Nicholas Malfitano Mar. 9, 2016, 12:09pm


PHILADELPHIA – Two federal courts have now ruled Merck & Company did not discriminate against one of its pipefitters on the basis of his perceived disability and Puerto Rican heritage.

U.S. Court of Appeals for the Third Circuit Judge D. Brooks Smith decided on Monday the case brought by Manuel Matos against Merck was meritless and affirmed a prior ruling in the case from the U.S. District Court for the Eastern District of Pennsylvania.

Matos, a Hispanic and a native of Puerto Rico, worked as a union pipefitter in Merck & Company’s West Point, Pa., facility from May 1999 until September 2007. At that time, Matos applied for and was hired as, a second-shift supervisor on the Vial Filling Line located at the same facility.

Matos’ supervisor, Timothy Cooper, drafted a memorandum reprimanding Matos and gave it to his supervisors for violations of company safety protocol, in response to an incident in March 2008. Though Cooper never gave the memo directly to Matos – since Matos took disability leave before the memo was completed – a copy was placed in his personnel file and accessible to the company’s Human Resources Department.

Due to the stresses associated with his new position, Matos took short-term disability leave beginning in April 2008. This leave lasted until he resigned from the company in October 2008 to take a position as a pipefitter with Schering-Plough, at the time a competitor of Merck’s. Just three days before starting his employment at Schering-Plough and without previously informing anyone at Merck, Matos delivered his letter of resignation and employee badge to a Merck security guard.

Partially due to a longer commute from Pennsylvania to Schering-Plough’s New Jersey facility, Matos began re-applying for union pipefitter positions at Merck’s West Point facility and continued applying for such positions after Merck acquired Schering-Plough in November 2009.

Per the lawsuit, Matos was never given an interview for any of the approximately nine positions to which he applied, and all of the individuals hired to fill these positions were white men with no prior experience working at Merck.

Merck’s Office of Ethics determined Matos being denied re-employment was not due to discriminatory animus, but instead due to his perceived performance deficiencies and the nature of his departure from Merck the year before.

After leveling a charge with the Equal Employment Opportunity Commission (EEOC), Matos filed his complaint against Merck, alleging race, national origin, and/or disability discrimination in violation of Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA) and the Pennsylvania Human Relations Act (PHRA). He also asserted claims of retaliation under these laws.

Merck filed a motion for summary judgment, which the District Court granted – on the basis that “Matos could point to no facts in the record on which a reasonable jury could rely to conclude that Merck’s articulated business reasons for not rehiring Matos were mere pretext for unlawful discrimination.”

Essentially, Smith and the Third Circuit upheld this verdict based on the same reasoning.

“We agree with the District Court that, even assuming Matos can establish prima facie claims of race, national origin, and/or disability discrimination, or of retaliation under the ADA, he simply has not pointed to any evidence that would allow a reasonable jury to conclude that Merck’s articulated reasons for not rehiring him as a pipefitter – various performance deficiencies both as a pipefitter and in his role as supervisor, including the March 2008 incident involving a violation of Merck safety protocols, and the seemingly unprofessional manner in which he left the company – were pretextual,” Smith said.

Smith agreed with the findings of fact determined by the District Court in this case.

Smith concluded, “While the question whether an employer’s stated reasons for taking an adverse employment action against the plaintiff are pretextual is undoubtedly a question of fact to be decided at trial by the jury, at the summary judgment stage the plaintiff must at least point to evidence in the record on which a reasonable jury could base a finding of pretext. This, Matos has failed to do.”

The appellant is represented by Sharon Gilbert Timm in Doylestown.

The appellee is represented by Francine Friedman Griesing, Kathryn G. Legge and David Craig Callaghan of Griesing Law, in Philadelphia.

U.S. Court of Appeals for the Third Circuit case 15-1836

U.S. District Court for the Eastern District of Pennsylvania case 2:13-cv-02648

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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