then, look how they treat us when they get the chance.....
Merck Discriminated Against A Non-Hispanic Worker?
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By Ed Silverman // March 4th, 2011 // 9:28 am
That’s the contention made by Sylvio Baltodano, a former Merck sales administration and compliance manager who worked outside San Juan, Puerto, and claims he was fired because non-Hispanics were held to higher standards than their Hispanic counterparts. He was fired in October 2006 and, subsequently, filed a lawsuit, which was just reinstated by a federal appeals court.
What happened? Having bounced around Central America and Miami for Merck before landing in Puerto Rico in 2003, Baltodano and another non-Hispanice were told by a supervisor that they “would have to work harder than their Puerto Rican co-workers in order to advance,” according to the ruling. One example offered: he later learned that employees from Puerto Rico were given time off to complete their certification exams, but he was not.
Another example: Baltodano testified that, in May 2004, at a cocktail party during a three-day meeting, he told his latest supervisor, Nilda Vazquez, that some sales reps found her aloof and unapproachable. She did not respond, but six months later, she told him she did not “appreciate his comment and that he should be more careful because he was not from Puerto Rico,” the ruling states.
There were other workplace issues, however. Baltodano was cited for failing to complete a product certification by an agreed-upon time and was cited more than once for not submitting expense reports on time. He was subsequently fired and Merck provided a bad reference, which undermined a subsequent job offer he received. And so Baltodano filed suit, claiming discrimination, defamation and a breach of contract.
This may seem like a run-of-the-mill employment dispute, but in its ruling, the appeals court points out that Merck behaved in a counter-productive fashion during the initial proceedings, which resulted in a summary judgment by a lower court. To wit, the drugmaker was repeatedly required to submit evidence offering that described disciplinary actions taken against Merck managers who failed to submit expense reports or follow scheduling for product certification. Vazquez had been asked the same thing in a deposition, but was unable to recall, which prompted the request for the information.
The appeals court noted in its ruling that Merck “fought tooth and claw to keep from disclosing certain information even after agreeing to disclose it…Merck has never definitively said that the requested and promised but still-unproduced evidence is unavailable - indeed, Merck’s careful documentation of Baltodano’s missteps would suggest otherwise. Instead, it has played at multiple personalities, appearing cooperative one moment and combative the next.”
“If discovery were to disclose that Merck routinely allowed other business managers to file late expense reports and to delay their product certifications without consequence, then Baltodano’s termination could be seen as mere whim, or else (as Baltodano alleges) the result of discriminatory animus rather than any discernible and defensible business motive. Merck’s dilatory tactics and failure to abide by its own agreement to produce evidence deprived Baltodano of a fair chance to obtain evidence detailing Merck’s treatment of other, similarly situated business managers - evidence which could rebut Merck’s claim of just cause dismissal.”
Ironically, neither Merck nor Baltodano apparently offered much evidence - one way or the other - to address specifics concerning discrimination and defamation. But as the appeals court wrote, Baltodano “has not yet been given a fair chance to develop the record due to Merck’s stonewalling.” And this begs a question - what did Merck not want the court or anyone else to see? Perhaps further discovery might yield a pattern of discrimination, opening the proverbial floodgates to further litigation. That remains to be seen, but the court ruled Baltodano should now have his chance and sent the case back to a lower court for a complete airing (read the ruling here).