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THOMPSON v. MERCK & CO.

January 6, 2004.

ROSE THOMPSON, individually and on behalf of all others similarly situated
v.
MERCK & CO., INC, MERCK-MEDCO MANAGED CARE, L.L.C.; DONNA RODGERS, individually and on behalf of all others similarly situated, VS. MERCK & CO., INC.; VALERIE CATES, individually and on behalf of all others similarly situated, VS. MERCK & CO., INC.; CYNTHIA MARTIN, MARCELLA R. TAMS, STEVEN C. LEE AND JAMES E. THOMAS, individually and on behalf of all similarly-situated African-Americans VS. MERCK & CO., INC.; JOSEPHINE L. CHISOM AND ADRIENNE S. DIXON, individually and on behalf of all others similarly situated VS. MERCK & CO., INC.; CAROL STITH, individually and on behalf of all others similarly situated VS. MERCK & CO., INC



The opinion of the court was delivered by: CHARLES WEINER, Senior District Judge

MEMORANDUM OPINION AND ORDER

In the case of Webb v. Merck, 206 F.R.D. 399 (E.D. Pa. 2002), the twenty named plaintiffs brought an employment discrimination action against Merck & Co., Inc. ("Merck"), alleging that Merck engaged in intentional ("disparate treatment") discrimination in violation of Page 3 the Civil Rights Act of 1866, 42 U.S.C. § 1981, Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000d and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Plaintiffs sought to have this court certify a class to adjudicate "compensation disparity" claims made by or on behalf of the following class members: "All black employees who work (or former employees who have worked since January 1, 1989) for Merck & Co., (a) in the Merck Manufacturing Division at a plant in Pennsylvania, New Jersey or Georgia, or (b) as a Merck sales representative in the Mid-Atlantic Regional Business Group of Merck's United States Human Health Division." Webb, 206 F.R.D. at 401. Although plaintiffs sought compensatory and punitive damages, they sought class certification only as to liability issues as well as their damage claims seeking equitable relief regarding compensation issues.

We denied the motion for class certification. At the outset, we noted the enormity of the potential class. The class would have included "all black employees at every level and every grade at six separate facilities in five states, in two divisions, including union and non-union employees and their supervisors, managers and non-managers, sales representatives and secretaries and their supervisors and any other employee from vice-president to janitor." Id. We noted that plaintiffs themselves estimated that the number of potential class members could exceed 5000.

  We found that plaintiffs could not satisfy the commonality and typicality requirements of Rule 23(a) of the Federal Rules of Civil Procedure for class certification. We noted that "other than sharing the common position of being black employees of Merck, the plaintiffs' allegations are discrete and individualized. Plaintiffs were employed in different states, in different divisions, in different facilities and at different levels within the company hierarchy. Page 4 Their grievances are not susceptible to generalized proof or defenses. In essence, this action is nothing more than a consolidation of 20 accounts of individualized disparate treatment." Id. at 408. We also concluded that "resolution of the merits of the claims would degenerate into an unmanageable plethora of multiple individual determinations for each individual proposed class member." Webb, 206 F.R.D. at 406.

  We also found that there were too many individualized issues to allow a class action to be maintained under Rule 23(b)(2). We stated that "in order to resolve each putative class member's claim, the fact finder will be forced to evaluate the individualized facts and circumstances surrounding compensation decisions relating to initial assignments, performance reviews, job postings, promotions and overall compensation." Id. at 409.

  The plaintiffs sought permission with our Court of Appeals pursuant to Rule 23(f) of the Federal Rules of Civil Procedure to appeal this Court's ruling denying class certification. Plaintiffs' request was denied by Order dated June 18, 2002.

  The above-captioned actions are all related to Webb and indeed were filed by the same counsel who represented the plaintiffs in Webb, Like Webb, the main impediment to class certification in these actions is that they challenge hundreds if not thousands of independent employment decisions. The Rodgers, Cates, Thompson, and Martin actions were filed on behalf of a class consisting of all African-Americans who have been employed or were denied employment by Merck during a relevant time period. The Stith action was filed "on behalf of present and former African-American employees who work(ed) at Merck's facility in Rahway, NJ." Stith Complaint at paragraph 7. The Chisom action was filed "on behalf of present and former African-American employees who work(ed) at Merck's facility in Whitehouse Station, Page 5 NJ. Chisom Complaint at paragraph 7. In all of the actions, plaintiffs contend they have been subjected to a continuous and pervasive pattern of racial discrimination by Merck in that Merck's managers and supervisors have created a racially hostile work environment, Merck's equal employment and anti-discrimination policies are applied by its managers and supervisors in aa subjective manner with little guidance from Merck, and Merck has condoned the general practice of discriminating against Blacks in the areas of hiring, compensation, promotion, demotion, job assignments, training, transfer, layoff, discharge and discipline. In all of the actions, plaintiffs seek declaratory and injunctive relief as well as compensatory and punitive damages "in amounts to be determined at trial." Presently before the Court is Merck's renewed motion to strike plaintiff's class allegations in all of these actions pursuant to Rules 23(c)(1) and 23(d)(4) of the Federal Rules of Civil Procedure. For the reasons which follow, the motion is granted.

  At the outset, we note that plaintiffs argue that this court lacks authority to strike class action allegations from the complaint until after the plaintiffs have filed a motion for class certification. We do not agree. Rule 23(c) provides that the court should make a determination as to whether a class action is maintainable "as soon as practicable after the commencement of an action." If the court determines that the prerequisites of Rule 23 are not satisfied, then the court may issue an order "requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons." Fed.R.Civ. P. 23(d)(4).

  Despite the length of time which has expired since these actions were filed, plaintiffs have never filed a motion for class certification in any of them. There is no point in waiting any further. It is clear from the allegations in the complaints and the affidavits plaintiffs Page 6 have since submitted that plaintiffs' claims cannot satisfy the requirements of Rule 23(b)(2) or (b)(3). No amount of additional class discovery will alter this conclusion. To the contrary, additional discovery will in all likelihood further illuminate the subjective and intangible differences of each class member's individual circumstances.

  To obtain class certification, plaintiffs must establish all four elements of Rule 23(a) of the Federal Rules of Civil Procedure along with one provision of Rule 23(b). Johnston v. HBO Film Management. Inc., 265 F.3d 178, 183 (3d Cir. 2001). If all four elements of Rule 23(a) are satisfied, the court must also find that the class is maintainable under Rule 23(b)(1), (2) or (3). In these cases, plaintiffs seek certification pursuant to either 23(b)(2) or 23(b)(3). Because plaintiffs cannot satisfy either Rule 23(b)(2) or (3), we need not address whether the proposed class meets the requirements of Rule 23(a).

  Rule 23(b)(2) allows certification where, "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." Class actions certified under (b)(2) are restricted to those cases where the primary relief sought is injunctive or declaratory relief. Barnes v. American Tobacco Co., 161 F.3d 127, 142-43 (3d Cir. 1998), cert denied, 526 U.S. 1114 (1999). The reason for this restriction is that unnamed members of classes certified under Rule 23(b)(2) cannot opt out as they can in Rule 23(b)(3) actions. As a result, class cohesion is necessary and is presumed where a class suffers from a common injury and seeks class-wide injunctive relief. Id. at 142-143. In contrast, when a class seeks monetary relief, the class becomes less cohesive because assessing these damages often necessitates an examination into individual claims. Page 7

  The Court of Appeals for the Fifth Circuit has held that "monetary relief predominates in (b)(2) class actions unless it is incidental to requested injunctive or declaratory relief." Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (5th Cir. 1998).

  Incidental damages are those "that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief." Id. (emphasis in original). The Allison Court also identified the following three factors that would define "incidental" damages:
(1) whether such damages are of a kind to which class members would be automatically entitled;
(2) whether such damages can be computed by "objective standards" and not standards significantly reliant upon "the tangible, subjective differences of each class member's circumstances"; and
(3) whether such damages would require additional hearings to determine.
Id.

  The Allison standard has been adopted by the Fifth, Sixth, Seventh and Eleventh Circuit Courts of Appeal. See Coleman v. General Motors Acceptance Corp., 296 F.3d 443, 447-49 (6th Cir. 2002); Murray v. Auslander, 244 F.3d 807, 812 (11th Cir. 2001); James v. City of Dallas, 254 F.3d 551, 571 (5th Cir. 2001); Lemon v. International Union of Operating Engineers, 216 F.3d 577, 589 (7th Cir. 2000). It has also been adopted by several courts within this Circuit. See Miller v. Hygrade Food Products Corp., 198 F.R.D. 638, 641 (E.D.Pa. 2001) petition for appeal denied, No. 01-8005 (3d Cir. March 21, 2001); Reap ...


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