Opinion
CIVIL ACTION NO. 02-540.
June 18, 2003.
MEMORANDUM
Presently before the Court are Defendant Merck Co., Inc.'s ("Merck," "Defendant" or "Company") Motion for Summary Judgment, Plaintiff Katina Ketchum's ("Ketchum" or "Plaintiff") Response thereto, and Defendant's Reply in Further Support of its Motion. For the reasons set forth below, Defendant's Motion is GRANTED.
I. BACKGROUND
Ketchum, an African-American female, began working for Merck in April 1996 as an Industrial Engineer in the Manufacturing Division. In January 1999, Ketchum transferred to Merck's United States Human Health Division ("USHH Division") in the Customer Contract Management Department ("CCM Department") as a Contract Analyst. On August 8, 2001, Ketchum began approved maternity leave under the Family Medical Leave Act ("FMLA"). Pl.'s Resp. to Def.'s Mot. Summ. J. at 3 ("Pl.'s Resp.").
On August 21, 2001, while Ketchum was still on maternity leave, Merck announced that it would begin a reduction-in-force ("RIF") program, whereby it would restructure, reorganize and reduce the work in its USHH Division. Pursuant to this RIF, the CCM Department was to eliminate one Contract Analyst position, reducing the number of Contract Analysts from 34 to 33. Def.'s Mot. Summ. J. at 3. Merck informed its employees that those whose positions were eliminated would be reassigned to open or new positions within the USHH Division, primarily in the area of sales, if they were qualified and wished to do that kind of work.
Pursuant to this RIF, Merck alleges that Ketchum's position as a Contract Analyst was eliminated while she was on maternity leave, and she was displaced. Merck indicates that the RIF involved a two stage process whereby the Company was to eliminate one Contract Analyst position within the CCM Department. In the first stage ("Stage One"), the Company attempted to identify a specific Contract Analyst job that was no longer necessary, and a specific person who performed that job, so it could displace this individual. However, Merck was unable to identify such a person or a position. Therefore, it moved to the second stage ("Stage Two"), whereby it performed a forced ranking on the Contract Analysts within the USHH Division, and the person with the lowest ranking was displaced. Pl.'s Ex. F, Pamela Sloan Dep. at 15 ("Sloan Dep."). Four supervisors within the USHH Division performed all of the evaluations, and Ketchum received the lowest score from her supervisor, an African-American male named Randall Mattison ("Mattison"). As a result of this ranking, and for no other reason, Merck claims that Ketchum was displaced as part of the RIF. Def.'s Ex. B, Aff. of Lisa Miller at ¶¶ 5, 11 ("Miller Aff.").
Displaced is a term Merck uses when an employee's job within the Company has been eliminated and so the employee is displaced from her old position, but is not terminated from work with the Company. Once an employee is displaced, Merck attempts to find new, suitable employment for the individual somewhere within the Company.
Ketchum argues that, rather than her position having been eliminated during the RIF, she was replaced by a white male, Marc Claus ("Claus"), who was not qualified to perform the duties of her job, and whose position was actually the one eliminated. Ketchum argues that Claus was a Contract Analyst within the CCM Department with the more specific job title of a Retail Pharmacy Analyst. Ketchum believes her specific Contract Analyst position was as a Medicaid Analyst. She argues that Claus and she each performed very different functions despite the fact that both were considered Contract Analysts, and that Claus had no knowledge of how to perform her Medicaid Analyst duties. Pl.'s Resp. at 2.
Ketchum believes that, while she was on maternity leave, Claus's job as a Retail Pharmacy Analyst was eliminated. Rather than displace Claus from the CCM Department, Ketchum claims that Merck allowed Claus to maintain his employment by taking over her job. According to Ketchum, had Merck followed through with Stage One of the RIF, as it was supposed to, it would have displaced Claus, whose position the Company could do without. This would have allowed Merck to achieve its goal of reducing the headcount within the CCM Department by one, without ever having to progress to Stage Two. Since Merck did not displace Claus, it still needed to eliminate one position in the CCM Department. As Ketchum was already out of the office, and Claus had begun performing her duties, Ketchum alleges that she was displaced and Claus was allowed to maintain his employment with the Company. Pl.'s Resp. at 2-3.
Merck argues that Claus, as a Contract Analyst in the same department as was Ketchum, performed substantially the same duties as did she. Def.'s Mot. Summ. J. at 3. Merck contends that the distinction between a Retail Pharmacy Analyst and a Medicaid Analyst is merely an internal distinction and both employees were hired under the job description of Contract Analyst. Richard Nice Dep. at 12-14 ("Nice Dep."). Merck argues that, when it was forced to eliminate a position within the CCM Department, it was to eliminate from the entire pool of Contract Analysts, and not from a particular internal classification such as Retail Pharmacy Analyst or Medicaid Analyst. Thomas Reagan Hull Dep. at 39 ("Hull Dep.").
Merck argues that Claus's position was not eliminated in Stage One of the RIF. In fact, Merck was unable to identify a specific position and employee associated with a position that could be eliminated. As such, Merck moved to Stage Two and performed the forced rankings, at which time it determined that Ketchum received the lowest score and was to be displaced. Miller Aff. at ¶¶ 8-11. Merck claims that, following Ketchum's displacement, Claus was moved into the desk previously occupied by Ketchum, and he began performing some of the duties she previously performed. Marc Claus's Dep. at 27; Hull Dep. at 29-30. Claus took over some of her duties because the work she performed was still needed despite the fact that one employee in the CCM Department had been eliminated. The remaining employees in the USHH Division had to reorganize and restructure so as to accommodate all of the work with one less employee. Hull Dep. at 29-31.
Upon her displacement, Ketchum believes that Merck did not attempt to find her another position within the Company with the same effort that it attempted to find positions for white employees who were displaced. In trying to place Ketchum in a new position, Merck provided her with a list of 200 positions which were available within the USHH Division. Ketchum chose not to apply for 198 of these positions, because she realized she was not qualified for the type of work they required. She did apply for the remaining two positions, but she was denied, according to Merck, because she was not qualified for those positions, either. On September 17, 2001, Merck provided Ketchum with another list of open positions. She applied for one of these jobs, knowing that she was not qualified, which she indicated on her application, and she was again denied. As Ketchum was unable to secure alternate employment within the USHH Division, her employment with Merck was terminated on September 24, 2001. Def.'s Mot. Summ. J. at 6-7. Despite her termination, Ketchum's benefits continued until November 2001. Pl.'s Dep. at 112.
As a result of Merck's displacement and eventual termination of Ketchum, Ketchum alleges that Merck racially discriminated against her in violation of the Civil Rights Act of 1991, 42 U.S.C. § 1981 ("§ 1981), and discriminated against her for taking maternity leave in violation of the FMLA, 29 U.S.C. § 2601, et seq.
II. STANDARD OF REVIEW
A motion for summary judgment will be granted where all of the evidence demonstrates "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Since a grant of summary judgment will deny a party its chance in court, all inferences must be drawn in the light most favorable to the party opposing the motion. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). However, the party attempting to defeat a motion for summary judgment "cannot expect to rely merely upon bare assertions, conclusory allegations or suspicions." Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981).
The ultimate question in determining whether a motion for summary judgment should be granted is "whether reasonable minds may differ as to the verdict." Schoonejongen v. Curtiss-Wright Corp., 143 F.3d 120, 129 (3d Cir. 1998). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248.
III. DISCUSSION
A. § 1981 Claim
Ketchum alleges that Merck racially discriminated against her in violation of § 1981 by displacing her from her position as a Contract Analyst in the CCM Department, and then by terminating her employment without providing her sufficient aid to find alternate employment in the USHH Division. Where there is no direct evidence of discrimination, as is the case here, a plaintiff s claim must be analyzed under the burden of proof framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This framework provides that a plaintiff must first establish a prima facie case of racial discrimination. Once a plaintiff has done so, the burden shifts to the defendant to establish a legitimate, non-discriminatory reason for the adverse employment action taken against the plaintiff. Id. at 802. If the defendant is able to provide such a reason, the burden shifts back to the plaintiff to show that the defendant's reason was actually a pretext for discrimination rather than the true reason for the adverse employment action. Id. at 804. Although the burden shifts between the parties under this framework, "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Racial discrimination claims brought under § 1981 are analyzed under the same standards as such claims brought under Title VII of the Civil Rights Act of 1964. Schurr v. Resorts Int'l Hotel, Inc., 196 F.3d 486, 498-99 (3d Cir. 1999).
1. Plaintiff's Displacement
To establish a prima facie case of discrimination in a case involving a reduction in force, a plaintiff must show that "(1) she belonged to a protected class, (2) she was qualified for the position from which she was terminated, (3) she was terminated and (4) persons outside of the protected class were retained."Rhett v. Carnegie Ctr. Assocs., 129 F.3d 290, 294-95 (3d Cir. 1997). In this case, Ketchum can establish a prima facie case of racial discrimination based on her displacement. Ketchum is an African-American woman who was qualified for her job as a Contract Analyst. In addition, she was terminated, while many of her white co-workers remained in their positions as Contract Analysts.
Since Plaintiff has established a prima facie case of discrimination, the burden shifts to Merck to present a legitimate, non-discriminatory reason for her displacement. See McDonnell Douglas, 411 U.S. at 802. Merck has done so by offering evidence that it was conducting a RIF in its USHH Division which required the elimination of one position within its CCM Department. Miller Aff. at ¶ 4. Merck maintains that it conducted a forced ranking pursuant to which four supervisors in the CCM Department evaluated each of the employees by specific criteria, and the employees were given a score from one to five in each of these categories. Miller Aff. at ¶¶ 6, 7. Ketchum was evaluated by Mattison, an African-American supervisor in the CCM Department. Pl.'s Dep. at 18-19. After all of the employees were evaluated, their scores were added up and the employees were ranked. It was determined that Ketchum received the lowest score of all the Contract Analysts. Miller Aff. at ¶¶ 9-11. Merck has provided a legitimate, non-discriminatory reason for Ketchum's displacement, indicating that Ketchum was displaced pursuant to the forced ranking resulting from Merck's RIF. See Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 638 (3d Cir. 1993); see also Nath v. Gen. Elec. Co., 438 F. Supp. 213, 220-21 (E.D. Pa. 1977).
The categories for which each Contract Analyst was scored were labeled, Organizational knowledge, Builds effective working relationships, Capitalizes on opportunities to contribute, Contracting and system knowledge, Focuses on the customer, Follow-up, Information monitoring and analysis, Product/segment/customer knowledge, Open and effective communication, Persuasiveness/sales ability, Quality orientation/attention to detail, Leadership and Motivational fit/initiative.
Merck has rebutted any presumption of discrimination by producing a legitimate, non-discriminatory reason for the adverse action it took against Ketchum. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). Therefore, the burden shifts back to Ketchum to establish that Merck's reason is actually a pretext for discrimination. See McDonnell Douglas, 411 U.S. at 804. Ketchum has failed to meet this burden. In attempting to establish pretext, Ketchum relies on her belief that Claus's position as a Retail Pharmacy Analyst was eliminated pursuant to Stage One of the RIF, because his job duties were associated with the work of one man and were no longer necessary. Therefore, Ketchum believes Merck did not have to eliminate her position, because Merck would have achieved its goal of reducing the number of employees in the CCM Department by to 33 had it displaced Claus upon the elimination of his Retail Pharmacy Analyst position.
However, Ketchum provides no evidence that Claus's position was actually eliminated and that he took over her position. Ketchum simply is suspicious that this is what occurred. She cannot rely upon mere allegations. See Ness, 660 F.2d at 519. She must also provide sufficient evidence to support these allegations in order to withstand this Motion for Summary Judgment. Merck offers deposition testimony indicating that Ketchum was displaced from the CCM Department, and then Claus began to perform some of her duties, because 33 people had to do the same amount of work that 34 people had done prior to the RIF. Hull Dep. at 28-32; Nice Dep. at 27. Ketchum does not offer any deposition or affidavit testimony indicating that this is not the case.
In fact, in her own deposition, Ketchum admits that she does not believe Mattison discriminated against her in conducting her evaluation. Pl.'s Dep. at 73. Further, Ketchum admits that, had another employee received the lowest score on his or her evaluation, then that employee would have been displaced rather than Ketchum. Pl.'s Dep. at 78-80. By admitting that an employee would be eliminated through the forced ranking system, Ketchum concedes that Merck rightly engaged in Stage Two of the RIF, thereby agreeing that Claus's position was not eliminated. Ketchum fails to meet her burden of establishing pretext through her lack of persuasive testimony on the issue and her inability to provide evidence to support her argument. Accordingly, Ketchum's § 1981 discrimination claim as to her displacement is dismissed.
2. Plaintiff's Termination
Ketchum also alleges that she was racially discriminated against by Merck because white employees who were displaced during the RIF were given more favorable treatment than Ketchum was given in hiring for alternate positions within the Company. Pl.'s Dep. at 81. In order to establish a prima facie case of disparate treatment in hiring, a plaintiff must "prove by a preponderance of the evidence that she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination." Burdine, 450 U.S. at 253. More specifically, to establish a prima facie case, the plaintiff must show
(i) that [s]he belongs to a racial minority; (ii) that [s]he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite [her] qualifications, [s]he was rejected; and (iv) that, after rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.McDonnell Douglas, 411 U.S. at 802.
In the instant matter, Ketchum is unable to establish a prima facie case of discrimination, because she was not qualified for any of the positions available for hire. Soon after her displacement, Merck provided Ketchum with a list of 200 positions which were available within the USHH Division. Ketchum was aware that she was not experienced enough or qualified for 198 of these positions, because they required someone with a sales background, which Ketchum did not have. Pl.'s Dep. at 89. Ketchum was also aware that she was not qualified for the remaining two positions, but she applied for them, anyway, hoping for a positive result. Pl.'s Dep. at 90. However, due to her lack of appropriate background, she was denied these positions. Shortly thereafter, Merck provided Ketchum with another list of available positions. Again, realizing that she was not qualified for any of them, she only applied for one job. On the application, Ketchum wrote, "I am not qualified for the position, however I am expressing my desire to be considered." Def.'s Ex. F., D00108. Once again, due to her lack of experience and qualifications, Ketchum was denied this position.
An employee can only make out a prima facie case of discrimination if she is rejected from an available position despite being qualified for the job. Ketchum was not qualified for any of the openings Merck had at the time of her displacement. She was not denied the opportunity to learn about or apply for any position because of her race. In fact, Ketchum admits that she does not believe any white employees whose positions were eliminated under the RIF were given a different list of jobs to choose from than she was. Pl.'s Dep. at 82-83. Merck did not treat Ketchum any differently than any white employees who were displaced in its efforts to find her new employment within the Company. Since Ketchum could not be placed in an alternative position after her displacement for failure to qualify, her employment was rightly terminated. Accordingly, Ketchum's § 1981 discrimination claim related to her termination is dismissed.
B. FMLA Claim
The FMLA prohibits an employer from retaliating against an employee for exercising his rights under the FMLA. 29 U.S.C. § 2615(a)(2). The McDonnell Douglas burden shifting framework identified above is also used in analyzing an FMLA claim. Panto v. Palmer Dialysis Ctr./Total Renal Care, No. 01-6013, 2003 U.S. Dist. LEXIS 5663, at *21 (E.D. Pa. Apr. 7, 2003). To establish a prima facie case of discrimination under the FMLA, a plaintiff must show that "(1) she engaged in a statutorily protected activity; (2) she suffered an adverse employment action; and (3) a causal connection exists between the adverse action and [p]laintiff's exercise of her FMLA rights." Id.
If an employee is laid off during the course of taking FMLA leave and employment is terminated, the employer's responsibility to continue FMLA leave, maintain group health plan benefits and restore the employee cease at the time the employee is laid off. . . . An employer would have the burden of proving that an employee would have been laid off during the FMLA leave period and, therefore, would not be entitled to restoration.29 C.F.R. § 825.216(a)(1).
In this case, Ketchum cannot establish a prima facie case of discrimination under the FMLA, because she cannot prove that a causal connection exists between her termination and the exercise of her FMLA rights. Ketchum believes that Claus took over her job while she was on maternity leave, rather than her position having been eliminated, as Merck claims it was. As such, Ketchum argues that Merck violated the FMLA by not allowing her to return to work after her term of leave expired. However, Ketchum's only evidence that Merck violated the FMLA is that she was on leave when she was displaced and terminated. She offers no evidence that her position still existed and that Claus actually replaced her. Ketchum admits that she does not believe Mattison discriminated against her because she was on FMLA leave when he evaluated her performance for the forced ranking. Pl.'s Dep. at 73. She also admits that she does not think she was discriminated against because of being on leave when the Company tried to place her in another position after her displacement. Pl.'s Dep. at 83, 94-5. Accordingly, Ketchum does not provide sufficient evidence from which to draw the conclusion that her FMLA rights were violated.
Ketchum is not entitled to any rights beyond those she would receive if she had not taken leave. See 29 C.F.R. § 825.216(a)(1). Therefore, if Ketchum would have been displaced and terminated even if she were still working for Merck, she cannot sustain a FMLA claim. It is the responsibility of Merck to demonstrate that she would have been laid off regardless of whether she was on leave. See id. As noted above, Merck has provided sufficient evidence to demonstrate that Ketchum was displaced and terminated as a result of the RIF which occurred in her CCM Department during her maternity leave. See Section I.A.1. and 2. Ketchum has not provided anything other than conclusory allegations that this reason provided by Merck is pretextual. See id. As Ketchum would not have been entitled to remain in her position as a Contract Analyst even if she had not taken leave, nor would she be entitled to any other position in the USHH Division because she lacked the qualifications, she cannot withstand this Motion for Summary Judgment with respect to this claim. Therefore, Ketchum's FMLA claim is dismissed.
IV. CONCLUSION
For the foregoing reasons, Defendant's Motion for Summary Judgment is granted. An appropriate Order follows.
ORDER
AND NOW, this 18th day of June, 2003, upon consideration of Defendant Merck Co., Inc.'s Motion for Summary Judgment (Docket No. 18), Plaintiff Katina Ketchum's Response thereto (Docket No. 19) and Defendant's Reply in Further Support of its Motion (Docket No. 20), it is hereby ORDERED that Defendant's Motion is GRANTED. Judgment is entered in favor of Defendant and against Plaintiff.
This case is CLOSED.