Wiest v. Tyco Elecs. Corp.

• Decision Date: 02 February 2016
• Docket Number: No. 15–2034.,15–2034.
• Citation: 812 F.3d 319
• Parties: Jeffrey A. WIEST; Laura E. Wiest, His Wife, Appellants v. TYCO ELECTRONICS CORPORATION.
• Court: U.S. Court of Appeals — Third Circuit

812 F.3d 319

Jeffrey A. WIEST; Laura E. Wiest, His Wife, Appellants

v.TYCO ELECTRONICS CORPORATION.

No. 15–2034.

United States Court of Appeals, Third Circuit.

Submitted under Third Circuit L.A.R. 34.1a Dec. 11, 2015.

Filed: Feb. 2, 2016.

Richard C. Angino, Esq., Angino & Lutz, Harrisburg, PA, Attorneys for Appellants.

Peter O. Hughes, Esq., Brian D. Lee, Esq., Ryan T. Warden, Esq., Ogletree, Deakins, Nash, Smoak and Stewart, Morristown, N.J., Attorneys for Appellee.

BEFORE: FUENTES, CHAGARES, and GREENBERG, Circuit Judges.

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. 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 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 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 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, 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.

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...