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Doyle v. Merz North America, Inc.

United States District Court, D. Massachusetts

September 18, 2019

KERRIE DOYLE, Plaintiff,




         Plaintiff Kerrie Doyle (“Doyle”) brings this action against her former employer Defendant Merz North America, Inc. (“Merz”) alleging gender discrimination and retaliation in violation Massachusetts law. Merz moves to dismiss the complaint for lack of personal jurisdiction and improper venue. In the alternative, Merz asks the Court to transfer the case to the Eastern District of North Carolina. Doyle opposes all relief sought by Merz. After hearing, the Court DENIES Merz’s motion (Dkt. No. 7).


         When determining whether it can exercise personal jurisdiction over a defendant without an evidentiary hearing, the Court conducts a prima facie review of the jurisdictional facts. See Negrón–Torres v. Verizon Commc’ns, Inc., 478 F.3d 19, 24 (1st Cir. 2007). The Court will consider facts alleged in pleadings, affidavits, and exhibits. See Ealing Corp. v. Harrods Ltd., 790 F.2d 978, 979 (1st Cir. 1986). The Court “take[s] specific facts affirmatively alleged by the plaintiff as true (whether or not disputed) and construe[s] them in the light most congenial to the plaintiff’s jurisdictional claim.” Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass’n, 142 F.3d 26, 34 (1st Cir. 1998). The Court also will consider facts that the defendant proffers as long as they are uncontradicted. See id.

         Accordingly, the following factual background comes from Doyle’s Complaint and two declarations, two affidavits from Merz’s Associate Director of Human Resources, Kim Lobell, and the exhibits to those documents. The facts are assumed to be true, either because they are affirmatively alleged by Doyle or they are affirmatively alleged by Merz and are otherwise uncontradicted.

         I. Merz’s Business

         Merz sells various medical devices and products across the United States, including in Massachusetts. Merz is headquartered and incorporated in North Carolina. It is registered to conduct business and has a registered agent in Massachusetts. Merz has six employees based in Massachusetts that work in its injectables division. Merz does not lease or own any office space in Massachusetts.

         II. Doyle’s Employment

         Doyle worked for Merz as a saleswoman from September 2015 through May 2018. From September 2015 to September 2017, Doyle worked in Merz’s injectables division and was based in Massachusetts. From September 2017 until May 2018, Doyle worked in Merz’s device division as the Device Territory Manager with a sales area covering Massachusetts, Maine, New Hampshire, Vermont, Rhode Island, and part of Connecticut. Doyle alleges that she also was based in Massachusetts after her transfer to the device division.[1] Following her transfer, Doyle’s direct manager was Jack Patten, whose supervisor was Mike Floegel. Patten resided in and worked from New Jersey. Floegel resided and worked in North Carolina.

         While Doyle worked in the device division, she estimates that 80% of her customers were located in Massachusetts. Two of the three sales that she made when she worked on the device team were to customers in Massachusetts. In addition, Doyle was physically present in Massachusetts as she worked “on a daily or almost daily basis” in Massachusetts and “constantly” communicated with Patten by phone and email while she worked in Massachusetts. Dkt. No. 20-2 ¶ 9.

         III. Discrimination and Retaliation

         Doyle alleges that Patten treated Doyle differently than her male colleagues. He met with Doyle’s male co-workers to help them succeed but did not and would not do the same for her. He continuously criticized Doyle and compared her to other men on the team. He offered one-on-one training to Doyle’s male co-workers, but not to her. He co-traveled with male employees to client meetings but refused to co-travel with her. Doyle specifically alleges that Patten did not co-travel with her for meetings in Massachusetts, New Hampshire, and Maine even though she repeatedly requested that he co-travel with her in October 2017. In contrast, Doyle claims Patten co-traveled with male employees to Florida, Georgia, West Virginia, and Washington D.C. Because Patten would not co-travel with Doyle, she would have him participate in many of her sales calls via conference calls.

         On November 3, 2017, Doyle received a phone call from Floegel after she had not sold a device in the prior month. Floegel told Doyle that she had to sell a device in November “or else, ” which she interpreted as a threat of termination. Dkt. No. 1-2 ¶ 21. However, male co-workers were not threatened with termination even though they did not sell a product during a month. And when Doyle requested a larger sales territory that was more comparable to those of her male co-workers, Merz refused.

         On November 22, 2017, Doyle received a “Letter of Professional Concern” because of her quarterly sales performance. Doyle received the letter even though six weeks remained in the quarter. Doyle ultimately sold three devices in that quarter, and her sales goal was four devices. Two of those sales were to Massachusetts customers. No. male co-workers with a similar sales history received Letters of Professional Concern. (The day before she received the letter, Doyle called Merz’s Ethics Line to report Patten for gender discrimination.

         On December 6, 2017, Patten gave credit to a male co-worker for a sale that Doyle fostered. When Doyle called Patten, he “screamed at her, told her that ‘she wasn’t playing the game’ or words to that effect, and hung up on her.” Id. ¶ 35.

         On February 5, 2018, Doyle had a mediation call with Patten and Floegel in response to her Ethics Line complaint. During that call, Floegel “harassed, intimidated and cross-examined” ...

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