Jeffrey Wiest v. Tyco Electronics Corp ( 2016 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 15-2034
______________
JEFFREY A. WIEST;
LAURA E. WIEST, His Wife,
Appellants
v.
TYCO ELECTRONICS CORPORATION
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 2-10-cv-03288)
Honorable Gene E.K. Pratter, District Judge
______________
Submitted under Third Circuit L.A.R. 34.1(a)
December 11, 2015
BEFORE: FUENTES, CHAGARES, and GREENBERG,
Circuit Judges
(Filed: February 2, 2016)
______________
Richard C. Angino, Esq.
Angino & Lutz
4503 North Front Street
Harrisburg, PA 17110
Attorneys for Appellants
Peter O. Hughes, Esq.
Brian D. Lee, Esq.
Ryan T. Warden, Esq.
Ogletree, Deakins, Nash, Smoak and Stewart
10 Madison Avenue, Suite 400
Morristown, N.J. 07960
Attorneys for Appellee
______________
OPINION OF THE COURT
______________
GREENBERG, Circuit Judge.
I. INTRODUCTION
Plaintiff, Jeffrey Wiest, appeals from the District Court’s
order granting summary judgment to defendant, Tyco
Electronics Corporation (“Tyco”), in his action alleging that
Tyco violated the anti-retaliation provision of the Sarbanes-
Oxley Act, 18 U.S.C. § 1514A. Wiest, formerly a Tyco
employee, claims that Tyco unlawfully terminated his
employment for reporting suspected securities fraud violations
pertaining to the accounting treatment of two Tyco events.
2
Specifically, Wiest claims that he engaged in a six-month
“anguished field battle” during which he frustrated Tyco’s
management with his refusals as an accountant to process
payments allegedly due from Tyco that, insofar as germane to
this appeal, related to two Tyco employee and dealer meetings
in resort settings.
Tyco, on the other hand, contends that Wiest’s
involvement with the specific events at issue was minimal and
he did not frustrate, or even inconvenience, anyone in Tyco’s
management by his conduct. Tyco asserts that more than eight
months after he engaged in what he contends was protected
activity, Tyco’s human resources director—who had no
involvement with, or knowledge of, Wiest’s protected activity—
conducted an investigation after she received multiple
complaints that Wiest made inappropriate sexual comments to
several female Tyco employees, and that he had inappropriate
sexual relationships with two subordinates during his
employment. Tyco argues that the findings from this
investigation caused it to take employment actions with respect
to Wiest unrelated to the accounting issues he had raised.
We conclude that Wiest has failed to offer any evidence
to establish that his protected activity was a contributing factor
to any adverse employment action that Tyco took against him.
Specifically, the record is devoid of any evidence that Wiest’s
conduct frustrated personnel in management or that, even if he
frustrated management personnel, any such individual was
involved in the investigation and an ultimate recommendation to
terminate his employment. Further, even if Wiest could satisfy
those threshold requirements, Tyco has demonstrated that it
would have taken the same actions with respect to Wiest in the
absence of Wiest’s accounting activity given the thorough, and
3
thoroughly documented, investigation conducted by its human
resources director. Because there are no genuine issues of
material fact with respect to Wiest’s anti-retaliation claim under
the Sarbanes-Oxley Act, we will affirm the District Court’s
grant of summary judgment.
II. FACTUAL AND PROCEDURAL
BACKGROUND
We review the record in the light most favorable to the
party opposing summary judgment—here, the plaintiff. See
Reedy v. Evanson, 615 F.3d 197, 210 (3d Cir. 2010).
Nevertheless, we do not at the summary judgment stage of
proceedings accept as true allegations unsupported in the record.
See Williams v. Borough of West Chester, 891 F.2d 458, 460
(3d Cir. 1989) (internal citations omitted) (“[E]ven though the
right to a jury trial is implicated, a nonmoving party must
adduce more than a mere scintilla of evidence in its favor and
cannot simply reassert factually unsupported allegations
contained in its pleadings.”).
A. The Protected Activity
Wiest at all relevant times was Tyco’s Accounts Payable
Manager. In that capacity he oversaw the processing and
payment of expense reimbursements for various business units
within Tyco. The present action stems from Wiest’s
involvement with expenses and invoices submitted in
connection with two1 Tyco events, both of which involved its
1
Wiest’s initial complaint alleged that he engaged in other
protected actions, but we previously determined that all but two
of those actions, those relating to the two events that we discuss
4
Wireless Business Unit.
The first event at issue is the M/A-Com Annual
Recognition Event in the Bahamas (“the Bahamas Event”),
which was a sales incentive program to reward sales associates
and independent dealers who achieved or exceeded their sales
targets in the preceding year. On May 28, 2008, Accounts
Payable received an email in which Tyco’s Wireless Business
Unit requested immediate payment of an invoice in the amount
of $56,000 for expenses related to the Bahamas Event. The
following day, Wiest’s subordinate, Catherine Smith—an
Accounts Payable Supervisor—emailed Kevin Kelleher, the
Wireless Business Unit’s Director of Accounting, to request the
business purpose of the event, a list of attendees, and a
verification of the accounting charge. When she did not receive
a response, Smith again requested this information on June 2,
2008.
The next day, June 3, 2008, Wiest emailed his supervisor,
Doug Hofsass, to request the same information that Smith
previously had sought. Hofsass then contacted Tyco’s tax
department for assistance with these requests. Wiest
acknowledges that his sole involvement with the Bahamas Event
was his June 3, 2008 email and that Hofsass, his supervisor,
handled all communications with the tax department to resolve
the above-noted inquiries. He likewise acknowledges that
Hofsass agreed that more information was needed and supported
Wiest’s inquiry requesting that information. Ultimately, Tyco’s
Chief Financial Officer, Terrence Curtin, concluded that the
in this opinion, were pled insufficiently and could not withstand
defendants’ motion to dismiss. See Wiest v. Lynch, 710 F.3d
121, 136-37 (3d Cir. 2013).
5
event should be treated as taxable compensation to the attending
employees. As a consequence, Tyco decided to “gross-up” the
attending employees’ compensation in order to cover the
employees’ previously unanticipated tax liability. Beyond the
June 3 email, there is no evidence in the record that Wiest made
any challenges to Tyco’s payment for the Bahamas Event or its
treatment of the tax implications to Tyco employees who
attended the event.
The second event at issue is the Wireless Systems
Segment Business Review Meeting at the Wintergreen Resort in
Virginia (“the Wintergreen Event”). On October 8, 2008, Smith
received a request to make a $100,000 down payment for the
Wintergreen Event. She responded to the request by seeking
information regarding the meeting’s agenda and a list of
attendees. In response to Smith’s request for additional
information, Kelleher added that approval from Tyco Chief
Executive Officer, Thomas Lynch, was required. Smith
received the requested information but without the CEO
approval. Consequently, Kelleher emailed Chuck Dougherty,
Tyco’s President, to inform him that “Accounts Payable requires
express approval from Tom Lynch.” (App. 1326). That email
copied several people from Accounts Payable, including Smith
and Hofsass, but not Wiest. Moreover, the email requested that
copies of return emails regarding this event be sent to Smith and
Hofsass.
Two days later, on October 10, 2008, Kelleher emailed
Dougherty to follow up on his earlier communication. In that
correspondence, Kelleher clarified that approval from CFO
Curtin with a copy to CEO Lynch would suffice, given that
Lynch was on vacation. Dougherty then emailed Curtin to
request the necessary approval. Curtin responded to Dougherty,
6
with a copy to Kelleher, approving the payment. Kelleher then
forwarded that approval to Smith, Hofsass, and Wiest. Notably,
this was Wiest’s first involvement in the accounting aspects of
the Wintergreen Event. Wiest emailed Curtin, with copies to
Smith and Hofsass, to clarify that Curtin was approving the
entire cost of the event, a total of $355,000, and his approval
was not limited to the $100,000 down payment. In that email,
Wiest asked Curtin to copy Lynch with his response. Curtin
thereafter replied and confirmed his approval for the entire cost
of the event, but he did not copy Lynch. An hour later, Wiest
emailed Hofsass and copied Smith to note again the lack of
approval from, or notification to, Tyco’s CEO, Lynch. Wiest
stated that he would “leave it to [Hofsass’s] discretion” as to
how to involve Lynch and obtain the requisite approval. There
is no record that Wiest had any additional concerns about
approval for the Wintergreen Event or concerns about any other
issue pertaining to the event.
The crux of Wiest’s complaint is that Tyco unlawfully
terminated him in retaliation for his conduct in the matters that
we describe above. He characterizes the back and forth
regarding these events as an “anguished field battle” between
himself and Tyco management. (See Appellant’s br. at 9).
Specifically, he alleges that Tyco “discharged him in retaliation
for protected disclosures relating to fraudulent accounting
practice, attempted shareholder fraud, and lack of compliance
with United States Generally Accepted Accounting Principles
(‘GAAP’).” (App. 229). Tyco contends that to the extent that it
took adverse employment action against Wiest when it decided
to terminate his employment as a result of its human resources
director’s investigation of his conduct, it did not do so because
of Wiest’s actions with respect to the Bahamas or Wintergreen
Events.
7
B. Wiest’s Concurrent Review
On June 13, 2008—ten days after Wiest’s protected
activity concerning the Bahamas Event—Hofsass distributed an
email to several Tyco employees to inform them that June 19,
2008, would be Wiest’s 30-year anniversary with Tyco. This
email identified Wiest as a “key factor” in a particular Tyco
accounting initiative and noted his other “significant
contributions” to Tyco over the years. (App. 267). It also
encouraged the email recipients to acknowledge Wiest and
congratulate him on this anniversary.
On July 30, 2008—nearly two months after Wiest’s
protected activity concerning the Bahamas Event—Wiest
received the maximum possible “Impact Bonus” in the amount
of 10% his annual base salary. The Impact Bonus
Recommendation identified Wiest’s “focus on ‘doing the right
thing’” as well as his “significant achievements” within the
accounting department as the basis for awarding the maximum
possible bonus. (App. 1113). On October 23, 2008—two
weeks after the last protected activity pertaining to the
Wintergreen Event—Wiest received the highest possible ratings
in his annual review.
C. Tyco’s Investigation of Wiest
We start our discussion of the investigation of Wiest with
a telephone call that Hofsass made on August 7, 2009, to Tyco’s
human resources director, Susan Wallace. In that call, Hofsass
informed Wallace that Mark Williams—one of Hofsass’s
subordinates—had received complaints that Wiest made
inappropriate sexual comments to several Tyco employees. On
August 11, 2009, Wallace met with Williams and Hofsass to
obtain additional information. During this meeting, Williams
8
provided names of several women who were either targets of, or
witnesses to, the alleged inappropriate behavior. Wallace then
scheduled interviews with individuals potentially involved as
well as other individuals who worked closely with Wiest.
Hofsass relayed his concerns about the allegations and stated
that he had been completely unaware that Wiest had engaged in
this conduct.
In making her investigation, Wallace interviewed at least
ten employees, including Wiest. Three female employees
relayed information concerning multiple unwanted sexual
remarks from Wiest.2 Each of these women reported that she
2
The District Court listed several of the inappropriate comments
of which Wallace was informed during her investigation, all of
which are set forth in Wallace’s investigation report:
(1) that [N.Q.’s] flexibility must be great for sex
and her husband must enjoy it; (2) in response to
[N.Q.] saying, ‘I have a proposition for you,’
asking if a coworker should leave the room; (3)
after approaching [N.Q.] at her desk late in the
day in 2005 and engaging her in an unwanted
conversation that lasted over an hour (and
included a lunch invitation), suggesting that his
taste for exotic foods translates to a willingness to
try new things in the bedroom, and stating that he
was unable to assess whether [N.Q.’s] taste for
exotic foods would translate into her bedroom
performance; (4) commenting about [B.S.’s] body
in a way that made her uncomfortable; (5)
discussing nude beaches and the use of tea as an
aphrodisiac with [B.S.], knowing that [B.S.] was a
9
felt uncomfortable and “trapped” when Wiest approached her.
Wallace also learned that women in the office had created a
system by which they could alert each other of Wiest’s
whereabouts—a system to which they sometimes referred as a
“Jeff Alert.” Wiest concedes that the three women who made
the initial complaints of unwanted sexual remarks were unaware
of his activity with respect to the Bahamas and Wintergreen
Events.
regular tea drinker; (6) upon learning that [B.S.’s]
husband had given her Christmas gifts for her
home, asking, ‘No Victoria’s Secret gift card?’;
(7) telling [B.S.] that he missed his wife’s
pregnancy hormones and the positive impact they
had on their sex life, knowing [B.S.] was
pregnant; (8) asking to see pictures from [A.M.’s]
bachelorette party, and then telling her about a
‘fling’ he had with a girl 17 years younger than
him who was engaged, which he described as ‘fun
for everyone’ and ‘her last hurrah’; (9) telling
[A.M.] that cruises were a bad idea for
honeymoons because the couple may be too far
away from the boat if they had ‘urges,’ knowing
[A.M.] was getting married; and (10) after
receiving a sign that read ‘The Big One’ in honor
of his 50th birthday, telling [D.W.] he was going
to take the sign home and put it on his bedroom
door.
Wiest v. Tyco Elecs. Corp., No. 10-3288, 2015 U.S. Dist.
LEXIS 47935, at *8-9 (E.D. Pa. Apr. 13, 2015).
10
Three other employees reported that they witnessed
Wiest make sexual remarks, witnessed Wiest brag about
previous sexual relationships with women in the office, and/or
heard about the sexual remarks and sexual relationships from
others in the office. Finally, three employees initially reported
that they had no knowledge of any inappropriate behavior by
Wiest, but two of these three employees sought follow-up
conversations with Wallace to clarify that they were aware that
Wiest had had relationships with women in the office. While
several of these interviews identified inappropriate conduct from
earlier years, the investigation also uncovered contemporaneous
documentation to support many of those allegations.
On September 17, 2009, Wallace interviewed Wiest in
the presence of another human resources employee who
documented the interview. At that time, Wiest denied having
prior sexual relationships with any Tyco employee and denied
making any of the sexual comments reported to Wallace. Wiest
admitted that he had several dates with a subordinate more than
nine years before, but stated that the relationship never
progressed to a point that would have required him to report the
relationship to anyone at Tyco.
The following day, September 18, 2009, Wiest called
Wallace to clarify some of the statements he made during his
interview. Wallace scheduled a meeting for later that day,
during which Wiest stated that any comments he may have made
were an attempt at humor, and while perhaps they were
misplaced, he did not think any of them crossed any lines.
Wiest also requested the opportunity to apologize to anyone he
may have offended, but he acknowledged that some people may
not have wanted to have contact with him.
11
On September 30, 2009, Wallace met with several Tyco
employees, including Hofsass, Charles Post, an attorney in
Tyco’s legal department, and Robert Ott, Tyco’s Corporate
Controller and Hofsass’s superior. At that meeting, she
indicated that she had made a preliminary decision to terminate
Wiest pending a final meeting to allow him another opportunity
to respond to her findings from the investigation. Wallace
scheduled this final meeting for the following day, October 1,
2009. But before this final meeting could occur, Wiest went out
on short-term disability and he never returned to work at Tyco.
On March 31, 2010, Tyco administratively terminated his
employment because his short-term disability benefits had
expired and he still was unable to return to work.
D. Procedural History
Wiest filed an administrative complaint with the U.S.
Department of Labor on November 24, 2009, in which he
asserted that Tyco had retaliated against him for his protected
activity in his accounting capacity. In accordance with 18
U.S.C. § 1514A(b)(1)(B), he filed this action in the District
Court on July 7, 2010, after he did not receive a final decision
from the Department of Labor within 180 days of the filing of
the administrative complaint. Wiest filed the initial District
Court complaint on behalf of himself and his wife, Laura Wiest,
against Tyco, Thomas Lynch, Terrence Curtin, Charles Post,
and Charles Dougherty. The complaint contained four causes of
action: Count I: violation of the anti-retaliation provision of the
Sarbanes-Oxley Act, 18 U.S.C. § 1514A; Count II: intentional
infliction of emotional distress; Count III: wrongful termination;
and Count IV: loss of consortium.
On July 21, 2010, the District Court granted the
12
defendants’ motion to dismiss Count I for failure to state a claim
on the ground that Wiest had failed to plead sufficient facts to
support a finding that he engaged in protected activity. See
Wiest v. Lynch, No. 10-3288, 2011 U.S. Dist. LEXIS 79283
(E.D. Pa. July 21, 2011). In support of this decision, the Court
relied, at least in part, on a superseded agency decision of the
Administrative Review Board (“ARB”), which had established
that “[f]or a communication to be protected, it must ‘definitively
and specifically’ relate to one of the statutes or rules listed in”
18 U.S.C. § 1514A which precludes retaliation against an
employee for taking steps against certain unlawful company
activities of which he is aware. Id. at *12-13 (citing Platone v.
FLYi, Inc., ARB No. 04-154, 2006 DOLSOX LEXIS 105
(Dep’t of Labor Sept. 29, 2006)). The Court dismissed the
remaining three counts of the complaint as its only basis for
jurisdiction over them was supplemental to its jurisdiction over
Count I which it was dismissing. Id. at *30. Wiest moved for
reconsideration but on November 16, 2011, the Court denied
that motion. See Wiest v. Lynch, No. 10-3288, 2011 U.S. Dist.
LEXIS 132114 (E.D. Pa. Nov. 16, 2011).
On March 19, 2013, we partially reversed the District
Court’s order of dismissal and remanded the case for further
proceedings. See Wiest v. Lynch, 710 F.3d 121, 134, 138 (3d
Cir. 2013). Specifically, in a divided decision we held that the
District Court erred in relying on the “definitively and
specifically” standard from Platone which required that for a
communication to be protected it must definitively and
specifically relate to a statute or rule listed in the anti-retaliation
section of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A. We
pointed out that the ARB had supplanted the Platone standard in
Sylvester v. Parexel Int’l LLC, ARB No. 07-123, 2011
DOLSOX LEXIS 39 (Dep’t of Labor May 25, 2011). We
13
concluded that the Sylvester standard—which protects a
communication when “the employee has both a subjective and
an objective belief that the conduct that is the subject of the
communication relates to an existing or prospective violation of
one of the federal laws referenced” in 18 U.S.C. § 1514A—was
entitled to Chevron deference. Wiest, 710 F.3d at 130-31 (citing
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S.
837, 842-43, 104 S. Ct. 2778, 2781-82 (1984)). The majority
then applied the Sylvester standard to Wiest’s complaint and
concluded that with respect to the Bahamas and Wintergreen
Events, he adequately had pled facts that, if true, could
constitute protected activity under 18 U.S.C. § 1514A. Id. at
134-38. Consequently, we remanded the case with respect to
those two communications.3
Following remand, the defendants filed a second motion
to dismiss for failure to state a claim, which the District Court
granted in part and denied in part. See Wiest v. Lynch, 15 F.
Supp. 3d 543 (E.D. Pa. 2014).4 The Court rejected the
3
Judge Jordan dissented on the ground that the Sylvester
standard is “impossibly vague” and therefore should not receive
Chevron deference. Wiest, 710 F.3d at 142 (Jordan, J.,
dissenting). Moreover, Judge Jordan concluded that, even
applying the objective reasonableness standard of Sylvester,
Wiest failed to state a claim because the communications
alleged did not amount to allegations of fraud, as is required for
a claim under 18 U.S.C. § 1514A. Id. at 144 (Jordan, J.,
dissenting).
4
The lapse of time between the remand and any further
proceedings was attributable to the District Court’s
determination to place the case in suspense pending the Supreme
14
defendants’ assertions that Wiest had not sufficiently pled either
an adverse employment action or a sufficient causal connection
between the protected activity and any adverse employment
action. See id. at 558-67. The Court granted the motion,
however, with respect to three of the four individually named
defendants—Lynch, Curtin, and Post—but concluded that Wiest
had “just barely state[d] a claim” with respect to the fourth
individual, Dougherty. Id. at 566-67.
In November 2014, Wiest filed an amended complaint, in
which he no longer named Dougherty as a defendant, and, on
the same date, he stipulated to the dismissal of all claims against
Dougherty with prejudice. After the parties filed briefs on
Tyco’s motion for summary judgment, Wiest withdrew his
claims for intentional infliction of emotional distress and
wrongful discharge as a separate cause of action but not as a part
of his anti-retaliation claim, and his wife withdrew her claim for
loss of consortium. Wiest v. Tyco Elecs. Corp., No. 10-3288,
2015 U.S. Dist. LEXIS 47935, at *1 (E.D. Pa. Apr. 13, 2015).
Consequently, the sole issue before the District Court on the
motion for summary judgment was whether there was a genuine
issue of material fact with respect to Wiest’s anti-retaliation
claim against Tyco pursuant to 18 U.S.C. § 1514A. See id. The
Court granted Tyco’s motion on April 13, 2015, reasoning that
there was insufficient evidence for a jury to find that Wiest’s
Court’s decision in Lawson v. FMR LLC, 134 S. Ct. 1158
(2014). The District Court believed that Lawson could clarify a
disputed issue regarding the retroactivity of § 929A of the
Dodd-Frank Act, which extended the Sarbanes-Oxley Act to
wholly-owned subsidiaries of publicly traded corporations. See
Wiest, 15 F. Supp. 3d at 550-51. We are not concerned with this
issue on this appeal.
15
protected activity was a contributing factor in Tyco’s
preliminary or final decision to terminate Wiest’s employment.
Id. at *36-37. Wiest appealed the grant of summary judgment to
Tyco.5
III. JURISDICTION AND STANDARD OF
REVIEW
The District Court had jurisdiction over Wiest’s amended
complaint pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1367
and we have jurisdiction pursuant to 28 U.S.C. § 1291. We
exercise plenary review over a district court’s grant of summary
judgment. Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265
(3d Cir. 2014), cert. denied, 135 S. Ct. 1738 (2015); Haybarger
v. Lawrence Cnty. Adult Prob. & Parole, 667 F.3d 408, 412 (3d
Cir. 2012). Therefore, we consider this matter on a basis
identical to that of the District Court. See Santini v. Fuentes,
795 F.3d 410, 416 (3d Cir. 2015). Summary judgment is
warranted when the movant establishes that there is no genuine
issue of material fact and the movant is entitled to judgment as a
matter of law. See Fed. R. Civ. P. 56(a); Schaar v. Lehigh
Valley Health Servs., Inc., 598 F.3d 156, 157 (3d Cir. 2010).
“A fact is ‘material’ under Rule 56 if its existence or
5
In his brief, Wiest also challenges two discovery-related
orders: (1) the District Court’s grant of a protective order to bar
the deposition of Tyco CEO Thomas Lynch, and (2) the Court’s
denial of Wiest’s motion to compel two depositions, which he
filed three months after completion of the time for discovery.
We, however, are satisfied that the Court did not abuse its
discretion in making these dispositions and we see no reason to
discuss them further.
16
nonexistence might impact the outcome of the suit under the
applicable substantive law. A dispute over a material fact is
‘genuine’ if ‘a reasonable jury could return a verdict for the
nonmoving party.’” Santini, 795 F.3d 410, 416 (3d Cir. 2015)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S. Ct. 2505, 2510 (1986)).
The moving party bears the initial burden to identify
“specific portions of the record that establish the absence of a
genuine issue of material fact.” Santini, 795 F.3d at 416 (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548,
2553 (1986)). If the moving party satisfies its burden, the
burden then “shifts to the nonmoving party to go beyond the
pleadings and ‘come forward with specific facts showing that
there is a genuine issue for trial.’” Id. (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct.
1348, 1356 (1986)); see also Fed. R. Civ. P. 56(e). While we
view the facts in the light most favorable to the nonmoving
party, conjecture and speculation will not create a genuine issue
of material fact sufficient to withstand the grant of summary
judgment. Acumed LLC v. Advanced Surgical Servs., Inc., 561
F.3d 199, 228 (3d Cir. 2009); Lexington Ins. Co. v. W. Pa.
Hosp., 423 F.3d 318, 333 (3d Cir. 2005) (citing Hedberg v.
Indiana Bell Tel. Co., Inc., 47 F.3d 928, 932 (7th Cir. 1995)
(“Speculation does not create a genuine issue of fact; instead it
creates a false issue, the demolition of which is a primary goal
of summary judgment.”)).
IV. DISCUSSION
Wiest asserts a claim for unlawful retaliation in violation
of 18 U.S.C. § 1514A. That provision protects whistleblowing
17
employees from retaliation for providing information, either
directly or indirectly, about certain types of expressly
enumerated illegal activities. See id. § 1514A(a)(1)-(2). The
statute provides, in relevant part, that:
no [publicly-traded] company . . .
or any officer, employee,
contractor, subcontractor, or agent
of such company . . . may
discharge, demote, suspend,
threaten, harass, or in any other
manner discriminate against an
employee in the terms and
conditions of employment because
of any lawful act done by the
employee—
(1) to provide information, cause
information to be provided, or
otherwise assist in an investigation
regarding any conduct which the
employee reasonably believes
constitutes a violation of section
1341 [mail fraud], 1343 [wire
fraud], 1344 [bank fraud], or 1348
[securities fraud], any rule or
regulation of the Securities and
Exchange Commission, or any
provision of Federal law relating to
fraud against shareholders, when
the information or assistance is
provided to or the investigation is
conducted by –
18
(A) a Federal regulatory or law
enforcement agency;
(B) any Member of Congress or
any committee of Congress; or
(C) a person with supervisory
authority over the employee (or
such other person working for the
employer who has the authority to
investigate, discover, or terminate
misconduct)[.]
Id. § 1514A(a)(1)(A)-(C).
The statute incorporates by reference the rules and
procedures applicable to the Wendell H. Ford Aviation
Investment and Reform Act for the 21st Century (“AIR-21”).
See 18 U.S.C. § 1514A(b)(2)(C) (citing 49 U.S.C. § 42121(b)).
Pursuant to that incorporation, the Department of Labor has
promulgated a regulation that applies AIR-21’s two-part burden-
shifting framework to Sarbanes-Oxley complaints. See 29
C.F.R. § 1980.104(e)(2)-(4). Thus, to withstand Tyco’s motion
for summary judgment, Wiest must identify evidence in the
record from which a jury could deduce the following: (1) he
“engaged in a protected activity”; (2) Tyco “knew or suspected
that [he] engaged in the protected activity”; (3) he “suffered an
adverse action”; and (4) “the protected activity was a
contributing factor[6] in the adverse action alleged in the
6
Wiest contends that he only need show that “the circumstances
were sufficient to raise the inference that the protected activity
was a contributing factor in the adverse action.” (See
Appellant’s br. at 44 (citing 29 C.F.R. § 1980.104(e)(2))). That
19
complaint.” Id. §§ 1980.104(e)(2)(i)-(iv), 1980.109(a); accord
Araujo v. N.J. Transit Rail Operations, Inc., 708 F.3d 152, 157
(3d Cir. 2013) (quoting Allen v. Admin. Review Bd., 514 F.3d
468, 475-76 (5th Cir. 2008)). If Wiest satisfies his burden to
identify evidence to support all four elements, the burden will
shift to Tyco to demonstrate “by clear and convincing evidence
that [it] would have taken the same [adverse] action in the
absence of [any protected activity].” 29 C.F.R. § 1980.109(b);
accord Araujo, 708 F.3d at 157 (quoting 49 U.S.C. §
42121(b)(2)(B)(ii)).
Tyco based its motion for summary judgment on its
assertion that Wiest had not identified any evidence in the
record from which a jury could conclude that Wiest’s protected
activity was a contributing factor to any adverse action that it
may have taken against him. See Wiest, 2015 U.S. Dist. LEXIS
47935, at *18-19. Alternatively, Tyco argued that it would have
taken the same action even in the absence of the protected
activity. Id. at *19.7 Because we find that Wiest has not
standard, however, governs a complainant’s ability to proceed
with an investigation at the outset. As § 1980.109(a) declares,
“[a] determination that a violation has occurred may be made
only if the complainant has demonstrated by a preponderance of
the evidence that protected activity was a contributing factor in
the adverse action alleged in the complaint.” Thus, at this stage
of the proceedings, Wiest must identify evidence in the record
on which a jury could base a finding that the protected activity
contributed to Tyco’s adverse employment action against him.
7
Both Tyco and the District Court have assumed for purposes of
the summary judgment motion that Wiest could demonstrate that
he had engaged in protected activity with respect to the
20
identified any record evidence to establish causation, we will
affirm the District Court’s order granting summary judgment to
defendant Tyco.
A. Appellant’s Procedural Argument
As a threshold matter, Wiest argues that Tyco’s summary
judgment motion was procedurally barred by previous decisions
in this case by application of the doctrine of the law of the case.
Specifically, Wiest contends that in light of our and the District
Court’s previous conclusions that Wiest’s complaint sufficiently
alleged all four elements of a prima facie case at the motion-to-
dismiss stage, he now is entitled to proceed to a jury trial.
This argument fails based on Wiest’s critical
misapplication of the fundamental distinction between a motion
to dismiss under Rule 12(b)(6) and a motion for summary
judgment under Rule 56. While at the motion-to-dismiss stage
of proceedings a district court is obligated to accept the
allegations in a plaintiff’s complaint as true, it does not accept
mere allegations as true at the summary judgment stage. See
Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195, 201 (3d
Cir. 2006). To the contrary, “summary judgment is essentially
‘put up or shut up’ time for the non-moving party” who “must
rebut the motion with facts in the record and cannot rest solely
on assertions made in the pleadings, legal memoranda, or oral
argument.” Id. Moreover, “if the non-moving party has the
burden of proof at trial, that party must set forth facts sufficient
to establish the existence of an element essential to that party’s
case.” Id. (citation and internal quotation marks omitted).
As the District Court aptly noted, when it “ruled on
Bahamas and Wintergreen Events. We do as well.
21
Tyco’s Motion to Dismiss, the analysis centered on whether
[Wiest’s] allegations, if true, stated a claim for relief. Now, the
issue is whether [Wiest has] come forward with sufficient
evidence from which a reasonable jury could find that the
allegations are, indeed, true.” Wiest, 2015 U.S. Dist. LEXIS
47935, at *17. In light of this critical distinction, Wiest’s law of
the case argument is meritless.
B. Contributing Factor
In considering the merits of Tyco’s motion, we next
address whether there is any evidence to support Wiest’s claim
that his protected activity was a factor that contributed to Tyco
taking the adverse action from which he suffered. While we
seem not yet to have analyzed this element of an anti-retaliation
claim under the Sarbanes-Oxley Act, other courts of appeals
have done so and have defined a contributing factor as “any
factor, which alone or in combination with other factors, tends
to affect in any way the outcome of the decision.” Feldman v.
Law Enforcement Assocs. Corp., 752 F.3d 339, 348 (4th Cir.
2014); Lockheed Martin Corp. v. Admin. Review Bd., 717 F.3d
1121, 1136 (10th Cir. 2013); Allen, 514 F.3d at 476 n.3. A
plaintiff need not provide direct evidence to satisfy this element;
rather, circumstantial evidence may be sufficient. See, e.g., Van
Asdale v. Int’l Game Tech., 577 F.3d 989, 1003 (9th Cir. 2009).
To that end, “‘[t]emporal proximity between the protected
activity and the adverse action is a significant factor in
considering a circumstantial showing of causation.’” Feldman,
752 F.3d at 348 (quoting Tice v. Bristol-Meyers Squibb Co., No.
2006-SOX-20, 2006 DOLSOX LEXIS 44, at *20 (Dep’t of
Labor Apr. 26, 2006)). Conversely, a “‘causal connection may
be severed by the passage of a significant amount of time, or by
some legitimate intervening event.’” Id. (quoting Halloum v.
22
Intel Corp., No. 2003-SOX-7, 2004 DOLSOX LEXIS 73, at *13
(Dep’t of Labor Mar. 4, 2004)).
With respect to the third element of Wiest’s anti-
retaliation claim—that he suffered an unfavorable personnel
action—we must, at a minimum, define the unfavorable action
in order to analyze causation. In this regard, Wiest contends that
any one of the following events constituted an adverse
employment action on which he can base his anti-retaliation
claim: (1) Tyco constructively discharged him in September
2009, (2) Tyco preliminarily terminated him on September 30,
2009, or alternatively (3) Tyco actually terminated him on
September 30, 2009. We address each of these theories in turn.
Significantly, all three of these events occurred prior to Tyco’s
administrative termination of Wiest’s employment on March 31,
2010, and Wiest does not contend that, standing alone, the
March 31, 2010 termination was a retaliatory act.
1. Constructive Discharge
Wiest alleges that in late August or early September 2009
“his direct reports and his manager were less communicative
and began acting differently to him.” (App. 241). Wiest
likewise complains about the stress he felt as a result of his
interview with Susan Wallace and her investigation. He claims
that this stress amounted to a constructive discharge. But Wiest
has conceded that Tyco had a duty to investigate when it
received the complaints from various employees. In light of this
duty to investigate, we will not conclude that enduring the
investigation amounted to, or contributed in any way toward a
constructive discharge. With respect to Wiest’s contention that
his colleagues were “less communicative,” such conduct is
insufficient to constitute a constructive discharge.
23
When analyzing a constructive discharge claim at the
summary judgment stage, we “must determine ‘whether a
reasonable jury could find that the [employer] permitted
conditions so unpleasant or difficult that a reasonable person
would have felt compelled to resign.’” Duffy v. Paper Magic
Grp., 265 F.3d 163, 167 (3d Cir. 2001) (quoting Connors v.
Chrysler Fin. Corp., 160 F.3d 971, 974 (3d Cir. 1998)).
Moreover, an employee claiming to have been constructively
discharged must demonstrate that the conduct of which he
complains “surpasse[d] a threshold of intolerable conditions.”
Suders v. Easton, 325 F.3d 432, 444 (3d Cir. 2003) (citations
and internal quotation marks omitted), vacated on other grounds,
Pa. State Police v. Suders, 542 U.S. 129, 124 S. Ct. 2342 (2004).
Wiest’s contention that he felt isolated from his colleagues is
simply insufficient to meet this well-established standard. See
Duffy, 265 F.3d at 169-70. Because Wiest has not identified
any evidence in the record to support his assertion that he was
constructively discharged, we do not undertake a causation
analysis with respect to this purported adverse action.
2. Preliminary Termination on September 30,
2009
Wiest next argues that Tyco’s preliminary decision to
terminate his employment constituted an adverse employment
action to which his protected activity was a contributing factor.
Unlike our conclusion that the evidence was inadequate to
support Wiest’s constructive discharge claim, we are satisfied
that there is ample evidence in the record from which a jury
could conclude that Tyco made a preliminary decision to
terminate Wiest as of September 30, 2009. We will assume for
purposes of this analysis that such a preliminary determination is
an adverse employment action, but we then must determine
24
whether a reasonable jury could conclude that his protected
activity was a contributing factor in the adverse action. We find
that it could not.
First, any inference of causation gleaned from temporal
proximity is minimal in light of the ten-month gap between the
protected activity and the adverse action. See, e.g., Riddle v.
First Tenn. Bank, 497 F. App’x 588, 596 (6th Cir. 2012)
(finding four-month gap insufficient to infer causation); Miller
v. Stifel, Nicolaus & Co., 812 F. Supp. 2d 975, 988-89 (D.
Minn. 2011) (finding eight-month gap insufficient to infer
causation). As noted, Wiest last engaged in protected activity
on October 10, 2008, and the adverse employment action with
respect to the preliminary determination to terminate him
occurred in September 2009. Thus, temporal proximity does not
support Wiest’s theory of causation.
Second, the record overwhelmingly demonstrates
“legitimate intervening event[s],” such that any causal
connection that could be derived from the circumstances was
severed. See Feldman, 752 F.3d at 348. Specifically, the record
demonstrates that: (1) Wiest received praise and commendations
both during and after his protected activity;8 (2) none of the
8
Several courts have concluded that an employee’s receipt of
favorable treatment after engaging in protected activity severely
undermines a claim that there was a causal connection between
the activity and the adverse employment action. See, e.g.,
Ameen v. Merck & Co., 226 F. App’x 363, 376 (5th Cir. 2007)
(finding that employee’s receipt of positive reviews and
discretionary bonuses in the year following the alleged protected
activity is “utterly inconsistent with an inference of retaliation”);
Moticka v. Weck Closure Sys., 183 F. App’x 343, 353 (4th Cir.
25
individuals who initiated the investigation with human resources
had any knowledge of Wiest’s protected activity; (3) Susan
Wallace, who conducted the investigation, had no knowledge of
Wiest’s protected activity;9 (4) Wiest’s colleagues in the
accounting department who were as involved, or more involved,
in the same activity did not receive any negative treatment; and
(5) Tyco’s Wireless Business Unit, the Tyco unit involved in the
events, was sold to another company in May 2009 and the
employees who Wiest contends he frustrated remained with the
unit after the sale and no longer had any involvement with Tyco
when the investigation was initiated.
These uncontroverted facts, both individually and
collectively, negate any possible inference of causation.
Consequently, Wiest cannot withstand the motion for summary
judgment on his theory that his protected activity was a
2006) (noting that when an employee receives favorable
treatment after the alleged protected activity, “the inference of
retaliatory motive is undercut”).
9
Wiest asserts that if we reach this conclusion we will be
engaging in improper fact-finding at the summary judgment
stage. Again, however, Wiest fails to acknowledge his burden at
this phase of the litigation. We are not obligated to ignore
uncontroverted evidence—here, Wallace’s signed affidavit—
unless and until Wiest identifies some evidence in the record to
create a genuine dispute on this fact. See Pressley v. Johnson,
268 F. App’x 181, 185 (3d Cir. 2008) (citing Arnold Pontiac-
GMC, Inc. v. Gen. Motors Corp., 786 F.2d 564, 581 (3d Cir.
1986) (“[I]n reviewing grant of summary judgment, appellate
court cannot ignore uncontested facts that render inferences
unreasonable.”)).
26
contributing factor in Tyco’s preliminary decision to terminate
him in late September 2009.
3. Final Termination on September 30, 2009
Wiest’s final contention with respect to an adverse
employment action is that he actually was terminated as of
September 30, 2009. This argument fails, first, because the
record unequivocally demonstrates that Tyco administratively
terminated him on March 31, 2010, after he exhausted his short-
term disability leave. Thus, there is no evidence to support even
the threshold premise that Tyco actually terminated his
employment on September 30, 2009. Moreover, even if Wiest
could demonstrate that his employment actually was terminated
on September 30, 2009, he cannot demonstrate that there was a
causal connection between his protected activities and the
adverse employment action for the reasons we have already
stated.
C. Tyco’s Affirmative Defense
Even if we assume that Wiest can establish a factual
dispute with respect to the issue of whether his protected activity
was a contributing factor in some adverse employment action by
Tyco with respect to him, Tyco still is entitled to summary
judgment as it amply has demonstrated that it would have taken
the same action in the absence of any protected behavior. See
29 C.F.R. § 1980.109(b) (“[R]elief may not be ordered if the
respondent demonstrates by clear and convincing evidence that
it would have taken the same adverse action in the absence of
any protected activity.”). Wiest’s sole challenge to Tyco’s
affirmative defense is his contention that termination was an
unreasonably harsh punishment, and, but for his protected
activity, he would have received a more lenient reprimand.
27
Specifically, he contends that the comments he made “would not
be found as offensive to the average employee.” (App. 244).
But it is not our role to second-guess a human resources decision
that followed a thorough investigation. Abels v. DISH Network
Serv., LLC, 507 F. App’x 179, 185 (3d Cir. 2012) (“We do not
sit as a super-personnel department that reexamines an entity’s
business decisions.”); see also Feldman, 752 F.3d at 350
(extending this logic from Abels to Sarbanes-Oxley claims);
Riddle, 497 F. App’x at 596 (same).
The record in this case demonstrates that Tyco initiated
an investigation after it received multiple complaints that Wiest
engaged in improper conduct. That investigation found ample
support for those complaints, and Tyco did not violate the
Sarbanes-Oxley Act when it took adverse employment actions
against him without either warning him or imposing a
probationary period.10 In short, Wiest has not identified any
evidence in the record to connect the investigation—either its
initiation or its results—to his protected activity. In turn, Wiest
“has produced no evidence casting doubt on the integrity of the
investigation” and there is no genuine issue of material fact
casting doubt on Tyco’s affirmative defense. See Hemphill v.
Celanese Corp., 430 F. App’x 341, 345 (5th Cir. 2011).
V. CONCLUSION
10
We are aware that Tyco has a handbook which provides that it
follows “traditional notions of progressive discipline when
possible.” (App. 848). But the handbook goes on to state that
“management reserves the right to discipline or terminate
employees without resorting to prior disciplinary measures.” Id.
28
For the foregoing reasons, we will affirm the District
Court’s order for summary judgment entered April 13, 2015.
29