Nicholas Malfitano Mar. 25, 2016, 12:09pm


PHILADELPHIA – A federal appeals court has upheld an order of summary judgment for Lockheed Martin in the case of a former employee who filed suit against the aerospace and defense contractor for employment discrimination and retaliation.

Judge Thomas I. Vanaskie authored an opinion on behalf of the Court and fellow judges Kent A. Jordan and Patty Shwartz on Tuesday, affirming a ruling from the U.S. District Court for the Eastern District of Pennsylvania which granted summary judgment to Lockheed Martin and against appellant Shawn Merke.

Merke, an African-American, Senior Engineering Manager and former Lockheed Martin employee of 29 years, filed suit against the company in December 2012 after he felt he had been retaliated and discriminated against, and wrongly terminated, thereby violating Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act (PHRA).

In his role, Merke led a team of engineers in the Spatial Solutions (S2) unit and worked closely with program managers – but feedback in his performance reviews showed a disconnect between Merke and his team members, and management suggested Merke find another role in the company which didn’t involve supervising others.

With the S2 unit experiencing a large decline in business (approximately $400 million) from 2010 to 2012, the unit was reorganized and appellee Gretchen Peacock became S2’s Technical Director.

In December 2011, Merke expressed a desire to become more involved in Lockheed Martin’s sales and marketing departments, and was removed from a supervisory capacity and placed on Peacock’s Technical Staff, until the role he desired opened up.

But in April 2012, Merke met with Peacock and expressed feeling “singled out” and being unable to “understand why he had been promised work assignments and moved from his position as a Senior Engineering Manager, only to be left without a single assignment for a substantial number of months.”

Lockheed Martin ultimately chose to lay off Merke, along with three other management positions in the engineering unit, which were eliminated around the same time as Merke’s role – two of which were held by Caucasian men and one of which was held by an African-American man.

On May 10, 2012, Peacock notified Merke his position was being eliminated and that he needed to find a new role in the company by June 22, 2012 or he would be terminated.

Merke said he sent an e-mail to Human Resources representative Chanda Guth complaining he was being terminated after his April meeting with Peacock, where he voiced concerns about his lack of assignments.

Merke was unable to find a new assignment and was terminated, effective June 29, 2012. With respect to the other three employees whose positions were also eliminated, one, an African-American man, found another position at Lockheed Martin, but the two other Caucasian men did not.

The District Court granted summary judgment in favor of the appellees, finding Merke “did not provide sufficient evidence to state a case for discrimination based on either race or retaliation for engaging in protected conduct.”

The Third Circuit Court felt similarly, and determined Merke had not presented evidence that permits an inference that his layoff was motivated by racial discrimination.

“The undisputed record shows that Lockheed was undergoing a reorganization and laid off several employees as a result of decreased work. Merke was not the only employee who was at risk for or ended up losing his job because of the reorganization,” Vanaskie said.

“The other at-risk employees were both African-American and white. Merke has not provided any evidence that his race played a role in how he was treated at work or why he ultimately was laid off, other than his own subjective opinion that he received disparate treatment because of his race,” Vanaskie added.

Vanaskie explained Merke contended because he is an African-American man and the other members of his team were almost exclusively white, it was “clear that he believed that his unjust treatment was directly related to his demographic status on Peacock’s Technical Staff.”

“Nonetheless, there is nothing in the record that supports an inference that he had articulated a claim of race-based or any other kind of discrimination,” Vanaskie said. “Merke concedes that he never spoke with anyone in Human Resources or elsewhere at Lockheed alleging discriminatory treatment. Thus, Merke cannot substantiate the first element of a prima facie case of retaliation as he has not provided evidence that he engaged in protected activity.”

On behalf of the Third Circuit, Vanaskie and his colleagues elected to dismiss Merke’s claim.

“For the reasons set forth herein, we hold that Merke has failed to establish a genuine issue of material fact regarding whether appellees unlawfully discriminated against him on the basis of race or on the basis of retaliation,” Vanaskie said.

The appellant is represented by Robert T. Vance Jr. and Thomas O. Fitzpatrick of Mincey & Fitzpatrick, both in Philadelphia.

The appellees are represented by K. Clark Whitney, Michael J. Murphy and Cheryl M. Stanton of Ogletree Deakins Nash Smoak & Stewart, in Philadelphia, Washington, D.C. and New York, N.Y., respectively.

U.S. Court of Appeals for the Third Circuit case 15-1993

U.S. District Court for the Eastern District of Pennsylvania case 2:12-cv-06995

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

More News