Case Notes

Colicchio, who worked for Merck for 22 years and was a senior director of global operational excellence, claimed in her suit that Merck “engaged in a pattern and a practice of pregnancy and/or leave discrimination” and that the adverse treatment she experienced before the birth of her third child, in 2007, was similar to the treatment she received when she had her first two children, in 1998 and 2002. Colicchio filed suit in state court in Essex County, NJ, in May 2008, and the case was removed to federal court by Merck in July 2008.

Colicchio claimed in her suit that she was more qualified than the person who was hired for the job she wanted; that she had an M.B.A., while the hired person, Laurel LaBauve, had only a bachelor's degree. Both sides submitted motions for judgment as a matter of law, but U.S. District Judge Stanley Chesler of the District of New Jersey dismissed both motions.

Merck maintained that it did not violate the FMLA because Colicchio returned to a senior director job, with the same benefits and pay as before, after her pregnancy leave. The company also said the plaintiff did not establish a claim for failure to promote based on her gender or her pregnancy leave. And she failed to make a prima facie case that she was not promoted to the vice president job because of her gender or pregnancy leave, Merck said.

Colicchio had applied for the vice president post just as Merck was reorganizing it to follow a methodology for making business more efficient, known as Lean Six Sigma, the company said. The company did not consider Colicchio qualified to introduce the Lean Six Sigma methodology to the company, the motion said. LaBauve, who was hired as vice president, had past experience instituting a Lean Six Sigma program, and case law has granted employers “substantial discretion” to exercise judgment in making employment decisions, Merck said. ' Charles Toutant, New Jersey Law Journal

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Pregnancy Discrimination

A federal jury in Newark, NJ, has returned a defense verdict in favor of Merck & Co. in a gender and pregnancy discrimination suit brought by a company executive who claimed she was fired for taking maternity leave.

The jury found that Kerri Colicchio failed to prove by a preponderance of the evidence that Merck fired her in 2007 because of her gender or because of her 2006 pregnancy. The jury also found that Colicchio failed to demonstrate that she was passed over for a promotion because of her gender or her pregnancy. The jury found that Colicchio failed to show Merck's decision not to promote her and its termination of her violated the Family and Medical Leave Act (FMLA) and the New Jersey Family Leave Act.

Colicchio, who worked for Merck for 22 years and was a senior director of global operational excellence, claimed in her suit that Merck “engaged in a pattern and a practice of pregnancy and/or leave discrimination” and that the adverse treatment she experienced before the birth of her third child, in 2007, was similar to the treatment she received when she had her first two children, in 1998 and 2002. Colicchio filed suit in state court in Essex County, NJ, in May 2008, and the case was removed to federal court by Merck in July 2008.

Colicchio claimed in her suit that she was more qualified than the person who was hired for the job she wanted; that she had an M.B.A., while the hired person, Laurel LaBauve, had only a bachelor's degree. Both sides submitted motions for judgment as a matter of law, but U.S. District Judge Stanley Chesler of the District of New Jersey dismissed both motions.

Merck maintained that it did not violate the FMLA because Colicchio returned to a senior director job, with the same benefits and pay as before, after her pregnancy leave. The company also said the plaintiff did not establish a claim for failure to promote based on her gender or her pregnancy leave. And she failed to make a prima facie case that she was not promoted to the vice president job because of her gender or pregnancy leave, Merck said.

Colicchio had applied for the vice president post just as Merck was reorganizing it to follow a methodology for making business more efficient, known as Lean Six Sigma, the company said. The company did not consider Colicchio qualified to introduce the Lean Six Sigma methodology to the company, the motion said. LaBauve, who was hired as vice president, had past experience instituting a Lean Six Sigma program, and case law has granted employers “substantial discretion” to exercise judgment in making employment decisions, Merck said. ' Charles Toutant, New Jersey Law Journal

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