Mary Harp v. Charter Communications, Incorp ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-1445
M ARY L. H ARP ,
Plaintiff-Appellant,
v.
C HARTER C OMMUNICATIONS, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 04 C 951—Michael J. Reagan, Judge.
A RGUED JANUARY 17, 2008—D ECIDED M ARCH 16, 2009
Before R IPPLE, R OVNER, and T INDER, Circuit Judges.
R OVNER, Circuit Judge. Plaintiff-Appellant Mary Harp
was an employee at Charter Communications, Inc., which
held the cable franchise for the City of St. Louis and
surrounding areas, including parts of southern Illinois.
In February 2004, she was terminated as part of a reduc-
tion in force (“RIF”) that resulted in the loss of employ-
ment for approximately 50 people. At the time, she was
the supervisor for the Technical Audit Department for
the St. Louis marketing area, and the entire audit depart-
2 No. 07-1445
ment was eliminated as part of the RIF. Harp sub-
sequently brought this action, alleging that her termina-
tion was in retaliation for her whistleblowing activities
as an employee of Charter, in violation of the Sarbanes-
Oxley Act. See 18 U.S.C. § 1514A(a). Harp asserts that
she reported, within the proper channels in the company,
that payments were being authorized to a contractor
for work that was not performed. The district court
granted judgment in favor of Charter, and Harp appealed.
Section 1514A(a) of the Sarbanes-Oxley Act provides
whistleblower protection for employees of publicly-traded
companies by prohibiting employers from retaliating
against them for “any lawful act done by the employee . . .
to provide information, cause information to be pro-
vided, or otherwise assist in an investigation regarding
any conduct which the employee reasonably believes
constitutes” mail fraud, bank fraud, securities fraud, or
violation of any rule or regulation of the SEC, or any
federal law relating to fraud against shareholders, when
the information or assistance is provided to a person
with investigatory authority. 18 U.S.C. § 1514A(a). That
provision adopts the burden-shifting framework ap-
plicable to whistleblower claims brought under the
Wendell H. Ford Aviation Investment and Reform Act for
the 21st Century, 49 U.S.C. § 42121(b) (2000), and the
relevant burdens of proof are set forth in 29 C.F.R.
§ 1980.104(b)(1) (2007) and numerous court opinions:
To prevail under this provision, an employee must
prove by a preponderance of the evidence that (1) she
engaged in protected activity; (2) the employer knew
No. 07-1445 3
that she engaged in the protected activity; (3) she
suffered an unfavorable personnel action; and (4) the
protected activity was a contributing factor in the
unfavorable action. . . . If the employee established
these four elements, the employer may avoid liability
if it can prove “by clear and convincing evidence”
that it “would have taken the same unfavorable per-
sonnel action in the absence of that [protected] behav-
ior.”
Allen v. Administrative Review Board, 514 F.3d 468, 475-76
(5th Cir. 2008); Livingston v. Wyeth, Inc., 520 F.3d 344, 351
(4th Cir. 2008); Welch v. Chao, 536 F.3d 269, 275 (4th Cir.
2008); 18 U.S.C. § 1514A(b)(2)(C); 49 U.S.C. § 42121. The
Act requires that the employee “reasonably” believe in
the unlawfulness of the employer’s actions. We agree
with the courts that have held that the reasonableness
must be scrutinized under both a subjective and objective
standard, and in fact the parties do not argue that we
should depart from that interpretation. See Day v. Staples,
555 F.3d 42, 54 (1st Cir. 2009); Livingston, 520 F.3d at 352;
Allen, 514 F.3d at 477. Therefore, Harp must actually
have possessed that belief, and that belief must be ob-
jectively reasonable. Objective reasonableness “is evalu-
ated based on the knowledge available to a reasonable
person in the same factual circumstances with the
same training and experience as the aggrieved employee.”
Allen, 514 F.3d at 477.
Harp’s claim of retaliation rests on her belief that
Barry Wilson, her supervisor and the Senior General
Manager of the St. Louis Key Marketing Area (“KMA”) at
4 No. 07-1445
Charter, authorized payments to a contractor, MSTA 1 , for
work that MSTA had not in fact performed under
its contract with the company. The genesis of this claim
is somewhat convoluted, but will be briefly described
insofar as it is relevant to the particular claim before us.
Charter’s Technical Audit Department was responsible
for conducting house-to-house audits to determine
whether households were unlawfully obtaining cable
services. The audits were performed both internally and
through the use of outside contractors. Charter con-
tracted with MSTA to perform certain auditing services
required for Charter’s business. Those services included
visiting the homes of non-subscribers to determine
whether they had access to cable for which they were not
paying. MSTA claimed that the contract also directed it
to visit the homes of subscribers to ensure that they
were only receiving the cable services for which they
paid. Charter, and particularly Harp, disputed that the
contract included payment for visiting the homes of
subscribers. As part of her job as supervisor of the Techni-
cal Audit Department, Harp was responsible for en-
suring that MSTA performed the services for which it
sought payment. Harp determined that MSTA was
seeking payments for services that it either had not per-
formed, or for services not authorized by the contract.
By Harp’s own admission, her supervisor Barry Wilson
was initially receptive to Harp’s complaint as to MSTA’s
1
“MSTA” does not appear to be an acronym, as the parties
and the court refer to this company simply as MSTA or MSTA,
Inc.
No. 07-1445 5
billing practices. Wilson acknowledged that MSTA was
notorious for improper billing, encouraged Harp to look
for proof of falsification, and instructed her to meet
with Charter’s in-house counsel, Hunt Brown. Harp
agrees that those actions by Wilson support an inference
that Wilson was taking MSTA’s fraudulent billing seri-
ously. On January 12, 2004, Wilson assembled a
meeting which included Harp, Wilson, Tom Baker, and a
representative from MSTA. The meeting devolved
into accusations by Harp of discrepancies in the
services performed and the invoices submitted by
MSTA—with specific documentation of problems—and
MSTA’s denials and challenges to those positions. Al-
though Harp was prepared with specific examples of
improper billings by MSTA, she did not have a summary
of numbers that she believed were proper or figures that
would represent a just resolution of the matter. Ulti-
mately, Wilson abruptly terminated the meeting. It is
that action, and the directive given by Wilson at that
time, that forms the crux of Harp’s allegation here.
According to Harp, in summarily terminating the
meeting, Wilson “rescued MSTA’s representatives” from
having to answer direct questions about their
wrongdoings. Harp then asserts that at the close of that
meeting, Wilson directed Baker to pay MSTA the full
contract amount. On appeal, Harp’s allegation of
fraud relies specifically on that alleged directive to pay
the full amount, as she states in her reply brief:
Wilson abruptly ended the meeting and ordered Tom
Baker to pay MSTA the full contract amount (App. 997;
6 No. 07-1445
956, p. 315), not a negotiated amount, which would
have been more suggestive of the inference Charter
asks the court to draw, i.e. that Harp could have
viewed Barry Wilson’s conduct only as a legitimate
negotiated settlement.
Reply Brief at 3. Harp further noted that prior to that
meeting, she had reported directly to Wilson as her
immediate supervisor, but that a restructuring was im-
plemented that interposed Baker between herself and
Wilson in the command chain. She maintains that the
sudden inclusion of Baker was a means of avoiding Harp,
in that Wilson could then instruct Baker to pay the entire
contract amount. After that January 12th meeting, Harp
spoke with the contract administrator, Mary Capstick,
and informed her that Wilson had assigned the project to
Tom Baker to get together with MSTA and determine
how much Charter would have to pay to “make the
matter go away.” Two days later, Harp filed an oral
report with Brooke Wilson, who was authorized to
handle such complaints, alleging that Barry Wilson’s
conduct violated Charter’s ethics code.
Harp’s claim therefore rests on the apparent change
of heart by Wilson as evidenced in that January 12th
meeting, and Harp’s subsequent reporting of the alleged
misconduct through the proper investigatory channels
at the company. We note initially that although the testi-
mony is that Harp reported a violation of the code of
ethics, as opposed to a violation of federal laws, the
critical focus is on whether the employee reported
specific conduct that constituted a violation of federal
No. 07-1445 7
law, not whether the employee correctly identified that
law. See Welch, 536 F.3d at 276. If the specific conduct
reported was violative of federal law, the report would
be sufficient to trigger Sarbanes-Oxley protection even
if the employee did not identify the appropriate federal
law by name. Id.The problem with Harp’s case, however, is that the
record does not support Harp’s characterization of that
January 12th meeting. Specifically, the record does not
indicate that Wilson ordered payment of the full amount
to MSTA, or even that he ordered payments of any
amounts not properly earned. In the deposition testi-
mony upon which she relies for this point, Harp
does not recite any statements by Wilson. Instead, Harp
relates a conversation with Baker, in which she asks
him what he thinks Wilson intended after ending the
meeting. Baker replied that with respect to the invoices,
“he had accrued for them, so he thought they were
going to be paid.” When Harp was then asked if she
knew what amount accrued, and whether it was the
excess amounts she did not authorize, Harp replied that
she did not know. Therefore, Harp’s allegation of fraud
in this case rests on a conversation with Baker in which
she attempts to divine Wilson’s intent in paying the
invoices, and in which Baker states that he thinks that
the accrued amount is to be paid.
Harp acknowledges that she does not know if that
“accrued” amount was more than the amount she had
determined was properly earned by MSTA. Those state-
ments are far too ambiguous to support an objectively
8 No. 07-1445
reasonable belief that a fraudulent payment had been
ordered by Wilson. This is particularly true given that
Wilson’s conduct to that point had been to support Harp
in her investigation of MSTA and to include her in
the meeting which sought to address the payments to
MSTA. Finally, that characterization of the January 12th
meeting is contradicted by Harp herself. In Plaintiff’s
Supplemental Response to Defendant’s First Interrogato-
ries, Harp states that Wilson had stopped the meeting
and assigned to Baker the job of meeting with MSTA
and determining what amount would have to be paid
to “make the matter go away.” That is different than
stating that Charter should pay MSTA the entire amount
requested, and instead reflects a decision to meet with
MSTA concerning the disputed amount to come to a
resolution. In fact, Harp’s complaint of unethical
conduct, which forms the basis for her Sarbanes-Oxley
claim, refers only to Wilson’s desire to achieve a
negotiated settlement, not an authorization to pay the
full amount. The record contains the written copy of that
complaint, and she alleges only that it was a breach of
ethics for Wilson to end the meeting and to “seek a speedy
resolution of the MSTA billing problems for the sake of
putting this behind us,” and to “come to a negotiated
settlement above that which is approved for payment.”
Harp, then, was concerned that MSTA would be paid
more than it had earned, but she clearly contemplated
future not present action in paying MSTA. Her com-
plaint itself speaks in terms of a negotiated settlement,
and there is no evidence that any such settlement
figure had been reached at that time.
No. 07-1445 9
Therefore, there was no basis, subjective or objective,
for Harp to conclude at that time that Wilson had autho-
rized full payment. On appeal, Harp does not argue
that Wilson was engaging in fraud in attempting to
negotiate a settlement. In fact, she argues that Wilson
ordered payment of the full amount—not a negotiated
amount which, according to Harp, would have reflected
a legitimate attempt to resolve the issue. We have no
need to consider whether efforts to pursue a negotiated
settlement at such an early stage as was present here
can ever give rise to an objectively-reasonable belief that
a fraud was being committed, because that is not
argued here.
The conclusion that Harp did not reasonably believe
a fraud was being committed is further buttressed by
Wilson’s subsequent actions in the case. After the
January 12th meeting, Harp continued to investigate
MSTA, and no amounts were paid without Harp’s au-
thorization. Full payment was not in fact made to
MSTA after that meeting, and in fact was never made.
Instead, the amounts paid to MSTA reflected the
amounts approved by Harp as earned by MSTA. More-
over, after the January 12th meeting, Harp sent an e-
mail to Wilson regarding the meeting and making clear
that she did not believe that MSTA should be paid any
more than it was owed. Wilson responded by e-mail
indicating that he terminated the meeting because he
did not want to continue in a he-said/she-said fashion,
and that he had no qualms supporting Harp as they
moved forward with the MSTA matter. He further stated
that it was important to document their claims in an
10 No. 07-1445
unequivocal fashion, and declared that “[u]nder no
circumstances will we pay them for work not done.” In
Plaintiff’s Response to Defendant’s First Request to
Admit, Harp acknowledges that no one at Charter ever
told her to stop investigating the billing issues with
MSTA, and that Wilson never told her that MSTA should
be paid for work that MSTA did not do. In light of the
sequence of events set forth by Harp herself in written
statements and deposition testimony, there is simply
no objective basis for Harp to have believed that fraud-
ulent payments were authorized on January 12th, or at a
later date for that matter. That is the only fraud that is
before the court today under the Sarbanes-Oxley Act.
We note that Harp in the opening brief expounds at
length on Charter’s allegedly improper use of MSTA,
which was a minority-owned business, to meet the City
of St Louis’ minority set-aside goals, while allowing
MSTA to subcontract much of the work to non-minority
firms. Harp acknowledges that she was unaware of any
of that history at the time of the incidents at issue here,
and in any event those facts point to fraud on the City,
not the shareholders, and that was not the fraud reported
within the company nor is it the basis for the Sarbanes-
Oxley challenge. Therefore, those facts are irrelevant to
the issues before us.
Because Harp has failed to establish the first prong of the
test, she cannot succeed in her Sarbanes-Oxley challenge.
Even were she to succeed in that hurdle, however, her
claim could not succeed on the record before us. Harp has
the burden of establishing by a preponderance of the
No. 07-1445 11
evidence that her report of the alleged misconduct was
a contributing factor in her termination. And if she met
that burden, Charter could nonetheless prevail by estab-
lishing through clear and convincing evidence that it
would have taken the same unfavorable personnel
action in the absence of that protected behavior. Allen,
514 F.3d at 475-76; Livingston, 520 F.3d at 351. The cir-
cumstances of the termination would make those steps
insurmountable for Harp.
Harp’s entire department, the Technical Audit Depart-
ment, was eliminated as part of the RIF. In addition,
approximately 25 other persons at Charter were laid off.
The uncontradicted evidence in the record is that
Charter’s St. Louis KMA did not achieve its budget reve-
nues for January 2004. As a result of it falling short in
its revenue collected, it also missed its cash flow. Because
this occurred in the first month of the year, the impact
on the budget would be significant in each of the suc-
ceeding months if not corrected immediately. Accord-
ingly Wilson was instructed by Charter’s Executive
Vice President for the Midwest Division and its Chief
Operating Officer to correct the problem as soon as pos-
sible. Because it takes time to rebuild revenue, Wilson
was instructed to move quickly to reduce expenses. A
decision was made to terminate approximately 50 full-
time positions, and in order to minimize adverse im-
pact on revenue generated by customers, it was decided
that those positions should be the ones least related to
customer recruitment and retention. Therefore, depart-
ments such as marketing and service were not targeted,
but the audit department was eliminated—with the audit
12 No. 07-1445
functions taken over by the department in charge of
quality control. As Harp acknowledged in her depos-
ition, that was not the first time in which the company
would not have a dedicated group of individuals
assigned to auditing; in the past, the job had been done
at times by technicians who would look for violations in
the course of their work. Harp has presented no evidence
that Charter was not in financial trouble, or that the
audit department was selected for other, nefarious rea-
sons. Nor does she present evidence that any sig-
nificant number of the employees subjected to the RIF
were rehired shortly, which would also be suggestive
that the RIF was not what it appeared to be. Instead, Harp
focuses on minor discrepancies in testimony as to when
the directive was issued that required the drastic im-
provements in the financial situation. Differences such as
whether a directive was made in early or late January or
February, and as to whether the budget cuts had to
show general improvement or meet a specific monetary
target, are ancillary to the issue, which was whether the
cuts were required by the financial situation of the com-
pany and the departments and individuals chosen
were dictated by those financial considerations. Harp does
not contest that Charter’s St. Louis KMA substantially
missed its January 2004 budget, that remedial action
was ordered, and that the audit department had the
least direct impact on the recruitment and retention of
customers.
Harp simply has no evidence indicating that her ter-
mination was attributable to something other than the
financial problems that necessitated the RIF. She relies
No. 07-1445 13
entirely on the timing of the RIF, which is concededly
proximate to the MSTA issues, but is also temporally
tied to St Louis KMA’s failure to make its budget which
Harp does not contest. Harp analyzes the temporal prox-
imity issue as if she were the only person subjected to
the RIF, in which case the timing might suggest that the
allegation of misconduct played a role. But the sheer
scope of the RIF is relevant to what inference may rea-
sonably be drawn. Harp points to evidence that the
employer may have wanted to retaliate for her report of
misconduct, and the ambiguity as to when the financial
directive was issued, as evidence that “the entire
reduction of force was a ruse.” It is simply not a rea-
sonable inference that despite the need to address the
budget shortfalls, the RIF was actually an effort to
retaliate against her for her complaint. The jury would
have to conclude that in an effort to cover up the retalia-
tory action against Harp, Charter laid off the entire
audit department as well as approximately 25 other
individuals in other departments. If the motive was to
terminate Harp, merely eliminating the audit department
would seemingly be enough to characterize it as a RIF,
but that represented only half of the total employees laid
off. Moreover, Harp argues that the RIF could not have
been motivated by the need for substantial financial
gains because the savings from the RIF were offset by
the severance payments. The savings from laying off
approximately 50 employees are not rendered a nullity
from a budget perspective by the inclusion of a one-time
payment to those employees, as the relevant focus is on
the longer-term impact on revenues and expenses. There
14 No. 07-1445
is simply no reasonable basis for a jury to believe what
is ultimately mere speculation.
Harp additionally challenges the district court’s discov-
ery rulings, but we find no abuse of discretion
there. Accordingly, the decision of the district court is
A FFIRMED.
T INDER, Circuit Judge, dissenting. My colleagues
correctly identify the two contested areas in this case—
whether the plaintiff engaged in protected activity and
whether that activity was a contributing factor in the
unfavorable personnel action she suffered. I have no
quarrel with the legal parameters well laid out in the
majority opinion. However, because there are several
factual matters that are sufficiently contested to warrant,
in my opinion, determination by a jury, I cannot join in
the majority opinion.
This seems to me to be a very close case that vividly
illustrates the dilemma facing an employee who thinks
she may be able to stop a fraud from occurring. Employees
who catch corporate misconduct in its formative stages
are protected by the language and purpose of Sarbanes-
Oxley (SOX). Yet, raising concerns before questionable
practices are entirely resolved can be very awkward. An
No. 07-1445 15
employee with a reasonable belief that she has detected
corporate fraud as it is underway should not be discour-
aged from reporting it. Such a belief must be grounded
in facts known to the employee, but the employer’s re-
sponse to a disclosure of those facts may be suspicious
enough to add support to a reasonable belief that fraud
is afoot. The employee should not have to wait until
the fraud has been accomplished to register a concern.
The majority concludes that Charter’s reduction-in-
force demonstrates that Harp’s employment with Charter
ended because of Charter’s financial woes, not because of
her expressed concerns about the MSTA matter. At the
outset, I agree that Harp’s view that the RIF was merely
cover for retaliation against her appears, at least initially,
highly implausible and perhaps, even, almost narcissistic.
The notion that the firing of 49 other people and the
elimination of an entire department was nothing more
than an excuse for retaliation against Harp is difficult to
swallow. But, despite the fact that the inference she asks
us to adopt is at first blush implausible, she has offered
enough evidence to be taken seriously. Charter may
want us to assume that just because a RIF is sizeable,
there is no way that retaliation could be concealed with-
in it. However, as the facts about Harp’s complaint and
the RIF are peeled back a bit, Harp’s assertion becomes
more plausible, and merits the evaluation of a jury.
The evidence before us shows that the plaintiff was
aware and upset about a very specific issue—that MSTA
was apparently going to be paid after fraudulently over-
billing her company. But after the plaintiff was terminated
16 No. 07-1445
she became aware that the issue she had complained
of was part of a larger scheme with more significant
consequences than she realized at the time. It seems to
me that Mary Harp, when confronted with what she
perceived as fraud, took exactly the steps that SOX encour-
ages. She submitted a formal complaint and several
informal complaints about the decision by her super-
visor to pay MSTA for work it had submitted under
what Harp believed were fraudulent invoices.
The circumstances under which she submitted the
complaint are important to consider. Charter’s HR man-
ager, Brooke Wilson, strongly discouraged Harp from
making a complaint and refused to accept a written form
of the complaint. So, Harp read it to her. Brooke then
told Harp that a formal complaint would cause trouble
and intimated that despite the law, retaliation could be in
the offing. According to Harp, Brooke said, “I mean, there
is going to be an investigation, I mean, there is not
supposed to be retaliation, but there is going to be an
investigation and nobody is 100 percent, and it’s going
to get ugly.” Harp testified that Brooke emphasized the
word “supposed” and that she, Harp, inferred from
that emphasis that she could be retaliated against for
filing the complaint.
Harp persevered with her complaint, however, alleging
that the decision to pay MSTA was a fraud on the share-
holders. There really is no dispute that when she sub-
mitted the complaint, Harp subjectively believed that
she had identified fraud. She spent months documenting
what she thought were approximately $500,000 worth of
No. 07-1445 17
fraudulent bills. When a meeting was scheduled to
discuss her findings, she was fully prepared to confront
MSTA with her evidence. However, Barry Wilson
abruptly truncated the meeting and directed Tom Baker
to make the matter go away. When she discussed what
Barry meant with Baker, he told Harp that he believed
he was supposed to pay the accrued amount and that
he had “accrued for that whole amount.”
My colleagues correctly point out that, for whatever
reason, Harp has chosen to make her stand on her belief
that she had been ordered to pay the full amount. But
I don’t think this view is the death knell for her claim.
Her complaint to management did mention a “negoti-
ated settlement” and “speedy resolution” to MSTA’s
claim. But Harp’s contemporaneous notes and deposi-
tion testimony indicate that she believed Baker (who,
by the way, was inserted between Harp and Wilson’s
direct supervision on January 7, just five days before the
meeting at issue) had been ordered to pay the whole
amount. Unlike my colleagues, I believe that the discrep-
ancy between Harp’s complaint and her testimony is
reconcilable.
As of the January meeting, Harp had identified invoices
filled out by bogus MSTA employees, fictitious addresses
being audited, unnecessary audits done for existing
customers and other practices she felt were improper
(including, in one instance, a billing for purported
audits of more houses than actually existed in one zip
code.) She was certain that Charter was a victim of fraud
and it was inexplicable to her that an officer of the com-
18 No. 07-1445
pany would offer to pay MSTA in the face of these prac-
tices. Subsequent events may or may not have disabused
her of the notion but I would note that most of the over-
tures subsequent to the meeting suggesting further in-
vestigation of MSTA were made after Harp’s super-
visors became aware of her complaint.
So, when she made her complaint, it appears to me
that she reasonably believed, both subjectively and objec-
tively, that she had been called off the hunt, that her
documented findings of fraud were being swept under
the rug, and that Barry Wilson had ordered MSTA to be
paid in full.
As for the termination of Harp’s employment, several
factors lead me to think that the jury could reasonably
draw an inference of retaliation. First, the timing of
Harp’s firing, while not dispositive, is close enough to
her struggles with her supervisor and ensuing complaint
to encourage a closer look at her claim. The RIF took place
on February 25, 2004—six weeks after the crucial meeting
between Harp and MSTA. Charter admits that the RIF
decision was made sometime in January 2004 but argues
that it was made in response to an unexpected January
2004 budgetary shortfall.
Although it is undisputed that Charter faced a bud-
getary shortfall in January 2004, it is disputed whether
the measures Charter took could have substantially
ameliorated the shortfall. For instance, Charter execu-
tives testified that they needed to save $800,000
per month to make up the shortfall. Harp has offered
evidence that the monthly salaries of those let go was
just about $167,000—and that the anticipated cost of
No. 07-1445 19
discharge for the employees was almost $200,000 given
their severance packages. Harp’s calculations show that
the RIF, which Charter executives testified was the sole
cost-savings measure undertaken in response to the
budget shortfall, came nowhere near accomplishing its
purported goal of saving $800,000 a month. In response,
Charter merely offers Barry Wilson’s testimony that the
company needed to save $800,000 per month as
evidence that there were, in fact, cost savings sufficient
to meet the asserted purpose of the RIF. Charter
concedes that it has no evidence as to whether the RIF
accomplished its apparent purpose.
It is also undisputed that as part of her termination,
Harp received a severance form that indicated that she
was not eligible for rehire. That designation alone sure
doesn’t sound like a typical RIF. Charter argued (but did
not support in the summary judgment record) that all
RIF’d employees were eligible for rehire and that the
designation of any of them as ineligible was simply a
“mistake.” But Charter failed to present any evidence
that the “mistake” was ever corrected, and certainly not
as to Mary Harp. Furthermore, two months after the RIF,
Charter began rehiring for the technical audit depart-
ment (without rehiring Harp). The rehire was set in
motion on March 17, 2004, seven days after Charter’s
dispute with MSTA was settled.
Finally, Harp offered significant evidence that MSTA was
a front company used by Charter to fulfill minority con-
tracting requirements as part of its city-granted franchise
in St. Louis’s cable market. In fact, Harp’s summary
20 No. 07-1445
judgment submission includes an e-mail that shows
her threats to pull the plug on MSTA triggered concerns
within Charter that the St. Louis franchise might be lost
because MSTA’s status as a front company would be
exposed.
While my colleagues are correct that this last item is
irrelevant to the issue of whether Harp’s complaint was
SOX-protected activity, this evidence is very relevant to
the retaliation prong of the inquiry. Specifically, the
consequences of Harp’s aggressive posture to MSTA’s
fraudulent billing could have resulted in the termination
of Charter’s franchise in St. Louis and brought to an end
a major source of revenue for the company. The gravity
of these consequences makes the idea that Ms. Harp
was included in a RIF because of her complaint a little
more palatable. This is especially true when you con-
sider that the RIF eliminated the entire Technical Audit
Department, the pesky unit that would be likely to
uncover such untidy problems with MSTA.
Ultimately, despite the fact that others were let go at
the same time as Harp, the critical question is whether
Harp has offered sufficient evidence to prove that her
protected complaint contributed to her termination.
I believe she has. The facts at the summary judgment
stage lead me to three possible conclusions about
Charter’s RIF—it was necessary to cut costs, it covered
retaliation against Harp or it was designed to eliminate
an entire department that had recently become trouble-
some. On the record before us, I think the facts can rea-
sonably be construed to support any of those three motiva-
tions. Therefore, summary judgment was inappropriate.
No. 07-1445 21
I think that Harp has presented enough to allow a jury
to find that she has proven the four elements required of
a plaintiff under Section 1514A(a), and that Charter
should be put to the test of proving by clear and con-
vincing evidence that her termination would have
occurred regardless of her MSTA complaint. I respect-
fully dissent.
3-16-09