James Kerrigan v. Otsuka America Pharmaceutical , 706 F. App'x 769 ( 2017 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 16-3218
____________
JAMES KERRIGAN,
Appellant
v.
OTSUKA AMERICA PHARMACEUTICAL, INC.;
MARK ALTMEYER
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. No. 2-12-cv-04346)
District Judge: Honorable Wendy Beetlestone
____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
April 7, 2017
Before: CHAGARES, SCIRICA, and FISHER, Circuit Judges.
(Filed: September 1, 2017)
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OPINION*
____________
FISHER, Circuit Judge.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
James Kerrigan appeals the District Court’s grant of summary judgment in favor of
his former employer, Otsuka America Pharmaceutical, Inc. (OAPI), and its President and
Chief Executive Officer, Mark Altmeyer, on his retaliation claim under the New Jersey
Conscientious Employee Protection Act (CEPA)1. We will affirm.
I.
James Kerrigan was the Senior Director of Global Marketing within OAPI’s patient
and branding strategy group. He led the branding campaign for a drug called Samsca and
was responsible for ensuring his team’s compliance with applicable pharmaceutical
marketing laws. To that end, the company’s internal procedures mandated that Kerrigan
and his team have the promotional review committee (PRC) evaluate promotional materials
before publication.
In February 2011, the company’s Chief Compliance Officer, found out that an
article about Samsca was posted on a website without prior PRC review and that the article
lacked proper disclosures. Consequently, OAPI’s legal team emailed Kerrigan and the
member of his team responsible for the company’s relationship with the website,
instructing them to remove the article.
Kerrigan reported the incident to his supervisor and recommended contacting the
Federal Drug Administration (FDA) to determine whether corrective action was needed.
In May 2011, after an internal investigation, the company reported the error to the FDA
1
N.J. Stat. Ann. § 34:19-1 et seq.
2
without consequence. However, the member of Kerrigan’s team responsible for the
relationship with the website and another employee implicated in the incident resigned in
lieu of termination. Unbeknownst to Kerrigan, the two reviewed the article before it was
published and were not forthright during the course of the company’s internal investigation.
In June 2011, Kerrigan reported a second Samsca compliance issue. Following an
investigation, OAPI self-reported the error to the FDA which, in turn, required the
company to send corrective communications to over 20,000 individuals. Kerrigan was not
disciplined following either incident.
In 2012, Kerrigan reported that during the previous year seven investigations arose
from his team, five of which resulted in the company self-reporting to the FDA. The
company spent over $600,000 investigating and addressing those issues. Leaders at OAPI
became concerned about the number and scope of compliance investigations, questioned
Kerrigan’s ability to lead his team, and agreed that a rating of “Needs Improvement” was
warranted for Kerrigan’s performance in 2011. In February 2012, Kerrigan was notified of
his negative performance review, was denied a salary increase, and had his bonus reduced.
Altmeyer explained to Kerrigan that he believed Kerrigan was placing the company at risk
by not knowing what Kerrigan’s team was doing or paying enough attention to catch
compliance issues before they occurred.
In May 2012, the company discovered that one of its affiliates, Otsuka
Pharmaceutical Europe Ltd., was using the services of a consulting firm owned by
3
Kerrigan’s wife and that Kerrigan had helped his wife secure the contract. The ensuing
investigation revealed that Kerrigan had violated various provisions of OPAI’s code of
conduct and business ethics related to disclosure of potential conflicts of interest. OAPI
immediately terminated Kerrigan’s employment.
Kerrigan filed this lawsuit under the CEPA, arguing that his negative performance
review, reduced compensation, and termination were adverse employment actions taken in
retaliation for reporting the two Samsca publishing incidents. The District Court entered
summary judgment in favor of OAPI and Altmeyer, reasoning that the timing of the key
events did not suggest retaliatory animus.2 Kerrigan brought this appeal.
II.
The District Court had jurisdiction under 28 U.S.C. § 1332(a), and we have
jurisdiction under 28 U.S.C. § 1291. “We exercise plenary review over a district court’s
order granting summary judgment and apply the same standard the district court applied.”3
We will affirm if, viewing the evidence in the light most favorable to the nonmoving party,
“there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.”4
2
2016 WL 3597609, at *4-7 (E.D. Pa. July 05, 2016).
3
Carvalho-Grevious v. Del. State Univ., 851 F.3d 249, 256 (3d Cir. 2017).
4
Fed. R. Civ. P. 56(a).
4
III.
We will affirm the District Court’s decision because Kerrigan has not adduced
evidence from which a reasonable jury could find retaliation in violation of the CEPA.
A causal connection between the adverse employment action and the protected
activity is an element of a retaliation claim under the CEPA.5 To demonstrate causation, a
plaintiff must show that the “retaliatory discrimination was more likely than not a
determinative factor in the decision”6 by establishing a factual nexus between his protected
activity under the CEPA and the alleged retaliatory conduct7 through either direct or
circumstantial evidence.8 Although temporal proximity may give rise to the requisite
inference of causation, where it is not “unusually suggestive,” we ask whether “the
proffered evidence, looked at as a whole, may suffice to raise the inference” of causation.9
Here, temporal proximity does not permit an inference of causation. Kerrigan
reported the Samsca publishing incidents in February and June 2011. He received notice
of the negative performance review and reduced compensation in February of 2012 and
was terminated in May 2012. Under our precedent, this timeline—with a gap of six-months
5
Lippman v. Ethicon, Inc., 222 N.J. 362, 380 (2015) (quoting Dzwonar v. McDevitt, 177
N.J. 451, 462 (2003)).
6
Donofry v. Autotote Sys., Inc., 795 A.2d 260, 271 (N.J. Super. Ct. App. Div. 2001).
7
Hancock v. Borough of Oaklyn, 790 A.2d 186, 194 (N.J. Super. Ct. App. Div. 2002).
8
Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 558-59 (2013).
9
Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000) (internal quotation
marks omitted).
5
to a year between the adverse employment action and the protected activity—is not
unusually suggestive to infer retaliation.10
Without an unusually suggestive temporal proximity, we ask whether the record
raises an inference of causation. It does not here. Seeking to establish retaliatory animus,
Kerrigan points to his supervisor’s testimony that Altmeyer started singling out Kerrigan
for criticism following Kerrigan’s reports. But that does not create a triable issue of fact on
causation because the record is devoid of evidence from which a reasonable jury could
conclude that Altmeyer’s attitude towards Kerrigan changed because Kerrigan reported the
Samsca publishing incidents. In his written declaration, Altmeyer explained that his
increased criticism of Kerrigan stemmed out of concerns about Kerrigan’s leadership
following the numerous compliance issues related to Samsca. Kerrigan offered no evidence
to rebut Altmeyer’s explanation, rendering it undisputed. In sum, Kerrigan has failed to
adduce evidence from which a reasonable jury could find a nexus between his alleged
protected activity and the alleged retaliatory conduct.
* * *
A reasonable jury could not find that retaliatory discrimination was more likely than
not a determinative factor for Kerrigan’s negative performance review, reduced
compensation, and termination. We will therefore affirm.
10
See LeBoon v. Lancaster Jewish Cmty. Cntr. Ass’n, 503 F.3d 217, 233 (3d Cir. 2007)
(three-months insufficient to support an inference of causation); Lichtenstein v. Univ. of
Pittsburgh Med. Ctr., 691 F.3d 294, 307 (3d Cir. 2012) (seven days sufficient).
6