In Wiest v. Tyco Electronics Corp., the Third Circuit Further Clarifies a Plaintiff’s Prima Facie Burden for a Retaliation Claim under SOX

By Gerald T. Hathaway and Dennis M. Mulgrew, Jr.

Wiest v. Tyco Electronics Corp., a case that has been closely watched by Sarbanes-Oxley (“SOX”) practitioners, may have finally come to a close after nearly six years of litigation. In its decision (click here to view), the Third Circuit affirmed the District Court’s granting of summary judgment for Tyco, and provided additional clarification on what a plaintiff must do to make out a prima facie retaliation claim under SOX.

Tyco asserted that it fired Plaintiff Jeffrey Wiest in 2008 for inappropriate sexual relations with two female co-workers and sexual harassment. He then brought suit under SOX, alleging that Tyco terminated him for raising concerns to his managers about excessive corporate expenditures.

The case has twice been on appeal to the Third Circuit. In 2010, Tyco successfully moved to dismiss Wiest’s complaint on the basis that his complaints did not amount to “protected activity” under SOX. Upon appeal, the Third Circuit reversed and remanded, adopting the worker-friendly standard that an employee engages in “protected activity” where he has a “reasonable belief” that the employer has violated or may violate the law or SEC rules (rejecting the standard, announced and later abandoned by the DOL’s Administrative Review Board, that the complaint must “definitively and specifically” relate to an existing violation of a particular anti-fraud law).

After remand, Tyco was eventually granted summary judgment on the basis that Wiest’s complaints were not a “contributing factor” in his termination. Wiest again appealed to the Third Circuit, which affirmed, and in the process adopted the standard of several other Circuits that a “contributing factor” was “any factor, which alone or in combination with other factors, tends to affect in any way the outcome of the decision.”

The “contributing factor” standard is a relatively low bar, specifically when compared to the causation standard for retaliation claims under some other statutes. Under Title VII, for example, an employee must establish that his protected activity was a “but-for” cause of the adverse action. See Univ. of Texas Southwestern Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2521 (2013) (“Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.”). Nonetheless, the Third Circuit had no trouble finding that Wiest was unable to meet his burden, noting that there was a ten-month gap between Wiest’s alleged protected activity and the adverse action; that he received praise and commendations in the interim; that the persons who initiated the investigations into Wiest’s inappropriate behavior had no knowledge of his protected activity; and that other persons in the accounting department who were involved (or more involved) in the same activity as Wiest did not receive any negative treatment.

Further, the Court also held that, even if Wiest were able to establish a prima facie case, his claim would have failed regardless. An employer may still rely on the defense that it would have taken the adverse action in the absence of protected activity, and the Court held that “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 [into his inappropriate activity] conducted by its human resources director.”

The Wiest decision is useful guidance for employers defending against SOX retaliation claims, as it outlines potential arguments (concerning the temporal relationship between the protected activity and adverse action, intervening events, and the thoroughness of internal investigations) that may be used to defeat an inference of causation or to establish the affirmative defense that the adverse action would have occurred regardless.

Defending and Preventing Employment Litigation – 2014 Edition

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Taylor v. Nabors Drilling and California’s SB 292 Clarify that Sexual Harassment Need Not Be Motivated by Sexual Desire

By: Saba Shatara

On January 13, 2014, the California Court of Appeal decided in Taylor v. Nabors Drilling USA, L.P., 222 Cal. App. 4th 1228 (2014), that a person may maintain an action for sexual harassment when subjected to verbal attacks on his or her heterosexual identity, regardless of whether the attacks were motivated by sexual desire.  This ruling came soon after the implementation of SB 292, which became effective in California on January 1, 2014.  This bill revised the definition of sexual harassment under California Fair Employment and Housing Act (“FEHA”) to specify that sexually harassing conduct “need not be motivated by sexual desire.”  As a result, to prove harassment “because of sex,” plaintiffs need only show that there was evidence that gender was a substantial factor in the harassment. 

Both Taylor and SB 292 explicitly reject the view adopted by the California Court of Appeal in Kelley v. Conco Companies, 196 Cal. App. 4th 191 (2011), which held that a plaintiff failed to prove sexual intent because there was no evidence that heterosexual harassers sexually desired the male plaintiff.  The court made this decision despite the fact that the defendant and coworkers in Kelley used “graphic, vulgar, and sexually explicit” language to express sexual interest and solicit sexual activity from the plaintiff.

Taylor and SB 292 resolve any ambiguity created by the Kelley decision, and make clear that a showing of sexual desire is not an essential element of a claim of sexual harassment—thereby affirming and solidifying California authority published before Kelley.  Thus, it is clear that a plaintiff may establish an inference that an alleged harasser’s conduct is sexual by producing: (1) evidence of the alleged harasser’s sexual desire; (2) evidence that the alleged harasser is motivated by general hostility towards the particular gender of which plaintiff is a member; or (3) comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.  

These developments in California sexual harassment law have important consequences for employers.  To avoid a greater occurrence of suits, employers must now scrutinize offensive comments by same-sex employees objectively, based on the content of the remarks, not the intent of the speaker.  Employers can minimize liability through adequate complaint protocols, instituting zero tolerance policies, and encouraging employees to report any inappropriate workplace behaviors.  These actions may prevent alleged harassing conduct from being deemed sufficiently severe or pervasive.  Employers should also stress that bullying, such as the use of homophobic epithets to heterosexual employees (Taylor), subjects the employer to liability.  Accordingly, employers should update their policies and handbooks to reflect the change, as well as provide employees relevant information and a copy of the updated policy.  Lastly, employers may consider additional training for supervisors or issuing a memo, advising them of SB 292 and their responsibilities to administer policies in conformity with the new law.

Bill Horwitz Article Published in New York Law Journal

An article by Florham Park counsel Bill Horwitz titled, “Second Circuit Adopts New Standard Involving Harassment by Non-Employees,” was published in the New York Law Journal.

Bill discussed the case of Summa v. Hofstra University, in which the U.S. Court of Appeals for the Second Circuit addressed the question of whether an employer is liable when non-employees harass its personnel and adopted a standard for answering it.

The case involved claims of sexual harassment and retaliation by a former part-time manager of Hofstra University’s football team, a graduate student named Lauren Summa. Bill says the decision, however, has implications “beyond the world of college sports and applies to harassing conduct by vendors, customers and other third parties.”

The Second Circuit held that Summa could not pursue her sexual harassment claims against the university because it promptly responded to her complaints about football players’ conduct and took appropriate remedial action. The court, however, allowed her retaliation claim to continue because Summa provided sufficient proof that her complaints about the football team influenced the university’s decision to ultimately terminate her employment.

Bill says the decision “serves as a reminder to employers that: (1) ensuring that employees do not engage in inappropriate conduct will not necessarily shield an employer from civil liability for harassment; and (2) preventing retaliation against an employee who complains about harassment may be as important as preventing harassment in the first place.”

William Horwitz Authors Articles for New Jersey Law Journal and BNA’s Corporate Counsel Weekly

William Horwtiz, counsel in the Labor & Employment practice group, recently authored articles for both the New Jersey Law Journal and BNA’s Corporate Counsel Weekly.

William’s article for the New Jersey Law Journal titled, “Third Circuit Rides the Class-Action Arbitration Waive”, discusses the case of Quilloin v. Tenet HealthSystem Philadelphia, in which the Third Circuit, following the U.S. Supreme Court’s lead and its own precedent, endorsed the validity of class-action waivers in predispute employment arbitration agreements.  Bill outlines the facts of the case and the court’s reasoning and says that the case offers helpful guidance for employers rolling out new arbitration agreements and employers with existing agreements.  He also notes that Quilloin holds that class-action waivers are en­forceable and employers should consider including them in arbitration agree­ments, adding that employers should also “include a provision requiring the parties to submit arbitrability issues to the arbitrator.”

William’s article for BNA’s Corporate Counsel Weekly, “In Case Involving Employer’s Poor Handling of Sexual Harassment Allegation, Second Circuit Resolves Two Novel Issues”, William discusses the case of Townsend v. Benjamin Enterprises, Inc., in which the U.S. Court of Appeals for the Second Circuit resolved two issues of first impression.  In outlining the facts of the case and the court’s observations, William notes that the most important takeaway from the decision may be the important guidance for employers of how not to address sexual harassment in the workplace.

To read the complete article, “Third Circuit Rides the Class-Action Arbitration Waive”, click here.

To read the complete article,  “In Case Involving Employer’s Poor Handling of Sexual Harassment Allegation, Second Circuit Resolves Two Novel Issues”, click here.