Collazo v. Bristol-Myers Squibb Mfg. Co., No. 09-1665 (1st Cir. Aug. 5, 2010)

| Aug 5, 2010 | Daily Developments in EEO Law |

The First Circuit has its first occasion in a published opinion to apply Crawford v. Metropolitan Government of Nashville & Davidson County, Tenn., 129 S. Ct. 846 (2009), reversing summary judgment and holding that a supervisor who attends HR meetings with an subordinate to support her claims of sex harassment was engaged in protected activity. And the court gives us a reminder of a neglected provision that Title VII cases are to be “in every way expedited,” 42 U.S.C. § 2000e-5(f)(5).

Collazo v. Bristol-Myers Squibb Mfg. Co., No. 09-1665 (1st Cir. Aug. 5, 2010): In addition to a whistleblowing claim under Puerto Rican law (not further discussed here), the employee – classified as a Senior Process Scientist I – admonished one of his subordinates (Acevedo) about allegedly harassing a female co-worker (Hiraldo). Acevedo insisted on a meeting with HR present about the allegations. In attendance on February 10, 2003 was “García, a Human Resources Specialist, and [Collazo] accompanied Hiraldo to the meeting. Hiraldo explained her concerns to Garcíand received information on how to initiate a grievance. After Hiraldo left, Collazo noted to García that this was a ‘serious case, a serious case where this girl alleges that she is being sexually harassed by this guy.'” Collazo followed up on February 12 and 20, 2003.  On February 21, 2003, he was told that he was fired “because of communication and performance issues and a company reorganization.”

Reversing summary judgment, the panel first holds that Collazo’s mostly silent presence at the first meeting, and efforts to follow up with HR, meet the Crawford standard of “opposition” under Title VII’s anti-retaliation section:

“A reasonable jury could well find that Collazo ‘opposed’ Acevedo’s treatment of Hiraldo. On February 10, after Hiraldo complained to Collazo that she felt sexually harassed by Acevedo, Collazo spoke to Acevedo individually about Hiraldo’s sexual harassment complaints and elicited a limited apology. On Hiraldo’s request, Collazo then arranged a meeting with García in Human Resources and accompanied her to meet with García so that she could explain her concerns and receive information on how to initiate the grievance process. Afterward, Collazo noted to García that this was a ‘serious case’ of alleged sexual harassment and he apprised López of Hiraldo’s complaints. On February 12, after Hiraldo told him that Human Resources had not yet acted on her complaint, Collazo accompanied Hiraldo to meet with García second time. On February 20, faced with continued inaction from Human Resources, Collazo requested a third meeting with García to discuss Hiraldo’s case. This third meeting never occurred, however, because Collazo was terminated on February 21. A jury could reasonably view Collazo’s persistent efforts to help Hiraldo initiate her sexual harassment complaint and urge Human Resources to act upon that complaint as resistant or antagonistic to the complained-of conduct.”

The panel rejects two arguments proffered by the defendant. First, BMS argued that Collazo was mostly silent during the first, and principal, meeting with HR, and thus was not “opposing” anything. The panel holds that the conduct of “repeatedly accompanying Hiraldo to Human Resources to file and pursue her sexual harassment complaint” was purposeful enough to constitute opposition in light of Crawford. Second, defendant argued that an employee who was simply carrying out his duties (here, the plaintiff was a first-report in the company’s anti-harassment policy) cannot – as in the Garcetti First Amendment case – be deemed as “opposing” a practice. The panel declines to rule whether such a “furtherance of supervisory responsibilities” limitation ought to placed upon Title VII (though it casts doubt on this point, in a footnote), but held regardless that Collazo went above-and-beyond his management duties in following up the complaint.

The panel also holds that the combination of the short turn-around time between the opposition activity and termination – mere days – plus evidence of the falsity of the performance and reduction-in-force rationale was sufficient to present a triable issue on the merits. Finally, the plaintiff complained that the district court took unconscionably long (August 2006 to March 2009) to resolve the summary judgment motion. Writes the panel, “In light of our conclusion that the district court erred in granting summary judgment for Bristol-Myers on Collazo’s Title VII and related state law claims, we need not address this alternative claim of error. However, we remind the court upon remand of its duty to cause the case to be ‘in every way expedited.’ 42 U.S.C. § 2000e-5(f)(5).”

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