Collazo v. Bristol-Myers Squibb Manufacturing, Inc.

United States Court of Appeals
For the First Circuit

No. 09-1665

LUIS R. COLLAZO et al.,

Plaintiffs, Appellants,

v.

BRISTOL-MYERS SQUIBB MANUFACTURING, INC.,

Defendant, Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Torruella, Selya and Lipez,
Circuit Judges.

José G. Fagot Díaz, with whom Fagot Law Office, Víctor J.
Casal Vázquez, and Casal Law Office were on brief, for appellants.
Carl Schuster, with whom Shiara L. Diloné-Fernández and
Schuster Aguiló LLP were on brief, for appellee.

August 5, 2010
 LIPEZ, Circuit Judge. Luis R. Collazo, Vilma Vargas and

their conjugal partnership brought this action against Collazo's

former employer, Bristol-Myers Squibb Manufacturing, Inc. (Bristol-

Myers), alleging violations of Title VII of the 1964 Civil Rights

Act, 42 U.S.C. § 2000e-3, and Puerto Rico law. Collazo alleged

that Bristol-Myers terminated him (1) in retaliation for attempting

to offer technical documentation and data to the Food and Drug

Administration (FDA) in violation of Puerto Rico Act 115, P.R. Laws

Ann. tit 29, §§ 194-194b, and (2) in retaliation for his opposition

to the sexual harassment of another Bristol-Myers employee, in

violation of Title VII and Puerto Rico law. The district court

granted summary judgment to Bristol-Myers on all claims.

Our analysis of Collazo's Title VII claim requires us to

apply the Supreme Court's recent decision in Crawford v.

Metropolitan Government of Nashville & Davidson County, Tenn., 129

S. Ct 846 (2009), which addressed the scope of conduct protected by

the opposition clause of Title VII's antiretaliation provision.

Applying Crawford, we conclude that Collazo's repeated efforts to

assist a fellow employee in filing and pursuing her sexual

harassment complaint with the company's Human Resources Department

(Human Resources) qualify as protected opposition to the

complained-of harassment. We also conclude that Collazo has

established genuine issues of material fact on the other elements

of his Title VII retaliation claim.

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 Therefore, we vacate the judgment insofar as it granted

summary judgment on Collazo's Title VII and related state law

claims and remand those claims for further proceedings. However,

we affirm the judgment insofar as it dismissed Collazo's Act 115

claim.

I.

We recount the facts in the light most favorable to

Collazo, the nonmoving party. Agusty-Reyes v. Dep't of Educ. of

P.R., 601 F.3d 45, 48 (1st Cir. 2010).

In 1995, Collazo was hired by Bristol-Myers, a

pharmaceutical manufacturer, as a scientist at its plant in

Barceloneta, Puerto Rico. Several years later, he assumed a

management-level position, Senior Process Scientist I. His

responsibilities included supervising a group of laboratory

scientists, supporting the plant's manufacturing processes, trouble-

shooting, and issuing recommendations and reports. Collazo was

stationed at the Barceloneta plant for most of his time with

Bristol-Myers, although for several years around 1998-2000 he worked

at its plant in Humacao, Puerto Rico. Beginning in April 2002,

Collazo's immediate supervisor was Carlos López, the Director of

Technical Services for Bristol-Myers' plants in both Barceloneta and

Humacao.

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A. Requests for Technical Documents

Sometime prior to 2003, Bristol-Myers' Barceloneta plant

was identified as a possible back-up site for the production of

Atazanavir, an HIV treatment. Before the site could obtain federal

approval to begin production, it had to undergo preapproval

inspection by the FDA. In January 2003, Ramon Corcino, Director of

Quality Assurance and Quality Control for the Barceloneta site, sent

an email to Collazo and several other employees about an upcoming

FDA preapproval inspection in preparation for Atazanavir production.

The email stated:

Team,
Unless someone objects, I will advise we are
ready. We did the readiness exercise last year
and just have to make sure that what we did
recently regarding the re-validation of the
ultimate synthesis step is in order. Of
course, this include[s] facilities that need to
be clean and in good state of repair.

Collazo was concerned that there were deficiencies in the

documentation of certain laboratory procedures and results related

to Atanazavir production. In response to Corcino's email, he made

efforts to obtain and review this documentation in preparation for

the preapproval inspection. On February 5, Collazo sent an email

to Eric Acevedo and Marisol Cordero, two Bristol-Myers scientists

who had been assigned to perform laboratory tests and other

technical duties related to the production of Atazanavir. Collazo's

email stated:

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 The FDA has requested a visit to our facilities
regarding the approval of Atazanavir. In order
to be ready for this visit, I am requesting the
transfer at least of a copy of all the
technical documents regarding this process.
And I also requesting all the information and
documentation (such as lab notebook) regarding
use test and vendor qualification. This needs
to be accompanied with all the raw data
supporting does [sic] experiment. All these
information needs to be review and evaluated in
conjunction with QA in order to prepare for
this important visit. These requested
information can be provided to me at your
earliest convenience.

I would like to thank you in advance for your
support.

On February 14, Collazo sent a follow-up email to López,

who had been copied on the earlier message, stating that he had "not

received any proper response" from Acevedo or Cordero and that it

was "very important that this information is evaluated and

strategically studied well prior [to] any visit from the FDA for a

PAI [preapproval inspection], in order to be ready." He asked López

for assistance in obtaining the requested information. Sometime

later, Collazo spoke directly with Cordero, who told him that she

had spoken to López and would deliver the requested data to him the

following Monday, February 23. Collazo never received this

information, as he was terminated on February 21.

The FDA conducted its preapproval inspection of the

Barceloneta plant in May 2003. Collazo admitted in deposition that

the FDA did not request any specific documents or data in advance

of the preapproval inspection and that he did not know whether the

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FDA ever requested the information he had sought from Acevedo and

Cordero.

B. Complaints of Sexual Harassment

On February 10, 2003, Diana Hiraldo, one of the scientists

under Collazo's supervision, approached him and told him that she

felt sexually harassed by Acevedo, another scientist in her group.

Hiraldo explained that Acevedo was making "comments against her

person," following her, asking other employees what she was doing,

and frequently calling her to ask what she was working on. She said

that her husband felt very uncomfortable with the situation.

Hiraldo further complained that she had overheard Acevedo

criticizing her professional work, stating to other employees that

she did not deserve certain work accolades. Upon hearing Hiraldo's

complaints, Collazo recalled noticing that Acevedo called Hiraldo

on a regular basis to check what she was doing, "stare[d] at her all

the time," "undress[ed] her with his eyes," and looked at her with

"elevator eyes." Collazo also recalled an incident in which Acevedo

commented, in Hiraldo's presence, that his "wife was not giving him

anything to eat." Collazo understood this comment to have sexual

overtones and later told Acevedo to "be careful" with comments like

that in front of female employees.

Collazo spoke to Acevedo individually about Hiraldo's

complaints of sexual harassment. Acevedo apologized for criticizing

her work performance, but stated that he preferred to speak with his

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immediate supervisor about Hiraldo's other allegations. At

Hiraldo's request, Collazo then arranged a meeting with Edgardo

García, a Human Resources Specialist, and accompanied Hiraldo to the

meeting. Hiraldo explained her concerns to García and 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." At García's suggestion, Collazo then emailed López to

inform him of Hiraldo's complaint and the steps taken to address

it.1

Two days later, on February 12, Hiraldo approached Collazo

to express concern that Human Resources had not yet taken action on

her sexual harassment complaint. Collazo again accompanied her to

meet with García, and Hiraldo explained the basis for her complaint

in more detail. On February 20, Hiraldo came to Collazo to request

another meeting with García. Collazo could not find García, but

left him a voicemail message stating that he needed to speak with

García about Hiraldo's sexual harassment case.

1
Collazo's email stated that, according to Hiraldo, Acevedo
had "created uncomfortable situation around her peers (mainly non-
productive comments)" and that Collazo had personally witnessed
"these types of comments." Collazo further explained that he had
spoken to Acevedo and explained that "it was not good for the image
of team work that we are projecting."

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C. Termination

On February 21, in response to a voicemail message,

Collazo reported to Human Resources. López and Human Resources

Director Viviana Vilanova met briefly with Collazo, and López

informed him that he was being terminated because of communication

and performance issues and a company reorganization. Shocked,

Collazo did not ask for a further explanation of the reasons for his

termination. The factual bases for these proffered reasons, which

the parties hotly dispute, are discussed in more detail below.

D. Proceedings in the District Court

Collazo filed this action against Bristol-Myers in

February 2004. In his first amended complaint, he claimed, inter

alia, that he was terminated (1) in retaliation for attempting to

provide the FDA with information related to Atazanavir in violation

of Act 115 and (2) in retaliation for opposing Acevedo's sexual

harassment of Hiraldo, in violation of Title VII and Puerto Rico

law.

In August 2005, Bristol-Myers moved for summary judgment

on all claims, arguing that Collazo had not engaged in any protected

conduct and there was no causal connection between his conduct and

his termination. After several delays, Collazo filed his opposition

to summary judgment in July 2006. In March 2009, the court granted

Bristol-Myers' summary judgment motion "for the reasons stated by

defendant Bristol-Myers" in its briefing. This appeal followed.

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 II.

We review the district court's grant of summary judgment

de novo, viewing the record in the light most favorable to the

nonmoving party. Agusty-Reyes, 601 F.3d at 52. We affirm only if

there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. Id.

A. Act 115

Collazo contends that the district court erred by granting

summary judgment on his Act 115 claim. Act 115 prohibits employers

from discharging or otherwise discriminating against employees

because they "offer or attempt to offer, verbally or in writing, any

testimony, expression or information before a legislative,

administrative or judicial forum in Puerto Rico." P.R. Laws Ann.

tit. 29, § 194a(a) (1991). The statute requires the employee to

establish, by direct or circumstantial evidence, a prima facie case

that he or she (1) "participated in an activity protected by §§ 194

et seq." and (2) was subsequently discharged or otherwise

discriminated against. Id. § 194a(c); see Lupu v. Wyndham El

Conquistador Resort & Golden Door Spa, 524 F.3d 312, 313 (1st Cir.

2008).

The undisputed facts demonstrate that Collazo did not

engage in protected activity under Act 115 -- that is, he did not

"offer or attempt to offer" any information "before a legislative,

administrative or judicial forum in Puerto Rico." P.R. Laws Ann.

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tit. 29, § 194a(a). Collazo admitted in deposition that he never

presented any information related to Atanazavir to the FDA, either

orally or in writing, nor did he inform anyone at Bristol-Myers that

he would report such information to the FDA. Instead, in advance

of the FDA's preapproval inspection, Collazo requested technical

documents related to Atanazavir production from two co-workers

involved in testing the product, Acevedo and Cordero, and later

sought assistance from López in securing these documents. Collazo's

emails stated that the requested information needed to be reviewed

and evaluated "in order to prepare for [the FDA's] important visit"

and that it was "very important that this information is evaluated

and strategically studied well prior [to] any visit from the FDA for

a PAI [preapproval inspection], in order to be ready." The FDA did

not request these or other specific documents in advance of its

inspection, and Collazo admitted that he did not know whether the

FDA ever requested these documents.

Collazo's internal request for technical documents in

preparation for the upcoming FDA preapproval inspection, without

more, does not amount to offering or attempting to offer information

to a governmental authority within the meaning of § 194a(a). See

Lupu, 524 F.3d at 313 (holding that employee did not offer or

attempt to offer testimony under § 194a(a) where he discussed

concerns with supervisor about hotel's possible noncompliance with

government regulations and unintentionally left document on

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supervisor's desk listing questions to ask attorney about his rights

if he went to government authorities, but employee did not report

or threaten to report the perceived irregularities to authorities).

Collazo contends that he "requested the documentation involving

Atazanavir in light of the FDA visit, thus he 'intended to offer'

this information to the FDA." However, Collazo offers no authority

for the proposition that merely intending to offer information to

a governmental authority is equivalent to "offer[ing] or

attempt[ing] to offer" this information under § 194a(a). In the

absence of such authority, we decline to adopt such an expansive

view of the statute.2

B. Retaliation for Opposition to Sexual Harassment

Collazo next contends that the district court erred in

granting summary judgment on his claim that he was terminated for

opposing sexual harassment in the workplace, in violation of Title

VII and analogous provisions of Puerto Rico law.3

2
Collazo relies on several cases for which English
translations are not available in the bound volumes of the court's
reporter, and he has not provided a translation as required by our
rules. See 1st Cir. R. 30(e). Collazo cannot use these cases to
support his argument. See Lupu, 524 F.3d at 314 n.3.
3
Collazo relies on the antiretaliation provisions of two
Commonwealth statutes addressing unlawful employment practices,
Puerto Rico Acts 17 and 69. See Act 17, P.R. Laws Ann. tit. 29, §
155h; Act 69, P.R. Laws Ann. tit. 29, § 1340. Bristol-Myers
concedes that the same analysis applies to Collazo's retaliation
claims under Title VII and Acts 17 and 69, and therefore we do not
separately analyze Collazo's claims under the Puerto Rico statutes.

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 Title VII, 42 U.S.C. § 2000e-3(a), provides that

[i]t shall be an unlawful employment practice
for an employer to discriminate against any of
his employees . . . because [the employee] has
opposed any practice made an unlawful
employment practice by [Title VII], or because
he has made a charge, testified, assisted, or
participated in any manner in an investigation,
proceeding, or hearing under [Title VII].

To make out a prima facie case of retaliation under the

familiar burden-shifting framework articulated in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 801-03 (1973), the plaintiff must

prove that (1) he or she engaged in protected activity under Title

VII, (2) he or she suffered an adverse employment action, and (3)

the adverse employment action was causally connected to the

protected activity. Fantini v. Salem State College, 557 F.3d 22,

32 (1st Cir. 2009).

Once the plaintiff establishes a prima facie case of

retaliation, the burden shifts to the defendant to articulate a

legitimate, non-retaliatory reason for its employment decision.

Roman v. Potter, 604 F.3d 34, 39 (1st Cir. 2010). If the defendant

meets its burden of production, "the burden shifts back to [the

plaintiff] to show that the proffered legitimate reason is in fact

a pretext and that the job action was the result of the defendant's

retaliatory animus." Id. (internal quotation marks and citation

omitted).

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 1. Prima Facie Case

Bristol-Myers argues that Collazo has not established a

prima facie case of retaliation because (a) Collazo did not engage

in protected activity and (b) there was no causal connection between

Collazo's alleged protected conduct and his termination. We address

each issue in turn.

a. Protected Activity

Collazo relies primarily on the opposition clause of Title

VII's antiretaliation provision, which makes it unlawful "for an

employer to discriminate against any of his employees . . . because

he has opposed any practice made an unlawful employment practice by

[Title VII]." 42 U.S.C. § 2000e-3(a). The Supreme Court recently

addressed the scope of the opposition clause in Crawford, 129 S. Ct

846. The Court held that the term "oppose," left undefined by the

statute, carries its ordinary meaning, which includes "'to resist

or antagonize . . .; to contend against; to confront; resist;

withstand,'" or "'to be hostile or adverse to, as in opinion.'" Id.

at 850 (quoting Webster's New International Dictionary 1710 (2d ed.

1958) and Random House Dictionary of English Language 1359 (2d ed.

1987)). Applying this standard, the Court held that a plaintiff who

did not initiate a complaint about sexual harassment nevertheless

engaged in protected conduct under the opposition clause. Id. at

849. In response to questions posed to her during an internal

investigation, the plaintiff described various instances of sexually

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harassing behavior by another employee. The Court held that

plaintiff's responses to employer questioning could reasonably be

seen as resistant or antagonistic to the sexually harassing

treatment, "if for no other reason than the point . . . explained

by an EEOC guideline: 'When an employee communicates to her employer

a belief that the employer has engaged in . . . a form of employment

discrimination, that communication' virtually always 'constitutes

the employee's opposition to the activity.'" Id. at 851 (quoting

2 EEOC Compliance Manual §§ 8-II-B(1),(2), p. 614:0003 (Mar. 2003)).

The Court rejected the Sixth Circuit's view that the opposition

clause required an employee to engage in "active, consistent

'opposing' activities" and to instigate or initiate a complaint.

Id. at 851.

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

-14-
that Human Resources had not yet acted on her complaint, Collazo

accompanied Hiraldo to meet with García a 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.

Relying on Crawford, Bristol-Myers argues that Collazo did

not "oppose" any discriminatory conduct because he "did not utter

words" during the meetings with García but instead "simply listened

to Hiraldo." However, in addition to accompanying Hiraldo to meet

with García, Collazo discussed her complaints with García, López,

and Acevedo himself. Moreover, nothing in Crawford or Title VII's

antiretaliation provision suggests that employees engage in

protected conduct only when they verbally communicate their

opposition to unlawful employment practices. On the contrary,

Crawford recognized that an employee can oppose unlawful employment

practices by his or her conduct. See Crawford, 129 S. Ct at 851

(noting that "we would call it 'opposition' if an employee took a

stand against an employer's discriminatory practices not by

'instigating' action, but by standing pat, say, by refusing to

follow a supervisor's order to fire a junior worker for

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discriminatory reasons"). Justice Alito, in a concurring opinion,

emphasized that in his view it was still an open question whether

the opposition clause protects employees who do not communicate

their views to their employers. Id. at 855 (Alito, J., concurring).

However, Justice Alito did not suggest that employees must verbally

express their views, but instead acknowledged that employees may

communicate their views to their employers through "purposive

conduct." Id. at 853, 855 (Alito, J., concurring). By repeatedly

accompanying Hiraldo to Human Resources to file and pursue her

sexual harassment complaint, Collazo effectively and purposefully

communicated his opposition to Acevedo's treatment of Hiraldo.

Bristol-Myers further contends that even if Collazo

"opposed" Acevedo's treatment of Hiraldo, Collazo did not engage in

protected activity because the challenged conduct was not "made an

unlawful employment practice by [Title VII]." 42 U.S.C. § 2000e-

3(a). Bristol-Myers points to evidence that in the month after

Collazo's termination, Human Resources Director Vilanova initiated

an internal investigation into Hiraldo's sexual harassment claim,

conducting interviews with Hiraldo, Acevedo, and two of Hiraldo's

fellow employees.4 Bristol-Myers emphasizes that "[i]mportantly,

4
Bristol-Myers also points out that Hiraldo wrote an email to
Vilanova as part of the internal investigation in which Hiraldo
complained of "harassment" but did not expressly use the term
"sexual harassment," and Vilanova testified in her deposition that
Hiraldo had complained of "harassment," not "sexual harassment."
However, Vilanova acknowledged in her deposition that her
handwritten notes of her interview with Hiraldo were titled "Sexual

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based on her investigation, Vilanova concluded that Acevedo had not

engaged in conduct amounting to sexual harassment."

To establish participation in a protected activity under

the opposition clause, however, the plaintiff need not show that the

conditions he or she opposed "actually amounted to a violation of

Title VII." Fantini, 557 F.3d at 32 (internal quotation marks

omitted). Instead, the plaintiff must demonstrate only that he or

she had "a good faith, reasonable belief that the underlying

challenged actions" were unlawful. Id. (internal quotation marks

omitted).

Collazo has submitted sufficient evidence to support a

jury finding that he had a reasonable, good faith belief that the

challenged actions were unlawful. Based on the evidence of

Hiraldo's complaints and Collazo's own observations, a jury could

find that it was not unreasonable for Collazo to believe that

Acevedo's conduct amounted to sexual harassment. Hiraldo complained

to Collazo that she felt sexually harassed by Acevedo, noting that

he frequently called her, followed her, and criticized her

professional work, and that his behavior made her husband feel

uncomfortable. In addition, Collazo had observed that Acevedo

regularly called Hiraldo, stared at her "all the time," "undress[ed]

her with his eyes," and had made a sexually suggestive comment in

her presence. This is not a case in which the challenged conduct

harassment."

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amounted to a single, mild incident or offhand comment, such that

no reasonable person could have believed that this conduct violated

Title VII. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268,

270 (2001) (per curiam) (holding that no reasonable person could

have believed that plaintiff's exposure to one sexist remark was

unlawful sexual harassment); see also Fantini, 557 F.3d at 32

(holding that employee did not have good faith, reasonable belief

that another employee's erroneous reporting of certain financial

information was an unlawful employment practice under Title VII).

Finally, Bristol-Myers contends that Collazo's conduct was

not protected because it was done "in furtherance of his supervisory

responsibilities." Bristol-Myers relies on Claudio-Gotay v. Becton

Dickinson Caribe, Ltd., in which we stated that, to engage in

protected activity under the antiretaliation provision of the Fair

Labor Standards Act (FLSA), "the employee must step outside his or

her role of representing the company" and take "some action adverse

to the company." 375 F.3d 99, 102 (1st Cir. 2004) (internal

quotation marks omitted) (holding that an employee whose job duties

included documenting hours and wages did not engage in protected

conduct under the FLSA by informing his employer of potential

overtime violations, because the employee was protecting the company

rather than asserting rights adverse to the company); accord

McKenzie v. Renberg's Inc., 94 F.3d 1478, 1486 (10th Cir. 1996)

(holding that personnel manager whose job duties included "wage and

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hour issues" did not engage in protected conduct under the FLSA by

informing company of potential overtime violations).

We assume, without deciding the issue, that similar

requirements apply in the Title VII context -- that is, that to

engage in protected conduct under Title VII's retaliation provision,

an employee must step outside his ordinary employment role of

representing the company and take action adverse to the company.

Even assuming that these requirements apply, we conclude that

Collazo has put forth sufficient evidence to support a jury finding

that they were satisfied in this case.5 Collazo was not a personnel

manager warning his company of potential harassment claims against

it; instead, he was a Senior Process Scientist assisting a

subordinate employee in filing a sexual harassment complaint. By

5
In light of our conclusion that a reasonable jury could find
that Collazo satisfied the additional requirements for protected
conduct set forth in the FLSA case law, we need not address the
issue of whether the requirements for protected conduct under the
antiretaliation provision of the FLSA, as set forth in Claudio-
Gotay, also apply to Title VII. However, we note that the language
of the antiretaliation provision of the FLSA is different from that
of Title VII. Employees engage in protected conduct under Title
VII's antiretaliation provision if they "oppose[] any practice made
an unlawful employment practice" by the statute. 42 U.S.C.
§ 2000e-3(a). The FLSA's antiretaliation provision does not
contain an equivalent "opposition" clause, but instead makes it
unlawful to discharge or otherwise discriminate against an employee
"because such employee has filed any complaint or instituted or
caused to be instituted any proceeding under or related to this
chapter, or has testified or is about to testify in any such
proceeding, or has served or is about to serve on an industry
committee." 29 U.S.C. § 215(a)(3).

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supporting Hiraldo in lodging and pursuing her sexual harassment

complaint with Human Resources, Collazo "stepp[ed] outside" his

normal employment role as a Senior Process Scientist and took

"action adverse to the company." See Claudio-Gotay, 375 F.3d at

102. Bristol-Myers asserts that Collazo acted in compliance with

the company's equal employment policies and therefore his conduct

was "in furtherance of his supervisory responsibilities" and was not

protected. However, an employer cannot be permitted to avoid

liability for retaliation under Title VII simply by crafting equal

employment policies that require its employees to report unlawful

employment practices.

b. Causal Connection

Bristol-Myers also contends that Collazo has failed to

establish the third element of his prima facie case, a causal

connection between his protected conduct and termination. However,

Collazo has produced evidence that he was terminated on February 21,

shortly after his efforts to assist Hiraldo in filing and pursuing

her sexual harassment complaint on February 10, February 12, and

February 20. This showing of temporal proximity is sufficient to

establish a prima facie case of causation. See DeCaire v. Mukasey,

530 F.3d 1, 19 (1st Cir. 2008) ("[O]ur law is that temporal

proximity alone can suffice to meet the relatively light burden of

establishing a prima facie case of retaliation.") (internal

quotation marks omitted); see also Mariani-Colon v. Dep't of

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Homeland Sec. ex rel. Chertoff, 511 F.3d 216, 224 (1st Cir. 2007)

(holding that temporal proximity between June 2002 complaint of

discrimination and August 2002 termination was sufficient to make

prima facie showing of causation).

2. Pretext

Bristol-Myers maintains that Collazo's termination

resulted from the combination of two legitimate factors: a corporate

reorganization that required the elimination of Collazo's position,

and perceived deficiencies in Collazo's job performance that made

him unqualified to fill a different position in the company.

Collazo does not contend that Bristol-Myers failed to articulate a

legitimate nonretaliatory reason for his termination. Therefore,

we focus on the ultimate issue: whether, viewing the record as a

whole and taking all inferences in Collazo's favor, a reasonable

jury could find that Bristol-Myers' stated reasons for his

termination were a pretext for unlawful retaliation. Potter, 604

F.3d at 39. To withstand summary judgment, a plaintiff need not

"prove by a preponderance of the additional evidence that

[retaliation] was in fact the motive for the action taken. All a

plaintiff has to do is raise a genuine issue of fact as to whether

[retaliation] motivated the adverse employment action." Dominguez-

Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 433 (1st Cir. 2000).

We conclude that there was sufficient evidence presented

on summary judgment for a reasonable jury to infer that Bristol-

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Myers terminated Collazo because of his protected conduct and not

for legitimate nonretaliatory reasons. First, the evidence Collazo

submitted in support of his prima facie case established

particularly close temporal proximity between his protected conduct

and his termination. As noted above, he was terminated on February

21, just after he assisted Hiraldo in complaining of sexual

harassment to Human Resources on February 10, again on February 12,

and a third time on February 20. When an adverse employment action

"follows hard on the heels of protected activity, the timing often

is strongly suggestive of retaliation." Noviello v. City of Boston,

398 F.3d 76, 86 (1st Cir. 2005).

Second, Collazo presented evidence from which a reasonable

jury could conclude that Bristol-Myers' claimed reasons for

terminating him -- reorganization and performance -- were

pretextual. Bristol-Myers presented evidence that in the weeks

before and after Collazo's termination, the company implemented

certain administrative changes in the Barceloneta and Humacao

plants. On January 21, 2003, López sent an email to his staff,

including Collazo, informing them of upcoming "reorganizational

initiatives." Several weeks later, on February 11, López sent

another email announcing "several administrative changes" that had

occurred within the department such as transfers and redistributions

of job duties, and noting that more changes were to come including

"new hires." After Collazo's termination, Bristol-Myers eliminated

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his Senior Process Scientist I position.6 Around the same time, the

company created a new position, Associate Director of Technical

Development, which had somewhat different job duties than the Senior

Process Scientist I position. For example, the Associate Director

supervised a group of laboratory scientists, as Collazo had, but

also oversaw the establishment of a new pilot plant in Barceloneta

and supervised the personnel hired to work at the pilot plant. In

October 2002, several months before Collazo's termination, Bristol-

Myers interviewed a prospective candidate, Braulio Santiago, for the

Associate Director position. Bristol-Myers offered Santiago the

position on February 17, 2003, and he accepted on February 20.

An employer may, of course, exercise its business judgment

to eliminate positions as part of a company reorganization or

reduction in force, even if the individuals in those positions have

engaged in protected activity or are members of protected groups.

See Smith v. F.W. Morse & Co., Inc., 76 F.3d 413, 422 (1st Cir.

1996). However, an employer may not use "reorganization" or

"layoff" as a convenient excuse for terminating an employee on a

discriminatory or retaliatory basis. Id. ("Whether or not trimming

the fat from a company's organizational chart is a prudent practice

in a particular business environment, the employer's decision to

eliminate specific positions must not be tainted by a discriminatory

6
Collazo was the only employee to hold the title of Senior
Process Scientist I at the Barceloneta site.

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animus."); Weston-Smith v. Cooley Dickinson Hosp., Inc., 282 F.3d

60, 69 (1st Cir. 2002) ("[A]n employer may not try to shield a

discriminatory or retaliatory termination by hiding it in a

layoff.").

In this case, Collazo has submitted evidence from which

a reasonable jury could conclude that the purported company

reorganization was not the real reason for his termination. Collazo

does not dispute that he received emails from López in late January

and early February announcing upcoming "reorganizational

initiatives" and "administrative changes." However, although those

messages detailed ongoing organizational changes,7 none of them

mentioned the possibility that Collazo's position would be

eliminated. Bristol-Myers has not produced any other documents

discussing the planned reorganization; indeed, Human Resources

7
For example, the February 11 email noted that "part of the
changes are still to occur (validation, process robustness, new
hires, etc., etc.)." The email then detailed the changes that had
already occurred:
1) Eric Acevedo was transferred to the Humacao
process support group. He now reports to
Edgar (effective December 31, 2002). . . .
2) Norka Gutierrez and Migdalia Velazquez now
report to Arturo Hornedo (effective 02-10-03).
3) Gladyris Serrano now reports to Arturo
Hornedo.
4) Carlos Cruz and Sigfredo García report to
Edgar.
5) Arturo is responsible for all the advanced
instrumentation for both Barceloneta and
Humacao. . . .
I'll keep you posted on these and any other
events.

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Director Vilanova testified that she had not seen any documents

discussing the reorganization. Although Collazo occupied a

management-level position and reported directly to López, the

Director of Technical Services for both the Humacao and Barceloneta

plants, Collazo received no advance notice that Bristol-Myers was

considering eliminating his position as part of the reorganization.

See Dominguez-Cruz, 202 F.3d at 432 (holding that evidence that

plaintiff "had no prior notice that the company was considering

eliminating the plant manager position," even when plaintiff was

involved in the restructuring efforts, supported finding of

pretext).

Moreover, of the dozen or more employees affected by the

reorganization in Barceloneta and Humacao, Collazo was the only

employee who was terminated. No other positions at the Barceloneta

or Humacao plants were eliminated as a result of the reorganization.

Although Collazo's position of Senior Process Scientist I was

eliminated at the Barceloneta plant, the Senior Process Scientist

I position at the Humacao plant, which was occupied by an employee

with several years less seniority than Collazo, was not affected by

the reorganization. In addition, other employees in Collazo's

department were transferred to a different job site or given changes

in job responsibilities as part of the reorganization, but Collazo

was not offered the opportunity to transfer to a different site or

position. See Miller v. Fairchild Indus., 885 F.2d 498, 506 (9th

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Cir. 1989) (holding that evidence plaintiffs were laid off, when

other employees were given opportunity to transfer, supports finding

of pretext).

Bristol-Myers appears to acknowledge that when it

implemented the reorganization, it could have transferred Collazo

to a different location or position rather than terminating him.

However, it contends that management rejected these alternatives

because of perceived problems with Collazo's work performance.8 In

particular, Bristol-Myers contends that management determined that

deficiencies in Collazo's recent performance made him unqualified

to occupy the newly created Associate Director position. López,

Collazo's immediate supervisor from April 2002 until his

termination, testified that as of late 2002 and early 2003, he

perceived problems with Collazo's communication and leadership

skills and had discussed his concerns with Vilanova and other

supervisors. López further stated that he drafted a performance

improvement plan for Collazo in December 2002 and January 2003, but

had not yet finalized the plan at the time of Collazo's termination.

Bristol-Myers points to a memorandum from López to Collazo with the

subject heading "Performance Improvement Plan" (PIP), dated January

13, 2003, which listed a number of areas in which Collazo had not

met expectations. The draft PIP stated that Collazo failed to

8
Vilanova testified that the management-level employees
involved in the decision to terminate Collazo were López, López's
supervisor, Nallagounder Kuppusamy, and herself.

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clearly define and report his contributions to López, lacked a

"teamwork mentality," and had made certain errors in his scientific

work.

In response, Collazo points to evidence from which a

reasonable jury could find that Bristol-Myers' performance rationale

was likewise pretextual. Although Bristol-Myers' Human Resources

Policy Manual sets forth a detailed four-step progressive discipline

policy, Collazo did not receive any verbal or written warnings in

the months leading up to his termination. See Hodgens, 144 F.3d at

169 (noting that "'[d]epartures from the normal procedural

sequence'" may be probative of pretext) (quoting Reno v. Bossier

Parish Sch. Bd., 520 U.S. 471, 489 (1997)). López admitted that at

the time of Collazo's termination, López had not given Collazo any

counseling pursuant to the progressive discipline policy and,

importantly, had not yet given the PIP to Collazo. López stated in

deposition that he did not counsel Collazo under the progressive

discipline policy because his performance problems were of such

"serious magnitude" that López preferred to wait until he had

developed a detailed PIP. However, before López had completed the

PIP or otherwise communicated his concerns to Collazo, Collazo was

terminated. López further admitted that as of January 13, 2003, the

date of the draft PIP, he did not believe that Collazo's performance

warranted termination.

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 Moreover, Collazo has produced evidence that his job

performance at Bristol-Myers was exemplary. His most recent written

performance evaluation, dated August 1, 2001,9 was overwhelmingly

positive. Among his strengths, the evaluation noted that "Luis is

a 100% company driven associate," "Customer oriented," "Good

communication skills (written and verbal)," and "Strong organization

skill and team leader." In a section labeled "Possible Next Moves,"

the document stated: "Associate Director on the [Quality Control],

Manufacturing and Development areas." In addition, around 2000-

2001, Collazo received several "President's Awards" for outstanding

contributions to particular scientific projects, each of which was

accompanied by a monetary prize. Finally, on two occasions in 2002,

Bristol-Myers' parent company awarded Collazo with stock options,

which are given to managerial employees based on their performance.

Bristol-Myers likewise contends that, based on Collazo's

past performance, it rejected the possibility of transferring

Collazo to a different site rather than terminating him. However,

these performance concerns are again unsupported. López testified

in deposition that he discussed with other supervisors the

possibility of transferring Collazo to Humacao, but this option was

rejected because Collazo reportedly had behavior problems when

9
Although Bristol-Myers employees ordinarily receive annual
written performance evaluations, Collazo apparently did not receive
a written evaluation between August 2001 and his termination in
February 2003. Bristol-Myers offers no explanation for this gap.

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stationed in Humacao in 1998 or 1999. However, López was not

Collazo's supervisor during that period, and Bristol-Myers has not

produced any performance evaluations, written warnings, or other

evidence indicating that Collazo's performance was inadequate during

his time in Humacao. On the contrary, Collazo points to evidence

that he received a President's Award for outstanding performance

while working in Humacao in 2000.

Viewing the summary judgment record in the light most

favorable to Collazo, as we must, we conclude that he has raised a

genuine issue of fact as to whether his termination was motivated

by retaliatory animus. A jury could reasonably conclude, based on

the particularly close temporal connection between Collazo's

protected conduct and his termination and the deficiencies in

Bristol-Myers' articulated reorganization and performance

rationales, that Collazo was terminated because of his protected

conduct. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511

(1993) ("[T]he factfinder's disbelief of the reasons put forward by

the defendant (particularly if disbelief is accompanied by a

suspicion of mendacity) may, together with the elements of the prima

facie case, suffice to show intentional discrimination.").10

10
Collazo also claims that his termination violated Puerto
Rico Act 80, P.R. Laws Ann. tit. 29, §§ 185a-m. Act 80 "imposes a
monetary penalty on employers who dismiss employees without just
cause." Otero-Burgos v. Inter American Univ., 558 F.3d 1, 7 (1st
Cir. 2009). The act defines just cause for discharge to include
"reorganization changes" and inadequate job performance. P.R. Laws
Ann. tit. 29, § 185b. The act also "impos[es] a duty on the

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 3. Duty to Expedite

We address one final matter. Collazo contends that by

refusing to refer the case to a magistrate judge and failing to

otherwise expedite the case, the district court violated 42 U.S.C.

§ 2000e-5(f)(5), which states that a district judge assigned to a

Title VII case has a "duty . . . to assign the case for hearing at

the earliest practicable date and to cause the case to be in every

way expedited." Collazo points out that the motion for summary

judgment was fully briefed and pending as of August 2006. In

February 2007, the district court denied Collazo's motion to refer

the case to a magistrate judge. However, the court did not rule on

Bristol-Myers' motion for summary judgment until March 2009. 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).

employer to make certain kinds of 'good cause' discharges
[including reorganization changes] so as to preserve seniority
rights." Rodriguez v. Eastern Air Lines, Inc., 816 F.2d 24, 27
(1st Cir. 1987); P.R. Laws Ann. tit. 29, §§ 185c. In light of our
conclusion that there is a genuine issue of fact as to whether
Collazo's termination was the result of retaliatory animus, rather
than company reorganization and inadequate performance, we likewise
reverse the grant of summary judgment on Collazo's Act 80 claim.

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 III.

For the foregoing reasons, the judgment is affirmed in

part and vacated in part. We affirm the judgment of the district

court insofar as it granted summary judgment on Collazo's Act 115

claim, but vacate the judgment insofar as it granted summary

judgment on Collazo's Title VII, Act 17, Act 69 and Act 80 claims

and remand the case for further proceedings consistent with this

opinion. The parties shall bear their own costs on appeal.

So ordered.

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