By Charles Toutant, From New Jersey Law Journal

A federal jury in Newark 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 also said Colicchio failed to show that Merck’s decision not to promote Colicchio and its termination of her violated the Family and Medical Leave Act and the New Jersey Family Leave Act.

The verdict was returned June 1, following a four-week trial before U.S. District Judge Stanley Chesler of the District of New Jersey. The jury also found no cause of action against the two individual defendants in the case, J. Chris Scalet, Merck’s executive vice president for global services, and Laurel LaBauve, who was Colicchio’s direct supervisor.

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 in May 2008, and the case was removed to federal court by Merck in July 2008.

Colicchio’s suit said she sought a promotion to vice president of her division in 2006 but was told she was being passed over because she was pregnant and preparing to take a six-month maternity leave. Upon her return, after the birth of her son, Colicchio complained she was being bullied and harassed by LaBauve, who was hired from outside the company for the job Colicchio had unsuccessfully sought. Colicchio was terminated in July 2007.

Colicchio claimed in her suit that she was more qualified than LaBauve and that she had an M.B.A., while LaBauve had only a bachelor’s degree.

Both sides submitted motions for judgment as a matter of law in mid-May, but Chesler dismissed both motions May 22.

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 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.

Colicchio’s lawyer, Lisa Manshel of Francis & Manshel in Millburn, and John Bennett of Jackson Lewis in Morristown, representing Merck, did not respond to requests for comment about the verdict. A Merck spokesperson also did not respond to a call about the verdict.

IMAGE: Carmen Natale

For more on this story go to: http://www.njlawjournal.com/id=1202728143719/Jury-Sides-With-Merck-in-Pregnancy-Discrimination-Case#ixzz3c0hEDqwW