United States District Court, E.D. Pennsylvania
February 18, 2004.
TROY TUCKER, Plaintiffs,
MERCK & CO., INC., Defendant
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.
II. Factual Background
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, embarrassment,
humiliation, anxiety, and anguish. (Compl. ¶ 27.)
A. Legal Standard for 12(b)(6) Motion to Dismiss
When considering a motion to dismiss a complaint for failure to state a
claim under Federal Rules of Civil Procedure 12(b)(6), this court must
"accept as true the facts alleged in the complaint and all reasonable
inferences that can be drawn from them." Markowitz v. Northeast Land
Co., 906 F.2d 100, 103 (3d Cir. 1990). The court will only dismiss
the complaint if "it is clear that no relief could be granted under any
set of facts that could be proved consistent with the allegations."
Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984).
B. Section 1981
Section 1981, which prohibits racial discrimination in the making and
enforcement of property transactions provides that:
All persons within the jurisdiction of the United
States shall have the same rights in every State
and Territory to make and enforce contracts, to
sue, be parties, give evidence, and to the full
and equal benefit of all laws and proceedings for
the security of persons and property as is enjoyed
by white citizens, and shall be subject to like
punishment, pains, penalties, taxes, licenses, and
exactions of every kind, and to no other.
42 U.S.C. § 1981(a), as amended by the Civil Rights Act of
1991. Claims alleged under § 1981 are analyzed under the same
framework as those raised under Title VII. See Pamintuan v.
Nanticoke Mem. Hosp., 192 F.3d 378
, 385 (3d Cir. 1999) (same
standard for § 1981 as Title VII for discrimination claim).
A plaintiff alleging that an unfavorable job action is based upon an
illegal retaliatory motive must first establish that "(1) he was engaged
in a protected activity; (2) he was [subject to an adverse job action]
subsequent or contemporaneously with such activity; and (3) there is a
causal link between the protected job activity and the [subsequent
adverse job action]." Sarullo v. United States Postal Service,
352 F.3d 789, 800 (3d Cir. 2003) (quoting Woodson v. Scott Paper
Co., 109 F.3d 913, 920 (3d Cir. 1997)). A protected activity is one
where an individual opposed, in any manner including supporting others
raising opposition, a practice by the employer because it was
discriminatory. See, e.g., Wilson v. Supreme Color Card, Inc.,
703 F. Supp. 289, 297 (S.D.N.Y. 1989) (requiring that, under § 1981,
prior complaint must have involved racial discrimination); Cox v.
Consol. Rail Corp., 557 F. Supp. 1261, 1266 (D.D.C. 1983) ("In
instances where the underlying claim has nothing to do with race
discrimination, a retaliation claim brought under § 1981 would not be
Here, Mr. Tucker asserts that he was retaliated against as a result of
his prior lawsuit with Merck. However, his prior suit raised only state
law claims: intentional interference with a contract, defamation, civil
conspiracy, and invasion of privacy. None of these claims was raised to
address behavior alleged to be based upon racial discrimination. Thus, as
defined under § 1981 caselaw, Mr. Tucker's litigation does not
qualify as a "protected activity" and cannot be used as a basis for a
retaliation claim. Plaintiff has asked for leave to amend his complaint,
either to incorporate additional information clarifying the retaliation
claim or to remove it entirely. While the court is doubtful that, alleged
on any conduct herein raised, plaintiff will be able to successfully
plead retaliation under § 1981, the court grants leave for plaintiff
to amend his complaint.
C. Race Discrimination
Claims alleging disparate treatment, whether § 1981 or Title VII,
must be analyzed under the burden shifting framework articulated by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), and later crystallized in Texas Dep't. of Comty. Affairs v.
Burdine, 450 U.S. 248 (1981). Under these cases, a plaintiff
initially must allege a prima facie case of discrimination; if that is
done, defendant must then articulate a legitimate, non-discriminatory
reason for its action; the plaintiff must then show that the proffered
reason is false and that race was the real motivation for defendant's
actions. Texas Dep't of Comty. Affairs, 450 U.S. at 252-53;
McDonnell Douglas Corp., 411 U.S. at 802. To defeat a motion
to dismiss Mr. Tucker is only required to allege a prima facie case of
discrimination. Under § 1981 this requires that plaintiff: (1) is a
member of a racial minority; (2) there was intent by defendant to
discriminate against him on the basis of race; and (3) the discrimination
concerned on or more of the protected activities enumerated in the
statute including the right to make and enforce contracts. Brown v.
Philip Morris, Inc., 250 F.3d 789, 797 (3d Cir. 2001).
As an African-American, plaintiff satisfies the first prong. (Compl.
¶ 3.) The complaint explicitly alleges that defendant intentionally
discriminated against him on the basis of race, thus satisfying the
second prong. (Compl. ¶¶ 26, 28.) With regard to the third prong, Mr.
Tucker does not allege that he was terminated, that he was constructively
discharged, or that he would have been promoted but for the
discrimination. At best, Mr. Tucker alleges that he was required to sign
an Alternative Work Arrangement document, that company policies were
improperly applied to him, and he suffered a loss of income and
professional responsibilities. These claims involve the enforcement of
contracts and, thus, satisfy plaintiff's burden against the motion to
D. Hostile Work Environment
The Civil Rights Act of 1991, Pub.L. No. 102-166 § 2, amended
42 U.S.C. § 1981 to provide a cause of action for racial harassment. To
establish a hostile work environment claim a plaintiff must allege, under
the totality of the circumstances, that (1) he suffered intentional
discrimination because of his or her membership in a protected class; (2)
the discrimination was pervasive and regular; (3) the discrimination
detrimentally affected the plaintiff; (4) the discrimination would have
detrimentally affected a reasonable person of the same protected class in
that position; and (5) the existence of respondeat superior liability.
Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir.
1990). "In determining whether an environment is hostile or abusive, we
must look at numerous factors, including `the frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; whether it
unreasonably interferes with an employee's work performance.'"
Weston v. Pennsylvania, 251 F.3d 420, 426 (3d Cir. 2001)
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23
(1993)). To fulfill his burden under the pervasiveness standard "requires
the plaintiff to show that his work environment was so pervaded by racial
harassment as to alter the terms and conditions of his employment."
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 768 (1998).
"[T]o constitute a hostile work environment, there must be more than a
few isolated incidents of racial enmity, meaning that instead of sporadic
racial slurs, there muse be a steady barrage of opprobrious racial
comments." Al-Salem v. Bucks County Water & Sewer Auth.,
No. 97-6843, 1999 WL 167729, *5 (E.D. Pa. March 25, 1999) (quoting
Schwapp v. Town of Avon, 118 F.3d 106, 110-11 (2d Cir. 1997)).
The details provided by plaintiff's complaint are limited. While he
asserts instances of mistreatment, he does not allege any specific
comments or conduct that demonstrate such treatment was a result of his
race. Generally claims raised under a hostile work environment involve
explicit conduct that is addressed at a plaintiff's protected class
status. Absent further clarification, this court questions the merits of
Mr. Tucker's claim under a hostile work environment. However, in
Weston v. Pennsylvania, 251 F.3d 420, 429-30 (3d Cir. 2001),
the third circuit reiterated liberal notice pleading standards applicable
under Federal Rule of Civil Procedure 8, noting specifically that
"[c]omplaints `need not plead law or match facts to every element of a
legal theory.'" Id. at 429 (quoting Kreiger v.
Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000) (internal citations
omitted)). Accordingly, as Mr. Tucker has explicitly alleged a hostile
work environment claim, he has satisfied the requirements of notice
pleading and will be permitted to proceed with his claim.
E. Claim Preclusion
Defendant argues that plaintiff is barred from asserting his claims
because he should have raised them in his prior litigation. Claim
preclusion requires: 1) a judgment on the merits in a prior suit
involving; 2) the same parties; and 3) a subsequent suit based on the
same causes of action. See Eastern Minerals & Chemicals Co. v.
Mahan, 225 F.3d 330, 336 (3d Cir. 2000). "Courts should not apply
this conceptual test mechanically, but should focus on the central
purpose of the doctrine, to require a plaintiff to present all claims
arising out of the same occurrence in a single suit." Bd. of
Trustees of Trucking Employees of North Jersey Welfare Fund, Inc. v.
Centra, 983 F.2d 495, 504 (3d Cir. 1992). It is only where both
cases actually result from the same transaction and involve the same
issues of fact that claim preclusion applies. See
Churchill v. Star Enters., 183 F.3d 184, 187 (3d Cir.
Here, it is undisputed that there was a prior judgment on the merits
between the parties. However, the two parties disagree regarding whether
the new claims are based upon the previously raised allegations.
Defendant's argument that plaintiff's claims are precluded relies on the
fact that all of the alleged events occurred before the court's final
order in the case. Relying on Churchill, defendant argues that
third circuit law requires a plaintiff to amend its complaint to include
all claims in a single action. See id. at 190-92. Further,
defendant cites tenth circuit authority that holds any allegations
arising out of the same employment relationship, even if not factually
identical, arise out of the same cause of action for claim preclusion
purposes. (See Def.'s Sur-Reply at 5 (citing Wilkes v. Wyoming Dep't
of Employment Div. of Labor Standards, 314 F.3d 501, 503 (10th Cir.
Plaintiff responds that the claims are wholly unrelated to any issues
raised in the prior litigation. (Pl.'s Ans. to Def.'s Mot. to Dismiss at
7.) Without such relation, plaintiff argues that he had no duty to amend
his prior action to include these issues. (Id. at 8.) Further,
plaintiff argues that because the events do not stem from the same
factual predicate, they are not subject to the claim preclusion doctrine.
(Id. at 5.)
The purpose of the claim preclusion doctrine is to prevent litigants
who have already been to court concerning certain conduct from using
legal strategy to attack the same conduct. See Venuto v. Witco
Corp., 117 F.3d 754, 762 (3d Cir. 1997). The interests of efficiency
and fairness prohibit such repeat litigation. See id. Here,
though the parties to the litigation are the same, the conduct at issue
is not; the previous litigation involved Ms. Tucker's discharge and the
related investigation, this complaint involves alleged racial
discrimination based on separate events. The
third circuit has clearly stated that two actions must involve an
"essential similarity of the underlying events" to be subject to claim
preclusion. CoreStates Bank. N.A. v. Huls America, Inc.,
176 F.3d 187, 202 (3d Cir. 1999); see also Facchiano Constr. Co., Inc.
v. United States Dept. of Labor, 987 F.2d 206, 212-13 (3d Cir. 1993)
(claim preclusion does not apply where the two claim rested on different
evidence). The fact that the parties have been continuously involved in
an employment relationship is alone insufficient to demonstrate that two
raised actions arise from the same factual set of facts. While the tenth
circuit may have reached such a conclusion, this court does not find such
reasoning persuasive. An employment relationship between two parties may
last for years or decades and may involve numerous incidents of varying
distance in time and similarity. Such a relationship alone is not
adequate to support the defendant's entire burden under the claim
preclusion doctrine. Accordingly, the claim preclusion doctrine is
inapplicable and defendant's Motion to Dismiss cannot successfully rely
upon this argument.
For the foregoing reasons, the Partial Motion to Dismiss is denied.
Plaintiff has fourteen days from the date of this order to file an
amended complaint. An appropriate order follows.