Steven L. Wittels (SLW-8110) Jeremy Heisler (JH-0145 ... to the women who work at Quest, ... Tara...

Steven L. Wittels (SLW-8110) Jeremy Heisler (JH-0145) SANFORD WITTELS & HEISLER, LLP 1350 Avenue of the Americas 31st Floor New York, NY 10019 Telephone: (646) 723-2947 Facsimile: (646) 723-2948 David W. Sanford, D.C. Bar No. 457933 Sharon Y. Eubanks, D.C. Bar No. 420147 SANFORD WITTELS & HEISLER, LLP 1666 Connecticut Avenue, N.W., Suite 300 Washington, D.C. 20009 Telephone: (202) 742-7777 Facsimile: (202) 742-7776 Counsel for Plaintiffs

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

ERIN BEERY and HEATHER TRAEGER, individually and on behalf of a class of similarly-situated female employees, Plaintiffs,

CLASS ACTION

COMPLAINT

v. No. ____

QUEST DIAGNOSTICS, INC. and AMERIPATH, INC. Defendants.

JURY TRIAL DEMANDED

Plaintiffs Erin Beery and Heather Traeger, individually and on behalf of a class of

similarly-situated female employees defined below, by and through her undersigned attorneys,

Sanford Wittels & Heisler, LLP, allege the following:

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INTRODUCTION

1. This action arises out of Defendants Quest Diagnostics, Inc.’s (“Quest”) and

AmeriPath, Inc.’s (“AmeriPath”) (collectively “Quest”) systematic, company-wide

discriminatory treatment of its female employees on the basis of their gender.

2. According to its website, Quest is the “world’s leading provider of diagnostic

testing services.” It boasts a dedication to analysis and research to diagnose diseases early on

and improve the quality of services it provides to patients.

3. Yet for a company that seems dedicated to delivering quality care down to the

molecular level, it certainly fails to devote similar attention to extending equal employment

opportunities to its female employees.

4. According to the women who work at Quest, high-ranking company officials

within the predominantly-male management team foster an environment hostile to the success

and advancement of female employees. Promoting “old boys’ club” attitudes, upper

management regularly grooms junior male employees for leadership positions by granting them

disproportionate access to resources and exposure to decision-makers.

5. Quest strategically utilizes two women it has placed in upper management, Vice

President of Sales for AmeriPath Michele Zwickl (“VP of Sales Zwickl”), and AmeriPath Sales

Director for the East, Tara Botarelli (“East Sales Director Botarelli”), to encourage and support

the old boys’ club. Both are known for interfering with decisions to promote female employees,

extending preferential treatment to unqualified men, and displaying and inspiring inappropriate

behavior intimidating and hostile to female employees. One male manager even remarked that

these two simply “don’t like women.”

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6. Of the 17 people in Quest’s management, only 4 are women. Of the 9 people on

Quest’s Board of Directors, only 2 are women. Similarly, of the 27 AmeriPath executives, there

are only 5 women in such positions, including VP of Sales Zwickl and East Sales Director

Botarelli. Meanwhile, even the highest performing women who do not support these male-

centric values are blocked for advancement and are regularly forced to resign.

7. When female employees complain to upper-level management about

discrimination, managers refuse to investigate these claims as required by law, instead telling

these women, “You are lying!” When female employees receive unfair performance reviews,

instead of their concerns being addressed, they have been asked, “Are you just going to go ahead

and quit?” Women who wish to challenge discrimination are faced with an indifferent Human

Resources Department that routinely fails to respond appropriately to complaints of gender,

sexual harassment, and retaliation.

8. For example, in attempting to seek resolution through HR, female employees

have been met with the comment: “What’s wrong with kissing a little ass?”

9. Quest has known or should have known that its business practices—including, but

not limited to, its promotion, discipline, demotion, evaluation, and compensation practices—

have an illegal disparate impact on female employees, employees with family responsibilities,

and pregnant employees. Despite this knowledge, Quest has failed to take measures to rectify

such illegal disparate impact.

10. Quest discriminates against its female sales representatives through, inter alia:

discriminatory policies, practices, and/or procedures in selection, promotion, advancement, and

disparate pay in violation of Title VII of the Civil Rights Act of 1964, as amended by the Civil

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Rights Act of 1991 and the Lilly Ledbetter Fair Pay Act of 2009 (Fair Pay Act), Title 42 U.S.C.

2000e, et. seq. (“Title VII”); and the Equal Pay Act, 29 U.S.C. § 206(d) (“EPA”).

11. The systemic gender discrimination described in this Complaint has been and is

continuing in nature.

12. Class Representatives are seeking, on behalf of themselves and the Class they

seek to represent, declaratory and injunctive relief; backpay; front pay; compensatory, nominal,

and punitive damages; and attorneys’ fees, costs, and expenses to redress Quest’s pervasive and

discriminatory employment practices, policies, and/or procedures.

JURISDICTION AND VENUE

13. This Court has subject matter jurisdiction over this suit pursuant to 28 U.S.C.

§ 1331 because this action is based on Title VII and the EPA, which are federal statutes.

14. This Court may exercise personal jurisdiction over Defendants pursuant to N.J.

Court Rule 4:4-4(a)(6).

15. Defendants, through their authorized agents within the scope of their authority,

have caused severe physical and emotional harm and tortious injury to Class

Representatives and the class through their gender discrimination and retaliation in New

Jersey.

16. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because Defendants

are subject to personal jurisdiction in this Court.

17. Venue also is proper in this Court because according to the Supreme Court of

New Jersey, “[p]roof of a merger is sufficient to establish liability under N.J.S.A. 14A: 10-6.”

Baker v. Nat'l State Bank, 161 N.J. 220, 228 (N.J. 1999). As the parent company of AmeriPath,

Quest is liable for the obligations and liabilities of AmeriPath.

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PROCEDURAL HISTORY

18. Class Representatives timely filed Charges of Discrimination with the Equal

Employment Opportunity Commission (“EEOC”). Ms. Beery filed her Charge on December

14, 2010 and received her Letter of Right to Sue on October 15, 2011. Ms. Traeger filed her

Charge on January 11, 2011 and received her Letter of Right to Sue on October 17, 2011.

PARTIES

19. At all times relevant to this action, PLAINTIFF ERIN BEERY has resided in

Carmel, Indiana. Ms. Beery has been employed by Quest or one of its subsidiaries since

February 2004.

20. At all times relevant to this action, PLAINTIFF HEATHER TRAEGER has

resided in Bradenton, Florida. Ms. Traeger has been employed by Quest or one of its

subsidiaries since November 2005.

21. At all times relevant to this action, DEFENDANT QUEST DIAGNOSTICS,

INC. is and has been a multi-national company incorporated under the laws of Delaware and

headquartered in Madison, New Jersey that conducts substantial business in New Jersey.

22. At all times relevant to this action, DEFENDANT AMERIPATH, INC. is and

has been a national company incorporated under the laws of Delaware and headquartered in

Palm Beach Gardens, Florida that conducts substantial business in New Jersey.

FACTUAL ALLEGATIONS

I. MS. BEERY

Background

23. Ms. Beery is a current employee of Quest where she is an Executive Territory

Manager in the Anatomical Pathology Sales Division in Indianapolis, Indiana.

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24. Ms. Beery began her employment with Quest in February 2004 as a Central

Regional Director of New Business Development of the Anatomical Pathology Sales Division.

25. In March 2005, Ms. Beery was promoted to Executive Territory Manager in the

Anatomical Pathology Sales Division.

26. Ms. Beery has consistently achieved superior performance results. Since she

began at Quest, she has finished within the top five employees for sales performance. She

received multiple sales awards including 2004 Anatomical Pathology Sales Rookie of the Year,

2005 Sales Rep of the Year, 2006 President’s Club Award, 2009 EGFR/KRAS Molecular Sales

Contest, and 2009 “Best of Quest” Award.

27. In addition, she served as a National Sales Mentor from March 2005 to September

2010—a responsibility granted to only a handful of AmeriPath’s most valued employees—and

served on AmeriPath’s Oncology Resource Committee from 2004 until January 2011.

28. Despite her obvious skills and qualifications, Ms. Beery has been discriminated

against on account of her gender. She has been denied promotional opportunities, given unfair

performance evaluations, and has been subjected to discriminatory actions that have stalled her

career.

Disparate Treatment

29. Ms. Beery and the female members of her sales team were forced to work under

less favorable circumstances compared to their male counterparts under the supervision of Sales

Director for the West Jason Sak (“West Sales Director Sak”). Beginning in January 2008, West

Sales Director Sak became increasingly unavailable to Ms. Beery, Sandy Cooper, Kelly Otter,

Jamie Moore, and Missy Campbell.

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30. With respect to Ms. Beery specifically, West Sales Director Sak ignored her

expressed desire to move up within Quest, failed to identify promotional or training

opportunities for her, and left a significant issue with Ms. Beery’s commission unresolved. His

conduct directly affected Ms. Beery’s ability to do her job and interfered with her opportunities

for advancement.

31. Meanwhile, Ms. Beery’s male counterparts enjoyed open communication lines

with West Sales Director Sak that allowed them to receive training and promotional

opportunities.

32. For example, West Sales Director Sak met with Ms. Beery’s male colleague,

Territory Manager Babe Kwasniak, on a regular basis, responded to his e-mails and calls, took

him to dinner, and conducted one-on-one meetings with him throughout his employment to

discuss his sales and opportunities.

33. In May 2008, West Sales Director Sak cancelled his weekly calls with Ms. Beery

altogether. Without them, the pace at which Ms. Beery received approval for contracts and

daily action items slowed significantly compared to her male colleagues. Upon information and

belief, West Sales Director Sak did not cancel his weekly calls and meetings with male

subordinates.

34. To address West Sales Director Sak’s lack of communication, Ms. Beery and Ms.

Campbell arranged a meeting with Director of Human Resources for AmeriPath Sarah Pechin

(“HR Director Pechin”) and discussed with her, among other things, their difficulties reaching

West Sales Director Sak and Ms. Beery’s issues with commission pay. HR Director Pechin

recorded their complaints and said she would get back to Ms. Beery and Ms. Campbell about a

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resolution. However, HR Director Pechin failed to remedy the issues with West Sales Director

Sak and commission pay.

35. Quest still owes Ms. Beery commission from August 2008 to December 2008.

36. While male employees whom West Sales Director Sak oversaw directly

benefitted in the form of advancement opportunities and promotions from their weekly, if not

daily, communications with him, Ms. Beery, was denied membership in Quest’s Sales Advisory

Committee (“SAC”), Six Sigma training, and pursuit of her MBA.

37. First, West Sales Director Sak unfairly awarded Babe Kwasniak and Territory

Manager Kevan Miller (“Territory Manager Miller”) membership to the SAC after Quest

announced the creation of a revamped SAC headed by Vice President of Sales for AmeriPath

Michelle Zwickl (“VP of Sales Zwickl”) in fall 2008.

38. Ms. Beery had been an active member of AmeriPath’s SAC (previously named

“Commission Council Advisory Board”) since January 2005 and had regularly expressed

interest in continuing to participate to West Sales Director Sak and another Regional Sales

Manager, Kim Feitosa (“Regional Sales Manager Feitosa”), throughout the fall of 2008.

39. Participation in the SAC is a significant factor in Quest’s promotion decisions.

But despite being aware of Ms. Beery’s desire to move up within Quest as early as March 2007,

West Sales Director Sak refused to nominate Ms. Beery for the SAC. He justified his decision

by claiming that Ms. Beery had never expressed interest in moving into management, despite

his own acknowledgements to the contrary in Ms. Beery’s 2007 and 2008 performance reviews.

40. Second, in May 2007, West Sales Director Sak denied Ms. Beery’s request to take

Six Sigma training – an important stepping stone to promotion – through the InteliQuest

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System, an educational program Quest offers to teach employees Company operations. He

neglected to provide her with other opportunities that he offered to male employees.

41. For example, when West Sales Director Sak went on vacation, he appointed an

“Interim Sales Director” to manage his team in his absence. West Sales Director Sak often

offered the Interim Sales Director position to male Territory Manager Joe Lebryk, whom Ms.

Beery had mentored, despite knowledge of Ms. Beery’s interest in assisting him as manager.

42. Third, Ms. Beery had expressed her interest in obtaining her Masters in Business

Administration (“MBA”) to Anatomical Pathology Sales Director Babe Kwasniak (“APSD

Kwasniak”) as early as August 23, 2010 when she requested advice regarding Quest’s

Educational Assistance Program. After failing to respond for over a month, Sales Director

Kwasniak claimed that he did not know how to fill out the forms and that he could not help her.

Ms. Beery later learned that before her request, Sales Director Kwasniak had already assisted

male employee, Jordan Frasier, with obtaining his MBA through Quest’s Educational

Assistance Program and so was knowledgeable about the process and requisite forms, even

going so far as to write a recommendation for him.

43. The unfavorable treatment that Ms. Beery suffered compared to her male

counterparts also extended to her performance reviews. Before September 2010, Ms. Beery had

only received positive performance reviews and accolades for her work.

44. In August 2010, Ms. Beery noticed that $375,000 of revenue that she had secured

from January to July 2010 had not appeared on the tracking chart used to evaluate each

employee. Although Ms. Beery arranged a meeting with Sales Director Kwasniak and Ms.

Campbell as early as April 2010 to discuss the missing revenue, Sales Director Kwasniak failed

to take any action. Even those directly involved with revenue postings, namely Data

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Management Representative Chris Pesek, West Sales Director Sak, and VP of Sales Zwickl

failed to address Ms. Beery’s complaints for months.

45. As a result, Quest knowingly used inaccurate numbers to review Ms. Beery’s

performance, resulting in her first negative performance review on September 15, 2010, in

which she received an overall score of “D,” indicating she needed development.

46. When Ms. Beery asked the basis for her negative review, APSD Kwasniak replied

that upper management had pressured him to give her the low rating and to put her on a

performance improvement plan.

47. In complete contradiction to her negative performance review, the August 2010

rankings that Quest released showed that she was ranked 4th out of 21 territory managers at 101

percent of her 2010 year-end quota. Yet Ms. Beery was threatened with a performance

improvement plan while male employees Territory Manager Brandon Young and Chris Byrne

who were performing under 20 percent to quota were not placed on nor threatened with

performance improvement plans.

48. After this first unwarranted negative performance review, Ms. Beery has

continued to receive negative performance reviews despite receiving numerous positive reviews

from colleagues and pathologists. Ms. Beery has also regularly asked Sales Director Kwasniak

for suggestions on how she could improve her skills, but Sales Director Kwasniak has failed to

provide her with any recommendations for improvement.

49. Instead, Sales Director Kwasniak simply continues to threaten placing Ms. Beery

on a performance improvement plan.

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Denial of Promotional Opportunities

50. Although Ms. Beery was highly qualified for at least two promotional

opportunities, she was met with discriminatory comments and actions that discouraged and/or

prevented her advancement.

51. First, in the summer of 2009, when Ms. Beery approached Medical Director Jeff

Mossler (“Medical Director Mossler”) about an open position for Director of Hospital Business

Development for the Eastern Region, he advised her not to take the position because “there is

too much travel, and you have small kids.” Although Territory Manager Miller, APSD

Kwasniak, and West Sales Director Sak also all have children under the age of seven, upon

information and belief, none of these men or any other male employee has been discouraged

from applying for a position because of having young children. Following Medical Director

Mossler’s advice, Ms. Beery withdrew her name from the application pool in September 2009.

52. Second, in October 2009, Ms. Beery also applied to one of four Anatomical

Pathology Sales Director (“APSD”) positions. Ms. Beery and Babe Kwasniak were the only

two applicants for the Central Region. Ms. Beery had 15 years of anatomical pathology sales

experience and was the 2004 Anatomical Pathology Sales Rookie of the Year and 2005 Sales

Rep of the Year and received the 2006 President’s Club Award. She also mentored male

employees who had since received promotions, including Joe Lebryk and Todd Homan. In

comparison, Babe Kwasniak only had three years of sales experience.

53. On November 5, 2009, Ms. Beery learned that Babe Kwasniak had received the

position instead of her. When Ms. Beery asked why she was denied the position despite her

superior qualifications, VP of Sales Zwickl stated that Babe Kwasniak had asked for the

position first and his participation in the SAC (to which Ms. Beery was denied membership),

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was a significant factor in his promotion. During a meeting with Ms. Beery on December 5,

2009, VP of Sales Zwickl reiterated this explanation and admitted that when considering who to

nominate to serve on the SAC, she had eliminated all the pregnant women first.

54. Upon information and belief, VP of Sales Zwickl and West Sales Director Sak

also conducted one-on-one meetings with Babe Kwasniak in anticipation of the position

opening and extended him an earlier opportunity to participate in the interview process than Ms.

Beery. Although Ms. Beery’s application was supposedly considered, she learned from Ms.

Campbell, Ms. Traeger, Ray Ozambala, Territory Manager Matt Liggett, Territory Manager

Matt Vanjura, Regional Sales Manager Feitosa, and Ms. Cooper that Babe Kwasniak had

already received the APSD position while her application was still supposedly being

considered.

55. As a result of his promotion, APSD Kwasniak became Ms. Beery’s direct

supervisor on December 27, 2009.

56. Quest systematically promotes men at a faster rate than women. For example,

APSD Kwasniak and Territory Manager Miller were promoted within their first 2 years at

AmeriPath over women with more sales experience.

57. AmeriPath hired West Sales Director Sak, Sales Director Maloney, and Ms. Beery

in 2004. By that time, Ms. Beery had acquired approximately 11 years of anatomical pathology

sales experience, while West Sales Director Sak and Sales Director Maloney each only had

approximately 1.5 years of general sales experience.

58. West Sales Director Sak received 4 promotions within his first 6 years at

AmeriPath, and Sales Director Paul Maloney received 5 promotions within his first 4 years at

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AmeriPath. Meanwhile, Ms. Beery has not received any promotions to management level

positions despite 17 years of anatomical pathology sales experience.

59. Ms. Beery did not have the opportunity to apply to several of the promotions

West Sales Director Sak and Sales Director Maloney received. Instead, AmeriPath deliberately

did not post the positions because they already planned to award the promotions to West Sales

Director Sak or Sales Director Maloney. In addition to being passed over for promotions in

favor of males, Ms. Beery has also suffered less favorable treatment compared to male

employees. Throughout 2011, APSD Kwasniak has conducted regular ride-alongs with

Territory Manager Herman, Mr. Frasier, and Account Manager Jerry Gonzales. At least a few

times a year, APSD Kwasniak has met with these individuals for several days at a time. In

contrast, APSD Kwasniak has canceled scheduled meetings with Ms. Beery and only visits her

twice a year for less than an hour and spends approximately 10 hours per year over the phone

with her.

Hostile Work Environment

60. Defendants foster and promote a general corporate culture that reflects upper

management’s negative, derogatory, and discriminatory attitude towards women. For example,

APSD Kwasniak told Ms. Beery, “Forty-year-old mothers really do it for me. They are the ones

that turn me on. My wife and I were at a ball game and my wife turns to me and says, ‘You

have a problem. You are checking out the high school girls.’ I told her, ‘No, I’m checking out

all the moms.” As a 44-year-old mother, this comment made Ms. Beery extremely

uncomfortable. When Ms. Beery and APSD Kwasniak arrived for a lunch with Ms. Campbell

and Territory Manager Brian Herman, APSD Kwasniak repeated the story.

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61. VP of Sales Zwickl displays favoritism toward Ms. Beery’s male colleagues and

feeds the atmosphere of an “old boys’ club.” For example, VP of Sales Zwickl routinely

excludes Ms. Beery from meetings she arranges with a group of employees whom she calls “her

boys.” APSD Kwasniak and Territory Manager Miller have been present at these meetings.

When Ms. Beery offered to drive a group of employees to a particular destination, VP of Sales

Zwickl reprimanded her, saying it was “time to spend with [her] boys so they can let off some

steam.”

62. These “boys” do not receive similar verbal abuse and hostility from VP of Sales

Zwickl as Ms. Beery has received from her. In September 2009, Ms. Beery teased Territory

Manager Miller about a sales contest. When VP of Sales Zwickl overheard Ms. Beery’s

comments, she began yelling loudly at Ms. Beery in front of eight of her colleagues, raising

suspicion about Ms. Beery’s conduct and threatening her reputation. Ms. Beery has never

witnessed VP of Sales Zwickl treat male employees in a similar fashion. Instead, she regularly

saw VP of Sales Zwickl encourage the development of male employees and laugh at teasing

comments that male employees Pat McHenry, Mike Stanghl, and Jordan Frasier made to their

colleagues and even to their supervisor, APSD Kwasniak.

63. On multiple other occasions, both publicly and privately, including at the National

Sales Meeting in Orlando Florida in February 2010 and when she received her performance

review on September 24, 2010, VP of Sales Zwickl has berated and questioned Ms. Beery’s

integrity with no basis.

Retaliation

64. After Ms. Beery engaged in protected activity, Quest retaliated against her by (1)

removing her from the process of interviewing prospective employees who would report

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directly to her (a process enjoyed by other male employees); (2) deliberately excluding her from

important correspondence; (3) removing her from the mentor committee and the Oncology

Resource Committee in 2010; and (4) threatening her with disciplinary action and a

performance improvement plan.

65. When Ms. Beery complained to HR Director Pechin on September 21, 2009

regarding VP of Sales Zwickl’s hostile treatment of her, HR Director Pechin failed to follow up

regarding this complaint until nearly one year later on September 17, 2010.

66. When they met for the second time, HR Director Pechin informed Ms. Beery that

she had been in discussions with Vice President of AmeriPath Phil Spencer about VP of Sales

Zwickl’s conduct. However, VP of Sales Zwickl’s behavior towards other women and Ms.

Beery actually worsened following Ms. Beery’s complaint.

67. In January 2011, less than a month after she filed her EEOC Charge, Ms. Beery

was removed from the Mentor Committee and the Oncology Resource Committee even though

she had participated in these committees since 2004. Ms. Beery also received a second unfair

performance review in 2011 after she filed her EEOC Charge.

68. After Quest received Ms. Beery’s formal complaint, APSD Kwasniak became

increasingly hostile and unreachable towards Ms. Beery. For example, in the end of March or

beginning of April 2011, APSD Kwasniak directed Ms. Beery’s Account Service

Representative, Ms. Campbell, instead of Ms. Beery herself to interview an applicant who

would be another subordinate to Ms. Beery. Prior to Ms. Beery filing her complaint, APSD

Kwasniak told Ms. Beery she should handle all interactions with the candidate. Although Ms.

Campbell would have been the applicant’s peer and not her supervisor (as Ms. Beery would

have been), APSD Kwasniak did not allow Ms. Beery to interview the applicant. Upon

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information and belief, male employees at Ms. Beery’s position are regularly allowed to

interview potential direct reports.

69. In April 2011, APSD Kwasniak excluded Ms. Beery from an e-mail that he sent

to every other sales representative in the Central Region inviting them to a Quest event.

70. Similarly, Quest is preparing for a territory split to redistribute the accounts of

Ms. Beery’s Account Service Representatives. Her commission is based on the performance of

those representatives, but she has been left off all important communications. When she

complained to APSD Kwasniak about her absence from e-mails and conversations, he told her

that she did not “need to know everything.”

71. In June 2011, APSD Kwasniak accused Ms. Beery of insubordination and

threatened her with disciplinary action after she simply e-mailed a new hire to welcome her to

Quest.

72. That same month, APSD Kwasniak criticized Ms. Beery’s market share

estimation during her business review, even though that was a value derived directly from data

Quest presents to Ms. Beery. APSD Kwasniak threatened her again in June 2011 and

September 2011 that she would be put on a performance improvement plan.

73. In September 2011, Quest gave Ms. Beery a third unfair and discriminatory

review, rating her an overall score of “D” for Developing, including a “U” rating for

“Unsatisfactory” related to her interpersonal skills.

74. Quest has criticized all aspects of Ms. Beery’s work without cause and created a

stressful, no-win work environment. Although APSD Kwasniak told Ms. Beery to improve her

interpersonal skills, he has failed to provide any suggestions on how she can improve and told

her during a November 18, 2011 meeting that she was no longer allowed to speak with anyone

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other than her Account Service Representatives about anything other than the Indiana territory.

Ms. Beery’s performance is evaluated partly on interactions with her team members.

75. Due to Quest’s discriminatory and retaliatory actions, Ms. Beery has experienced

exacerbated, stress-related symptoms of her gastrointestinal disorder, a condition with which

Ms. Beery was diagnosed earlier this year. On November 25, 2011, Ms. Beery went on

approved leave under the Family and Medical Leave Act (“FMLA”).

76. Three hours after Ms. Beery corresponded with Human Resources about her

medical leave, AmeriPath restructured her territory for the entire 2012 year. When Ms. Beery

returns from FMLA leave, 20 percent of her geography will have been removed and given to

male Account Manager Gonzales whose current performance ranks him in the bottom 20

percent of sales employees and an additional 30 percent to a new sales representative, Jon

Pitner. Ms. Beery will also not be allowed to call on several accounts that would have

accounted for approximately 50 percent of her new business quota in 2012 and will not receive

any adjustment in her $1.4 million dollar quota for the year.

Pay Discrimination

77. Due to her stellar performance, Ms. Beery typically received yearly raises of

approximately 3% or 4% of her salary. However, following Ms. Beery’s second negative

performance review in January 2011, the Company reduced her raise to approximately 1% of

her salary. Ms. Beery also expects significant decreases in commission due to the Company’s

decisions to minimize her territory and opportunities.

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II. MS. TRAEGER

Background

78. Ms. Traeger began her employment with Quest in November 2005 as a Territory

Manager of New Business Development of the Anatomical Pathology Sales Division.

79. In June 2010, Ms. Traeger was promoted to her current position of Senior

Executive Territory Manager in the Anatomical Pathology Sales Division in Bradenton, Florida.

80. Ms. Traeger has consistently achieved superior performance results. Since she

began at Quest, she has finished within the top three employees for sales performance. In 2006

she was the AmeriPath Sales Representative “Rookie of the Year.” Despite her absence due to

maternity leave from April 14, 2009 to the end of June 2009, Ms. Traeger was still ranked

number one in the Sales and Marketing Department in 2009. In 2010, Ms. Traeger won the

“Surya Challenge” and was awarded Mentor of the Year and Territory Manager of the Year.

81. Throughout her employment, Ms. Traeger has participated in numerous Quest

committees and organizations. For example, she has held positions in Care 360, the National

Sales Meeting Advisory Team, the GI Team, the GU Team, and the KRAS

Rollout/Implementation Team. In addition, she has been responsible for local implementation

of pilot programs for Aetna and CIGNA within Quest.

82. Due to her excellent performance, Ms. Traeger served as a Mentor to Blayne

Smith from January to December 2010.

83. Despite her obvious skills and qualifications, Quest has discriminated against Ms.

Traeger on account of her gender. She has been denied equal pay and promotional

opportunities compared to her male counterparts, given unfair performance evaluations, and

subjected to discriminatory actions that have stalled her career.

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Pay Discrimination

84. In January 2010, Ms. Traeger secured a multi-million dollar account with the

Florida Cancer Specialist Project. AmeriPath has not paid Ms. Traeger sufficiently for her work

in securing the account and the subsequent earnings on commission since 2009. VP of Sales

Zwickl, East Sales Director Botarelli, and APSD Nicholls have neglected her e-mail, telephone,

and in-person requests to rectify this error. But when Territory Manager Liggett raised a similar

concern that AmeriPath owed him money on commission, East Sales Director Botarelli flew to

his location, rented a limousine, and took him out. She ultimately authorized his payment for

commission. VP of Sales Zwickl also approved commission requests for APSD Kwasniak

while he was in his previous Territory Manager position.

85. In 2009, Ms. Traeger was awarded the President’s Club “Best of Quest Award,”

which entitled her to a President’s Club trip and reimbursement. Ms. Traeger was on FMLA

leave during the dates scheduled for the trip and therefore could not attend. VP of Sales Zwickl

denied Ms. Traeger’s request for compensation for the trip cost or another opportunity to travel.

86. However, upon information and belief, APSD Kwasniak was unable to attend an

award trip because his wife was graduating from medical school. In that instance, Quest

granted his request for compensation, awarding him over $10,000 for another trip to Hawaii.

87. VP of Sales Zwickl took months to respond to Ms. Traeger’s March 2010 request

for a raise and upon information and belief, had told APSD Nicholls that she purposely had not

acted upon Ms. Traeger’s request. Ms. Traeger finally received part of the raise in June 2010,

but Quest failed to pay her retroactively to January 2010. Ms. Traeger never heard of any male

employee experiencing difficulty receiving a raise from VP of Sales Zwickl.

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Denial of Promotional and Training Opportunities

88. With more sales opportunities in fruitful territories, lower quotas, and more

training opportunities, Defendants have granted male employees disproportionate access to

resources and exposure to decision-makers that improve their chances for promotion.

89. In 2009, VP of Sales Zwickl allowed Ms. Traeger’s male colleague, Territory

Manager Young, to attend a National Conference for the American Society of Hematology in

Orlando, Florida, even though she had stated that these meetings were for top performers only.

Territory Manager Young was ranked in the bottom five out of twenty at 15 percent to quota.

In contrast, Ms. Traeger was ranked as the number one AmeriPath sales employee in 2009 and

2010.

90. In the spring of 2010, VP of Sales Zwickl invited approximately eight to ten male

subordinates (her “boys”) to attend the Wounded Warriors Dinner and stay overnight in New

York City. In March 2010, East Sales Director Botarelli took her team of managers to New

York City for “East Team Building” on Saint Patrick’s Day. Upon information and belief, Ms.

Traeger and her female colleagues have not been invited to similar events.

91. In addition to denying Ms. Traeger additional territory, quota adjustment, and

special projects that AmeriPath regularly gave to male counterparts, which instantly qualified

them for promotions, APSD Lebryk discouraged Ms. Traeger from applying for promotions and

deliberately blocked multiple avenues he told Ms. Traeger she must explore to become a Sales

Director.

92. For example, during several phone conversations in October or November 2008,

APSD Lebryk told Ms. Traeger not to apply for the position of Director of National Accounts

after she raised interest in the opportunity because VP Zwickl already knew who she wanted for

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the position. Because it would have been futile to apply without her supervisor’s authorization,

Ms. Traeger did not apply for this position. Around December 2008, Quest announced that Pat

Griffin (“Director Griffin”), a newly hired, less qualified male, had received the position. While

Ms. Traeger had three years of experience managing accounts on the national level and

significant pathology sales experience, Director Griffin did not have any national sales

experience or specific pathology sales experience. Quest eventually eliminated Director

Griffin’s Director of National Accounts position because of his poor performance.

93. In September 2009, Ms. Traeger informed APSD Lebryk that she wanted to

pursue the Director of Sales Planning and Development position. He told her not to apply as it

would “rock the boat” and “[VP] Zwickl already knows who she wants to hire.” Because it

would have been futile to apply without her supervisor’s recommendation, Ms. Traeger did not

apply for this position either. Quest promoted Director Griffin to this position. Like before,

Ms. Traeger was more qualified than Director Griffin.

94. APSD Lebryk frequently informed Ms. Traeger that she must be a mentor to

become a Sales Director but failed to provide any opportunity for Ms. Traeger to obtain

qualifying mentoring experience. APSD Lebryk knew from her regular requests that Ms.

Traeger had wanted to become a mentor since late 2007. He was also aware that since her hire,

Ms. Traeger informally advised and invited into her territory numerous other sales

representatives. Despite Ms. Traeger’s experience, APSD Lebryk claimed that the reason she

could not become a mentor was because she did not sell for the largest lab in Florida. But

although Ms. Traeger repeatedly requested by telephone and e-mail to sell for this lab, APSD

Lebryk never gave her the opportunity to do so.

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95. Pursuing yet another avenue for promotion, Ms. Traeger requested APSD Lebryk

approve “Black Belt”/“6 Sigma” training as part of her 2009 performance review. Again,

APSD Lebryk discouraged Ms. Traeger.

96. When APSD Nicholls became her manager, Ms. Traeger was denied “Green Belt”

training in the summer of 2010 but male Territory Managers, Jim Piotrowski and Steve

Gribshaw, were allowed to attend training sessions.

97. In February and April 2010, Ms. Traeger continued to seek out advancement

opportunities on her own. She spoke with Oncology Product Manager Tim Dlugos (“Product

Manager Dlugos”) to express her interest in the ONCO Force, a marketing advisory group for

oncology sales. She had closed the largest oncology account in AmeriPath’s history and

Product Manager Dlugos confirmed that she was highly qualified. He told her, however, that

VP of Sales Zwickl had already compiled a list of people she wished to admit to the group.

Despite her oncology expertise, Ms. Traeger was not allowed to participate.

98. In April 2010, VP of Sales Zwickl directly interfered with Ms. Traeger’s steps

toward pursuing a Director of Operations position. After Vice President of Operations Lynne

Bird (“VP of Operations Bird”) informed Ms. Traeger of the position, Ms. Traeger learned that

VP of Sales Zwickl reprimanded VP of Operations Bird for discussing the opportunity with Ms.

Traeger.

99. When East Sales Director Botarelli learned that Ms. Traeger had started her

application for the Director of Operations position in April 2010, she advised Ms. Traeger to

“kiss [VP of Sales Zwickl]’s ass. That’s what everyone else does and you just won’t do it.”

East Sales Director Botarelli and VP of Sales Zwickl are known to have a very close working

relationship.

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100. VP of Sales Zwickl also told Ms. Traeger that she could not apply for a marketing

position because Ms. Traeger had “no marketing experience,” although Ms. Traeger had

performed marketing functions and completed marketing projects throughout her employment.

Ms. Traeger is aware that VP of Sales Zwickl did not hold her male colleagues who were

interested in marketing positions to similar requirements. Specifically, VP of Sales Zwickl

allowed Territory Manager Young, who has no more marketing experience than Ms. Traeger, to

pursue marketing positions within Quest.

101. Another qualification to become a Sales Director is participation in Quest’s SAC.

When forming a new SAC in the fall of 2008, VP of Sales Zwickl denied Ms. Traeger’s

pregnant colleagues and Ms. Traeger participation on the committee. APSD Lebryk confirmed

VP of Sales Zwickl’s motivations when he informed Ms. Traeger’s colleague, Ms. Ashton, that

Ms. Traeger would not be allowed to be a SAC member because she was pregnant and on

maternity leave.

102. On July 16, 2010, Ms. Traeger met with VP of Sales Zwickl and HR Rep Harbin.

During the meeting, VP of Sales Zwickl informed Ms. Traeger that she could not apply for any

positions above Senior Territory Manager because she had to be an APSD first. That was not a

requirement according to the job descriptions. VP of Sales Zwickl also added that Ms. Traeger

could not be an APSD “because [she had] small children.” There are several male APSDs with

small children still employed at Quest, but at least two women with small children have

resigned due to the work environment and barriers to advancement Quest maintains against the

mothers it employs.

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Disparate Treatment

103. Defendants regularly denied Ms. Traeger the same opportunities extended to her

male colleagues.

104. Quest requires its sales representatives to meet yearly quotas for sales in their

respective territories. Of the individuals APSD Nicholls oversees, Ms. Traeger operates in the

territory with the least opportunity, but is held to a higher quota than her four male colleagues

who have territories with larger opportunities.

105. For example, Territory Managers Brock Leonard, Blayne Smith, Jorge Pena, and

Alejandro Martinez work in territories with larger opportunities and are required to meet the

same or lower quotas than she is.

106. Compared to other Territory Managers, Ms. Traeger is only allowed to operate in

five Florida counties while her male counterparts have accounts that span across an entire state.

107. For example, Territory Managers Vanjura and Young had 2011 quotas of

approximately $750,000 each, and Senior Executive Territory Manager Liggett had a 2011

quota of approximately $1 million. Meanwhile, Quest required that Ms. Traeger meet a quota

of $1.4 million in 2010 and $1.48 million in 2011.

108. Throughout each year over the phone and in meetings, Ms. Traeger raised the

issue of the quota disparity to APSD Nicholls and APSD Lebryk. APSD Nicholls always

denied Ms. Traeger’s requests to enlarge her territory. When she asked to assume some of

Oncology Territory Manager Pena’s accounts after he left, APSD Nicholls denied her request

because “we want to hire someone who is 100% ‘relocatable,’ like a guy in the military.”

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109. He later informed Ms. Traeger that she “may be able to assume part of the

territory temporarily until they hire someone else,” but without allowing her to recognize any of

the sales as new business.

110. Despite resignations and terminations of several sales representatives who

handled Florida accounts, APSD Lebryk never gave Ms. Traeger the opportunity to assume

additional accounts. Instead, AmeriPath hired approximately 6 new male sales representatives.

Of them, Aaron Floyd had one year of account maintenance with a pharmaceutical company but

no other medical sales experience, Blayne Smith, Jorge Pena, and Ray Ozambala had no sales

experience prior to their hire dates, Brock Leonard had approximately one year of sales

experience at the time of his hire in 2010, and Alejandro Martinez had approximately one and a

half years of sales experience prior to his December 2011 hire date.

111. In August 2010, Ms. Traeger received her mid-year performance review. At the

time, she worked in the Southwest Fort Myers Florida lab with the AmeriPath Central Florida

lab. Because the Southwest Florida lab relays its work to the Central Florida lab, Quest always

evaluated and paid Ms. Traeger based on her performance at the Southwest Florida lab. Ms.

Traeger later learned in a September 21, 2010 meeting with APSD Nicholls that VP Zwickl

insisted that he evaluate her on her performance at both labs.

112. When Ms. Traeger received her review, it contained false and negative comments

related to her performance. These comments did not include input from Florida Managing

Director, Dr. Levine, the primary person with whom Ms. Traeger worked.

113. Ms. Traeger confronted the Managing Director for the Central Florida lab, Dr.

Cribbett, one of the individuals identified in the evaluation to have spoken negatively about her.

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He told her he had reported her performance positively to VP of Sales Zwickl. When Ms.

Traeger planned to apply to another position, Dr. Cribbett wrote her a recommendation.

Hostile Work Environment

114. VP of Sales Zwickl and several members of upper management encourage and

sustain a hostile environment at Quest. For example, at a 2009 national sales meeting, Territory

Manager Liggett smacked VP of Sales Zwickl’s buttocks on stage in front of the sales team.

115. At a December 2009 Oncology training meeting in Shelton, Connecticut, Director

Griffin asked a group that included several newly hired employees (Kara Douglass, Jennifer

Hiller, and Heather Anderson) to name individuals they would “stay” with, “go” with, or “fuck”

in a game called “Stay, Go, or Fuck.” Despite multiple requests, Ms. Traeger refused to

participate and decided to leave the restaurant.

116. Ms. Traeger has overheard VP of Sales Zwickl state that she likes people who use

the F-word better.

117. At a February 2010 national sales meeting in Orlando, Florida, the general

atmosphere encouraged heavy drinking and inappropriate behavior between employees.

Specifically, VP of Sales Zwickl asked several APSDs and Sales Representatives how often

they had sex with their spouses. APSD Kwasniak repeated the question to Ms. Traeger later

that evening.

118. In addition, Ms. Traeger saw one of VP of Sales Zwickl’s “boys,” Territory

Manager Young, sitting on VP of Sales Zwickl’s lap during the evening.

119. VP of Sales Zwickl, East Sales Director Botarelli, and other individuals in upper

management are typically unavailable for discussion unless it is late at night at a bar. Ms.

Traeger regularly feels pressured to attend late night events. On several occasions, she spoke

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with APSD Nicholls to request that East Sales Director Botarelli not encourage late-night

conversations about issues at work. East Sales Director Botarelli acknowledged Ms. Traeger’s

request at one of the late-night events but never changed her practice of holding these events

late at night.

120. On several occasions, Ms. Traeger heard from colleagues that VP of Sales Zwickl

spoke negatively about Ms. Traeger’s performance in meetings and to her colleagues.

121. At an American Society for Hematology meeting, a group of Sales and Marketing

employees were gathered around the hotel restaurant discussing Territory Manager Miller’s

recent notice of resignation. Adding to the conversation, VP of Sales Zwickl said, “I’m so

upset. He’s the first AmeriPath Sales Representative I ever slept with.”

Retaliation

122. After engaging in protected activity, Defendants retaliated against Ms. Traeger.

123. VP of Sales Zwickl is known for interfering with and retaliating against female

employees who express interest in moving up within Quest. Human Resources is aware of this

issue and advises female employees to avoid VP of Sales Zwickl during the application process

for new positions. For example, Human Resources Representative Sharon Berry (“HR Rep

Berry”) suggested that Ms. Traeger not apply online for a Director of Operations position that

she had learned about from VP of Operations Bird, but instead fax her application to Human

Resources so that VP of Sales Zwickl would not see it. She even suggested that they speak

about Ms. Traeger’s qualifications without VP of Sales Zwickl present.

124. At the same time, it is generally known that VP of Sales Zwickl maintains a close

relationship with HR Rep Harbin, the representative responsible for investigating some of Ms.

Traeger and Ms. Beery’s complaints. Despite this apparent conflict of interest, during a July 16,

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2010 meeting with VP of Sales Zwickl and HR Rep Harbin, Human Resources denied Ms.

Traeger’s request for another Human Resources representative to handle her complaints.

125. VP of Sales Zwickl has also been verbally hostile to Ms. Traeger following her

complaints of discrimination. After sending an e-mail in May 2010 complaining to Dr. Levine

and Dr. Cribbett of VP of Sales Zwickl’s treatment of her, the comments she heard from

colleagues, and the benefits given to certain male employees, Ms. Traeger met with VP of Sales

Zwickl. During the meeting VP of Sales Zwickl became extremely angry with Ms. Traeger and

intimated that she had told Ms. Traeger’s colleagues, Territory Manager Miller and Mr.

Piotrowski, not to engage with Ms. Traeger, sit with her at meetings, or even speak with her.

126. Though VP of Sales Zwickl told Ms. Traeger that the details of their conversation

were confidential, upon information and belief, VP of Sales Zwickl told East Sales Director

Botarelli, Sales Director Sak, and Sales Director Kwasniak what they discussed during the

meeting.

127. When Ms. Traeger applied for a Southeast APSD position and was denied

advancement to the final round of interviews because East Sales Director Botarelli thought Ms.

Traeger did not handle an interaction with an employee well because she did not “verbally

counsel” her. In fact, Ms. Traeger counseled the employee both verbally and over e-mail.

V. CLASS ACTION ALLEGATIONS

128. Class Representatives Beery and Traeger represent a Class consisting of all

female sales representatives who are or have been employed by Defendants from February 17,

2010 to the present. Class Representatives and the Class of employees they seek to represent

have been subjected to a systemic pattern and practice of gender discrimination by Defendants.

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129. These discriminatory practices have subjected female sales representatives to

continuing unlawful disparate treatment and have had a continuing, unlawful disparate impact

on them and their employment opportunities. Such gender discrimination includes (a)

discriminatory policies, practices, and/or procedures in selection, promotion, and advancement;

(b) disparate pay; (c) discrimination on the basis of pregnancy and caretaking responsibilities;

(d) gender discrimination; and (e) sexual harassment, including taking unwarranted disciplinary

measures and subjecting them to increased scrutiny.

130. Defendants, in effect, bar female employees from better and higher-paying

positions, which have traditionally been held by male employees. The systemic means of

accomplishing such gender-based stratification include, but are not limited to, Defendants’

development, promotion, advancement, training, and performance evaluation policies, practices,

and procedures.

131. Defendants’ development, promotion, advancement, training, personnel

management, and performance evaluation policies, practices, and procedures incorporate the

following gender-based discriminatory practices: (a) refusing or failing to afford the same

communication and support in promotional opportunities afforded to its male employees; (b)

refusing or failing to provide equal training opportunities to females; (c) relying on the

subjective judgments, procedures, and criteria of managers who make decisions based on

gender stereotypes; and (d) ignoring, disregarding, minimizing, covering up, mishandling, or

otherwise failing to properly respond to evidence of discrimination in the workplace, even when

directly brought to the attention of senior management, Human Resources, or other supposed

reporting channels.

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132. Finally, Defendants demonstrate a reckless disregard – a deliberate indifference –

of its female employees by overlooking or otherwise dismissing even blatant evidence of gender

discrimination.

133. Defendants’ development, compensation, promotion, training, performance

evaluation, and personnel management have a disparate impact on the Class Representatives

and the Class they seek to represent. Such procedures are not valid, job-related, or justified by

business necessity. Such practices form a part of Defendants’ overall pattern and practice of

keeping women in the lower classifications that carry less desirable terms and conditions of

employment.

134. Indeed, the facts above and herein demonstrate that it is Defendants’ standard

operating procedure to discriminate against female employees on a mass scale.

135. Because of Defendants’ systemic pattern and practice of gender discrimination,

the Class Representatives and the Class they seek to represent have been adversely affected and

have experienced harm, including the loss of compensation, wages, back pay, and employment

benefits as well as physical and emotion pain and suffering.

136. Defendants have failed to impose adequate discipline for managers and

employees who violate fair employment policies and equal employment opportunity laws and

have failed to create adequate incentives for its managerial and supervisory personnel to comply

with such policies and laws.

137. Rather than taking remedial action to correct this discrimination, Defendants

ratified, perpetuated, and often escalated their discriminatory policies and practices to the

detriment of the Class.

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138. Class Representatives and the Class have no plain, adequate, or complete remedy

at law to redress the wrongs alleged herein, and this suit is their only means of securing

adequate relief. Class Representatives and the Class are now suffering, and will continue to

suffer, irreparable injury from Defendants’ ongoing, unlawful policies, practices, and

procedures as set forth herein unless those policies, practices, and procedures are enjoined by

this Court.

A. General Facts Relevant to Class Claims and Class Definition

139. Class Representatives Beery and Traeger seek to maintain claims on their own

behalf and on behalf of a Class of female sales representative employees at Defendants from

February 17, 2010 to the present.

140. Upon information and belief, the members of the proposed Class number are in

the hundreds.

141. Class Representatives seek to represent all the female sales representatives

described above. The systemic gender discrimination described in this Complaint has been, and

is, continuing in nature.

B. Efficiency of Class Prosecution of Common Claims

142. Certification of a class of female sales representatives is the most efficient and

economical means of resolving the questions of law and fact that are common to the claims of

Class Representatives and the Class. The individual claims of Class Representatives require

resolution of the common questions concerning whether Defendants have engaged in a systemic

pattern and/or practice of gender discrimination against female sales representatives and/or

whether their facially neutral policies have an adverse effect on the Class. Class

Representatives seek remedies to eliminate the adverse effects of such discrimination in their

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own lives, careers, and working conditions and in the lives, careers, and working conditions of

the Class members, as well as to prevent continued gender discrimination in the future.

143. Ms. Beery and Ms. Traeger have standing to seek such relief because of the

adverse effects that such discrimination has had on them individually and on female sales

representatives generally. In order to gain such relief for themselves and for the Class

members, the Class Representatives will first establish the existence of systemic gender

discrimination.

144. Without class certification, the same evidence and issues would be subject to re-

litigation in a multitude of individual lawsuits with an attendant risk of inconsistent

adjudications and conflicting obligations. Certification of the proposed class of females is the

most efficient and judicious means of presenting the evidence and arguments necessary to

resolve such questions for Class Representatives, the proposed Class, and Defendants.

C. Numerosity and Impracticability of Joinder

145. The Class that Class Representatives seek to represent is too numerous to make

joinder practicable. Upon information and belief, the proposed Class consists of hundreds of

current and former female sales representatives.

146. Defendants’ pattern and/or practice of gender discrimination also makes joinder

impracticable by discouraging female sales representatives from applying for or pursuing

promotional, training, or transfer opportunities, thereby making it impractical and inefficient to

identify many members of the Class prior to determination of the merits of Defendants’ class-

wide liability.

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D. Common Questions of Law and Fact

147. The prosecution of the claims of Class Representatives will require the

adjudication of numerous questions of law and fact common to their individual claims and those

of the Class they seek to represent. The common questions of law include, inter alia: (1)

whether Defendants have engaged in unlawful, systemic gender discrimination in its

compensation, selection, promotion, advancement, personnel management, training, and

discipline policies, practices, and procedures and in the general terms and conditions of work

and employment; (2) whether Defendants are liable for continuing systemic violations of Title

VII and the EPA; and (3) a determination of the proper standards for proving a pattern or

practice of discrimination by Defendants against their female employees under both disparate

treatment and disparate impact theories of liability.

148. The common questions of fact include, inter alia: whether Defendants have,

through their policies, practices, and procedures: (1) relied on subjective judgments, procedures,

and criteria that permit and encourage the incorporation of gender stereotypes and biases by its

predominately male executive, managerial, and supervisory staff in making promotion, training,

performance evaluation, and compensation decisions; (2) compensated female employees less

than similarly-situated males through salary and/or other benefits and perks; (3) precluded or

delayed the selection and promotion of female employees into higher level jobs traditionally

held by male employees; (4) minimized, ignored, or concealed evidence of gender

discrimination and harassment in the workplace and/or otherwise mishandled the investigation

of and response to complaints of discrimination and harassment brought to the attention of

senior management or Human Resources; and (5) otherwise discriminated against pregnant

34

women and women with child-rearing responsibilities in the terms and conditions of their

employment.

149. The employment policies, practices, and procedures to which Class

Representatives and the Class members are subjected are set at Defendants’ corporate level and

apply to all Class members. These employment policies, practices, and procedures are not

unique or limited to any business unit. Rather, they apply to all business units and thus affect

Class Representatives and Class members in the same ways irrespective of the business unit in

which they work.

150. Throughout the liability period, a disproportionately large percentage of the

managers, executives, and officers at Defendants have been men or women without children or

primary caregiving responsibilities.

151. Discrimination in selection, promotion, and advancement occurs as a pattern or

practice throughout management in all business units of Defendants. Selection, promotion, and

advancement opportunities are driven by personal familiarity, subjective decision-making, pre-

selection, and interaction between executives and male subordinates, rather than by merit or

equality of opportunity.

152. As a result, male employees, and, in some cases, women without primary

childcare responsibilities, have advanced and continue to advance more rapidly to better and

higher-paying jobs than do female employees with primary childcare responsibilities.

153. Defendants’ policies, practices, and procedures have had an adverse impact on

and have resulted in routine adverse disparate treatment of female sales representatives seeking

selection for or advancement to better and higher-paying positions. On information and belief,

35

the higher the level of the job classification, the lower the percentage of female employees

holding it.

154. As a result, managers who actively maintain and promote the current male-

dominated managerial structure have a disproportionate say on the evaluation and compensation

decisions regarding female sales representatives.

155. Within a highly subjective evaluation process, female sales representatives are

subject to reduced valuations of their work product, with significant implications not only for

their advancement opportunities but also for their compensation.

156. Upon information and belief, even within the same jobs and classifications,

female sales representatives are systematically underpaid.

157. Because Defendants’ personnel management policies do not provide sufficient

oversight or safety measures to protect against intentional and overt discrimination or the

disparate impact of even facially-neutral policies and procedures, female sales representatives

suffering from discrimination are without recourse. As such, discrimination is not only fostered

and sometimes even tacitly condoned by Defendants, but also company-wide practice that is

both identifiable and predictable.

E. Typicality of Claims and Relief Sought

158. The claims of Class Representatives are typical of the claims of the Class. The

relief sought by Class Representatives for gender discrimination complained of herein is also

typical of the relief which is sought on behalf of the Class.

159. Class Representatives are in the same protected class as are the other members of

the Class.

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160. Discrimination in compensation, selection, promotion, advancement, performance

evaluation, and training affects the compensation of Class Representatives and all Class

members in the same or similar ways.

161. Defendants have failed to institute a system of adequate incentives and

disciplinary measures for its executives and managers to comply with its discrimination policies

and with equal employment opportunity laws regarding each of the employment policies,

practices, and procedures referenced in this Complaint or to punish its executives, managers,

and other employees who violate Company policy or discrimination laws. This absence of a

systemic practice of compliance and disciplinary measures has affected Class Representatives

and the Class members in the same or similar ways.

162. Defendants have further failed to respond adequately or appropriately to evidence

of discrimination and harassment and complaints or concerns raised about the same. These

failures have affected Class Representatives and the Class members in the same or similar ways.

163. The relief necessary to remedy the claims of Class Representatives is the same as

that necessary to remedy the claims of the Class members in this case. Class Representatives

seek the following relief for their individual claims and for those of the members of the

proposed class: (1) a declaratory judgment that Defendants have engaged in systemic gender

discrimination against the Class by (a) paying female sales representatives less than their male

counterparts, (b) denying female sales representatives better and higher-paying positions, (c)

discriminating against pregnant women and women with child-rearing responsibilities, (d)

otherwise failing to investigate or respond to evidence of discrimination or harassment in the

workplace; (2) a permanent injunction against such continuing discriminatory conduct; (3)

injunctive relief that effectuates a restructuring of Defendants’ promotion, training, performance

37

evaluation, compensation, personnel management, and discipline policies, practices, and

procedures so that female sales representatives employed by Defendants will be able to compete

fairly in the future for raises and other compensation decisions, promotions, transfers, and

assignments to better and higher-paying classifications with terms and conditions of

employment traditionally enjoyed by male employees; (4) back pay, front pay, and other

equitable remedies necessary to make the employees whole from Defendants’ past

discrimination; (5) punitive and nominal damages to prevent and deter Defendants from

engaging in similar discriminatory practices in the future; (6) compensatory damages; and (7)

attorneys’ fees, costs, and expenses.

F. Adequacy of Representation

164. Class Representatives’ interests are co-extensive with those of the Class they seek

to represent in this case. Class Representatives seek to remedy Defendants’ discriminatory

employment policies, practices, and procedures so that female sales representatives will no

longer be prevented from advancing into higher-paying and more desirable higher management

positions.

165. Ms. Beery and Ms. Traeger are willing and able to represent the Class fairly and

vigorously as they pursue their individual claims in this action.

166. Class Representatives have retained counsel who are qualified, experienced, and

able to conduct this litigation and to meet the time and fiscal demands required to litigate an

employment discrimination class action of this size and complexity. The combined interests,

experience, and resources of Plaintiffs’ counsel to litigate competently the individual and class

claims at issue in this case satisfy the adequacy of representation requirement of Federal Rule of

Civil Procedure 23(a)(4).

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G. Requirements of Rule 23(b)(2)

167. Defendants have acted on grounds generally applicable to Class Representatives

and the Class by adopting and following systemic policies, practices, and procedures which are

discriminatory. Gender discrimination is Defendants’ standard operating procedure rather than

an occasional occurrence.

168. Defendants have refused to act on grounds generally applicable to the Class by,

inter alia: (1) failing to pay and promote female employees on par with similarly-situated male

employees or employees without primary caregiving responsibilities; (2) refusing to adopt and

apply selection, promotion, training, performance evaluation, compensation, and discipline

policies, practices, and procedures which do not have a disparate impact on, or otherwise

systemically discriminate against, female sales representatives; and (3) refusing to provide equal

terms and conditions of employment for female sales representatives, for pregnant women, and

for women with child-rearing responsibilities.

169. Defendants’ systemic discrimination and refusal to act on grounds that are not

discriminatory have made appropriate the requested final injunctive and declaratory relief with

respect to the Class as a whole.

170. Injunctive and declaratory relief are the predominant forms of relief sought in this

case. Entitlement to declaratory and injunctive relief flows directly and automatically from

proof of systemic gender discrimination by Defendants.

171. In turn, entitlement to declaratory and injunctive relief forms the factual and legal

predicate for recovery by Class Representatives and Class Members of monetary and

nonmonetary remedies for individual losses caused by the systemic discrimination, as well as

their recovery of nominal and punitive damages.

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H. Requirements of Rule 23(b)(3)

172. The common issues of fact and law affecting the claims of Class Representatives

and proposed Class members, including, but not limited to, the common issues previously

identified herein, predominate over any issues affecting only individual claims. These issues

include whether Defendants have engaged in gender discrimination against female sales

representatives by denying them equal pay, promotion, and advancement opportunities, and by

wrongfully terminating them and whether they have tolerated a culture of gender discrimination

directed against such employees.

173. A class action is superior to other available means for the fair and efficient

adjudication of the claims of Class Representatives and members of the proposed Class.

174. The cost of proving Defendants’ pattern and practice of discrimination makes it

impracticable for Class Representatives and members of the proposed Class to prosecute their

claims individually.

VI. COLLECTIVE ACTION ALLEGATIONS UNDER THE EPA

175. Plaintiffs Beery and Traeger incorporate by reference the allegations from the

previous paragraphs of this Complaint alleging class-based discrimination against female sales

representatives.

A. Collective Action Standards

176. Plaintiffs bring collective claims under the EPA pursuant to Section 16(b) of the

Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b), on behalf of all members of the EPA

Collective Action Class, which consists of current and former female sales representatives of

Defendants during the applicable liability period, including until the date of judgment. The

EPA action includes female employees who were (1) not compensated equally compared to

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males who had substantially similar job classifications, functions, titles, and/or duties; (2) not

compensated equally compared to males who performed substantially similar work; and/or (c)

denied equal compensation compared to similarly situated males by being hired into positions at

lesser grades than male employees who performed substantially similar work.

177. Questions of law and fact common to the EPA Collective Action Plaintiffs as a

whole include but are not limited to the following:

(a) Whether Defendants unlawfully failed and continue to fail to compensate female sales representatives at a level commensurate with similarly situated male employees;

(b) Whether Defendants unlawfully assigned and continue to assign female sales representatives into positions graded at a lower pay and compensation scale to similarly qualified males;

(c) Whether Defendants’ policy and practice of failing to compensate female sales representatives on par with comparable male employees as a result of (a) and (b) violates applicable provisions of the EPA; and

(d) Whether Defendants’ failure to compensate female sales representatives on par with comparable male employees as a result of (a), (b), and (c) was willful within the meaning of the EPA;

178. Counts for violations of the EPA may be brought and maintained as an “opt-in”

collective action pursuant to 29 U.S.C. § 216(b), for all claims asserted by the EPA Collective

Action Plaintiffs who opt in to this action because the claims of the Plaintiffs are similar to the

claims of the EPA Collective Action Class.

179. Plaintiffs Ms. Beery and Ms. Traeger and the EPA Collective Action Plaintiffs (a)

are similarly situated; (b) have substantially similar job classifications, functions, titles, and/or

duties; and (c) are subject to Defendants’ common policy and practice of gender discrimination

in (i) failing to compensate females sales representatives on par with men who perform

substantially equal work and/or hold equivalent levels and positions; (ii) failing to provide

female sales representatives with job classifications, grades, and titles commensurate with male

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employees who perform substantially equal work and/or have similar duties and

responsibilities; (iii) hiring and assigning females sales representatives into lower-level

positions than males who perform substantially equal work and/or have similar or lesser

experience and qualifications; and (iv) failing to provide female sales representatives equal pay

by denying opportunities for promotion and advancement comparable to those afforded to males

who perform substantially equal work.

COUNT I VIOLATION OF TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 (“TITLE VII”),

42 U.S.C. § 2000e, et seq. Pay Discrimination

(On Behalf of All Class Members)

180. Class Representatives re-allege and incorporate by reference each and every

allegation in each and every aforementioned paragraph of this Complaint as if fully set forth

herein.

181. This Count is brought on behalf of Class Representatives and all members of the

Class.

182. Defendants have discriminated against Class Representatives and all members of

the Class in violation of Title VII by subjecting them to different treatment on the basis of their

gender. The members of the Class have been disparately impacted and disparately treated as a

result of Defendants’ wrongful conduct and their policies, practices, and procedures.


the Class by subjecting them to discriminatory pay, discriminatory denials of pay raises, and

discriminatory performance evaluations that affect pay in violation of Title VII.

184. Defendants’ conduct has been intentional, deliberate, willful, malicious, reckless,

and was conducted in callous disregard of the rights of Class Representatives and the members

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of the proposed Class, entitling Class Representatives and the members of the Class to punitive

damages.

185. As a result of Defendants’ conduct alleged in this Complaint, Class

Representatives and the members of the Class have suffered and continue to suffer harm,

including but not limited to lost earnings, lost benefits, and other financial loss, as well as

humiliation, embarrassment, emotional and physical distress, and mental anguish.

186. By reason of Defendants’ discrimination, Class Representatives and members of

the Class are entitled to all legal and equitable remedies available for violations of Title VII,

including an award of punitive damages.

187. Attorneys’ fees should be awarded under 42 U.S.C. § 2000e-5(k).

COUNT II VIOLATION OF TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 (“TITLE VII”),

42 U.S.C. § 2000e, et seq. Promotion Discrimination



allegation in each and every aforementioned paragraph of this Complaint as if fully set forth

herein.


Class.





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the Class by treating them differently from and less preferably than similarly-situated male

employees, and by subjecting them to discriminatory denials of promotions, discriminatory

denials of developmental opportunities, and discriminatory performance evaluations that affect

promotions in violation of Title VII.


and conducted in callous disregard of the rights of Class Representatives and the members of

the proposed Class, entitling Class Representatives and the members of the Class to punitive

damages.

193. As a result of Defendants’ conduct alleged in this Complaint, Class


including but not limited to lost earnings, lost benefits, and other financial loss, as well as






COUNT III VIOLATION OF TITLE VII OF THE CIVIL RIGHTS ACT OF 1964,

42 U.S.C. § 2000e, et seq. Pregnancy and Family Responsibilities Discrimination



allegation contained in the previous paragraphs of this Complaint as though fully set forth

herein.

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Class.





199. Defendants have discriminated against the Class members by treating them

differently from and less preferably than similarly-situated male employees and female sales

representatives without primary caregiving responsibilities, and by subjecting them to

differential and substandard terms and conditions of employment including, but not limited to,

discriminatory denials of fair compensation, discriminatory denials of promotions, and

discriminatory treatment with respect to work responsibilities and other terms and conditions of

employment in violation of Title VII.


and conducted in callous disregard of the rights of Class Representatives and the members of

the proposed class, entitling Class Representatives and the members of the Class to punitive

damages.

201. As a result of Defendants’ conduct alleged in this complaint, Class


including, but not limited to, lost earnings, lost benefits, and other financial loss, as well as


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COUNT IV VIOLATION OF THE FAIR LABOR STANDARDS ACT OF 1938, AS AMENDED BY

THE EQUAL PAY ACT OF 1963 (“EQUAL PAY ACT”), 29 U.S.C. §206(d)

(On Behalf of All Plaintiffs and EPA Collective Action Plaintiffs)

204. Plaintiffs re-allege and incorporate by reference each and every allegation in each

and every aforementioned paragraph of this Complaint as if fully set forth herein.

205. This Count is brought on behalf of Plaintiffs and the EPA Collective Action

Class, including all EPA Collective Action Plaintiffs who “opt in” to this action.

206. Defendants have discriminated against Plaintiffs and all EPA Collective Action

Plaintiffs within the meaning of the EPA by providing them with lower pay than similarly-

situated male colleagues on the basis of their gender even though Plaintiffs and all others

similarly situated performed similar duties requiring the same skill, effort, and responsibility of

male counterparts.

207. Plaintiffs, all EPA Collective Action Plaintiffs, and similarly-situated males all

perform similar job duties and functions across Defendants’ various U.S. offices. Plaintiffs, all

EPA Collective Action Plaintiffs, and similarly-situated males all performed jobs which

required equal skill, effort, and responsibility, which are or were performed under similar

working conditions.

208. Defendants discriminated against Plaintiffs and all EPA Collective Action

Plaintiffs by subjecting them to discriminatory pay, discriminatory denials of bonuses and other

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compensation incentives, discriminatory denial of promotions, and other forms of

discrimination in violation of the EPA.

209. The differential in pay between males and female sales representatives was not

due to seniority, merit, quantity, or quality of production, but instead was due to gender.

210. Defendants caused, attempted to cause, contributed to, or caused the continuation

of wage rate discrimination based on gender, in violation of the EPA.

211. The foregoing conduct constitutes a willful violation of the EPA within the

meaning of 29 U.S.C. § 255(a). Because Defendants have willfully violated the EPA, a three-

year statute of limitations applies to such violations, pursuant to 29 U.S.C. § 255.

212. As a result of Defendants’ conduct alleged in this Complaint, Plaintiffs and all

EPA Collective Action Plaintiffs have suffered and continue to suffer harm, including but not

limited to lost earnings, lost benefits, and other financial loss, as well as humiliation,

embarrassment, emotional and physical distress, and mental anguish.

213. By reason of Defendants’ discrimination, Plaintiffs and all EPA Collective Action

Plaintiffs are entitled to all legal and equitable remedies available for violations of the EPA,

including liquidated damages for all willful violations, prejudgment interest, attorneys’ fees,

costs, and other compensation pursuant to 29 U.S.C. § 216(b).

214. Attorneys’ fees should be awarded under 29 U.S.C. §216(b).

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COUNT V VIOLATION OF TITLE VII OF THE CIVIL RIGHTS ACT OF 1964,

42 U.S.C. § 2000e-5(f), et seq., Retaliation

(On Behalf of Ms. Beery and Ms. Traeger)

215. Ms. Beery and Ms. Traeger re-allege and incorporate by reference each and every


herein.

216. Ms. Beery and Ms. Traeger engaged in protected activity by filing EEOC Charges

and otherwise complaining about gender discrimination – including but not limited to pay

disparity, denial of opportunities for professional advancement, favorable treatment towards

male employees, derogatory remarks, and sexual harassment – to people in management

positions and in Human Resources.

217. Defendants engaged in adverse employment actions against Ms. Beery and Ms.

Traeger for engaging in these protected activities. Such adverse employment actions taken have

been in the form of subjecting them to unfavorable terms and conditions of employment,

including denials of promotions, negative performance reviews, and hostile working

environments. The adverse employment actions have materially and adversely affected

Plaintiffs’ overall terms and conditions of employment.

218. A reasonable employee would find Defendants’ retaliatory acts materially adverse

and such acts would dissuade a reasonable person from making or supporting a charge of

discrimination.

219. Defendants’ retaliatory acts against Ms. Beery and Ms. Traeger were a direct,

proximate, and pretextual result of their protected activities.

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and conducted in callous disregard of the rights of Plaintiffs, entitling them to punitive damages.

221. As a result of Defendants’ conduct alleged in this Complaint, Plaintiffs have

suffered and continue to suffer harm, including but not limited to lost earnings, lost benefits,

and other financial loss, as well as humiliation, embarrassment, emotional and physical distress,

and mental anguish.

222. By reason of Defendants’ discrimination, Plaintiffs are entitled to all legal and

equitable remedies available for violations of Title VII, including an award of punitive

damages.


COUNT VI VIOLATION OF TITLE VII OF THE CIVIL RIGHTS ACT OF 1964,

42 U.S.C. § 2000e-5(f), et seq. Sexual Harassment

(On Behalf of Ms. Beery and Ms. Traeger)

224. Ms. Beery and Ms. Traeger re-allege and incorporate by reference each and every


herein.

225. Defendants have discriminated against Ms. Beery and Ms. Traeger by permitting

an ongoing, severe, or pervasive pattern and practice of sexual harassment against them by

creating and maintaining a sexually hostile work environment in violation of Title VII.

226. Defendants’ sexual harassment detrimentally affected Ms. Beery and Ms. Traeger

and altered their conditions of employment by creating a hostile working environment for them.


and conducted in callous disregard of Ms. Beery’s and Ms. Traeger’s rights.

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228. As a direct and proximate result of Defendants’ aforementioned conduct, Ms.

Beery and Ms. Traeger were damaged and suffered economic losses, mental and emotional

harm, anguish, and humiliation.

229. By reason of the continuous nature of Defendants’ discriminatory conduct,

persistent throughout the employment of Ms. Beery and Ms. Traeger, they are entitled to the

application of the continuing violation doctrine to all the violations alleged herein.

230. By reason of the sexual harassment suffered at Defendants, Ms. Beery and Ms.

Traeger are entitled to all legal and equitable remedies available under Title VII.

PRAYER FOR RELIEF

WHEREFORE, Class Representatives, on their own behalf and on behalf of the Class,

pray that this Court:

A. Certify this case as a class action maintainable under Federal Rules of Civil

Procedure Rule 23 (a), (b)(2), and/or (b)(3), on behalf of the proposed Plaintiff Class;

designation of the proposed Class Representatives as representatives of this Class; and

designation of Plaintiffs’ counsel of record as Class Counsel;

B. Declare and adjudge that Defendants’ employment policies, practices, and/or

procedures challenged herein are illegal and in violation of the rights of Class Representatives

and Class members;

C. Grant a permanent injunction against Defendants and its partners, officers,

owners, agents, successors, employees, and/or representatives, and any and all persons acting in

concert with them, from engaging in any further unlawful practices, policies, customs, usages,

and gender discrimination as set forth herein;

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D. Order Defendants to initiate and implement programs that will: (i) provide equal

employment opportunities for female sales representatives; (ii) remedy the effects of Defendants’

past and present unlawful employment policies, practices, and/or procedures; and (iii) eliminate

the continuing effects of the discriminatory and retaliatory practices described above;

E. Order Defendants to initiate and implement systems of assigning, training,

transferring, compensating, and promoting female sales representatives in a non-discriminatory

manner;

F. Order Defendants to establish a task force on equality and fairness to determine

the effectiveness of the programs described in D through E above, which would provide for: (i)

monitoring, reporting, and retaining of jurisdiction to ensure equal employment opportunity; (ii)

the assurance that injunctive relief is properly implemented; and (iii) a quarterly report setting

forth information relevant to the determination of the effectiveness of the programs described in

E through F above;

G. Order Defendants to adjust the wage rates and benefits for Class Representatives

and the Class members to the level that they would be enjoying but for the Defendants’

discriminatory policies, practices, and/or procedures;

H. Order Defendants to place or restore Class Representatives and the Class

members into those jobs they would now be occupying but for Defendants’ discriminatory

policies, practices, and/or procedures;

I. Order that this Court retain jurisdiction of this action until such time as the Court

is satisfied that Defendants have remedied the practices complained of herein and are determined

to be in full compliance with the law;

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J. Award nominal, compensatory, and punitive damages to Class Representatives

and the Class members, in an amount in excess of $100 million ($100,000,000);

K. Award litigation costs and expenses, including, but not limited to, reasonable

attorneys’ fees, to Class Representatives and Class members;

L. Award back pay, front pay, lost benefits, preferential rights to jobs and other

damages for lost compensation and job benefits with pre-judgment and post-judgment interest

suffered by Class Representatives and the Class members to be determined at trial;

M. Order Defendants to make whole Class Representatives and Class members by

providing them with appropriate lost earnings and benefits and other affirmative relief;

N. Award any other appropriate equitable relief to Class Representatives and Class

members; and/or

O. Award any additional and further relief as this Court may deem just and proper.

JURY DEMAND

Class Representatives demand a trial by jury on all issues triable of right by jury.

Dated: By: s/ Steven L. Wittels ___________ January 12, 2011 Steven L. Wittels (SLW-8110) Newark, New Jersey Jeremy Heisler (JH-0145) SANFORD WITTELS & HEISLER, LLP

1350 Avenue of the Americas 31st Floor New York, NY 10019 Telephone: (646) 723-2947 Facsimile: (646) 723-2948 David W. Sanford, D.C. Bar No. 457933 Sharon Y. Eubanks, D.C. Bar No. 420147 SANFORD WITTELS & HEISLER, LLP 1666 Connecticut Avenue, N.W., Suite 300 Washington, D.C. 20009 Telephone: (202) 742-7777 Facsimile: (202) 742-7776

Counsel for Plaintiffs

Steven L. Wittels (SLW-8110) Jeremy Heisler (JH-0145 ... to the women who work at Quest, ... Tara...

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