Tucker v. Merck Co Inc , 131 F. App'x 852 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
5-19-2005
Tucker v. Merck Co Inc
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3023
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________________
NO. 04-3023
____________________
TROY TUCKER,
Appellant
v.
MERCK & CO, INC.
_______________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. No. 03-cv-05015)
District Judge: Honorable James T. Giles
______________________________________
Submitted Under Third Circuit LAR 34.1(a)
April 19, 2005
Before: ROTH, FUENTES and BECKER, Circuit Judges.
(Filed: May 19, 2005 )
________________________
OPINION
________________________
BECKER, Circuit Judge.
Troy Tucker sued Merck, his employer, under 42 U.S.C. § 1981, claiming
numerous instances of disparate-treatment racial discrimination, in addition to a claim
that he was subjected to a racially hostile work environment. The District Court for the
Eastern District of Pennsylvania found that Tucker had not made out a prima facie case of
race discrimination or a hostile work environment, and granted summary judgment to
Merck. Tucker now appeals, and we affirm.
I
Tucker’s § 1981 employment discrimination claim is analyzed under the same
framework as sexual discrimination claims under Title VII of the Civil Rights Act of
1964. Schurr v. Resorts Int’l Hotel Inc., 196 F.3d 486, 499 (3d Cir. 1999). This
framework was set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under this test, the plaintiff bears the responsibility of making a prima facie case of
discrimination. This is done by showing (1) that he is a member of a protected class, (2)
that he was subject to an adverse employment action, and (3) that similarly situated
members of other racial classes were treated more favorably.
An adverse employment action has been defined by the Supreme Court:
A tangible employment action constitutes a significant change in
employment status, such as hiring, firing failing to promote, reassignment
with significantly different responsibilities, or a decision causing a
significant change in benefits. . . . A tangible employment action in most
cases inflicts direct economic harm.
2
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761-62 (1998). Our Court has defined
an “adverse employment action” under Title VII as “an action by an employer that is
‘serious and tangible enough to alter an employee’s compensation, terms, conditions, or
privileges of employment.’” Storey v. Burns Int’l Sec. Servs., 390 F.3d 760, 764 (3d Cir.
2004) (quoting Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir. 2001); and Robinson v.
City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir.1997)).
We have jurisdiction pursuant to 28 U.S.C. §§ 1291, 1331 & 1343.
II
Tucker, who is African-American, alleges that a number of decisions taken by
Merck constituted adverse employment actions.
A
Merck has a policy of providing educational assistance to its employees. The
policy allows employees to get tuition money for degree and non-degree courses that are
relevant to their current work at Merck, or to other Merck jobs for which management
thinks they might be qualified. Eligibility is at the discretion of management.
In May 2002, Tucker requested assistance to attend computer network certification
courses. Tucker’s supervisor denied the request because the courses did not relate to
Tucker’s current position at Merck, or to a potential future position for him. Tucker then
asked for assistance to attend a Pharmaceutical MBA program. This request was
approved. Because the course included classes during work hours, Tucker’s supervisor
3
asked Tucker to sign an “Alternative Work Arrangement” (“AWA”) document drafted by
a human resources employee.Tucker refused. Merck nonetheless continued to pay for his
Pharmaceutical MBA.
In the summer of 2003, Tucker requested approval to obtain a nursing degree. This
request was approved, but his supervisors informed Tucker that he could only receive
assistance for one program at a time. Tucker had never planned to do both programs at a
time; he was going to “put the MBA on hold in order to fulfill the [nursing] program.”
(App. 139.) He then did exactly that. No other Merck employee ever seems to have been
approved for educational assistance to pursue two degree programs at the same time.
Tucker claims that the AWA and the refusal to fund both the MBA and the nursing
degree at the same time are adverse employment actions. We disagree. Neither cost
Tucker anything—he never signed the AWA (and even if he had it would not have been
an adverse action), and he never had any plans to pursue both degrees at the same time.
The denial of funding for the network certificate also was not an adverse employment
decision, as it was not a significant change in employment status or a “significant change
in benefits.” No negative action was taken; Tucker was simply denied a discretionary
benefit worth some $2,197. The MBA courses that he eventually took instead cost Merck
some $3,855, more than the cost of his original request. Even if the denial of funding was
an adverse action, however, Tucker has not made out a prima facie case of discrimination.
Tucker’s supervisors were following Merck’s stated policy, and Tucker has not even
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alleged that any members of other racial groups were treated more favorably.
B
Tucker went on short-term disability leave on September 17, 2002, allegedly due
to stress caused by a hostile work environment. His doctor submitted documentation on
October 4, which his Merck disability case manager determined was insufficient. On
October 25, 2002, more than a month after Tucker went on disability, he received a letter
noting the lack of documentation and demanding that Tucker’s doctor and therapist
provide documentation that day in order to avoid termination. Tucker’s medical
professionals did so, and he did not come back to work. He was not terminated.
In November 2002, Tucker’s disability case manager learned that Tucker was
attending his classes while still on disability leave. Concerned that this might indicate
fraud, she contacted Tucker’s therapist, who told her that this was consistent with his
disability. The case manager, who had never met Tucker, took no further action. Tucker
remained on short-term disability for about four and a half months, returning to work on
February 3, 2003. He received all the disability benefits that he claimed during this time.
Tucker claims that these incidents show an intent to discriminate against him.
None of them are even arguably adverse employment actions, however, and he has
provided no evidence that anyone else was treated more favorably. Therefore, he has not
made out a prima facie case of a § 1981 violation.
C
5
Merck allows employees to take paid leave days without using vacation time. Four
types of paid personal absence are typically allowed: death in the immediate family, care
for a sick relative, medical or dental appointments, and “[l]egal or civic obligations,” such
as “closing on a house, jury duty, etc.,” that are “unable to be arranged during non-
working times.” (App. 414.) The employee’s immediate supervisor determines whether to
grant a personal day. There is no maximum, but supervisors are advised to limit use of
personal days. On average, Merck employees take four or five personal days each year.
Tucker took seventeen personal days in 2003. In part, this was because of a lawsuit
that he and his wife had previously filed against Merck, alleging defamation and invasion
of privacy in connection with Merck’s decision to terminate Tucker’s wife. See Tucker v.
Merck & Co., Inc., 102 Fed. Appx. 247 (3d Cir. 2004) (not precedential opinion)
(affirming summary judgment against the Tuckers). Tucker requested paid personal days
to attend his own deposition, and those of other witnesses in that case. Tucker’s
supervisor granted Tucker a personal day for his own deposition, but not for the others.
Similarly, when he filed the instant suit, Tucker requested seven or eight personal days to
attend depositions. Merck again granted him a personal day to attend his own deposition,
but not others. Tucker attended all of the depositions, taking vacation days when he was
denied personal days.
Tucker’s supervisor testified that he generally did not require a reason for an
employee to take a personal day, but he did require reasons of Tucker, who had taken an
6
unusual number of personal days. (App. 182.) Indeed, Tucker apparently took five
personal days in his first month back from work after medical leave (App. 31), and
missed a total of nine and a half of his first nineteen days back from disability leave (App.
25). At some point in summer or fall 2003, after taking 17 personal days, Tucker was told
that he would not be granted any more paid personal days in 2003 for any reason, and that
he would need to take vacation or unpaid time to attend to any more personal matters.
Tucker claims disparate treatment, pointing out that seven other employees in his
division accumulated more than five personal days in 2003, and none were subjected to
similar monitoring. Merck replies that none of those seven employees took more than 8.5
personal days, and argues that they were thus not similarly situated. We agree with
Merck: Tucker was allowed twice as many personal days as any other employee in his
division, and therefore cannot point to anyone, of any racial group, who was treated more
favorably than he was. Moreover, several cases hold that requiring an employee to take a
vacation day rather than a personal day does not constitute an adverse employment action.
See Cantrell v. Jay R. Smith Mfg. Co., 248 F. Supp. 2d 1126, 1138 n.29 (M.D. Ala. 2003);
Montgomery v. City of Birmingham, No. 98-AR-2100-S, 2000 WL 1608620, *7 (N.D.
Ala. Jan. 20, 2000). At least in this case, such a requirement is not “serious and tangible
enough to alter an employee’s compensation, terms, conditions, or privileges of
employment,” especially given that Tucker was in fact allowed seventeen personal days.
D
7
Tucker’s 2002 and 2003 employment evaluations were unsatisfactory: Tucker was
in the bottom half of his group in 2002, and was the lowest ranked analyst in 2003.
Tucker alleges that these evaluations were unfair and motivated by racism.
Tucker points to the fact that his supervisor, Timothy Lynch, kept notes of his
interactions with Tucker, which he did not do with any other analyst. Tucker considers
this evidence of Lynch’s racism, which he thinks tainted his evaluations. Lynch testified
that he took the notes because he “was aware that Troy was involved with litigation with
the company and I felt a bit threatened by him. I felt like I needed to keep some records to
protect myself.” (App. 185.) Tucker was suing Merck at the time, and had also sent
various letters to Merck officers alleging racial discrimination. Lynch’s explanation is
perfectly reasonable, and Tucker offers no reason to think that Lynch’s notes were made
for any purpose but to protect himself from a litigious employee.
It is also far from clear that these evaluations constituted adverse employment
actions. The District Court found that they did not, noting that Tucker received raises of
over $5,000 in each of those years; that he received bonuses of $2,088 in 2002 and $1,356
in 2003; and that Tucker presented no evidence that these amounts were different either
from what white contract analysts got or from what Tucker got prior to his 2002
evaluation. (App. 32.) There is thus no evidence that the negative evaluations had any
impact on Tucker’s compensation or terms of employment. A negative evaluation, by
itself, is not an adverse employment action. See Weston v. Pennsylvania, 251 F.3d 420,
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431 (3d Cir. 2001). Indeed, even a negative evaluation that leads to a lower than expected
merit wage increase or bonus probably does not constitute an adverse employment action.
See Rabinovitz v. Pena, 89 F.3d 482, 488-489 (7th Cir.1996); EEOC v. Wyeth
Pharmaceutical, No. Civ. A. 03-2967, 2004 WL 503417, *2 n.3 (E.D. Pa. 2004).
Even if the evaluations were adverse employment actions, Tucker presented no
evidence that anyone similarly situated had been treated more favorably. As Merck puts
it, “[a]ll that Mr. Tucker offers in support of his claim is his belief that his ratings should
have been higher.” Merck has offered detailed descriptions of how the evaluations were
created and justified.1 Here, again, Tucker has failed to present a prima facie case.
E
In December 2002, Tucker sent a memorandum to various Merck executive
officers alleging racial discrimination and demanding an investigation. This letter was
referred to Michael Cavalier, a Senior Director of Human Resources, who wrote to
Tucker to tell him that he would handle the investigation. Cavalier also told Tucker that
he should address his correspondence about the investigation only to Cavalier. Tucker
continued to address correspondence to Merck executive officers; Cavalier warned him
that this could result in discipline, although Tucker was never actually disciplined. Tucker
1
The evaluations contain specific criticisms of Tucker’s timeliness, responsiveness,
thoroughness, and depth of knowledge. Lynch found numerous errors in his spreadsheets
and criticized him for taking a passive and minor role in various projects. Lynch also
noted that Tucker was often late for work, not at his desk, reading school textbooks
during work hours, or actually asleep at his desk. (App. 388-408.)
9
argues that the requirement that he address his concerns to Cavalier, not the executives,
violated Merck’s “Open Door Policy” (which “encouraged employees to bring their
concerns directly to management”). Tucker provides little support for this argument, and
at all events such a violation would not constitute an adverse employment action.
Cavalier’s inquiry found no evidence of racial discrimination. Tucker alleges that
the investigation was insufficient, but he has not pointed to any evidence of
discrimination that Cavalier missed or undervalued. Even if Tucker were right, however,
that Cavalier’s investigation was inadequate, he does not explain how that could
constitute an adverse employment action. We think it cannot.
III
In addition to his disparate-treatment claims, Tucker alleges that the incidents
discussed above created a hostile work environment. We have explained the hostile
environment cause of action as follows:
To bring an actionable claim for [racial] harassment because of an
intimidating and offensive work environment, a plaintiff must establish “by
the totality of the circumstances, the existence of a hostile or abusive
working environment which is severe enough to affect the psychological
stability of a minority employee.” We hold that five constituents must
converge to bring a successful claim for a . . . hostile work environment
under [§ 1981]: (1) the employees suffered intentional discrimination
because of their [race]; (2) the discrimination was pervasive and regular; (3)
the discrimination detrimentally affected the plaintiff; (4) the discrimination
would detrimentally affect a reasonable person of the same [race] in that
position; and (5) the existence of respondeat superior liability.
Andrews v. City of Phila., 895 F.2d 1469, 1482 (3d Cir. 1990) (citation omitted).
10
Tucker alleges that the facts outlined above constituted pervasive and regular
discrimination, which occurred regularly since June 2002 and which caused him stress
and anxiety. He alleges no facts other than those set forth above; in particular, he does not
allege that anyone ever said or did anything overtly racist to or about him.
The District Court reviewed the caselaw and determined that Tucker had no
evidence to support a hostile work environment claim. Isolated incidents of racial
harassment will not create such a claim. See, e.g., Rush v. Scott Specialty Gases, Inc., 113
F.3d 476, 482 (3d Cir. 1997). We find the District Court’s conclusions here persuasive:
In his hostile work environment claim, plaintiff cannot cite a single incident
involving the utterance of a racial epithet, the use of a racist symbol, or any
direct comment concerning race. Rather, plaintiff raises eight separate
incidents where Merck made determinations regarding benefits issues raised
by him. These incidents were each employment decisions or actions not
linked directly with conduct regarding race. As discussed earlier, plaintiff
failed to establish a prima facie case of intentional discrimination for each
of the decisions. He has no direct evidence of discrimination and points to
no similarly situated individual treated more favorably. Plaintiff’s
subjective disagreement with these decisions, and even his opinion that they
were racially motivated and were offensive, is insufficient as a matter of
law to establish a hostile work environment.
(App. 35.) Tucker has not produced any evidence that any decision ever taken by Merck
was racially motivated; indeed, several of the actions he complains of were taken by
Merck employees who had never met Tucker and were unaware of his race. Tucker
cannot contend that the benefits decisions he complains about constituted harassment,
intimidation, or hostility. Thus he has not made a prima facie case of hostile-work-
environment discrimination.
11
The judgment of the District Court will be affirmed.
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