Flear v. Glacier Garlock , 159 F. App'x 390 ( 2005 )


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  •                                                                                                                            Opinions of the United
    2005 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    12-16-2005
    Flear v. Glacier Garlock
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 04-2994
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    Recommended Citation
    "Flear v. Glacier Garlock" (2005). 2005 Decisions. Paper 102.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2005/102
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 04-2994
    JOHN FLEAR,
    Appellant
    v.
    GLACIER GARLOCK BEARINGS,
    a division of ENPRO INDUSTRIES, INC.
    _______________
    Appeal from the United States District Court
    for the District of New Jersey
    (D.C. No. 02-cv-04238 )
    District Judge: Honorable Freda L. Wolfson
    Argued on June 28, 2005
    Before: ROTH, RENDELL and BARRY, Circuit Judges
    (Opinion filed: December 16, 2005)
    Bruce L. Harrison, Esquire (Argued
    Capehart & Scatchard
    8000 Midlantic Drive
    Laurel Corporate Center, Suite 300
    Mount Laurel, NJ 08054
    Counsel for Appellee
    Alan B. Epstein, Esquire (Argued)
    Michael S. Friedman, Esquire
    Nancy Abrams, Esquire
    Spector, Gadon & Rosen
    1635 Market Street
    Seven Penn Center, 7th Floor
    Philadelphia, PA 19103
    Counsel for Appellant
    OPINION
    ROTH, Circuit Judge:
    John Flear appeals the District Court’s grant of summary judgment against him.
    Flear brought suit, alleging that the termination of his employment with Defendant
    Glacier Garlock Bearings violated the New Jersey Conscientious Employee Protection
    Act (CEPA), N.J.S.A. 34:19-1 et seq. For the reasons stated below, we will affirm the
    judgment of the District Court.
    I.     Jurisdiction and Standard of Review
    The District Court had diversity jurisdiction under 
    28 U.S.C. § 1332
    . We have
    appellate jurisdiction pursuant to 
    28 U.S.C. § 1291
    .
    We exercise plenary review over the District Court's grant of summary judgment.
    Doe v. Cty. of Centre, Pa., 
    242 F.3d 437
    , 446 (3d Cir. 2001). A grant of summary
    judgment is appropriate where the moving party has established that there is no genuine
    dispute of material fact and “the moving party is entitled to judgment as a matter of law.”
    2
    Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 322 (1986) (citing Fed. R. Civ. P. 56(c)). On a
    motion for summary judgment, we must view the facts in the light most favorable to the
    non-moving party and must make all reasonable inferences in that party's favor. See
    Marzano v. Computer Sci. Corp., 
    91 F.3d 497
    , 501 (3d Cir. 1996).
    II.    Summary Judgment
    As the facts of this case are thoroughly described in the District Court’s opinion,
    we will only briefly summarize them here. Flear was Garlock’s environmental, safety
    and health (EHS) engineer from 1994 to 2001, when he was terminated. During his years
    at Garlock, Flear submitted numerous reports and notices to his supervisors that
    demonstrated his concerns over various EHS compliance issues at Garlock. In 2001,
    Flear filed a complaint with the Occupational Safety and Health Administration (OSHA)
    regarding some of these issues. Ultimately, after a strained relationship with his employer
    over Flear’s complaints and performance problems by Flear in his job responsibilities,
    Flear was terminated. Flear then brought this suit, claiming that he was terminated in
    retaliation for his complaints regarding EHS compliance, in violation of CEPA. Garlock
    argues that Flear was terminated due to his poor work performance.
    In order to establish a prima facie case under CEPA, an employee must establish
    that (1) he reasonably believed that his employer’s conduct was violating the law, (2) he
    performed “whistle-blowing” activity as defined in the statute, (3) an adverse
    employment action was taken against him, and (4) a causal connection exists between the
    whistle-blowing activity and the adverse employment action. Blackburn v. United Parcel
    3
    Service, Inc., 
    179 F.3d 81
    , 92 (3d Cir. 1999). With respect to the first prong of this test,
    the employee must show that the evidence supports an objectively reasonable belief that a
    violation has occurred. Dzwonar v. McDevitt, 
    828 A.2d 893
    , 901 (N.J. 2003).
    If an employee can establish a prima facie case, the burden shifts to the employer
    to provide a legitimate, nondiscriminatory reason for the termination. Woodson v. Scott
    Paper Co., 
    109 F.3d 913
    , 920 (3d Cir. 1997). If the employer can make such a showing,
    then the employee must establish that the proffered reason is pretextual and that
    retaliation for whistle-blowing was the real reason for termination. Blackburn, 
    179 F.3d at 92
    .
    A.     Prima Facie Case
    Flear fails to satisfy his burden of demonstrating that there is an issue of material
    fact as to his prima facie case. We agree with the District Court that Flear fails to show
    that he can satisfy the first and fourth prongs of his prima facie case.
    In order to show that he had an objectively reasonable belief that Garlock had
    violated the law, Flear must show a “substantial nexus” between the conduct he
    complained of and the law he identifies as being violated. Dzwonar, 828 A.2d at 901.
    Flear cannot do so here because the evidence shows that Flear was basing his complaints
    on standards that were higher than those imposed by law. Flear has admitted that OSHA
    did not cite Garlock for items included in Flear’s complaints. The record also reflects that
    the citations Garlock did receive from OSHA were resolved and that the OSHA
    inspectors were complimentary to Flear and his colleagues. Further, Flear also admitted
    4
    that items that he complained of were not illegal, but simply were not in accordance with
    Flear’s view of best practices. Finally, Flear admitted that his perception of compliance
    with EHS standards was different from the compliance standards implemented by OSHA.
    As Flear himself admits, the items he complained of were not actually violations of the
    law or OSHA’s regulations. Thus, he could not have had an objectively reasonable belief
    that Garlock was violating the law. The District Court was correct in concluding that
    Flear had not shown any issues of fact with regard to the first prong of his prima facie
    case.
    The District Court also correctly concluded that there were no issues of fact as to
    the fourth prong of Flear’s prima facie case. Flear did not show a connection between his
    “whistle-blowing” activity and his termination. The record clearly reflects that Flear did
    not follow the directions of his managers. When management requested that Flear
    provide documentation in support of his allegations, Flear refused to do so.
    Further, there were failures in Flear’s performance, unrelated to his complaints
    regarding EHS compliance. Flear failed to timely submit a report for which he was
    responsible and did not complete elements of Garlock’s EHS program, which were his
    responsibility. As the District Court noted, there is no merit in Flear’s argument that
    temporal proximity between his complaints and his termination establishes a sufficient
    connection. In fact, Flear was not terminated for two months after he notified
    management that he was contacting OSHA. Flear has demonstrated no issue of fact
    regarding the connection between his “whistle-blowing” activities and his termination.
    5
    Thus, we agree with the District Court’s conclusion that Flear has not upheld his burden
    and that there is no issue of fact regarding his prima facie case.
    B.     Pretext
    We also agree with the District Court’s conclusion that, even if Flear had
    demonstrated a prima facie case, he has not shown that Garlock’s reasons for termination
    were pretextual. The record clearly reflects that Garlock had legitimate,
    nondiscriminatory reasons for terminating Flear. As discussed above, Flear had ongoing
    problems with his superiors, including a failure to perform specific responsibilities of his
    position. There are no inconsistencies or contradictions in the record regarding these
    failures. Thus, the District Court was correct in concluding that Flear did not provide
    evidence that would allow a fact finder to infer that Garlock’s reasons for terminating
    Flear were pretextual.
    III.   Conclusion
    For the reasons stated above, we will affirm the District Court’s grant of summary
    judgment for Garlock.
    6