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A federal judge has refused to certify a proposed class action race discrimination suit against Merck & Co. brought by 11 black workers who claim that blacks are routinely denied promotions they deserve while less qualified whites win quick trips up the corporate ladder. “Simply put, resolution of the merits of the claims would degenerate into an unmanageable plethora of multiple individual determinations for each individual proposed class member,” Senior U.S. District Judge Charles R. Weiner wrote in Webb v. Merck & Co. “Other than sharing the common position of being black employees of Merck, the plaintiffs’ allegations are discrete and individualized. Plaintiffs were employed in different states, in different divisions, in different facilities and at different levels within the company hierarchy. Their grievances are not susceptible to generalized proof or defenses. In essence, this action is nothing more than a consolidation of 20 accounts of individualized disparate treatment,” Weiner wrote. Weiner, of the Eastern District of Pennsylvania, found that for an employment discrimination case to proceed as a class action, the plaintiffs must prove that “intentional discrimination was the defendant’s standard operating procedure.” The Webb plaintiffs failed, Weiner found, because they had no proof of a “centralized, uniform policy or practice of discrimination” by Whitehouse Station, N.J.-based Merck in six separate facilities spread across five states. “On the contrary, plaintiffs themselves admit that their entire claim is based on individual decisions made by hundreds if not thousands of individual managers … all of whom had varying degrees of autonomy over compensation and promotion decisions,” Weiner wrote. Weiner found that the U.S. Supreme Court created a narrow exception that allows for class actions with no proof of centralized decision-making if the plaintiffs can nonetheless prove that an employer operated under a general policy of discrimination “such as through [an] entirely subjective decision-making process.” But the Webb plaintiffs don’t meet the test, Weiner found, since Merck also used some “objective factors” in making its hiring and promotion decisions, such as educational background and work history. “Since defendant’s decision-making processes with regard to promotion and compensation are at least in part objective based on the collective bargaining agreements and other objective practices, plaintiffs cannot establish that defendants utilized a decision-making process which was entirely subjective,” Weiner wrote. The ruling is a victory for Merck’s attorneys, Michael J. Ossip and Judith E. Harris of Philadelphia-based Morgan, Lewis & Bockius. The suit was originally filed by attorney Robert T. Vance, who went on to put together a team of lawyers that includes Adrian J. Moody and Isaac H. Green, and a trio of class action specialists, Joseph C. Kohn, Martin J. D’Urso and Hillary Cohen of Philadelphia’s Kohn, Swift & Graf. The plaintiffs asked that the suit be certified as a class action on behalf of all black employees who currently work for Merck & Co., as well as black former employees who worked there since January 1989, in the Merck manufacturing division at plants in Pennsylvania, New Jersey and Georgia, or as sales representatives in the company’s Mid-Atlantic Regional Business Group of Merck’s United States Human Health Division. Judge Weiner found that the proposed class was enormous and could number more than 5,000 workers. “A breakdown of the proposed class reveals the enormity of its scope. It includes all black employees at every level and every grade at six separate facilities … in five states, in two divisions, including union and non-union employees and their supervisors, managers and non-managers, sales representatives and secretaries and their supervisors and any other employee from vice-president to janitor,” Weiner wrote. The suit alleges that black Merck workers have been subjected to “a continuous and pervasive pattern and practice of racial discrimination,” and that the supervisors, managers and officers “have created, perpetuated and/or condoned a work environment that is hostile to black employees … and conducive to racial discrimination and harassment.” Although Merck has policies on paper that purport to guarantee equal employment opportunity and prohibit discrimination, the suit alleges that managers have “broad discretion” in how to enforce the policies, and that Merck provides little guidance and does nothing to ensure that the goals of the policies are achieved. “As a result,” the suit alleges, “those policies and procedures are applied in an inherently subjective manner and are neither effective nor adequate in remedying the racial discrimination and harassment present throughout Merck.” The suit alleges that Merck has failed to recruit, hire and retain blacks on an equal basis with whites, and that black workers are often paid less than whites for doing the same work. And when black workers complain about discrimination or harassment, the suit says, the company retaliates by firing them or “escalating criticism of their job performance.” Judge Weiner found that while courts allow class action race discrimination suits, the plaintiffs must still show that they meet all the requirements of Rule 23 of the Federal Rules of Civil Procedure. Weiner found that the Webb plaintiffs failed to satisfy Rule 23′s requirements of commonality, typicality and adequacy of representation. Under the law of the 3rd Circuit, Weiner said, “commonality does not require an identity of claims or facts among class members; instead, the commonality requirement will be satisfied if the named plaintiffs share at least one question of fact or law with the grievances of the prospective class.” But Weiner also found that “if broad discrimination is the only common denominator in the class, this does not satisfy the commonality requirement.” Since disparate treatment claims “are by their very nature individual,” Weiner said, “the class treatment of these claims requires close scrutiny of the proposed class and their claims. The locus of decision-making authority is an important consideration when determining whether class certification is appropriate for systematic discrimination claims involving multiple facilities.” After outlining the claims of each of the 11 named plaintiffs, Weiner found that the case cannot be resolved without delving into each plaintiff’s “own discrete factual scenario.” Such a process would quickly become very complicated, Weiner found. For the plaintiffs who claim they were denied promotions, he said, “the fact finder will have to identify the positions at issue, determine whether the individual applied for and was denied the position, examine the necessary qualifications for the position, examine the individual’s educational background, experience, work record, determine whether the other white candidates were qualified, determine whether the black applicant was better qualified than the white recipient and examine Merck’s reasons for not awarding the position to the black applicant.” And since Merck also has defenses to assert that are “unique to each named plaintiff,” Weiner found that the fact finder would also have to evaluate other criteria. “One can only imagine how these factual disparities will be exponentially increased by the addition of at least some 5,000 plaintiffs,” Weiner wrote.

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