Merck Gets Reversal in Sales Rep Retaliation Suit

Merck Gets Reversal in Sales Rep Retaliation Suit

December 10th, 2012 // 7:46 pm @

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A federal appeals court has reversed a $555,000 jury verdict that was awarded early last year to a former Merck sales rep, who claimed she suffered retaliation after complaining about her supervisor. Specifically, Jennifer Scott charged she lost her job in 2008 because she refused to charge expenses to her credit card that were incurred by another rep (back story).

In arguing her case, Scott contended, among other things, that Merck had no right to fire her, even though she was an at-will employee, because her firing violated company code of conduct that indicated there was a whistleblower ‘non-retaliation’ policy. In other words, she maintained that Merck breached a contract.

However, the US Court of Appeals for the Fourth Circuit disagreed, ruling that language contained elsewhere in employment papers, including an acknowledgment signed by Scott that she was at-will employee, should have been sufficient to dismiss her case at an earlier stage. As a result, a district court decision that upheld the jury award contradicted Maryland state law.

“The issue before the court, then, is whether the language Merck points to clearly and conspicuously precludes justifiable reliance on the provisions Scott contends modified her employment contract,” the court wrote. “… Merck clearly and conspicuously disclaimed any limitation on its ability to terminate Scott’s employment at will.

The drugmaker “further stated that policy statements such as the ones Scott relies on should not be viewed as creating any contractual rights and obligations. Scott, therefore, cannot show that her termination constituted a breach of contract, for her employment was at will. Accordingly, the district court erred in denying Merck’s motion for judgment as a matter of law” (here is the ruling).

As we wrote previously, Scott was a Merck sales rep in central Maryland from 1992 until January 2008, when she was fired by her supervisor, William Liberato, according to court documents. He allegedly insisted repeatedly that Scott charge expenses, because another rep did not yet have a company card, even though she showed him documents indicating this violated company policy.

The litigation cast a spotlight on a curious decision by Merck management, which allowed her former supervisor to review her performance even after Scott complained to the ethics office about some of his directives – such as ordering reps to take docs to dinner and disparaging rival meds – and he had been transferred to a new position


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