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June 15, 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 racial discrimination pursuant to 42 U.S.C. § 1981 and the Civil Rights Act of 1991.

  Now before the court is Merck's Motion for Summary Judgment pursuant to Fed.R.Civ.Proc. 56. For the reasons that follow, the motion is granted.

  II. Factual Background

  Consistent with the review standards applicable to a motion for summary judgment under Fed.R.Civ.Proc. 56(c), the alleged facts, viewed in the light most favorable to the plaintiff, follow.

  Mr. Tucker is an employee of Merck, and has been so since September 1989. (Am. Compl. ¶ 5.) During his tenure at Merck he has been promoted several times. (Def's Am. Mem. of Law in Supp. of Summ. Jud. at 3.) He is currently employed as a Contract Analyst in defendant's United States Human Health division. (Am. Compl. ¶ 5.) Plaintiff asserts that since May 2002, he has been experiencing racial discrimination at Merck. In support of his claims of racial discrimination and hostile work environment, plaintiff details numerous incidents.

  Educational Assistance for Computer Networking Courses

  Merck provides an Educational Assistance Program for all of its regular, full time and part time, active employees "(1) to provide support for the development of skills and knowledge that will be of direct benefit to the Company's business results and excellence; and (2) to encourage employees to further their self development for their current assignments, expanded job responsibilities, and/or help them prepare for new assignments. . . ." (Def's Ex. 2 at D0068a, "Manager's Policy D1".) The policy expressly contemplates that employees will undertake such education "while carrying on their regular work." (Id.)

  In addition, "[e]ligibility for educational assistance is contingent upon prior management approval and is not guaranteed, but is at the discretion of management upon consideration of several factors including, but not limited to, the following: the needs of the business; the applicant's sustained, favorable annual performance; . . . [and t]he nature of the program, i.e. its relationship to the employee's performance in his/her present job or in an area for which his/her management feels he/she has reasonable potential." (Id.) Merck has different requirements for Educational Assistance depending upon whether the employee seeks non-degree courses, undergraduate or graduate degree work, or other special programs. (Id. at D0068b-c.) When an employee desires to take only non-degree courses, Merck requires that the courses be directly related to the employee's job. (Id.; Def.'s Ex. 3 at P0416.) Merck grants assistance for undergraduate and graduate programs if the program is either specifically related to the employee's current job or to "future positions at Merck for which management feels he/she has reasonable potential." (Def.'s Ex. 2 at D0068c.)

  On May 21, 2002, plaintiff submitted a request for educational assistance to attend courses at Montgomery County Community College. (Am. Compl. at ¶ 6; Def.'s Ex. 4.) The specific courses that plaintiff sought to attend were Introduction to PC Hardware, PC Repair & Troubleshooting, and PC Operating Systems. (Def.'s Ex. 4.) On the request form, in response to the question, "Are you a degree candidate," plaintiff checked the "No" box. (Id.) Plaintiff submitted the request to his supervisor, Randall Mattison. (Pl.'s First Dep. at 32.) Mr. Mattison then submitted the request to his supervisor, Reagan Hull. (Id. at 38.) Mr. Hull denied the request on the grounds that: 1) the courses did not relate to Mr. Tucker's current position; 2) the course did not relate to a future position for Mr. Tucker; 3) the courses did not lead to a degree program; and 4) Mr. Tucker had not indicated on his Employee Development Plan ("EDP") that he contemplated obtaining a future position in Information Technology ("IT"). (Hull Dep. at 19-20, 34-36.)

  Following the receipt of this denial, plaintiff emailed Mr. Hull directly and informed him that the courses were not individual courses, but part of a network certification program. (Def.'s Ex. 5.) The fact that the courses would result in a network certification still did not qualify them as an "Undergraduate or Graduate Degree Program" as defined by Merck's Educational Assistance Program. (Def.'s Ex. 2 at D0068c.) Plaintiff amended his EDP to include a possible future position in IT. (Tucker Dep. at 40, 119-21.) However, for non-degree programs, Merck's policy requires that the courses must be related to the employee's current job. (Def.'s Ex. 3 at P0416.) It is undisputed that the computer courses requested by plaintiff were unrelated to his employment at that time. Upon receiving this additional information from plaintiff, Mr. Hull reviewed his request a second time. (See Def.'s Ex. 6.) He confirmed that Merck's education policy did not provide assistance from non-degree programs unrelated to an employee's current position. (Id.) Further, Mr. Hull followed up with John Zettler, an employee in Merck's Information Services Department, regarding qualifications for positions in the IT department, to determine if plaintiff's certification program could potentially relate to future positions within Merck. (Def.'s Ex. 6; Hull Dep. at 22.) Mr. Zettler informed Mr. Hull that the department would only hire an employee at plaintiff's level who had three to five years experience in technology and that jobs related to the certification plaintiff was seeking were located in Merck's White House, New Jersey facility, not in the West Point facility. (Def.'s Ex. 6; Hull Dep. at 22-23.)*fn1 Mr. Hull concluded that plaintiff did not have a reasonable potential to obtain a position in Merck's Information Services Department, thus making his request for Educational Assistance unrelated to his current position and any future position at Merck. Based upon this information, he determined that he would maintain his denial of plaintiff's request. (Def.'s Ex. 6.) Mr. Hull informed his supervisor and a Human Resources representative of this decision. (Hull Dep at 25-28; Def.'s Ex. 6.) Neither advised him that they disagreed with his determination. (Hull Dep. at 25-28.)

  Plaintiff points to no other employee, in circumstances similar to his, who was approved for educational assistance for a computer certification program. Alternative Work Agreement

  Shortly after Merck denied plaintiff's request for the computer courses, plaintiff submitted a request for educational assistance to attend Saint Joseph's University's Pharmaceutical MBA Program. (Def.'s Ex. 8.) On August 26, 2002, this request was approved by plaintiff's director, Harry Rieck. (Am. Compl. at ¶ 8.) The program consisted of courses that were held on Fridays, Saturdays, and Sundays. (Pl.'s First Dep. 138-40.) The Friday courses were held during plaintiff's regular work hours. (Id.)

  Employees are generally not permitted to miss work to attend courses, except with respect to certain approved programs under the Educational Assistance Program. (Lisa Miller Dep. at 37.) Because plaintiff's program would require plaintiff to miss days from work, before approving plaintiff's request, Mr. Rieck consulted with Lisa Miller, a Human Resources Business Partner, for general advice regarding employees missing work for programs. (Miller Dep. at 10; Rieck Dep. at 12-13.) Ms. Miller did not know to whom Mr. Rieck was referring, but informed him that he had discretion with regard to the request. (Miller Dep. at 33-34, 36, 38.) She suggested that if he granted time off to the employee for this purpose, it would be a good idea to have the employee sign a document reflecting the supervisor's expectation that the courses would not affect the employee's job performance. (Id. at 34-35, 38.) To that effect, Ms. Miller prepared a document entitled "Alternative Work Arrangement." (Def.'s Ex. 11.) The document stated:
Your request to take xyz class during business hours one Friday per month beginning ____ and terminating on ____ has been approved conditionally. The following set forth the terms that are expected to govern during this period.
1. It is anticipated that this arrangement will conclude no later than ____. During this time, you have agreed to make up the hours missed by ____. 2. You will be required to meet the expectations of your role and maintain acceptable performance during this period of time.
If your performance does not continue to meet expectations during this time, management may end the arrangement. Nothing in this agreement is a guarantee of employment and your employment with the Company is "at will," and this may be terminated by either party at any time for any reason.
  Please sign below to indicate your agreement with the terms of this arrangement. (Id.) At the time she prepared the document, Ms. Miller still did not know which employee would use it; indeed, she meant for it to be used as a template when any employee was approved to take an educational course that would cause the employee to miss time from work. (Miller Dep. at 36.)

  Mr. Mattison, plaintiff's direct supervisor at the time, presented the Alternative Work Arrangement document to plaintiff for his signature. (Am. Compl. ¶ 9; Def.'s Ex. 11.) Plaintiff alleges that the request for his signature was discriminatory in that white employees receiving educational assistance were not required to sign a like document. (Am. Compl. ¶ 10.) Plaintiff refused to sign the document. (Pl.'s First Dep. at 156.) After consulting with Merck's Legal Department, management did not require Mr. Tucker to sign the document. (Miller Dep. at 45-48.) Even without his signature, plaintiff continued to receive educational assistance to attend the Saint Joseph's University's Pharmaceutical MBA Program. (Pl.'s First Dep. at 116-17, 156.) While plaintiff alleges that no white employees were required to sign the Alternative Work Arrangement document, one such employee that signed the agreement, shortly after plaintiff refused, was Mary Baker, a Caucasian female. (Def.'s Ex. 13.) Plaintiff alleges that Ms. Baker was only required to sign the document "[i]n an effort to attempt to demonstrate that the AWA as not specifically directed at Mr. Tucker or otherwise discriminatory . . ." (Pl.'s Mot. in Opp'n to Mot. for Summ. Jud. at 5-6.) Plaintiff provides no evidence to support this allegation.

  The only other Merck employee that plaintiff knows participated in the MBA program and did not sign the Alternative Work Arrangement document is Jackie Lombardo. (Pl.'s First Dep. at 191-92.) However, Ms. Lombardo does not work in plaintiff's department, and is also a member of a protected group as she is Hispanic. (Def.'s Ex. 14.)

  Finally, the language of the document cannot be said to have added any condition of employment to those expected of employees responsible to account for the time away from the work for which they expected to be paid.

  Educational Assistance for Simultaneous Degree Programs

  In summer of 2003, while plaintiff was still receiving educational assistance for his Pharmaceutical MBA Program, he requested educational assistance to obtain a nursing degree (a "BSN"). (Pl's Mot. in Opp'n to Mot. for Summ. Jud. at 4.) Both plaintiff's direct supervisor, Tim Lynch, and his director, Mr. Rieck, approved the program, but informed plaintiff that he could receive educational assistance for only one of the two programs. (Pl.'s Second Dep. at 367.) Plaintiff testified that he had not planned to attend both programs at once; rather he stated that he "was going to put the MBA on hold in order to fulfill the BSN program fully. And, then, hopefully . . . I would continue and finish the MBA." (Id. at 370.) Despite his intention, plaintiff claims it was discriminatory that he was not permitted to receive payment for both programs simultaneously. (Pl.'s Mot. in Opp'n to Mot. for Summ. Jud. at 4.)

  Merck's Educational Policy does not address the issue of receiving assistance for two programs at one time. (Def.'s Ex. 2.) Mr. Rieck testified that he required plaintiff to choose one program because he did not believe plaintiff could successfully devote time to two degree programs and the requirements of his full-time position. (Rieck Dep. at 61-63.) Merck's Educational Assistance Policy states that the decision of whether or not to provide payment is "contingent upon prior management approval and is not guaranteed, but is at the discretion of management . . ." (Def.'s Ex. 2 at D0068a.) Plaintiff claims that, "[Mr.] Rieck had no objective evidence to support his paternalistic belief that Mr. Tucker was incapable of successfully handling all three activities." (Pl.'s Mot. in Opp'n to Mot. for Summ. Jud. at 5.) However, plaintiff does not explain how this denial was discriminatory, nor does he present any other individual who was treated more favorably and permitted to receive assistance for two educational programs simultaneously.

  Short Term Disability

  On September 17, 2002, Mr. Tucker went out on short-term disability. (Am. Compl. ¶ 11.) Maria Becker, RN, an employee of Merck's Health Services Department, was assigned as plaintiff's case manager. (Pl.'s First Dep. at 163.) As a case manager, Ms. Becker was responsible for providing medical forms to employees, contacting employees regarding their status, contacting an employee's physician if necessary, and contacting management or human resources regarding return to work dates or work restrictions. (Becker Dep. at 20-21.)

  On October 4, 2002, Mr. Tucker's physician, Dr. Clarence Martin, provided defendant's health care department with a diagnosis within the requisite fifteen day period. (Am. Compl. ¶ 12; Def.'s Ex. 16.) Around this time, Ms. Becker called plaintiff for ...

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