United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
B. SARIS CHIEF UNITED STATES DISTRICT JUDGE
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).
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.
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.
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.
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. 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.
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
Discrimination and Retaliation
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.
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.
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.
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.
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