerson even had such authority. Genzyme’s

corporate decisions about which employees would represent which

drug(s) in any particular region are not addressed anywhere in

the record. Nor does Essa allege when that “announcement” was

made, or if she sought the position, or even that the sales

position was filled after she transferred to New Hampshire (that

30 is, at a time when she might have been considered a candidate

for the position).

This much can, however, be stated with confidence: When

Genzyme approved Essa’s transfer request and offered her the

position of “Senior Area Business Manager – Manchester, N.H.,”

that offer clearly stated that she would “remain in [her]

current role and continue to focus on sales of Aubagio unless

and until a transition date [to sales of Lemtrada] is confirmed

in writing.” Offer of Employment dated October 17, 2014

(document no. 17-1) at 1. Essa has pointed to no record

evidence suggesting that she ever received written notice of

such a transition to Lemtrada sales (or even that she sought

such a transition). Yet, she seems to imply that Emerson denied

her that (presumably desirable) opportunity on the basis of her

age and awarded it, instead, to a much younger employee. If

that is, indeed, what Essa is saying, there is no record support

for such an assertion.

Rather, this appears to have happened: when Emerson decided

to change the focus of some (but not all) of the Genzyme-

sponsored programs in September and October of 2016 (while Essa

was out on medical leave), from Aubagio (Essa’s drug) to

Lemtrada, he asked the existing regional Lemtrada sales

31 representative to attend those meetings (no one was promoted

over, or to the exclusion of, Essa while she was on medical

leave). That sales representative is Ms. Joscelyn and she is

referenced in the documents as the “Lemtrada North” Area

Business Manager. By comparison, Essa is referenced in those

same documents as “Lynne, Aubagio Manchester.” See Schedule of

September and October, 2016 Events (document no. 23-24) at 2.

It also appears that Ms. Joscelyn had been the regional

Lemtrada sales representative since at least August of 2015 – a

full year prior to Emerson’s decision to change product focus at

the meetings. See, e.g., Essa Mid-Year Performance Review –

August 31, 2015 (document no. 23-6) at 4 (Essa states, “I am

looking forward to partnering with Jen Joscelyn (Lemtrada) for

dual patient programming in the near future” – suggesting, of

course, that no later than August of 2015 Ms. Joscelyn was

already the Lemtrada sales representative in the region).

Viewed in that fuller factual context, it is entirely

understandable why Ms. Joscelyn, the Area Business Manager

responsible for Lemtrada sales, attended the patient programs at

which Lemtrada was being discussed. See generally Essa

Deposition, vol. 1, at 15-16 (stating that she never sold

Lemtrada for Genzyme; the only drug she sold was Aubagio). If,

32 as Essa claims, Emerson did announce Ms. Joscelyn’s promotion to

regional Lemtrada ABM, such an announcement necessarily occurred

well before the time period relevant to any of Essa’s

discrimination claims. Moreover, the record does not support

Essa’s implication that Emerson promoted Ms. Joscelyn over, or

instead of, Essa.

Additionally, it is unclear what Essa means when she says

that Emerson “gave” Dr. Cabot – “Essa’s most important physician

contact” - to Ms. Joscelyn. Ms. Joscelyn simply covered a few

Genzyme-sponsored events at which Dr. Cabot also appeared. In

the same timeframe (apparently still believing Essa would be

returning to work), Emerson scheduled Essa to attend those

meetings at which he wanted Aubagio to remain the focus. See

Emerson email to Twitchell (document no. 23-45) at 2 (providing

the list of events scheduled for September and October of 2016).

Thus, for Essa to claim (or, at a minimum, strongly imply)

that, in September of 2016, Emerson discriminated against her in

favor of an employee 30 years her junior by (a) “announcing”

that the younger employer “would have the position” of Lemtrada

sales representative and then (b) “giving” that younger employee

Essa’s “programs” as well as her “most important physician

contact” is, at best, misleading. See generally, Essa Mid-Year

33 Performance Review – August 31, 2015 (more than a year before

these events, praising Essa for having “helped the Lemtrada team

secure access to Dr. Cabot”). See also Essa Year End 2015

Performance Review (document no. 23-7) (in which Essa wrote that

she had “shared speaking dates as well as setting up the

programs of Dr. Cabot with Jen Joscelyn for Lemtrada programming

in Nov. & Dec. [of 2015]”). See also Id. at 5-6 (Emerson wrote,

“Lynne collaborated nicely with her Lemtrada ABM overlay and

repeatedly helped her neighboring Aubagio ABM by creating access

to HCPs with whom Lynne has longstanding relationships. Thank

you so much for taking the time to go outside of your territory

to help another ABM on the team!”).

Nevertheless, even looking beyond the factually inaccurate

claims in Essa’s papers, and assuming the evidence were

sufficient to show that Emerson/Genzyme “did not treat age

neutrally” when dealing with her, Essa’s prima facie case

suffers from another defect: she has failed to clearly

articulate precisely what “adverse employment action” she

suffered (aside from an arguably stressful work environment).

See, e.g., Alvarado-Santos v. Dep’t of Health of The

Commonwealth Of Puerto Rico, 619 F.3d 126, 132 (1st Cir. 2010)

(“The prima facie case varies according to the nature of the

plaintiff’s claim but it requires, among other things, a showing

34 of an adverse employment action.”). An adverse employment

action is one that “affects employment or alters the conditions

of the workplace” and it must “materially change the conditions

of plaintiff’s employ. These changes must be more disruptive

than a mere inconvenience or an alteration of job

responsibilities.” Cherkaoui v. City of Quincy, 877 F.3d 14, 25

(1st Cir. 2017) (citations and internal punctuation omitted).

Moreover, even if Essa had pointed to sufficient,

admissible evidence to make out a prima facie case of age

discrimination, Genzyme has responded with legitimate, non-

discriminatory bases for Emerson’s (and, more broadly,

Genzyme’s) allegedly wrongful conduct:3

1. Circle of Excellence. Essa was not invited to attend the Circle of Excellence awards ceremony because she did not qualify for the award. Emerson played no role in that decision.

2. Offensive Personal Question. The question asked by Emerson which Essa found offensive was posed to a diverse group of employees at a “team building” event. It was not tied in any way to Essa’s age, nor did it target her in any way because of her age.

3. Emerson’s Calls and Texts. It is undisputed that Emerson reached out to Essa while she was in the hospital. But, explains Genzyme, he did so to check on her well-being and to assure her that her work commitments were being covered by other employees.

3 The exception, of course, being Emerson’s alleged hugging of Essa. But, again, Essa has failed to link that alleged conduct in any way to her age.

35 Again, says Genzyme, nothing in the record even hints that Emerson’s actions were related to, or motivated by, any bias against Essa’s age.

4. “Cancellation” of Essa’s Patient Programs. Genzyme says that, despite Essa’s claims to the contrary, those programs were not “cancelled.” Rather, Emerson changed the focus of some of those programs from one Genzyme MS drug to another for legitimate business reasons and, because Essa was out on medical leave, each program was covered by another Genzyme employee.

5. Emerson’s Contacts with Twitchell/MSEO. Genzyme says that Emerson’s direct contacts with Twitchell arose out of a growing and well-founded concern – supported by the third-party feedback provided to VPR - that Twitchell and MSEO were not complying with Genzyme’s policies governing Genzyme-sponsored patient meetings. Those contacts (as well as Emerson’s eventual recommendation to his superiors that Genzyme stop using MSEO in his region) were unrelated to Essa’s age or any age-related bias on Emerson’s part.

Those responses place the burden back on Essa to point to

evidence that creates a genuine issue of disputed material fact

as to whether the proffered explanations for Genzyme’s actions

are, in fact, a pretext designed to conceal an age-based motive.

See Zabala-De Jesus, 959 F.3d at 429. She has not, however,

identified any admissible evidence linking her age to any of the

business decisions made by Emerson and/or Genzyme. For example,

in her deposition, Essa conceded that Emerson never made any

negative comments about her age to her. Essa Deposition, vol.

I, at 114. The only piece of admissible evidence arguably

(though doubtfully) related to Essa’s age is Emerson’s comment

36 to Twitchell that he did not expect Essa to return from medical

leave (speculation which ultimately proved accurate). But, even

if that comment did relate in some way to Essa’s age (rather

than, say, her medical condition), mere “recognition of

plaintiff’s age is simply not the same thing as discriminatory

animus based upon her age.” Sabinson v. Trustees of Dartmouth

Coll., No. CIV. 05-CV-424-SM, 2007 WL 4191943, at *15 (D.N.H.

Nov. 21, 2007) (collecting cases). The same is true with

respect to Essa’s claim that, on her 65th birthday in October of

2015, Teresa Marin called to wish her happy birthday and

allegedly asked her about her retirement plans.4

The evidence upon which Essa relies is insufficient to

permit a reasonable, properly-instructed jury to find that the

reasons given by the defendant for its conduct toward her

(assuming that conduct rose to the level of “adverse employment

action”) was “not only a sham, but a sham intended to cover up

the employer’s real motive: age discrimination.” See Zabala-De

Jesus, 959 F.3d at 429. In short, based upon this record, a

4 Parenthetically, the court notes that Laurie Jewers, the Genzyme Ambassador, testified that Essa talked openly about her retirement at one of the patient programs she attended. See Jewers Deposition (document no. 17-7) at 34 (“Lynne also made the comment that she can’t wait to retire.”); Id. at 35-36 (attributing to Essa the statement, “I’m ready to retire.”).

37 reasonable trier of fact could not, as a matter of law, conclude

that Essa was the victim of any unlawful age-based

discrimination by Emerson and/or Genzyme.

II. Wrongful Termination/Constructive Discharge.

Under New Hampshire common law, to prevail on a claim for

wrongful discharge, a plaintiff must establish three essential

elements: (1) that her employment was terminated; and (2) the

termination of her employment was motivated by bad faith,

retaliation, or malice; and (3) her employment was terminated

because she performed an act that public policy would encourage

or because she refused to do something that public policy would

condemn. See Karch v. BayBank FSB, 147 N.H. 525, 536 (2002).

Here, of course, Essa was not terminated. She resigned. But,

she claims she was compelled to do so by her toxic and

intolerable working conditions. Accordingly, Essa says she was

“constructively discharged.”

Constructive discharge can satisfy the “termination”

element of a wrongful discharge claim. See Id. at 536. But, to

prove that element, Essa must establish that Genzyme’s actions

rendered her working conditions “so difficult and intolerable

that a reasonable person would feel forced to resign.” Id.

“Constructive discharge is not established by showing relatively

38 minor abuse of an employee. Rather, the adverse working

conditions must generally be ongoing, repetitive, pervasive, and

severe.” Lacasse v. Spaulding Youth Ctr., 154 N.H. 246, 249

(2006) (citations and internal punctuation omitted) (emphasis

supplied). It is a high threshold. See, e.g., Gallagher v.

Unitil Serv. Corp., No. 14-CV-20-SM, 2015 WL 5521794, at *7

(D.N.H. Sept. 17, 2015). See also Suarez v. Pueblo Int’l, Inc.,

229 F.3d 49, 54 (1st Cir. 2000) (“The workplace is not a cocoon,

and those who labor in it are expected to have reasonably thick

skins - thick enough, at least, to survive the ordinary slings

and arrows that workers routinely encounter in a hard, cold

world. Thus, the constructive discharge standard, properly

applied, does not guarantee a workplace free from the usual ebb

and flow of power relations and inter-office politics.”).

Essa has not met that high threshold. While she plainly

considered her working conditions to be stressful, she has

failed to point to admissible evidence sufficient to warrant the

conclusion that they were so intolerable, so severe, and so

pervasive that a person of ordinary firmness would have felt

compelled to quit. Consequently, she cannot establish the first

element of her wrongful termination claim: that she was

constructively discharged. See generally Gerald v. Univ. of

Puerto Rico, 707 F.3d 7, 25 (1st Cir. 2013) (“Constructive

39 discharge typically refers to harassment so severe and

oppressive that staying on the job while seeking redress - the

rule save in exceptional cases - is so intolerable that a

reasonable person would have felt compelled to resign. . . The

standard to meet is an objective one, it cannot be triggered

solely by an employee’s subjective beliefs, no matter how

sincerely held.”) (emphasis supplied) (citations and internal

punctuation omitted). See also Essa’s Letter from Counsel to

Genzyme dated December 21, 2016 (document no. 17-4) at 41-42

(representing that, as of December 21, 2016 – just nine days

before she authored her letter of resignation - Essa was

“ready,” “able,” “prepared,” and “planning” to return to work).

Essa’s wrongful termination claim also fails for several

additional reasons. Even if she had demonstrated that she was

constructively discharged, she cannot establish that it was

associated in any way with her “performing an act that public

policy would encourage or for refusing to do something that

public policy would condemn.” In her memorandum, she points to

her alleged “concerns” that Emerson, through various

communications with Twitchell, was attempting to gain access to

MSEO membership databases, as well as the names of MSEO members.

See, e.g., Amended Complaint at paras. 22, 53, 74, 75, 77;

Plaintiff’s Sur-reply at 5. See also Essa Deposition, vol. I,

40 at 87, 105, and 153 (claiming (falsely) that Emerson sought

MSEO’s “database of the patients and all their information.”).

Such conduct, says Essa, may have violated patient

confidentiality and as well as provisions of HIPAA.5

Nevertheless, even assuming Essa had such concerns, it is

undisputed that she never communicated them to anyone at

Genzyme. See Essa Deposition, vol. I, at 147-48, 151-52, and

154. Consequently, even if silently harboring concerns about

potential HIPAA violations was an act that public policy would

5 For the sake of accuracy, the court notes that Essa has pointed to no admissible evidence in the record to support her “concerns” that Emerson sought to violate provisions of HIPAA by requesting MSEO membership lists, confidential medical information, or MSEO databases from Twitchell. Instead, Emerson told Twitchell that, consistent with Genzyme standard practices, responses to invitations to attend Genzyme-sponsored patient programs should be sent to AHM, the third party with which Genzyme had contracted to collect information on attendance at Genzyme-sponsored events. Emerson Affidavit (document no. 18) at para. 8-9. See also Emerson email to Twitchell (document no. 23-31) at 3, item 6. In fact, despite the alleged “concerns” set forth in her papers, Essa conceded that she had no personal knowledge of Emerson ever requesting access to MSEO’s patient databases or asking Twitchell to send patient RSVPs directly to him or Genzyme. Essa Deposition, vol II, at 206-07. The source of Essa’s so-called “HIPAA concerns” seems to be an email that Twitchell sent to Genzyme in August of 2016. See Twitchell Email (document no. 23-43) (complaining, without elaboration, that Emerson’s request for the names and email addresses [i.e., not MSEO databases or membership lists] of people who had registered to attend Genzyme-sponsored events somehow “violated HIPAA”).

41 encourage (it plainly is not),6 Essa’s failure to report those

concerns meant that neither Emerson nor Genzyme was aware of

them. Essa cannot, then, establish the essential connection

between her laudatory/protected conduct and the allegedly

intolerable working conditions she says Emerson and/or Genzyme

forced her to endure. That causal link between protected

activity and an adverse employment action is critical to a

wrongful discharge claim.

In a related effort to satisfy the “public policy” element

of her wrongful termination claim, Essa also points to various

reports she made concerning perceived unfair or unwarranted

treatment of her by Emerson – particularly what she believed

were his unjustified attempts to “undermine” her relationship

with Twitchell/MSEO.

Further, after Ms. Essa reported her concerns to management and human resources in June of 2016 - which concerns included disagreement over compliance issues, that her manager was falsely accusing her and MSEO of compliance issues, and that Mr. Emerson wrongfully had a patient ambassador compose a complaint against her and Mr. Twitchell - Mr. Emerson took substantial steps to make the workplace unbearable and unsuccessful for

6 The common law claim for wrongful termination focuses on an employee’s conduct, not her subjective (unexpressed) concerns or her status (e.g., her age, ethnicity, disability, or mental impairment). See Faulkner v. Dartmouth Hitchcock Med. Ctr., No. 12-CV-482-SM, 2015 WL 4759425, at *8–9 (D.N.H. Aug. 12, 2015); Parker v. MVM, Inc., 2006 WL 1724359 *2–3, 2006 DNH 70 (D.N.H. 2006).

42 her if she returned, including marking her territory as vacant, cancelling her patient programs, and terminating the relationship with MSEO.

Plaintiff’s Memorandum at 22 (emphasis supplied). According to

Essa, “Public policy encourages employees such as Ms. Essa to

make such reports of perceived wrongful activity.”

Essa is mistaken. Under New Hampshire common law,

“[p]ublic policy does not protect an employee’s expression of

disagreement with a management decision.” MacKenzie v. Linehan,

158 N.H. 476, 481 (2009) (citation omitted). That Essa reported

“concerns” that were based on numerous, demonstrably false

assumptions, is another matter and of little moment at this

juncture. She has failed to show that she engaged in the type

of “protected activity” that the tort of wrongful discharge is

designed to encourage and defend.

Finally, as to the third element of her wrongful discharge

claim, aside from using conclusory labels, Essa has not pointed

to any evidence that might plausibly be interpreted as

suggesting bad faith, retaliation, or malice on the part of

Emerson or Genzyme. Indeed, the record supports the conclusion

that Emerson thought Essa was an exceptional sales

representative and a valued employee. See, e.g., Emerson’s

43 Annual Review of Essa. While he was undeniably troubled by

behavior on the part of Twitchell and MSEO, that does not

suggest he (or Genzyme) harbored any resentment, ill will, or

malice toward Essa.

Conclusion

For the foregoing reasons, as well as those set forth in

defendant’s memoranda (documents no. 16 and 25), defendant’s

Motion for Summary Judgment (document no. 15) is granted as to

all claims in plaintiff’s amended complaint. The Clerk of Court

shall enter judgment in accordance with this order and close the

case.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

October 8, 2020

cc: Christopher T. Meier, Esq. Francis J. Bingham, Esq. Christopher B. Kaczmarek, Esq.