Davis, JD v. Merck & Co.

Background

Richard Einstein Davis brought employment-discrimination claims under Section 1981 of the Civil Rights Act of 1866 and the New York State Human Rights Law. He alleged that Merck discriminated against him because of his race. The caption identifies the defendant as Merck & Co.; the opinion states that Merck’s answer asserted that Merck Sharp & Dohme LLC, a wholly owned subsidiary of Merck & Co., employed Davis and that Merck & Co. was improperly named.

Davis, a Black man, joined Merck in January 2020 as a Director of Compliance and Risk Management. He worked within the company’s information-technology risk-management and security division and supervised, directly or indirectly, 25 employees. Saverio Ortizzo, who is white, supervised Davis. Daniel Trotter, also white, managed the contract of Jim Barrick, a white contractor working on an information-security project Davis had created.

In January 2022, Barrick complained to Ortizzo that Davis had behaved offensively during meetings and had made a statement about preferring chocolate cake to vanilla cake. Barrick understood the statement as meaning that Davis favored Black employees over white employees. Davis disputed that account and testified that Barrick had made the comment. After learning of Barrick’s complaints, Davis asked Trotter to remove Barrick from the project, and Trotter did so. Davis later told Ortizzo that he had terminated Barrick’s contract based on information he had received.

Merck’s Office of Ethics investigated the matter for nearly nine months. The investigator found that Davis had made the chocolate-and-vanilla comment and had asked Trotter to terminate Barrick’s contract partly because Barrick intended to bring his concerns to Ortizzo. The investigator also noted that Trotter and Ortizzo said they had not known of previously reported performance problems involving Barrick. The investigator concluded that Davis had violated Merck policies requiring cooperation with internal investigations and prohibiting retaliation, and recommended termination. Merck terminated Davis’s employment in September 2022.

Summary-judgment standard

Summary judgment is proper only when the evidence shows no genuine dispute about a material fact and the moving party is entitled to judgment as a matter of law. At this stage, the court does not decide disputed facts or choose between competing accounts. It views the evidence and reasonable inferences in favor of the party opposing the motion.

Race-discrimination claims

The court applied the burden-shifting framework used for discrimination claims based on circumstantial evidence. Davis had to make an initial, minimal showing that he belonged to a protected class, was qualified, suffered an adverse employment action, and faced circumstances suggesting discrimination. The parties did not dispute the first three elements; the dispute concerned whether the circumstances supported an inference of discrimination.

The court held that a reasonable jury could find that Ortizzo and Trotter were similarly situated to Davis. They were subject to the same workplace standards, including Merck’s anti-retaliation policy, and both were involved in the decision to end Barrick’s contract. Trotter managed Barrick’s contract and carried out the termination at Davis’s request. Ortizzo, Davis’s supervisor, learned of the termination within hours but did not intervene or question it. The court stated that a jury could find that Trotter and Ortizzo had the power to stop or reverse the termination if they believed it was retaliatory.

The court acknowledged that a jury could instead find Davis’s conduct materially different because Davis requested Barrick’s termination after Barrick complained about Davis. But those competing reasonable conclusions created a factual dispute for the jury. The court therefore found that Davis had met the initial burden for his discrimination claims.

Merck offered Davis’s alleged violations of its policies as legitimate, nondiscriminatory reasons for terminating him. The court held that Merck had met its burden of identifying such reasons. The issue was therefore whether Davis had presented enough evidence for a reasonable factfinder to conclude that those reasons were a pretext—a cover for intentional discrimination.

The court concluded that the evidence concerning Trotter and Ortizzo could support such a finding. A reasonable jury could determine that they were similarly situated to Davis, were involved to differing degrees in ending Barrick’s contract, and were not disciplined in the same way. Although the evidence of discrimination was described as thin, the court found it sufficient to allow a rational factfinder to infer that race was at least one motivating factor in Merck’s employment decision. Summary judgment on the discrimination claims was therefore inappropriate.

Affirmative defenses

Merck also sought summary judgment on defenses concerning attorney’s fees and punitive damages. The court denied those requests because neither issue was ripe for decision at the summary-judgment stage. If Davis ultimately prevails on the Section 1981 claim, the court may have discretion to award reasonable attorney’s fees. Whether punitive damages may be submitted to a jury will depend on the evidence presented at trial, including whether Merck acted with malice or reckless indifference to federally protected rights.

Disposition

The court denied Merck’s motion for summary judgment in its entirety. It also instructed the Clerk to terminate the motion. The court scheduled a case-management conference to discuss, among other matters, a possible trial date, pretrial submissions, and settlement efforts.