The opinion of the court was delivered by: JAMES GILES, Chief Judge, District
Troy Tucker has brought this action against Merck & Co., Inc.
("Merck") seeking damages based on alleged retaliation for his
participation in earlier litigation, racial discrimination, and hostile
work environment pursuant to 42 U.S.C. § 1981 and the Civil Rights
Act of 1991.
Now before the court is Merck's Motion to Dismiss pursuant to
Fed.R.Civ.Proc. 12(b)(6). For the reasons that follow, the motion is denied.
Consistent with the review standards applicable to a motion to dismiss
under Fed.R.Civ.Proc. 12(b)(6), the alleged facts, viewed in the light
most favorable to the plaintiff, follow.
Mr. Tucker and his wife were previously involved in litigation against
Merck surrounding his wife's termination and related events. See
Donna M. Tucker and Troy Tucker v. Merck & Co., Inc., E.D. Pa.,
Civil Action No. 02-2421. That action was before this court and was
terminated on May 2, 2003.*fn1 Mr. Tucker alleges that none of the
events now related in support of his present claims were involved in the
Mr. Tucker is an employee of Merck, and has been so since September
1989. (Compl. ¶ 5.) He is currently employed as a Contract Analyst in
defendant's United States Human Health division. (Id.)
Plaintiff asserts that since May 2002, he has been experiencing racial
discrimination at Merck.
Mr. Tucker first alleges that his request for education assistance was
handled improperly. On May 21, 2002, plaintiff submitted a request for
such assistance, but his request was denied by Reagan Hull, defendant's
Executive Director of Customer Contract Management. (Compl. ¶¶ 10-11.)
Mr. Hull refused to meet with Mr. Tucker to explain the basis of his
denial. (Compl. ¶ 11.) Subsequently, on August 26, 2002, Harry Rieck,
defendant's Senior Customer Contract Management, approved Mr. Tucker's
request for educational assistance. (Compl. ¶ 12.) On September 6,
2002, Randall Mattison, defendant's Manager of Customer Contract
Management, sent Mr. Tucker an e-mail requesting that Mr. Tucker sign an
Alternative Work Arrangement relating to the approval of his educational
assistance request. (Compl. ¶ 13.) Plaintiff avers that white
employees receiving educational assistance were not required to sign any
like document as a condition of receiving such assistance. (Compl. ¶
14.) Mr. Tucker does not indicate what the Alternative Work Arrangement
agreement requires, or how signing it could be negatively impact his
employment or career opportunities.
On September 17, 2002, Mr. Tucker went out on short-term disability.
(Compl. ¶ 15.)
Mr. Tucker's physician provided defendant's health care department
with a diagnosis within the requisite time period. (Compl. ¶ 16.) Mr.
Tucker alleges that while he was on short-term disability, Maria Becker,
RN, of defendant's Health Services, called Mr. Tucker's home and harassed
him and his wife. (Compl. ¶ 17.) Further, on October 25, 2002, Mr.
Tucker received a letter from Mr. Reick that threatened his continued
employment related to his short-term disability status. (Compl. ¶
18.) On November 11 and 14, 2002, Linda Mastropaolo, a case manager with
defendant's Health Services, contacted Mr. Tucker's therapist and
inquired regarding his ability to function in his job and to attend
school. (Compl. ¶ 19.)
Mr. Tucker further alleges that Mr. Reick threatened to fire him on two
separate occasions, though no details surrounding these incidents are
included in the complaint. (Compl. ¶ 20.) Mr. Tucker avers that these
events were a result of a racially hostile work environment and
retaliation based upon his prior law suit against Merck. (Compl. ¶¶
20-21.) Additionally, in March 2003, Mr. Tucker received a Performance
Evaluation that he believes does not accurately reflect his performance
during 2002. (Compl. ¶ 22.)
Mr. Tucker also lists several other events that allegedly support his
claims. He states that he has been denied the right to speak with upper
management regarding his concerns. (Compl. ¶¶ 23a, 25.) He has been
denied his rights an employee under a variety of Merck policies,
including Workplace Harassment, Discrimination Complaints, Absence from
Work, and Holidays. (Compl. ¶ 23.) Mr. Tucker claims that these
policies have been strictly enforced against him, while they have been
relaxed for similarly situated white employees. (Compl. ¶ 24.) Mr.
Tucker also claims that Merck employees enforced non-existent policies
against him, to his detriment. (Id.)
Mr. Tucker claims that as a result of these acts by Merck and its
employees, he suffered
loss of income, loss of professional opportunities, ...