Bogenschneider v. Kimberly Clark Global Sales, LLC

BRET N. BOGENSCHNEIDER, Plaintiff, v. KIMBERLY CLARK GLOBAL SALES, LLC, Defendant.

14-cv-743-bbc

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

June 29, 2015

OPINION and ORDER

Pro se plaintiff Bret Bogenscheider was employed as a tax lawyer for defendant Kimberly Clark Global Sales, LLC from 2007 until 2012. He is proceeding in this court on a claim that defendant retaliated against him in various ways after he reported what he says was defendant's tax fraud, in violation of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A. In his complaint, plaintiff lists three "counts" of alleged retaliation by defendant: (1) "retaliatory termination for cause"; (2) "blacklisting" through various defamatory statements made in the context of a lawsuit filed in state court; and (3) "harassment" by disclosing confidential information in the context of the same lawsuit. (Plaintiff also says that defendant filed a counterclaim in the state court law suit to retaliate against plaintiff, but I dismissed that claim as untimely in a previous order. Dkt. #38.)

Plaintiff has filed a motion for summary judgment, dkt. #28, which is ready for review. In its opposition materials, defendant argues that plaintiff is not entitled tosummary judgment and that judgment should be entered in its favor for multiple reasons. First, defendant says that none of the actions challenged by plaintiff qualify as retaliation under § 1514A. Second, defendant says that plaintiff has failed to adduce evidence that defendant took any of the alleged actions because of plaintiff's report of tax fraud. Finally, with respect to defendant's alleged retaliatory conduct in the state court lawsuit, defendant says that it is entitled to a "litigation privilege."

I agree with defendant that the undisputed facts show that plaintiff agreed to the terms of his departure from Kimberly Clark and he was not "terminated for cause" as he says, so he cannot rely on that issue to show retaliation. In addition, I conclude that plaintiff has not adduced any evidence of retaliatory intent and that, even if he had, all of the conduct at issue occurred in the context of a state court lawsuit, so defendant is entitled to assert a litigation privilege, in accordance with Steffes v. Stepan Co., 144 F.3d 1070 (7th Cir. 1998).

Although defendant did not file its own motion for summary judgment, "[d]istrict courts have the authority to enter summary judgment sua sponte as long as the losing party was on notice that it had to come forward with all its evidence." Ellis v. DHL Exp. Inc. (USA), 633 F.3d 522, 529 (7th Cir. 2011). In this case, plaintiff discussed in his opening brief all of the grounds argued by defendant for entering judgment in its favor, so I conclude that he had fair notice. Further, defendant requested summary judgment in its opposition brief, but plaintiff did not argue in his reply brief that any of defendant's arguments caught him off guard or that he needs additional discovery. Accordingly, I am denying plaintiff'smotion for summary judgment and entering judgment in favor of defendant.

OPINION

Under 18 U.S.C. § 1514A, "[n]o [public] company . . . may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee" that is protected under the statute. The Court of Appeals for the Seventh Circuit has stated that a claim under § 1514A has four elements: (1) the plaintiff engaged in protected activity; (2) the employer knew that the plaintiff engaged in the protected activity; (3) the plaintiff suffered an "unfavorable personnel action"; and (4) the protected activity was a "contributing factor" in the unfavorable action. Harp v. Charter Communications, Inc., 558 F.3d 722, 723 (7th Cir. 2009).

Defendant does not deny that plaintiff's report of alleged tax fraud is protected activity or that defendant was aware of that activity, so I do not need to consider the first two elements. Instead, defendant argues that plaintiff did not suffer an unfavorable personnel action and that he has not adduced any evidence that plaintiff's protected activity was a contributing factor in any of the alleged retaliatory actions. In addition, defendant says that it is entitled to assert a litigation privilege because the conduct at issue occurred in the context of a lawsuit. I will consider each of these arguments in turn.

The first question is whether plaintiff's termination qualifies as an unfavorable personnel action. As a general matter, it does. Under § 1514A, "discharge" is one of theactions covered expressly by the statute. However, defendant says that this case is different because it is undisputed that plaintiff left defendant's employment under a separation agreement. Dkt. #32-12, Separation Agreement and Full and Final Release of Claims ("Mr. Bogenschneider and K-C have agreed to end their employment relationship on May 7, 2012."). Under the agreement, plaintiff was "released from his regular duties" in May 2010, but defendant continued to pay plaintiff his salary until May 7, 2012. Id. at ¶ 2.a. At that time, plaintiff could choose to resign or be terminated "due to a restructuring." Id. at ¶ 2.d. When plaintiff did not submit a resignation, defendant terminated him.

I agree with defendant that it would make no sense to characterize a mutual decision as an "unfavorable personnel action." Simpson v. Borg-Warner Automotive, Inc., 196 F.3d 873 (7th Cir.1999) (voluntary demotion not adverse employment action). Plaintiff does not allege that defendant coerced him in any way into signing the separation agreement and he does not otherwise argue that the agreement is invalid.

I understand plaintiff's position to be that his termination was unfavorable because it was actually "for cause" rather than simply because his employment ended under the agreement. As a general matter, I agree with plaintiff that the reason provided by the employer for the termination could be important because it could have consequences for the employee's reputation and future employment. However, the reason for plaintiff's termination is provided in the agreement itself: "If [plaintiff] declines to submit his resignation [by May 7, 2012], then [defendant] will involuntarily terminate him due to a restructuring."

Plaintiff says that defendant did not actually terminate him as part of a restructuring. In support, he cites a document that he says is an "organization chart for [defendant's] tax department." Plt.'s Br., dkt. #29, at 13. However, plaintiff does not explain how the document shows that no restructuring occurred. Even if it did show what plaintiff believes it does, it is not clear how the document could support plaintiff's retaliation claim. If defendant had concerns with plaintiff's performance, but it allowed plaintiff to leave the company voluntarily through the separation agreement, that would help plaintiff's future prospects, not hurt them. Plaintiff cannot argue successfully that defendant harmed him by giving him an opportunity to save face.

Plaintiff cites no evidence that defendant characterized his termination at the time as related to his performance. Why would it? The agreement states that plaintiff's employment with defendant would end on May 7, 2012, so that is when it ended. It was unnecessary for defendant to justify its decision or take any other action.

Plaintiff cites statements made after plaintiff's termination in which defendant's representatives allegedly stated that plaintiff had been fired for poor performance. This argument merges with plaintiff's claim about "blacklisting," in which he relies on the same statements to argue that defendant tried to interfere with his future employment. Accordingly, I will turn to that claim.

The parties start off on the wrong foot by debating the meaning of "blacklisting," citing cases, statutes and dictionaries. That is not helpful because §1514A does not use the term "blacklisting." As noted above, § 1514A prohibits an employer from "discriminat[ing]against an employee in the terms and conditions of employment" because of the employee's protected conduct. Because of the limitation to the "terms and conditions of employment," I questioned in a previous order whether any actions taken after an employee's termination are covered by the statute. Dkt. #38 at 2. Neither side challenges the decisions in which the Department of Labor has concluded that § 1514A prohibits "blacklisting or other active interference with subsequent employment," Harvey v. The Home Depot, Inc., 2004 WL 5840284, *3 (U.S. Dept. of Labor SAROX 2004), so I will not consider that issue further. However, even if I assume that § 1514A may cover postemployment conduct, it is not useful to engage in a debate over the meaning of a word that does not appear in the text of the statute. The question is not whether defendant's conduct meets a particular definition of "blacklisting," but whether "the challenged action [is] one that a reasonable employee would find to be materially adverse such that the employee would be dissuaded from engaging in the protected activity." Roney v. Illinois Dept. of Transportation, 474 F.3d 455, 461 (7th Cir. 2007) (citing Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 62 (2006)). That is the standard that courts have applied in both statutory and constitutional retaliation claims. Santana v. Cook County Board of Review, 679 F.3d 614, 622-23 (7th Cir. 2012) (First Amendment); Barton v. Zimmer, Inc., 662 F.3d 448, 456 (7th Cir. 2011) (Age Discrimination in Employment Act); Chapin v. Fort-Rohr Motors, Inc., 621 F.3d 673, 677-78 (7th Cir. 2010); Jones v. Metropolitan School District of Decatur Township, 905 F. Supp. 2d 923, 932 (S.D. Ind. 2012) (Americans with Disabilities Act).

All of the statements plaintiff cites in support of his retaliation claim occurred in thecontext of litigation. First, he cites...