Edward West v. Ortho -M C Neil Pharmaceutical Corporation

1 Circuit Judge Ann C. Williams was originally a member of
the panel assigned to this case. After hearing oral arguments,
Judge Williams decided to recuse herself from further participa-
tion in the case. Circuit Judge Diane S. Sykes was randomly se-
lected to join the panel. Judge Sykes has read the briefs, studied
the record, and listened to the tape of the oral arguments.
In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-3547 & 03-3695
E DWARD W EST ,
Plaintiff-Appellant,
v.
O RTHO -M C N EIL P HARMACEUTICAL
C ORPORATION ,
Defendant-Appellee.
____________
Appeals from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 01 C 3724—Harry D. Leinenweber, Judge.
____________
A RGUED F EBRUARY 8, 2005—D ECIDED A PRIL 21, 2005
____________
Before R IPPLE , E VANS , and S YKES , 1 Circuit Judges.
E VANS , Circuit Judge. In 1997, just a month before his
60th birthday, Edward West, an African-American male,

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2 Nos. 03-3547 & 03-3695
was hired by a company called Innovex. Innovex provided
pharmaceutical companies, like the defendant Ortho-McNeil
Pharmaceutical Corporation (OMPC), with contract sales
representatives. Two years later, in 1999, OMPC hired West
(and 10 other Innovex employees) as a direct sales represen-
tative of the company. OMPC terminated West in July of
2000 for, it claimed, violations of company policies. West
thought the termination was caused by his race and age.
After West filed suit, the district court granted, in part,
OMPC’s motion for summary judgment, leaving only two
issues for trial: whether OMPC was motivated by race in ter-
minating West, and whether his supervisor, Walter Pascale,
approved of West’s distribution of certain “homemade”
promotional sales materials. Prior to starting the trial, the
court ruled in limine that seven of eight racially offensive
statements Pascale was alleged to have made were excluded
as being too remote in time from the termination.
Trial commenced with West representing himself. At the
close of his case-in-chief, the district court granted OMPC’s
motion, pursuant to Federal Rule of Civil Procedure 50, for
judgment as a matter of law. West appeals from that deci-
sion, from the exclusion of seven of Pascale’s statements,
and, apparently, from an award of costs to OMPC. We say
“apparently” because nothing in the briefing or at argument
makes reference to this issue.
The facts show that, as an OMPC sales representative,
West was responsible for promoting several OMPC drugs to
customers within his assigned sales territory, including
Holy Cross Hospital. One of the drugs was Levaquin. West
worked with another sales representative in his territory,
Cheryl Janicek.
West’s supervisor for almost the entire time he worked for
OMPC was Pascale. Pascale, if West is believed, had a
rather nasty habit of making racially offensive statements.
The seven which were excluded from the trial are, first, in

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Nos. 03-3547 & 03-3695 3
1997 that a “Caucasian could do a better job.” In
August 1998, he said his family lived on the south side of
Chicago but that “blacks had run them out of the area.” In
September, he said “Blacks were stupid” and that
“President Clinton wasn’t doing anything but selling blacks
out.” In October 1998, he gave West’s territory in the western
Chicago suburbs to a white woman because “he believed
that a white female would have a greater success.” In the
summer of 1999, Pascale told West to concentrate his ef-
forts in Oak Park and Evergreen Park because he “did not
like having to observe West in areas where Blacks and
Hispanics were.” That summer, he also said that “Hispanics
and Blacks have nothing but babies and always end up on
welfare.” In the fall of that year, an African-American man
arrived late for a picnic, and Pascale’s comment was “just
like a nigger, they’re always late.” These statements, as we
said, were excluded by the court. The final statement, which
was admitted, was that in March 2000, Pascale called West
an “asinine nigger” or an “asinine black.” West testified to
the former on direct examination and the latter on cross.
But despite this evidence (again, if true) of Pascale’s bias,
OMPC says there is no discrimination. OMPC says that
Pascale was not the decisionmaker on West’s termination
and that the termination was based on a company rules vio-
lation. In July 2000, West was concerned about the possibil-
ity that Holy Cross Hospital might replace OMPC’s product
Levaquin on formulary at the hospital with a product of a
competing drug company, a product called Tequin. To
convince Holy Cross to stay with Levaquin, West compiled
a packet of materials (referred to as homemade materials
because they were not prepared by the company itself). He
says he obtained Pascale’s approval of the materials and that
the common practice at OMPC was that Pascale’s approval
was final. The materials included a Levaquin package
insert, an article from “The Medical Letter,” a copy of the
product insert for Tequin, a copy of a fax from the Federal

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4 Nos. 03-3547 & 03-3695
Drug Administration to the manufacturer of Tequin, with
a notation West made on the top that “FYI, FDA FINED
COMPANY $17 MILLION FOR MISREPRESENTING
PRODUCT,” two articles from the Wall Street Journal dis-
cussing punitive damage awards, an article from a journal
known as Formulary, and an article from the periodical
AmeriNet. The real problem with the materials from OMPC’s
point of view, however, was the cover letter. And, impor-
tantly, Pascale denied seeing the letter before it was sent
out; West, on the other hand, says he read it to Pascale over
the telephone. West sent the materials to the then-interim
president of Holy Cross and to 39 additional physicians and
administrators associated with the hospital.
The cover letter said, in part:
I implore you not to let Holy Cross Hospital become the
victim of some huge punitive-damage award or ruin the
hospital’s image. . . . This could occur at Holy Cross
because of an impending decision to replace the proven
and safe Levaquin antibiotic with a new antibiotic that
has no history and a dubious efficacy and safety profile,
but is $2 dollars cheaper.
The antibiotic under consideration to replace
Levaquin . . . [h]as a bolded package insert warning
regarding QTc prolongation (this could cause instanta-
neous death).
Janicek told Pascale that West sent the letter, and Pascale
immediately contacted his supervisor, the regional business
director Cathie Taylor, who asked him to fax it to her.
Pascale and Taylor both contend that Pascale offered no
opinion about whether the letter violated OMPC policy and
made no recommendation regarding what action OMPC
should take.
Taylor concluded that the cover letter violated several
OMPC policies. She determined that it was an “unapproved

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Nos. 03-3547 & 03-3695 5
promotional piece” and therefore violated the rule against
such materials, which include homemade sales materials:
The company has always had a strong policy against
the creation and use of unofficial sales materials. There
are no exceptions. SALES REPRESENTATIVES FOUND
TO HAVE ISSUED THEIR OWN SALES MATERIALS
OF ANY KIND WILL BE SUBJECT TO TERMINA-
TION.
Another rule violated, in Taylor’s opinion, was the rule
against the disparagement of competitors.
Taylor believed that the letter was a violation requiring
discipline. She informed her superior and recommended that
West’s employment be terminated. Her recommendation
was followed.
West contends that his testimony at trial raised an issue
of fact for the jury that, in accordance with OMPC policy,
Pascale approved his use of the homemade materials. West
testified that he was treated differently than Pascale and
Janicek, who were not terminated for violating the rule
against homemade promotional materials. He testified that
Pascale instructed West and other salespersons to violate
company rules on several occasions. In short, West thinks
Pascale encouraged him to prepare the materials and then
used them against him, all out of racial bias.
Under that theory, West also contends Pascale was be-
hind his termination. Pascale, as we said, provided a copy
of the cover letter to Taylor. Taylor testified that Pascale
“indicated” that he was not involved in approving the letter.
Taylor did not investigate or question West about the
circumstances surrounding the distribution of materials
and never gave him a chance to speak in his own defense.
Nevertheless, the district court found no evidence on which
a reasonable jury could find for West and granted OMPC’s
Rule 50 motion.

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6 Nos. 03-3547 & 03-3695
Our review of a motion for judgment as a matter of law is
de novo. Mathur v. Bd. of Tr. of S. Ill. Univ., 207 F.3d 938
(7th Cir. 2000). We examine the record in its entirety and
draw all reasonable inferences in favor of the nonmoving
party; we do not make credibility determinations. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000).
The issue comes down to whether West presented suffi-
cient evidence for a reasonable jury to find that Pascale
authorized the distribution of the cover letter as part of a
plan to get West terminated. The judge thought not. He
concluded there was no evidence in the record that Pascale
approved the cover letter. We disagree.
Although Pascale denied that he authorized the letter,
West testified that the letter was sent to the hospital “under
the authorization of my district manager, Walter Pascale.”
West said that he read the letter to Pascale over the tele-
phone. At another point in his testimony, West said Pascale
told him to “execute” and “disseminate” the information. He
stated on cross-examination that Pascale asked him to send
out the material. That is evidence, sufficient that a rea-
sonable jury could rely on it, depending on its evaluation of
the credibility of the witnesses.
West’s theory also requires him to establish that Pascale
influenced Taylor’s decision to do the firing. Both Pascale
and Taylor deny that he did. West does not claim that Taylor
was biased against him, but he contends that Pascale was
and that by failing to inform her that he authorized the
cover letter, he deliberately tainted her decision, all as a
result of racial bias.
But, of course, much of the evidence of racial bias was ex-
cluded, so we now consider whether the decisions to keep it
from the jury should be upheld. We reject the defendant’s
contention that the issue was waived and thus review the
evidentiary rulings for an abuse of discretion. Thompson v.
Boggs, 33 F.3d 847 (7th Cir. 1994).

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Nos. 03-3547 & 03-3695 7
The court excluded the evidence on the basis that West
did not allege a hostile work environment claim and there-
fore could not rely on National Railroad Passenger Corp. v.
Morgan, 536 U.S. 101 (2002), to bring in time-barred acts
within the scope of this case.
Morgan, however, is not limited to hostile work environ-
ment claims. On claims other than hostile work environment
claims, acts outside the statutory time period cannot be the
basis for liability, but the statute does not “bar an employee
from using the prior acts as background evidence in support
of a timely claim.” At 113. We have interpreted this language
as allowing time-barred acts as support for a timely claim. In
Davis v. Con-Way Transportation Central Express, Inc., 368
F.3d 776, 786 n.4 (7th Cir. 2004), we said that Morgan made
clear that “where, as here, the plaintiff timely alleged a
discrete discriminatory act (i.e., his termination based on
his race and in retaliation for filing prior charges), acts
outside of the statutory time frame may be used to support
that claim.” This is one of those rare occasions on which we
find the exclusion to be an abuse of discretion.
The evidence, if true, clearly shows that Pascale was
biased. Other evidence shows that he informed Taylor of
West’s apparent violation of company rules, that those rules
were also violated by others, and that Taylor recommended
firing West. It may be a close question whether West—who
as we noted was proceeding pro se—was able to link these
facts so as to enable a reasonable jury to find discrimination.
But because a close question should go in West’s favor, we
find the case should have gone to the jury for its determina-
tion. On this record, we cannot say that no reasonable jury
could find for West.
Accordingly, the judgment of the district court is V ACATED
and the case is R EMANDED for a new trial. Costs are
awarded to Mr. West.

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8 Nos. 03-3547 & 03-3695
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-21-05

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