Do No Harm v. Pfizer Inc., 1:22-cv-07908 (JLR)

• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
• Writing for the Court: JENNIFER L. ROCHON UNITED STATES DISTRICT JUDGE
• Parties: DO NO HARM, Plaintiff, v. PFIZER INC., Defendant.
• Docket Number: 1:22-cv-07908 (JLR)
• Decision Date: 16 December 2022

DO NO HARM, Plaintiff,
v.
PFIZER INC., Defendant.

No. 1:22-cv-07908 (JLR)

United States District Court, S.D. New York

December 16, 2022

OPINION AND ORDER

JENNIFER L. ROCHON UNITED STATES DISTRICT JUDGE

On September 15, 2022, Plaintiff Do No Harm filed a Complaint and Emergency Motion for a Preliminary Injunction and Temporary Restraining Order against Defendant Pfizer Inc. ECF Nos. 1 (“Compl.”), 5 (“Motion”). Plaintiff alleges that one of Defendant's fellowship programs discriminates against white and Asian-American applicants. Compl. ¶ 3. Plaintiff withdrew its request for a temporary restraining order during a conference on September 21, 2022. See ECF No. 25. For the following reasons, Plaintiff's request for a preliminary injunction is DENIED and this action is DISMISSED.

BACKGROUND

I. The Parties

Plaintiff Do No Harm is a Virginia-based nationwide membership organization. Compl. ¶ 9. Its members include “physicians, healthcare professionals, medical students, patients, and policymakers who want to protect healthcare from radical, divisive, and discriminatory ideologies, including the rise in explicit racial discrimination in graduate and postgraduate medical programs.” Id. Do No Harm was founded six months prior to filing this action and, since it was founded, it has filed multiple complaints against what it perceives to be

1

discrimination against white and Asian-American individuals. Id. ¶ 10; ECF No. 30 (“Opp.”) at 5.

Defendant Pfizer is a global research-based company engaged in the business of the discovery, development, manufacture, marketing, sale, and distribution of biopharmaceutical products. Compl. ¶¶ 12, 18; ECF No. 33 (“Gramling Decl.”) ¶ 3. It is headquartered and has its principal place of business in New York, New York. Compl. ¶ 13.

II. Recruiting, Retaining, and Promoting Diverse Talent

Defendant states that it strives to build and retain a talented and diverse workforce across all levels of the company. ECF No. 32 (“Bruce Decl.”) ¶ 4. It views diversity at the company as including “socioeconomic status, first generation status, military status, membership in a minority racial group, and membership in the LGBTQ+ community.” Id. ¶ 5. But Defendant has faced challenges with recruiting, retaining, and promoting diverse talent. Id. ¶ 8.

Defendant's employee positions are grouped into various levels. Id. ¶ 6. The positions are, in order of seniority: analyst, manager and senior manager, director and senior director, vice president and above. Id. Defendant relies substantially on internal promotion for senior positions, and generally prefers candidates with at least a graduate degree for those positions. Id.

Defendant's data shows that minority groups are underrepresented at the company, and that this gap increases at more senior positions. Id. ¶¶ 7-8. Defendant points out that, for 2019 and 2020, its employees who identify as Black/African American, Latino/Hispanic, or Native American made up only between zero and eight percent of Defendant's workforce at each of the analyst, manager, and director levels. Id. ¶ 7; Opp. at 2. Defendant states that its difficulty in recruiting and retaining diverse college graduates for analyst-level positions and diverse master's degree holders for manager-level positions has contributed to decreasing minority representation

2

with increasing seniority. Id. Data from the Bureau of Labor Statistics shows that the Pharmaceutical and Medicine manufacturing industry, as a whole, faces similar - although less significant - racial disparities. Bruce Decl. ¶ 10.

In 2019, Defendant set “Opportunity Parity Goals” to address the underrepresentation of minority groups and increase diversity in its leadership positions over the next five years. Id. ¶ 9. In order to achieve parity at the vice president and above levels for U.S. minorities, Defendant's Opportunity Parity Goals seek to increase minority representation at the vice president and above levels from 19% to 32% and double the population of Defendant's Black/African American and Latino/Hispanic workforce. Id. ¶ 9.

III. The Breakthrough Fellowship Program

Defendant launched the Breakthrough Fellowship Program (the “Fellowship”) in 2021. Compl. ¶ 31. Defendant designed the Fellowship to address its challenges with recruiting, retaining, and promoting diverse talent, and to increase underrepresented groups in leadership positions at the company. Bruce Decl. ¶¶ 11-12. The Fellowship is a prestigious program and represents a nine-year commitment by Defendant to 20 fellows in each cohort year. Id. ¶ 13; Compl. ¶ 32. The Fellowship's inaugural cohort commenced in 2021 and the second cohort began in 2022. Bruce Decl. ¶ 19.

The Fellowship proceeds through multiple stages. Compl. ¶ 35; Bruce Decl. ¶ 14. Students apply during their junior year of college. Compl. ¶ 33; Bruce Decl. ¶ 14. Selected fellows complete a summer internship at the company between their junior and senior college years. Compl. ¶ 34; Bruce Decl. ¶ 14. After graduating from college, successful fellows return to the company for a two-year position at the analyst level. Compl. ¶ 35; Bruce Decl. ¶¶ 14-15. Fellows who successfully apply and are admitted into a Master's in Business Administration

3

(“MBA”), Master of Public Health (“MPH”), or a Master of Science in Statistics (“MS Statistics”) program attend a two-year graduate program, paid for by Defendant, to earn one of these degrees. Compl. ¶ 36; Bruce Decl. ¶ 15. Successful fellows return to the company for paid internships during their first and second years of graduate study. Compl. ¶ 37; Bruce Decl. ¶ 16. Defendant invites fellows who have completed their internships and graduate degree program to return to the company in a full-time, manager-level position. Compl. ¶ 38; Bruce Decl. ¶ 16.

Applicants to the Fellowship must meet certain requirements. Bruce Decl. ¶ 18. Specifically, the applicant must: be a U.S. citizen or permanent resident; be an undergraduate student enrolled in a full-time university program and graduate the following year; show a committed interest and intent to pursue an MBA, MPH or MS Statistics program; apply to a Breakthrough Fellowship Intern opportunity on the Pfizer website; have earned a grade point average (“GPA”) of 3.0 or higher; demonstrate exceptional leadership potential; and be willing to work in New York City or another Pfizer location as indicated by the job posting. ECF Nos. 5-5 (“Pl. Ex. A”) at 5-6, 5-6 (“Pl. Ex. B”) at 1-2; Bruce Decl. ¶ 18; Compl. ¶ 42.^[1]

Applicants must also “[m]eet the program's goals of increasing the pipeline for Black/African American, Latino/Hispanic and Native Americans.” Pl. Ex. A at 5; Pl. Ex. B at 2; Bruce Decl. ¶ 18; Compl. ¶ 45. Plaintiff contends that this means that the Fellowship “categorically excludes white and Asian American applicants” and applicants must “be Black/African American, Latino/Hispanic, or Native American.” ECF No. 5-8 (“Opening Br.”) at 1. Plaintiff alleges that “white and Asian-American applicants need not apply” in light of the selection criteria. Compl. ¶ 5. Plaintiff does not allege that white or Asian-American applicants,

4

including the purported members who have submitted declarations in this lawsuit, have ever tried to apply or that such applicants have applied and not been selected to the Fellowship. Defendant states in its brief, without further explanation, that “nothing in the materials about the Fellowship . . . categorically bans any applicant from applying.” Opp. at 22.

The Fellowship selection process is highly competitive. Bruce Decl. ¶¶ 13, 22. Defendant received 2,600 applications for the 2021 cohort and 1,000 applications for the 2022 cohort. Id. ¶ 20. Of these, Defendant selected 40 total fellows. Id. ¶ 21. Every fellow selected received a “top tier” rating in the screening interview and “well exceed[ed] Pfizer's minimum criteria for selection to the Fellowship.” Id. ¶¶ 22-24. Defendant's Director of Early Pipeline Lead states that she is not aware of any employee of Defendant who has been “terminated to make room for any Fellowship recipient.” Id. ¶¶ 3, 34.

The application window for the 2023 Fellowship will open in early January 2023 and remain open for three weeks. Bruce Decl. ¶¶ 25-26. It takes Defendant approximately eight weeks to complete the application-screening process; two weeks to extend offers and receive acceptances; and four weeks to complete the hiring and background check processes. Id. ¶ 26. Selected 2023 fellows would begin their internships in early June 2023. Id. ¶ 25. Defendant has “carefully planned” this recruiting schedule and reports that, if the process is delayed, “at least some highly talented, extraordinary candidates that Pfizer wishes to recruit to its program will pursue opportunities other than the Fellowship.” Id. ¶ 27.

Defendant posted announcements, Frequently Asked Questions (“FAQs”), an informational video, and advertisements for the Fellowship on the internet, including on Defendant's website, Facebook, LinkedIn, and ZipRecruiter. Compl. ¶ 31; Pl. Ex. A; Pl. Ex. B; ECF Nos. 5-7 (“Pl. Ex. C”). The informational video states that Defendant intends, by 2025, to

5

“have a generation of 100 new leaders at Pfizer coming from underrepresented groups and lead [sic] on this organization.” Compl. ¶ 46; Pl. Ex. C at 2. The FAQs, under the heading “I'm not from a minority group identified for the Breakthrough Fellowship Program; what opportunities are available to me?”, states that “Pfizer is an equal opportunity employer” and provides information on additional early career programs offered at the company for “[u]ndergraduates and graduate students who are not eligible or interested” in the Fellowship. Pl. Ex. B at 2. The Breakthrough Fellowship Program Associate job description states that “Pfizer is committed to equal opportunity in the terms and conditions of employment for all...