Torres-Negrón v. Merck & Company, Inc.

• Decision Date: 23 May 2007
• Docket Number: No. 06-1260.,06-1260.
• Citation: 488 F.3d 34
• Parties: Kathleen TORRES-NEGRÓN, Plaintiff, Appellant, v. MERCK & COMPANY, INC.; Gerardo González; Conjugal Partnership González-Doe; Mónica Díaz; Conjugal Partnership Doe-Díaz; Ricardo Spinola; Conjugal Partnership Spinola-Doe, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

488 F.3d 34

Kathleen TORRES-NEGRÓN, Plaintiff, Appellant, v.MERCK & COMPANY, INC.; Gerardo González; Conjugal Partnership González-Doe; Mónica Díaz; Conjugal Partnership Doe-Díaz; Ricardo Spinola; Conjugal Partnership Spinola-Doe, Defendants, Appellees.

No. 06-1260.

United States Court of Appeals, First Circuit.

Heard November 2, 2006.

Decided May 23, 2007.

Marcelle Martell-Jovet, with whom Yolanda V. Toyos-Olascoaga and Ramos González & Toyos Olascoaga Law Offices were on brief, for appellant.

Anabel Rodríguez-Alonso, with whom Mariela Rexach-Rexach and Schuster & Aguiló LLP, were on brief, for appellee.

Before TORRUELLA, Circuit Judge, BALDOCK,^* Senior Circuit Judge, and HOWARD, Circuit Judge.

TORRUELLA, Circuit Judge.

Plaintiff-appellantKathleen Torres-Negrón sued her employer, Merck Sharp & Dhome (I.A.) Corp. ("Merck-PR") and Mónica Díaz, Human Resources Director for Merck-PR, for discrimination based on sex, national origin, and disability, and for violation of the Consolidated Omnibus Budget Reconciliation Act ("COBRA") and various state statutes.Torres appeals the district court's grant of summary judgment in favor of Merck-PR and Díaz on all claims.After careful consideration, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I.Factual Background

Torres worked for Merck-PR from March 1, 1989 until she was terminated on October 19, 2001.She worked as a sales representative at Merck-PR from 1989 until 1999, at which time she was transferred to Merck Sharp & Dhome de Mexico S.A. de C.V.("Merck-Mexico") on a temporary assignment.At all times during her employment at Merck-Mexico, Torres remained the employee of Merck-PR, was paid by Merck-PR in U.S. currency,¹ and maintained her U.S. employee benefits as a U.S. employee abroad.Before her transfer to Merck-Mexico, Torres's work performance was satisfactory, even exemplary.Both Merck-PR and Merck-Mexico are subsidiaries of Merck & Company("Merck & Co.").

A.Alleged Harassment and Discrimination at Merck-Mexico

Torres alleges that from her first day at work in Mexico, she endured continuous harassment and discrimination.She claims that her colleagues at Merck-Mexico made negative and harassing comments about her gender, her U.S. citizenship, her U.S. salary, and her Puerto Rican accent.In 2001, Torres was reassigned within Merck-Mexico to Ricardo Spinola's business unit.Torres claims that things became worse for her under Spinola's supervision because of his derogatory comments about her being a Puerto Rican woman.When Torres complained to Spinola that he was harassing her and threatened to report him to Merck & Co.'s headquarters in New Jersey, he allegedly warned her that if she did so, she would "face the consequences."Torres claims that as a result of this harassment, she began suffering headaches, hypertension, and anxiety.

Throughout her tenure in Mexico, Torres had constant contact with Merck-PR.Three times a year, she participated in meetings that included representatives from Merck-PR, and in August 2001, Torres spent a week in Merck-PR's offices on a temporary assignment to assist in relaunching a product.Torres never complained about her work environment in Merck-Mexico during these visits.

B.Employee Misconduct

Merck & Co., Merck-PR's parent company, has a corporate business ethics policy applicable to all its subsidiaries.The policy specifically states that "[a]cceptance of a Merck executive or management position at any level includes acceptance of responsibility to uphold the Company's policies governing ethical business practices."It provides that

[c]orporate conduct is inseparable from the conduct of individual employees in the performance of their work.Every Merck employee is responsible for adhering to business practices that are in accordance with the letter and the spirit of the applicable laws and with the ethical principles that reflect the highest standards of corporate and individual behavior.Since only such behavior is consistent with Merck's traditions, and since such behavior is essential to the success of its business endeavors, the Company will not accept anything less.Like integrity of product, integrity of performance is a Merck standard whenever we do business, and ignorance of the standard is never an acceptable excuse for improper behavior.

In addition, the Business Ethics policy specifically requires that "[a]ll transactions . . . be accurately reflected in the Company's books and records to permit their audit and control.Managers at all levels are responsible for the completeness of the document and for ensuring that funds are spent for the described purposes."The policy also counsels that "[e]mployees who may be undecided about whether contemplated actions are within the limits of legality or propriety should seek guidance from the Office of Ethics or the Legal Department before actions are taken."Merck-PR provided Torres with a copy of this policy on a yearly basis.

Toward the end of August 2001, the human resources director for Merck-Mexico,Gerardo Gonzáles, alerted Jimmy Angueira, Senior Director in Charge of Latin America Human Health at Merck & Co., that Torres had been misusing company resources by shipping personal packages using Merck-Mexico's corporate courier account.In turn, Angueira forwarded Mónica Díaz, Human Resources Director for Merck-PR, an email from Gonzáles detailing the problem:

Kathy Torres has been misusing Companies [sic] resources, making DHL personal shipments with charge to MSD.As [per] a preliminary report from Finance, these shipments have been happening for more than a year, there are more than [fifteen] shipments totaling $2,100 dollars.Since she is a Product Manager, she has a grant to use this service for business related issues, but neither DHL nor MSD hold evidence that she paid with her own money these shipments.

Following up on this information, Díaz (Merck-PR) spoke directly with Gonzáles (Merck-Mexico) regarding Torres's use of the corporate courier account.On October 5, 2001, Gonzáles met with Torres to discuss the shipments at issue.Torres admitted that thirteen out of nineteen shipments she had sent using the corporate courier account were for personal purposes.On October 8, 2001, Torres sent Gonzáles an email detailing the personal shipments she had made and explaining that due to a "personal omission she had not given the matter the required follow-up and not made payment for the same within a reasonable time."Torres subsequently paid for her use of the courier service to ship personal packages.Gonzáles (Merck-Mexico) forwarded Torres's email admitting the use of corporate resources for personal reasons to Díaz (Merck-PR) and Angueira (Merck & Co.), and advised them of the conversation he had with Torres.

After receiving this information, Díaz (Merck-PR), Angueira (Merck & Co.), and César Simich, Managing Director for Merck-PR, discussed the matter and decided to recommend the termination of Torres's employment.The recommendation was approved by Grey Warner, Senior Vice President for Latin America Human Health at Merck & Co. Gonzáles (Merck-Mexico) informed Torres of the termination decision in Mexico on October 18, 2001.Pursuant to Merck & Co. company procedures, Torres's relocation to Puerto Rico was handled by the Merck & Co.Internal Assignment Division.

Torres claims that after being terminated, Merck-PR did not pay her last paycheck, did not issue her W-2 form, did not pay the state and federal taxes that were withheld from her salary, and did not properly notify her of her right to continued medical coverage as required by COBRA.

II.Procedural Background

Torres filed suit in the United States District Court for the District of Puerto Rico on December 24, 2002 against Merck-PR,² Spinola (Merck-Mexico), Díaz (Merck-PR), and González (Merck-Mexico) claiming discrimination based on nationality and gender, and retaliation under Title VII; discrimination under the Americans with Disabilities Act("ADA"); violation of the COBRA; and violation of various state statutes.

On June 13, 2005, the district court dismissed all of Torres's claims against Spinola and González, and Torres's federal claims against Díaz.On September 12, 2005, Díaz and Merck-PR filed a motion for summary judgment as to Torres's remaining claims against them.On December 12, 2005, the court entered summary judgment in favor of Díaz and Merck-PR, dismissing all of Torres's federal claims with prejudice and her local claims without prejudice.

III.Standard of Review

Summary judgment is appropriate where the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."Fed. R.Civ.P. 56(c).We review a district court's order granting summary judgment de novo, looking at the record in the light most favorable to the non-moving party and drawing all reasonable inferences in her favor.SeeRodríguez v. Smithkline Beecham,224 F.3d 1, 5(1st Cir.2000).Nevertheless, the non-moving party may not rest merely upon the allegations or denials in its pleading.SeeSantiago-Ramos v. Centennial P.R. Wireless Corp.,217 F.3d 46, 53(1st Cir.2000).Instead, the non-moving party"must set forth specific facts showing that a genuine issue `of material fact exists as to each issue upon which she would bear the ultimate burden of proof at trial.'"Seeid.(quotingAnderson v. Liberty Lobby, Inc.,477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986)).The evidence presented by the non-moving party may not be "conclusory allegations, improbable inferences, [or] unsupported speculation."Medina-Muñoz v. R.J. Reynolds Tobacco Co.,896 F.2d 5, 8(1st Cir.1990).

IV.Title VII—Hostile Work Environment³

Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating "against any individual with respect to [her]...