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February 18, 2004.

TROY TUCKER, Plaintiffs,
MERCK & CO., INC., Defendant

The opinion of the court was delivered by: JAMES GILES, Chief Judge, District


I. Introduction

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 Page 2 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 prior litigation.

  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.) Page 3 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 Page 4 loss of income, loss of professional opportunities, ...

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