Torres-Negron v. Merck & Company

488 F.3d 34, 19 Am. Disabilities Cas. (BNA) 417, 2007 U.S. App. LEXIS 12034, 89 Empl. Prac. Dec. (CCH) 42,833, 100 Fair Empl. Prac. Cas. (BNA) 897, 2007 WL 1491875
CourtCourt of Appeals for the First Circuit
DecidedMay 23, 2007
Docket06-1260
StatusPublished
Cited by114 cases

This text of 488 F.3d 34 (Torres-Negron v. Merck & Company) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Torres-Negron v. Merck & Company, 488 F.3d 34, 19 Am. Disabilities Cas. (BNA) 417, 2007 U.S. App. LEXIS 12034, 89 Empl. Prac. Dec. (CCH) 42,833, 100 Fair Empl. Prac. Cas. (BNA) 897, 2007 WL 1491875 (1st Cir. 2007).

Opinion

TORRUELLA, Circuit Judge.

Plaintiff-appellant Kathleen Torres-Negrón sued her employer, Merck Sharp & Dhome (I.A.) Corp. (“Merck-PR”) and Monica Diaz, 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 Diaz 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 un *37 til 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 “[ajcceptance 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

[corporate 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 “[ejmployees who may be undecided about whether contem *38 plated 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 An-gueira, 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 Monica Diaz, 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, Diaz (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 followup 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. Gon-záles (.Merck-Mexico) forwarded Torres’s email admitting the use of corporate resources for personal reasons to Diaz (.Merckr-PR) and Angueira (Merck & Co.), and advised them of the conversation he had with Torres.

After receiving this information, Diaz (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.

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488 F.3d 34, 19 Am. Disabilities Cas. (BNA) 417, 2007 U.S. App. LEXIS 12034, 89 Empl. Prac. Dec. (CCH) 42,833, 100 Fair Empl. Prac. Cas. (BNA) 897, 2007 WL 1491875, Counsel Stack Legal Research, https://law.counselstack.com/opinion/torres-negron-v-merck-company-ca1-2007.