Hall v. Teva Pharm. USA, Inc.

214 F.Supp.3d 1281

Keisha HALL, Plaintiff,

v.TEVA PHARMACEUTICAL USA, INC., Defendant.

Case No. 15-cv-61536-BLOOM/Valle

United States District Court, S.D. Florida.

Signed September 30, 2016

Ryan C. Brenton, Brenton Legal PA, Jaclyn Sara Clark, Karen Coolman Amlong, William Robert Amlong, Amlong, Amlong, PA, Fort Lauderdale, FL, for Plaintiff.

Benjamin K. Jacobs, Morgan, Lewis & Bockius, LLP, Philadelphia, PA, Carol Ann Field, Sharon Ann Lisitzky, Morgan, Lewis & Bockius LLP, Miami, FL, Lauren E. Marzullo, Sarah E. Bouchard, Morgan, Lewis & Bockius, LLP, Pittsburgh, PA, for Defendant.

ORDER ON SUMMARY JUDGMENT

BETH BLOOM, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court upon Defendant Teva Pharmaceutical USA, Inc.'s ("Defendant" of "Teva") Motion for Summary Judgment, ECF No. [66], seeking summary judgment in its favor on each of Plaintiff Keisha Hall's ("Plaintiff") claims. See Compl., ECF No. [1]. The Court has carefully reviewed the Motion, all supporting and opposing submissions, the record in this case, and applicable law. For the reasons set forth below, the Motion is granted.

I. BACKGROUND

Plaintiff filed this action on July 28, 2015, alleging violations of the Dodd-Frank Wall Street Reform and Consumer Protection Act, 15 U.S.C. §§ 78u–6 ("Dodd-Frank Act") (Count I), the Family and Medical Leave Act, 29 U.S.C. § 2615 ("FMLA") (Count II), and Florida's private-sector whistle-blower's act, Fla. Stat. § 448.101 et seq. ("FWA") (Count III). Plaintiff was employed by Defendant, a leading manufacturer of generic medicines worldwide, from August 2008 to November 25, 2014. Defendant's Statement of Undisputed Material Facts, ECF No. [67] ("Def. SOF") ¶ 1-2. Defendant initially hired Plaintiff as Manager of Internal Controls supporting its Latin America business region. Id. ¶ 8. For most of the time she was in that role, Plaintiff reported to the Chief Financial Officer for Latin America, Salvador Torralbas. Id. ¶ 9. Plaintiff and Mr. Torralbas had a "very good" relationship, and he confided in Plaintiff when Mr. Torralbas thought his job was in jeopardy following his employer's investigation prompted by several complaints against him. Id. ; Torralbas Dep., ECF No. [68-6] at 12, 15-16; Plaintiff's Response to Defendant's Statement of Undisputed Material Facts, ECF No. [73] ("Pl. SOF") ¶ 77. Mr. Torralbas is also the individual whom Plaintiff alleges she assisted in reporting certain concerns to Teva Management. Def. SOF ¶ 9 (citing Compl. ¶¶ 14, 18). Mr. Torralbas ultimately took an early retirement in September 2014, but continued as a Teva employee through December 2014. Although the ultimate decision to leave was his, Mr. Torralbas testified that he believed he was forced out. Pl. SOF 79; Torralbas Dep., ECF No. [74-5] at 42.

From January 2011 to May 2011, Plaintiff reported to Diana Borges, the new Regional Compliance Officer for Latin America. Id. ¶ 10; Pl. SOF ¶ 61. According to Plaintiff, in May 2011 she complained to Ms. Borges' boss, Global Compliance Officer Michael Dearborn, that the Latin America region lacked monitoring because of changes implemented by Ms. Borges. Plaintiff also states that she reported these concerns to Mr. Torralbas and Teva's external auditors. Pl. SOF ¶¶ 61-62. Plaintiff and Ms. Borges were apparently "oil and water" and, according to Plaintiff, following Plaintiff's complaints, Ms. Borges tried to fire Plaintiff. Mr. Torralbas, however, created a position for Plaintiff with financial compliance and internal control responsibilities in the Shared Service Center ("SSC"). Id. ¶ 63; Def. SOF ¶10 ("Plaintiff did not like working for Ms. Borges, so, in May 2011, Mr. Torralbas offered Plaintiff the opportunity to transfer back to a position under him in Teva's Finance Shared Services Center...."). Plaintiff's duties starting in May 2011 included developing "SOX test plans" and executing SOX compliance activities, supporting investigations, especially those related to fraud or FCPA allegations, assisting management with the implementation of internal audit recommendations, and monitoring documentation of payments to vendors. Id. ¶ 12. Part of Plaintiff's role was to "highlight the deficiencies that [she] saw or the things that were happening in the compliance area." Id. (quoting Pl. Dep., ECF No. [68-1] at 298). In November 2013, Plaintiff was promoted to Associate Director, Finance for the Latin America Region, and received a corresponding pay increase. Id. ¶ 13. Plaintiff took FMLA leave in 2010 without incident when she had her first child. Plaintiff again took FMLA leave when her second child was born in July 2014. Id. ¶ 14.

On June 30, 2014, Teva's Office of Business Integrity ("OBI") hotline, through which Teva employees may report misconduct anonymously, received an anonymous complaint alleging that "Keisha Hall has been running her own event planning business out of the Teva offices by using company resources to accomplish her personal objectives." Id. ¶ 17; Pl. SOF ¶ 17 ("Not disputed."). The complaint alleged that Plaintiff had used Teva's resources, including its email system and printers to accomplish tasks related to her personal outside business, and that she had used other Teva employees to help with these tasks. Def. SOF ¶ 18; Pl. SOF ¶ 18 ("Not disputed."). Plaintiff suspects that the complaint, though made anonymously, was made by an employee who worked directly under Plaintiff because she was angry that Plaintiff did not promote her and asked her to work late. Def. SOF ¶ 19; Pl. SOF ¶ 19 ("Not disputed.").

OBI Investigator Michael Rahill conducted an investigation of the hotline complaint, which showed the following:

• Plaintiff owned/or was an agent of at least two outside businesses, Vale Vibe and Jewel Miami, LLC ("Jewel Miami") in the event-planning field. Plaintiff was also involved in several non-Teva-related activities about which she communicated using her Teva email account, including a clothing company and a community organization called the Miami Women's Club.

• Plaintiff sent or received hundreds of emails during certain months from her Teva email account related to her personal businesses, including Jewel Miami.

• At least one of Jewel Miami's vendors sent Plaintiff a contract to her Teva email account that listed Teva as a party to the contract. Plaintiff agrees that communicating with the vendor from her Teva email confused the vendor and caused the vendor to think Teva would be a party to the contract. A separate Jewel Miami vendor sent Plaintiff an invoice to her Teva email account that listed Teva as a party to be billed through Plaintiff.

• Plaintiff used Teva's printers, scanners, and computer processing capabilities for her outside activities, and used Teva employees to assist with tasks such as making labels and printing color copies of large spreadsheets.

• Plaintiff admits she sent confidential Teva documents to her mother.

Def. SOF ¶ 20; Pl. SOF ¶ 20 ("Not disputed."). At the same time Plaintiff was running Jewel Miami, she was telling Teva management that her SSC group was short-staffed and needed additional employees. Def. SOF ¶ 25; Pl. SOF ¶ 25 ("Not disputed."). Mr. Torralbas was not aware of her outside business activities during her employment. Def. SOF ¶ 26; Pl. SOF ¶ 26 ("Not disputed.").

Defendant waited until after Plaintiff had returned from maternity leave in November 2014 to interview her about the OBI investigation. Def. SOF ¶ 27. On November 26, 2014, Mr. Rahill and Human Resources Director, Pamela Daknis, interviewed Plaintiff. Def SOF ¶ 28. They also informed Plaintiff that they would need to take her laptop for the investigation and that she would be placed on administrative paid leave. Id. ¶ 29. Mr. Rahill found a large amount of personal data on Plaintiff's laptop, including invoices, contracts, and notes related to Jewel Miami and Vale Vibe. Id. ¶ 30. Ultimately, Jennifer Flaisher, VP of Human Resources recommended termination because Plaintiff's conduct violated the Electronic Communications Policy ("ECP"). Deborah Griffin, Teva's Chief Accounting Officer, adopted and approved the recommendation. Id. ¶ 31. Ms. Flaisher testified that she met or spoke with Michael Dearborn, Ms. Daknis, Mr. Rahill, and his boss, Katherine Veit, who runs the OBI hotline, as well as with certain individuals from the legal department, including Thomas McDonough and John Pease. Flaisher Dep., ECF No. [74-1] at 39-41. Ms. Flaisher further stated that she "made the recommendation with input from [Ms. Veit] and [Mr. Dearborn], of course, and [Mr. McDonald]." Id. at 44.

On October 20, 2014, while still out on maternity leave, Plaintiff applied for a newly created position, Financial Compliance Director, prompting Ms. Griffin to state in an email to Ms. Flaisher "OMG," short for "Oh, my God." Pl. SOF ¶ 85; Ex. 22, ECF No. [74-22]; Griffin Dep., ECF No. [74-2] at 53 ("A. Not my finest professional moment, but I knew it would be complicated to have an employee apply for a position when they're under investigation. And this one, it was even further complicated, the fact that she was out on maternity leave."). At that time, Ms. Griffin was aware of the OBI investigation, but it had not yet been completed. Ms. Griffin, in connection with Ms. Flaisher, decided not to interview Plaintiff until the conclusion of the investigation, and decided to cancel Plaintiff's candidacy for the position once the investigation was substantially complete. Def. SOF ¶ 35.

Plaintiff alleges that she participated in several activities protected under the Dodd-Frank Act and the FWA while employed at Teva. In November 2011, Mr. Torralbas drafted a memorandum (the "2011 SOX Memo") to Mr. Dearborn, Teva's Chief Compliance Officer, about recommendations to improve Latin American internal controls. Plaintiff and another SSC employee, Mario Rodriguez, assisted in drafting the Memo, although neither of their names appear on it. Id. ¶ 37; Pl. SOF ¶¶ 37, 64. Mr. Torralbas testified that he ...