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Merck Must Face Trial on Pregnancy Bias Claims

(CN) - A woman who says Merck fired her for taking a third maternity leave can sue the drugmaker for discrimination, but not retaliation, a federal judge ruled.

In a 2008 complaint, Kerri Colicchio claimed that Merck & Co. set out to dismantle her career when she became pregnant for the third time during her 19-year career with the pharmaceutical company.

She claimed that Merck systematically discriminates and retaliates against pregnant female employees who take maternity leave.

Colicchio started working for Merck in 1998 and was eventually promoted to senior director of its Global Operational Excellence department in 2005.

When she became pregnant with her third child in 2005, then-senior vice president of global services J. Chris Scalet allegedly told Colicchio that she would not be promoted to vice president of her division because of her plans to take a six-month maternity leave.

Merck hired a lesser qualified executive outside the company for the position in 2006, around the time Colicchio returned to work, the complaint says.

Colicchio claimed that Merck delegated her responsibilities to a male executive with less experience because she took an additional leave to care for her newborn son.

She says Merck vice president Sigma Laurel LaBauve became abusive to her during meetings and tried to drive her out of the company.

LaBauve "voluntarily" told Colicchio "that she had been there a long time and was no longer 'a fit,'" according to the complaint. LaBauve also allegedly discouraged Colicchio from returning to work because "babies need their mammas."

Colicchio said Merck fired her in 2007.

She sued the company, Scalet and LaBauve for employment discrimination, retaliation, and violations of the New Jersey and federal family leave acts.

Merck removed the case to federal court in New Jersey and sought summary judgment on all claims. It argued that Colicchio could not show discriminatory intent because she worked there for almost a year after her third maternity leave, and it claimed that Colicchio's firing stemmed from a business-reorganization plan.

U.S. District Judge Stanley Chesler concluded, however, that "defendants fail to come to grips with the main theory of plaintiff's case."

A reasonable jury could infer discriminatory intent based on LaBauve's statements to Colicchio prior to her third maternity leave, the removal of her job responsibilities when she returned to work and her eventual termination, the Nov. 16 ruling states.

"Defendants try to treat the maternity leave and the termination as remote in time, but, under plaintiff's theory, they are temporarily linked by the intervening process of changing her job responsibilities," Chesler wrote.

He added: "This is sufficient, at this stage, to defeat the motion of summary judgment regarding employment discrimination based on both pregnancy and gender."

Colicchio has also presented enough evidence to advance a claim of discriminatory termination, the ruling continues.

Merck furthermore cannot defeat the failure-to-hire claims because it failed to show a justifiable reason for not promoting her to vice president, the judge found.

"Defendants have failed to articulate why they decided not to consider internal candidates like plaintiff," Chesler wrote. "No reasonable finder of fact could conclude that Merck has articulated a legitimate, non-discriminatory reason for not hiring the plaintiff for this position.

"Furthermore, plaintiff has pointed to evidence that she was not only considered for the position of interim vice president of Global OE, but that she would have gotten it but for her maternity leave," he continued. "This is sufficiently powerful evidence that she was qualified for the vice president of Global OE position, and that the articulated reason - the mysterious exclusion of internal candidates - is a pretext for illegal discrimination, that this claim should go to the jury."

"It is clear, at this juncture, that there are factual disputes over whether plaintiff was restored to an equivalent position with equivalent terms and conditions of employment," he added. "This is a matter for the jury."

Colicchio does not have a case, however, for retaliation under the state anti-discrimination laws or the federal and state family leave acts.

"Nothing in the factual statements or in the underlying evidence shows that plaintiff complained of an adverse action on the basis of pregnancy or gender," Chesler wrote.

The court nevertheless preserved Colicchio's claims that Merck is liable for the alleged discriminatory conduct of its executives, and it refused to side with the drugmaker on the issue of punitive damages.

"Given that this court has decided that many issues of defendants' alleged discriminatory and retaliatory conduct should go to the jury, there is no reason at this juncture to bar the jury from considering an award of punitive damages," Chesler concluded.

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