Bohlinger v. Abbott

20-1166
Bohlinger v. Abbott

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 9th day of February, two thousand twenty-one.

PRESENT:
DENNIS JACOBS,
JOSEPH F. BIANCO,
MICHAEL H. PARK,
Circuit Judges.
_____________________________________

Michael Bohlinger,

Plaintiff-Appellant,

v. 20-1166-cv

Abbott Laboratories Inc.,

Defendant-Appellee,

Abbott Laboratories, Abbott Nutrition Manufacturing, Inc.,

Defendants. 1
_____________________________________

1
The Clerk of Court is respectfully directed to amend the official caption in this case to conform
to the caption above.
FOR PLAINTIFF-APPELLANT: LUCAS C. BUZZARD (D. Maimon
Kirschenbaum, on the brief), Joseph &
Kirschenbaum LLP, New York, NY.

FOR DEFENDANT-APPELLEE: ROBERT S. WHITMAN (Howard M. Wexler,
Anne Dana, on the brief), Seyfarth Shaw LLP,
New York, NY.

Appeal from a judgment of the United States District Court for the Southern District of

New York (Oetken, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Plaintiff-Appellant Michael Bohlinger appeals from a judgment, entered on March 11,

2020, by the United States District Court for the Southern District of New York (Oetken, J.),

granting Defendant-Appellee Abbott Laboratories Inc.’s (“Abbott”) motion for summary

judgment under Federal Rule of Civil Procedure 56(a). Bohlinger challenges the district court’s

ruling that he failed to submit sufficient evidence to preclude summary judgment on his age

discrimination claim under the New York City Human Rights Law (the “NYCHRL”). We

assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal,

which we reference only as necessary to explain our decision to affirm.

We review the district court’s decision to grant summary judgment de novo, resolving all

ambiguities and drawing all permissible factual inferences in favor of the non-moving party. Ya-

Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 69 (2d Cir. 2015). Summary judgment is

appropriate only when the movant demonstrates that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law. Id. We have discretion to affirm

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a district court’s grant of summary judgment on any ground appearing in the record. Deep Woods

Holdings, L.L.C. v. Sav. Deposit Ins. Fund, 745 F.3d 619, 623 (2d Cir. 2014).

Pursuant to the NYCHRL, employers and their agents are prohibited from discriminating

against an employee based on the employee’s “actual or perceived age.” N.Y.C. Admin. Code

§ 8-107(1)(a). To establish a claim for discrimination under the NYCHRL, Bohlinger “need only

show that [Abbott] treated [him] less well” than other employees, “at least in part for a

discriminatory reason.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 103, 110

n.8 (2d Cir. 2013); see also Golston-Green v. City of New York, 123 N.Y.S.3d 656, 667 (App. Div.

2020) (holding that to establish liability under the NYCHRL, a plaintiff must simply show “he was

subject to an unfavorable change or treated less well than other employees on the basis of a

protected characteristic”); Watson v. Emblem Health Servs., 69 N.Y.S.3d 595, 598 (App. Div.

2018) (“A plaintiff may prove her case if she proves that unlawful discrimination was one of the

motivating factors, even if it was not the sole motivating factor, for an adverse employment

decision.” (internal quotation marks omitted)). Under this standard, “[t]he employer may present

evidence of its legitimate, non-discriminatory motives to show the conduct was not caused by

discrimination, but it is entitled to summary judgment on this basis only if the record establishes

as a matter of law that ‘discrimination play[ed] no role’ in its actions.” Mihalik, 715 F.3d at 110

n.8 (second alteration in original) (quoting Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27, 38

(App. Div. 2009)).

Bohlinger’s claim is based on two discrete decisions in which Abbott allegedly

discriminated against him because of his age. The first decision occurred in 2015 when, pursuant

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to Abbott’s nationwide specialization of its pediatric sales representatives, Peter Youngs, the

regional sales director at the time, in consultation with Susan Schultz, Bohlinger’s immediate

supervisor at the time, categorized Bohlinger as a Pediatric Sales Specialist (“PSS”) who would

market and sell pediatric products to both hospitals and doctor’s offices on Long Island. 2 As a

result of this 2015 specialization, Bohlinger was assigned a sales territory with the lowest

“workload” of any sales representatives working in Abbott’s Long Island district.

The second decision occurred approximately two years later, in 2017. Between 2016 and

2017, the territories for every sales representative in Abbott’s Long Island district suffered a

decrease in workload, either because of a decline in the number of child births or representatives

having less access to hospitals or pediatric offices in the district. Although every sales

representative saw a workload decrease, only Bohlinger’s workload decreased below the threshold

that Abbott had designated as acceptable. Consequently, Zariq Siddiqui (who by then had

replaced Peter Youngs as the regional sales director), and Eric Brown (Bohlinger’s direct

supervisor at the time) discussed reassigning Bohlinger to an open territory in the Philadelphia

district, which was located in New Jersey (where Bohlinger lived), to raise Bohlinger’s workload

above Abbott’s minimum threshold. Brown asked Bohlinger if he would consider a reassignment

to the territory in New Jersey. After some consideration, Bohlinger declined the reassignment

and retired thereafter.

2
The other sales representatives in Abbott’s Long Island district were designated as either Hospital
Sales Specialists, responsible for marketing and selling pediatric products to only hospitals, or Office Sales
Specialists, responsible for marketing and selling pediatric products to only doctor’s offices.

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 The district court concluded that the portion of Bohlinger’s age discrimination claim based

on the 2015 specialization was untimely and held that the continuing violation exception to the

NYCHRL’s three-year statute of limitations did not apply. As to the portion of the age

discrimination claim based on the 2017 reassignment, the district court held that there was

insufficient evidence of age discrimination to survive summary judgment. As discussed below,

we conclude that the district court properly granted summary judgment because Bohlinger has

failed to put forth sufficient evidence regarding these two decisions, either individually or

collectively, from which a rational jury could find that Bohlinger’s age played a role in these two

decisions. 3

I. The 2015 Specialization

With respect to the 2015 specialization, Abbott contends that it was a business decision

ultimately designed to increase overall sales. More specifically, Abbott explains that when

crafting the 2015 specialization, it determined Bohlinger’s workload by considering various

factors, including Bohlinger’s workload hours, his designated role as a PSS, the geographical

location of hospitals and offices, and the desire to limit the transfer of relationships to a new

representative. Abbott also provides its reasoning for transferring two high workload hospitals

from Bohlinger to another sales representative. According to Abbott, it “identified a shift in

which . . . nurse practitioners, dieticians, and system administrators,” rather than doctors, were

influencing hospitals’ decisions to use Abbott’s products. App’x at 467. As a result of this shift,

3
Because we conclude that the age discrimination claim fails on the merits and affirm on that basis,
we need not address the district court’s ruling on timeliness.

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Abbott began placing more value on “strong relationships with nurses, skill at conducting in-

services . . . , and high call activity.” Id. Because Bohlinger’s strengths were not in these areas,

Abbott elected to transfer responsibility for two of his high workload hospitals to another sales

representative with those strengths.

Bohlinger argues that Abbott is not entitled to summary judgment because its explanations

are not “‘legitimate, clear, specific and non-discriminatory.’” Appellant’s Reply at 19 (quoting

Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir. 1995)). We disagree. Abbott articulated that

it determined Bohlinger’s workload under the 2015 specialization by considering various neutral,

business-related factors with the goal of optimizing the sales representatives’ skills and

maximizing pediatric product sales. These reasons, on their face, are legitimate and non-

discriminatory.

Thus, the ultimate question is whether there is evidence from which a “reasonable jury

could conclude either that the defendant’s ‘reasons were pretextual,’ or that the defendant’s stated

reasons were not its sole basis for taking action, and that its conduct was based at least ‘in part on

discrimination.’” Ya-Chen Chen, 805 F.3d at 76 (quoting Melman v. Montefiore Med. Ctr., 946

N.Y.S.2d 27, 35, 41 (App. Div. 2012)). Under the NYCHRL, “[i]f the plaintiff responds [to

defendant’s evidence of a non-discriminatory reason] with some evidence that at least one of the

reasons proffered by the defendant is false, misleading, or incomplete, . . . such evidence of pretext

should in almost every case indicate to the court that a motion for summary judgment must be

denied.” Bennett v. Health Mgmt. Sys., Inc., 936 N.Y.S.2d 112, 124 (App. Div. 2011).

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 Bohlinger contends that Abbott’s reasons are simply “incomplete.” Appellant’s Br. at 45.

Specifically, Bohlinger maintains that Abbott failed to articulate exactly how it used the identified

factors to arrive at its decision to assign Bohlinger a lower workload as compared to his younger

peers. We find that argument unpersuasive. It is clear from the record that Abbott engaged in a

discretionary, rather than formulaic, decision-making process, which considered a blend of

subjective and objective business-related factors. This type of business decision does not lend

itself to being explained using the precision that Bohlinger demands, and the failure to provide

Bohlinger with such details does not render the reasons “incomplete” or discriminatory.

More importantly, the record lacks evidence that assigning Bohlinger a lower workload

was motivated, in any part, by age discrimination. It is uncontroverted that, following Bohlinger’s

change in workload, Abbott paid him a larger bonus, promoted him, and raised his pay, and there

is no evidence that any of these actions could be viewed as unfair or less favorable when considered

in the context of how other sales representatives in the district were treated. Moreover, Bohlinger

testified that he worked with Schultz to help “create[]” the workload plan that he now claims was

discriminatory. 4 App’x at 345.

In short, we conclude that no reasonable jury could find that Abbott’s explanation of

Bohlinger’s change in workload in 2015 is incomplete such that it, or any other evidence in the

4
Because Schultz testified that Bohlinger’s workload was “set in stone” before she had presented
him with his new workload assignment, App’x at 361, Bohlinger contends that there is some dispute as to
whether Bohlinger had any actual role in shaping his workload. That argument, however, misses the point.
Regardless of how flexible the workload plan was during those discussions, Bohlinger’s testimony that he
helped create the workload plan demonstrates that he did not view the plan as unfair or discriminatory when
it was presented to him.

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record, would “constitute[] evidence of consciousness of guilt, an attempt to coverup the alleged

discriminatory conduct, or an improper discriminatory motive co-existing with other legitimate

reasons.” 5 Bennett, 936 N.Y.S.2d at 123. Accordingly, we conclude that the district court

properly granted summary judgment in Abbott’s favor with respect to Bohlinger’s age

discrimination claim based on the 2015 specialization.

II. The 2017 Reassignment

With respect to the 2017 reassignment, Abbott offers the following non-discriminatory

reason for why Bohlinger was the only sales representative in the Long Island district to be offered

a reassignment to a new territory in New Jersey (his home state): Bohlinger was the only sales

representative to have his workload drop below Abbott’s minimum workload threshold and thus

needed to be reassigned to a new territory with an acceptable workload. Bohlinger raises two

arguments as to why, notwithstanding that non-discriminatory reason, there is sufficient evidence

to support a reasonable inference of age discrimination.

Bohlinger first contends that Abbott’s reason is incomplete insofar as it leaves out that the

low workload he was assigned under the 2015 specialization caused his workload to drop below

Abbott’s minimum threshold. Given the absence of any evidence of age discrimination regarding

the 2015 specialization, as well as the fact that the two decisions occurred more than two years

5
Although Bohlinger points to, as evidence of age discrimination, the disputed fact that Schultz
asked him in 2015 “how much longer are you going to be around,” App’x at 311-12, that disputed fact does
not alter the analysis. As a threshold matter, the regional sales manager Youngs, and not Schultz, was the
final decisionmaker with respect to the 2015 specialization. In any event, as the district court correctly
concluded, that alleged lone comment, especially in the context of the other uncontroverted facts in the
record discussed above, is insufficient to create a reasonable inference of age discrimination that precludes
summary judgment.

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apart and involved different decisionmakers under different circumstances, no reasonable

inference of an age-related motivation in 2015 can be drawn even when the two decisions are

viewed together.

Bohlinger next argues that Abbott’s reason is “misleading” insofar as Bohlinger’s

supervisors at the time, Siddiqui and Brown, gave inconsistent testimony about the reasons behind

the 2017 reassignment. See Bennett, 936 N.Y.S.2d at 124 (stating that a plaintiff may establish

pretext by submitting evidence that a defendant’s non-discriminatory reasons for its actions are

“misleading”). In particular, Bohlinger points out that when Brown proposed the reassignment

to Bohlinger, Siddiqui believed no final decision had been made about eliminating Bohlinger’s

territory in the Long Island district, while Brown understood at that time that Bohlinger’s Long

Island territory would be eliminated. We agree with the district court’s conclusion that any

discrepancies in Siddiqui’s and Brown’s testimony with respect to the 2017 reassignment are

immaterial and, as a result, cannot provide a reasonable inference of discriminatory motive. Both

Siddiqui and Brown testified consistently as to the reason Abbott offered Bohlinger a

reassignment—because his workload had become too low. Thus, the purported discrepancies in

Siddiqui’s and Brown’s testimony were, as the district court correctly reasoned, “variations, if that,

on the same theme rather than separate inconsistent justifications.” Special App’x at 9 (quoting

Roge v. NYP Holdings, Inc., 257 F.3d 164, 170 (2d Cir. 2001)).

Nor has Bohlinger established a discriminatory motive by highlighting differences in

Siddiqui’s and Brown’s testimony with respect to how the reassignment was presented to

Bohlinger. Indeed, whether the reassignment was presented as an option or as an ultimatum

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carries little relevance to the ultimate question why the reassignment was offered to Bohlinger, i.e.,

whether a reasonable jury could conclude that the discrepancies in Siddiqui’s and Brown’s

testimony demonstrated that the 2017 reassignment was based, in part, on discriminatory animus.

On that question, Bohlinger fails to point to any evidence in the record that would show a genuine

dispute as to the existence of discriminatory motive. Accordingly, we conclude that the district

court properly granted summary judgment in Abbott’s favor with respect to Bohlinger’s age

discrimination claim based on the 2017 reassignment.

* * *

We have considered all of Bohlinger’s remaining arguments and find them to be without

merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court

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