UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

Carol Stith, individually and

on behalf of all others : Civil Action No.

similarly situated, :

Plaintiffs, : (Jury Trial Demanded)

:

v. :

:

Merck & Co., Inc., : CLASS ACTION

Defendant. :

COMPLAINT

The Named Plaintiff, by her undersigned counsel, brings this action seeking relief from the

employment discrimination of defendant Merck & Co., Inc. ("Merck"), and make the following

allegations:

JURISDICTION AND VENUE

1. This Court has original jurisdiction to hear this Complaint and adjudicate the

claims stated herein under 28 U.S.C. §§ 1331, 1343, 2201, 2202, and 42 U.S.C. § 2000d-2,

2000e-5(f), this action being brought under the Civil Rights Act of 1866, 42 U.S.C. § 1981, and

the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000d and 2000e et seq., and the Civil

Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1071 (Nov. 21, 1991), to redress and enjoin the

discriminatory employment practices of Merck.

2. The Named Plaintiff has filed timely Title VII administrative charges of

discrimination with the Equal Employment Opportunity Commission ("EEOC"). Ms. Stith

received her Notice of Right to Sue from the EEOC on June 29, 2001 relating to her original

Charge of Discrimination which was filed on March 15, 2001. On April 9, 2002, Ms. Stith filed a

second such Charge arising from her retaliatory discharge by Merck effective February 14, 2002.

3. The application limitations period for the filing of this Complaint was tolled by the

pending of the putative class action, Webb v. Merck, in which the putative class included the

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Named Plaintiff. On April 1, 2002, this court denied the Webb motion for class certification, and

thus triggered the 90-day period for the timely filing of the instant action. 

4. Venue is proper in this District by reason of 28 U.S.C. §1391(b) because Merck

resides here and a substantial number of the actions and omissions that give rise to this case

occurred here. In addition, several other employment discrimination actions against Merck

already are pending in this Court.

PARTIES

5. Carol Stith, an African-American woman, was hired to work as a secretary at

Merck’s Rahway, New Jersey facility beginning on March 27, 1989. Ms. Stith's initial position

was Secretary I, and she initially earned approximately $22,750 per year. Thirteen years later, 

while working as a senior procurement associate and earning $41,544 per year, Ms. Stith was

suddenly terminated without warning or justification.

6. Defendant Merck & Co., Inc. is a corporation doing business within the United

States with a principal place of business located at West Point, Pennsylvania. At all times relevant

hereto Merck has had more than 500 employees. 

CLASSWIDE ALLEGATIONS OF DISCRIMINATION

7. This action is being filed as a class action on behalf of present and former Africian

American employees who work(ed) at Merck's facility in Rahway, NJ.

8. The Named Plaintiff and the other members of the proposed class (collectively

hereafter, "plaintiffs") have been subjected to a continuous and pervasive pattern and practice of

racial discrimination by Merck in decisions that directly affect compensation, including those

pertaining to initial job assignments, training, promotions, base salary or hourly rates, overtime

opportunities, bonuses, stock options, and retirement benefits. 

9. Merck has a classwide policy of promulgating highly discretionary employment

rules and then failing to monitor the subjective employment decisions that flow directly therefrom. 

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Merck does so with the intention and effect of fostering, perpetuating and/or permitting racial

discrimination in the workplace. The result has been a significantly segregated work force and an

underutilization of African-American workers. 

10. Merck's highly discretionary compensation policies and practices include its lack of

a fair and objective job posting policy, and the highly subjective "standards" which it uses in its

performance reviews and promotions, including its corporate succession planning process. 11. 

The degree to which Merck fails to monitor the discriminatory impact of its discretionary

policies has been illustrated in the testimony of Merck witnesses in depositions taken in the Webb

litigation (E.D. Pa. C.A. 99-cv-413). For example, Robert Boisclair, an MMD executive,

admitted that the only thing that he does to ensure that bonuses and stock options are paid on a

non-discriminatory basis is to have discussions with his staff. Niki Archambeau, the Senior

Director of Human Resources and Diversity with EEO responsibility for all Merck divisions,

admitted that she does not monitor promotion or compensation decisions except by looking at

periodic statistics. 

12. Merck has promulgated equal employment opportunity and anti-discrimination

polices and procedures that are supposed to apply to all employees and all divisions. However,

Merck has granted its managers such broad and unfettered discretion so as to permit all of its

policies and procedures, including its EEO policies and procedures, to be applied in a

discriminatory manner. Defendant’s failure to effectively monitor its own employment policies,

practices and procedures fosters and promotes racially discriminatory compensation decisions.

13. Merck has also followed a general practice of retaliating against employees who

complain of racial discrimination or support the discrimination claims of others. Ms. Stith has

suffered such retaliation.

 14. Merck has a continuing history of discriminating against and harassing Black

employees. Despite the efforts of Black employees, and token efforts on the part of Merck, this

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racial discrimination and harassment has continued to the present.

 15. On June 6, 1979, the Office of Federal Contract Compliance Programs ("OFCCP")

entered into a Conciliation Agreement with Merck relating to the West Point and Rahway

facilities. The Conciliation Agreement was the culmination of a complaint filed by certain Black

employees at the West Point and Rahway facilities and an investigation of employment practices

at both sites conducted by the Veterans Administration from August 1976 until July 1977. The

Veterans Administration was the federal agency at that time that had jurisdiction over

employment discrimination cases in the drug industry.

 16. The employees' complaint alleged race discrimination in employment, promotions,

demotion, transfer, compensation and training. The Veterans Administration investigation of the

complaint found as to both the West Point facility and the Rahway facility:

a. that Merck discriminated in the selection and hiring of Blacks.

b. that Merck discriminated against Blacks by placing them into the lowest 

paying jobs at the time, which "created a caste system for Blacks which continues to 

influence the attitude of management and the workforce toward Black employees as 

inferior, lacking skills and unworthy of equal treatment in the [Merck] 'family'".

c. that Merck has discriminated against Blacks in promotions; and 

d. that Merck's grievance procedures had not effectively resolved the

complaints of Black employees.

 17. The Conciliation Agreement was to be effective on July 1, 1979 and to expire on

June 30, 1982, unless otherwise noted therein. Consistent with its prior pattern and practice of

discriminating against Black employees and in flagrant and reckless disregard of their federally

protected rights and rights established by the Conciliation Agreement, Merck failed to comply

with material components of the Conciliation Agreement.

 18. Merck’s current culture of covert, as well as overt, racial discrimination was

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illustrated in a survey which Merck took of its employees in 2000. With regard to diversity,

Merck asked its employees whether they are “treated with respect” regardless of their job. While

specific results have not been publicly released, it appears that more than 42% of Merck’s

African-American employees believe that they are not treated with respect.

19. On information and belief, Merck receives funding from the federal government, a

primary purpose of which is to continue employment in the prescription drug industry.

 20. Merck's performance rating process is subjective and implemented in a racially

discriminatory fashion. 

 21. Merck's corporate succession planning process is subjective and implemented in a

racially discriminatory fashion.

22. The acts alleged above have continued for several years and constitute a

continuing violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981.

 23. Defendant has acted and failed to act with reckless disregard for plaintiffs' rights.

 EXPERIENCE OF THE NAMED PLAINTIFF

24. Carol Stith has experienced racial discrimination at Merck. Her work history and

discriminatory experiences are generally described below. 

25. From 1989 through 1991, Ms. Stith worked as a Secretary I for one manager and

one engineer in the Toll Manufacturing/Materials Management area of Merck. 

26. In May 1991, she was promoted to the position of Engineering Specialist. This

was the only genuine promotion that Ms. Stith received while at Merck and the person primarily

responsible for giving her this opportunity was a black man. 

27. In September 1992, Ms. Stith was returned to a secretarial position, this time in

the New Products Planning area. 

28. From March 1995 until she was terminated, Ms. Stith served as a secretary and

procurement specialist, formally an Administrative Associate II, reporting to the Procurement

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Manager. Ms. Stith received less compensation, including bonuses and stock options, than her

white counterparts. Following a dispute about her having requested to take Martin Luther King

Day off, her work was unfairly criticized. In June 1999, Ms. Stith was relocated, while still

working in the Procurement Department, to Rahway. When filled previously by a white

employee, the Rahway position to which she was assigned was graded a level higher than when it

was performed by Ms. Stith and another African American woman. In addition, Ms. Stith was

informed by her supervisor that she (Ms. Stith) would not be entitled to receive stock options

because she had received a Meets Expectations (ME) rating. 

 29. Throughout her thirteen years at Merck, Ms. Stith applied unsuccessfully for more

than ninety positions -- some promotions and some positions that would have provided for lateral

movement but an increased level of exposure to different job functions. She was denied all of

these applications for new positions despite being qualified for the same. Among the positions

which Ms. Stith attempted unsuccessfully to obtain are the following:

a. In January 1998, Ms. Stith applied for the position of Administrative 

Associate III, a grade 12 position. 

b. In February 1998, Ms. Stith applied for the position of Administrative 

Associate III, a grade 11 position. 

c. In June 1998, Ms. Stith applied for the position of Administrative 

Associate III, a grade 11 position. 

d. In August 1998, Ms. Stith applied for the position of Administrative 

Associate in Department 788. 

e. In November 1998, Ms. Stith applied for the position of Administrative 

Associate III, a grade 11 position. 

f. In January 1999, Ms. Stith applied for the position of Administrative 

Associate II, a grade 12 position. 

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g. In February 1999, Ms. Stith applied for the position of Administrative 

Associate III, a grade 11 position. 

h. In February 1999, Ms. Stith applied for the position of Administrative 

Associate II, a grade 12 position. 

i. In February 1999, Ms. Stith applied for the position of Administrative 

Associate III - WWRA Cord & Clin Supp., a grade 11 position. 

j. In March 1999, Ms. Stith applied for the position of Administrative 

Associate III, a grade 11 position. 

k. In May 1999, Ms. Stith applied for the position of Administrative 

Associate III, a grade 11 position. 

l. In September 1999, Ms. Stith applied for the position of Administrative 

Associate III, a grade 11 position. 

m. In November 1999, Ms. Stith applied for the position of Administrative 

Associate III with the MRL Department, a grade 11 position. 

n. In March 2000, Ms. Stith applied for the position of Administrative 

Associate, a grade 12 position. 

o. In July 2000, Ms. Stith applied for the position of Administrative 

Associate II, a grade 12 position. 

p. In August 2000, Ms. Stith applied for the position of Administrative 

Associate III, a grade 11 position. She was interviewed on August 2 but did not receive

the promotion.

q. In September 2000, Ms. Stith applied for the position of Administrative 

Associate II. 

r. In October 2000, Ms. Stith applied for the position of Administrative 

Associate II, a grade 12 position. She was interviewed on October 18 and 19 but did not 

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receive the promotion.

s. In November 2000, Ms. Stith applied for the position of Administrative 

Associate II . 

30. After several complaints were made by other African American employees

regarding the unfairness of the job-posting procedure and related selection decisions, Merck

adopted a new company-wide job posting policy. Nevertheless, Ms. Stith was denied any benefit

from this new policy.

31. On February 14, 2002, Ms. Stith was terminated without any notice or cause. She

was informed by Marisa Guisante, Human Resources Representative (white female), and Scott

Higgins, Department Manager (white male), that her position was being eliminated immediately

("effective today"). Ms. Stith objected to her immediate termination because, at the time, there

were three positions in the procurement area that were open and that she was well qualified to

perform. These three open positions were given to white females who had fewer years of service

in the procurement area than did Ms. Stith. During her employment with Merck, Ms. Stith

became aware of seven white employees (Elena Gedik, Donna Arena, Jenny Lynn Parrish, Loraine

Jacik, Betty Ann Shutz, Rene DeRosario, and Arlene Reichardt) who were informed that their

positions were going to be eliminated, yet they were given ample time to obtain another position

with Merck. Ms. Stith believes that she was denied such an opportunity due to retaliation in

violation of the Civil Rights Act of 1964, as amended (Title VII), i.e., because she filed her

original EEOC Charge and had actively supported the Webb lawsuit. 

CLASS ACTION ALLEGATIONS

32. There are hundreds of members of the proposed class. It would be impracticable

to bring so many persons before the Court as plaintiffs. 

33. There are questions of law and fact common to the members of the class, including

but not limited to:

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a. whether the patterns of racial discrimination and harassment alleged by the 

plaintiffs occurred;

b. whether these were sufficient to create a racially discriminatory 

compensation structure; 

c. whether Merck knowingly allowed such racial discrimination to continue 

by failing to take prompt and effective action to stop it;

d. whether Merck discriminates against Black employees because of their 

race with respect to initial work assignments, promotions, transfers, hour wages or base 

salaries, bonuses, stock options, any other compensation, training, demotions, layoffs, 

discharge and discipline; and

e. whether Merck's actions and omissions occurred because of malice, an 

evil motive, recklessness, or a callous indifference to plaintiffs' rights.

34. The claims of the Named Plaintiff are typical of the claims of the proposed class. 

The Named Plaintiff has been subjected to some form of the discrimination alleged herein. Proof

of the patterns or practices of discrimination alleged here will support the claims of the Named

Plaintiff as well as those of the other members of the proposed class.

35. The Named Plaintiff will fairly and adequately represent the interests of the entire

proposed class. She has no conflict of interest with the absent members of the proposed class and

is represented by counsel that are competent and experienced in employment discrimination

litigation.

36. Merck's failure to take prompt and effective action to end or reduce the pervasive

racial discrimination alleged herein were not based on grounds peculiar to any individual class

member, but rather on grounds, including race, generally applicable to all of the members of the

proposed class, thereby making appropriate final equitable relief, and monetary relief in the form

of compensatory and punitive damages, with respect to the proposed class as a whole.

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37. The questions of law and fact common to the compensatory damages claims of the

proposed class predominate over any questions affecting only individual class members. Thus,

certification of the proposed class is superior to other available methods for the fair and efficient

adjudication of the controversy.

38. The proposed class may be certified under Rule 23(b)(2) and/or (b)(3), as

appropriate.

39. Plaintiffs demand trial by jury of all issues so triable, and an award of front pay

and back pay, prejudgment interest, attorneys' fees, costs, and expenses and whatever other

equitable relief the Court deems proper.

PLAINTIFFS' CLAIMS

The Civil Rights Act of 1866, 42 U.S.C. § 1981

40. Plaintiffs restate and reallege paragraphs 1 - 39, inclusive, as though set forth here

in full.

41. Merck has discriminated against plaintiffs and all members of the proposed class by

denying them the same rights as enjoyed by White employees with respect to the terms and

conditions of their employment relationship with Merck and to the enjoyment of all benefits,

privileges, terms and conditions of that relationship, in violation of the Civil Rights Act of 1866,

42 U.S.C. § 1981, as amended.

42. Merck's conduct has been intentional, deliberate, willful and conducted in callous

disregard of the rights of plaintiffs and members of the proposed classes.

43. By reason of Merck's discrimination, plaintiffs and members of the proposed class

are entitled to all legal and equitable remedies available under Section 1981, including but not

limited to damages for mental anguish and punitive damages.

Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d

44. Plaintiffs restate and reallege paragraphs 1 - 43, inclusive, as though set forth here

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in full.

45. Merck has discriminated against plaintiffs and all members of the proposed class in

the use of federal funds with respect to terms and conditions of employment because of their race

in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq., as amended by

the Civil Rights Act of 1991.

46. Merck's conduct has been intentional, deliberate, willful, and conducted in callous

disregard of the rights of plaintiffs and members of the proposed class.

47. Merck's policies and practices have produced disparate impact against class

members in the use of federal funds with respect to the terms and conditions of employment.

48. By reason of Merck's discrimination, plaintiffs and members of the proposed class

are entitled to all legal and equitable remedies available under section 2000d, et seq.

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

49. Plaintiffs restate and reallege paragraphs 1 - 48, inclusive, as though set forth here

in full.

50. Merck has discriminated against plaintiffs and all members of the proposed class

with respect to the terms and conditions of employment because of their race in violation of Title

VII of the Civil Rights Act of 1964, Title 42 U.S.C. § 2000e et seq., as amended by the Civil

Rights Act of 1991.

51. Merck's conduct has been intentional, deliberate, willful and conducted in callous

disregard of the rights of plaintiffs and members of the proposed class.

52. Merck's policies and practices have produced disparate impact against class

members with respect to the terms and conditions of employment.

53. By reason of Merck's discrimination, plaintiffs and members of the proposed class

are entitled to all legal and equitable remedies available under section 2000e.

PRAYER FOR RELIEF

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WHEREFORE, plaintiffs respectfully pray that the Court:

a. adjudge, decree and declare the practices of Merck complained of herein to

be violative of the rights secured to plaintiffs and members of the proposed class;

b. issue a permanent prohibitory injunction prohibiting Merck and its 

officers, agents, employees, and successors from engaging in the practices complained of 

herein;

c. issue a permanent mandatory injunction requiring that Merck adopt policies

and practices that ensure equal treatment of all African-American employees and applicants and

that reduce the opportunity for its managers to violate the requirements of Title VII and 42

U.S.C. § 1981;

d. order Merck to provide appropriate job relief to plaintiffs and class 

members in the form of promotions for persons who should have been in higher level 

jobs at the time of judgment and any other job relief determined to be appropriate;

e. enter judgment in favor of plaintiffs and class members against Merck for 

all available remedies and damages under law and equity, including but not limited to 

back pay, front pay, and past and future mental anguish and pain and suffering in amounts 

to be determined at trial;

f. order Merck to pay punitive damages to plaintiffs and class members in 

amounts to be determined at trial;

g. order Merck to pay the attorneys' fees, costs and expenses and expert 

witness fees of plaintiffs and class members associated with this action;

h. grant such other and further legal and equitable relief as may be found 

appropriate and as the Court may deem just or equitable; and

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i. retain jurisdiction until such time as the Court is satisfied that Merck has 

remedied the practices complained of herein and is determined to be in full compliance 

with the law.

Dated: June 27, 2002 ____________________________________

Joseph C. Kohn, Esquire

Martin J. D'Urso, Esquire

Diana Liberto, Esquire

Kohn, Swift & Graf, P.C.

One South Broad Street, Suite 2100

Philadelphia, PA 19107

(215) 238-1700

Robert T. Vance, Jr., Esquire

Suite 700, 1616 Walnut Street

Philadelphia, PA 19103

(215) 772-0300

Adrian J. Moody, Esquire

Isaac H. Green, Jr., Esquire

Suite 700, 1616 Walnut Street

Philadelphia, PA 19103

(215) 735-2400

Attorneys for Plaintiffs 

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