Investigation Insulates Employer Against Sarbanes-Oxley Retaliation Claim

| Zuckerman Spaeder Team

An employee who has blown the whistle on wrongdoing is not immune from discipline or termination simply because she has engaged in protected activity.

The Third Circuit’s recent decision in Wiest v. Tyco Electronics provides a good example of how an employer can terminate an employee without legal repercussions, even when it is undisputed that the employee was protected against whistleblower retaliation.

The plaintiff in the case, Jeffrey Wiest, was an accounts payable manager for Tyco. In the summer of 2008, he requested information about the expenses for two company meetings, one in the Bahamas and one at the Wintergreen Resort in Virginia.

After Tyco fired Wiest in 2010, he alleged that Tyco had retaliated against him for making these requests. His case was initially dismissed on the ground that he had not alleged protected activity, but—as we discussed in this 2013 post—the Third Circuit reversed, holding that the district court had applied the wrong legal standard.

The trial court then granted summary judgment to Tyco, ruling that Wiest did not have sufficient evidence to persuade a jury that his alleged protected activity contributed to Tyco’s decision to terminate his employment. Wiest appealed, and in early February 2016, the Third Circuit affirmed.

The issue of whether Wiest had engaged in protected activity was not on the table in the case—both parties and the court assumed for purposes of argument that he had. Instead, the questions were whether (1) Wiest had suffered an adverse employment action to which his protected activity was a contributing factor and (2) whether, if so, Tyco would have taken the same action in the absence of any protected behavior.

In our next post on this case, we’ll discuss the court’s analysis of the first question—whether Wiest’s protected activity contributed to Tyco’s adverse actions against him. But in this post, we address the court’s conclusion that Tyco “amply … demonstrated that it would have taken the same action in the absence of any protected behavior.”

How did Tyco make this demonstration?

It offered evidence that it investigated Wiest in fall 2009 regarding complaints that he had made inappropriate comments to female employees. The women, who were not aware of his whistleblowing, said that they felt “trapped” when he approached them, and that they created a “Jeff Alert” to warn the others when he was coming by. (As an aside, Wiest’s wife was also a plaintiff in the case, which might have been an uncomfortable dynamic given these comments.)

The human resources director who conducted the investigation—and had no knowledge of his alleged protected activity—concluded that termination was appropriate. The court confirmed that it was not its role to “second-guess a human resources decision that followed a thorough investigation”; that the investigation had found “ample support for th[e] complaints”; and Wiest had identified no record evidence to connect the investigation and its results to his protected activity.

Thus, there was no issue of fact casting doubt on Tyco’s defense that it would have terminated Wiest regardless of whether he engaged in protected activity.

It’s also worth noting that Wiest only argued that “termination was an unreasonably harsh punishment, and, but for his protected activity, he would have received a more lenient reprimand.” So it appears that even Wiest conceded he did something wrong, although he disagreed about the magnitude of his offenses.

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