Thomas v. Tyco International PLC et al

MOTION for Summary Judgment and Incorporated Memorandum of Law

S.D. Fla.November 20, 2017

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 16-80501-cv-MARRA CAROLINA THOMAS, Plaintiff, v. TYCO INTERNATIONAL MANAGEMENT COMPANY, LLC, Defendant. / DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT AND INCORPORATED MEMORANDUM OF LAW Defendant Tyco International Management Company (“Tyco”), pursuant to Fed.R.Civ.P. 56, moves for final summary judgment, and states: SUMMARY Plaintiff’s retaliation claims fail under the Florida Whistleblower Act, Sarbanes Oxley (“SOX”), and Dodd-Frank. Plaintiff complained that co-worker Alida Garcia may not have had a “CPA” when she took a job that did not even require a CPA. Plaintiff also suggested that Tyco should not change a work flow documentation process to an on-line format. Plaintiff’s suggestion was adopted and the hard copy documentation never changed. Plaintiff’s behavior was not protected conduct under the statutes. Later, Plaintiff secretly contacted universities in Columbia where Ms. Garcia had graduated. Plaintiff pretended to act on behalf of Tyco to obtain Ms. Garcia’s private educational records. Tyco learned about the incident when Ms. Garcia complained. This incident was the sole and but for reason for Plaintiff’s discharge. Plaintiff’s prior alleged protected conduct was not a factor in the decision. Plaintiff also has no evidence to show that her discharge was a pretext for unlawful retaliation, or was untrue. MEMORANDUM OF LAW A. Standard of Review Federal courts “are not in the business of adjudging whether employment decisions are prudent or fair” and are solely concerned with “whether unlawful discriminatory animus Case 9:16-cv-80501-KAM Document 64 Entered on FLSD Docket 11/20/2017 Page 1 of 21 2 motivate[d] a challenged employment decision.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir.1999.) The federal courts “do not sit as a super-personnel department that reexamines an entity’s business decisions.” Alphin v. Sears, Roebuck & Co., 940 F.2d 1497, 1501 (11th Cir.1991) (internal quotation marks omitted.) The party moving for summary judgment must demonstrate that there are no genuine issues of material fact to be decided at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986.) The non-moving party must go beyond the pleadings and “come forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e).) “To survive summary judgment, the plaintiff must present concrete evidence in the form of specific facts which show that the defendant’s proffered reason is mere pretext. Mere conclusory allegations and assertions will not suffice. The Supreme Court has held that a reason cannot be proved to be a pretext for discrimination unless it is shown both that the reason was false, and that discrimination was the real reason.” Crawford v. Chao, 158 Fed. Appx. 216, 219 (11th Cir. 2005) (emphasis added; citations omitted.) A plaintiff’s “opinions or belief, no matter how sincere” do not defeat a proper summary judgment motion. Clark v. Hancock, 45 F.R.D. 512, 514 (S.D. Ga. 1968) (citations omitted.) B. Plaintiff Fails To State A Claim Under SOX, Section 806 (Claim II) Plaintiff fails to state a claim for retaliation under SOX because she did not allege any protected activity. Plaintiff cannot show that a reasonable person in her position would have believed that the conduct complained of constituted a violation of federal securities law. Tyco can show by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of plaintiff’s complaints. Thus, Plaintiff’s claim under the whistleblower provision of SOX fails and should be dismissed. See 18 U.S.C. § 1514A(a)(1.) SOX does not follow the familiar Title VII McDonnell Douglas burden-shifting framework. Johnson v. Stein Mart, Inc., 440 Fed. Appx. 795, 801 (11th Cir. 2011) (unpublished.) Rather, in a SOX retaliation case: [A]n employee bears the initial burden of making a prima facie showing of retaliatory discrimination; the burden then shifts to the employer to rebut the employee's prima facie case by demonstrating by clear and convincing evidence Case 9:16-cv-80501-KAM Document 64 Entered on FLSD Docket 11/20/2017 Page 2 of 21 3 that the employer would have taken the same personnel action in the absence of the protected activity. Id. (citing Welch v. Chao, 536 F.3d 269, 275 (4th Cir.2008); see 18 U.S.C. § 1514A(b) (“An action brought under paragraph (1)(B) shall be governed by the legal burdens of proof set forth in section 42121(b) of title 49, United States Code.”); 49 U.S.C. § 42121(b)(ii) (“[N]o investigation otherwise required under subparagraph (A) shall be conducted if the employer demonstrates, by clear and convincing evidence, that the employer would have taken the same unfavorable personnel action in the absence of that behavior.”); see also Livingston v. Wyeth, Inc., 520 F.3d 344, 352–53 (4th Cir.2008) (setting out SOX affirmative defense standard.) To establish a prima facie showing of violation of SOX’s whistleblower provision, Plaintiff must show that: (1) she engaged in protected activity; (2) Tyco knew or suspected (actually or constructively) of the protected activity; (3) she suffered an unfavorable personnel action; and (4) the protected activity was a contributing factor in the unfavorable personnel action. See 18 U.S.C. § 1514A(a)(1); Gale v. U.S. Dep’t of Labor, 384 F. App’x 926, 930 (11th Cir. 2010); Bechtel v. Admin. Review Bd., 710 F.3d 443, 447 (2d Cir. 2013); Beacom v. Oracle America, Inc., No. 15-1729, 2016 BL 178950 (8th Cir. June 06, 2016.) Plaintiff’s SOX retaliation claims fails as (1) she has not engaged in any protected activity under the statute and (2) cannot show that her activity was a contributing factor in an unfavorable personnel action. Plaintiff Did Not Engage In Protected Conduct 1. “The plain language of SOX does not provide protection for any type of information provided by an employee but restricts the employee's protection to information only about certain types of conduct. Those types of conduct fall into three broad categories: (1) a violation of specified federal criminal fraud statutes: 18 U.S.C. § 1341 (mail fraud), § 1343 (wire fraud), § 1344 (bank fraud), § 1348 (securities fraud); (2) a violation of any rule or regulation of the SEC; and/or (3) a violation of “any provision of federal law relating to fraud against shareholders.” The first and third categories share a common denominator: that the conduct involves “fraud,” and many of the second category claims (violations of SEC rules or regulations) will also involve fraud.” Johnson v. Stein Mart, Inc., 440 Fed. Appx. 795, 800 (11th Cir. 2011)(unpublished) (citing Day v. Staples, Inc., 555 F.3d 42, 54–55 (1st Cir.2009).) SOX § 1514A(a)(1) requires an employee to demonstrate both a subjective belief and an objectively reasonable belief that the Case 9:16-cv-80501-KAM Document 64 Entered on FLSD Docket 11/20/2017 Page 3 of 21 4 company’s conduct violated a law listed in the section. Gale v. U.S. Dep’t of Labor, 384 F. App’x 926, 930 (11th Cir. 2010); See 18 U.S.C. § 1514A(a.) a. Plaintiff cannot allege that Tyco’s conduct fell in either category. Plaintiff does not allege mail fraud (18 U.S.C. § 1341), wire fraud (§ 1343), bank fraud (§ 1344), or securities fraud (§ 1348), which eliminate violations of category one. (See Doc. 8.) As for the second category, the only SEC rule or regulation that Plaintiff contends was violated by Tyco is “SEC Rule 21F” (Doc. 8, ¶66c.) However, this section does not lay out rules for companies. Section 21F lays out under what conditions the SEC must pay cash awards to whistleblowers who voluntarily supply the SEC with original information leading to a judicial or administrative action in which the SEC obtains monetary sanctions exceeding $1 million, subject to certain limitations. See 27 CFR §§240.21F-1 –240.21F-17. Evidently, any alleged irregularities in the workflow system or the hiring of Alida Garcia could not have violated SEC Rule 21F. One paragraph in SEC Rule 21F, specifically §240.21F-2, refers to the anti-retaliation provision of 15 U.S.C. §78u-6, which generally prohibit retaliation against whistleblowers that provide protected information to the SEC. See 27 CFR §§240.21F-2 and 15 U.S.C. §78u-6. But, it goes without saying that Plaintiff cannot gain whistleblower status by claiming that the company retaliated against her because she is a whistleblower. Thus, it is obvious that Plaintiff cannot allege that Tyco’s conduct fell in either category one or two. b. Plaintiff cannot allege violation of a statute in category three. As for category three, which requires that Plaintiff blew the whistle on a violation of any provision of federal law relating to fraud against shareholders, Plaintiff contends that she believed that Tyco violated 15 U.S.C. § 7262 (SOX § 404.) This statute requires management and a company’s external auditor to report on the adequacy of the company's internal control on financial reporting (ICFR.) See 15 U.S.C. § 7262(b.) The report must affirm "the responsibility of management for establishing and maintaining an adequate internal control structure and procedures for financial reporting" and must also "contain an assessment, as of the end of the most recent fiscal year of the Company, of the effectiveness of the internal control structure and procedures of the issuer for financial reporting". See 15 U.S.C. § 7262(a.) However, Section 404(a) does not regulate the substance of internal controls, but instead requires that they be maintained and assessed on an annual basis. See 15 U.S.C. § 7262(a); See Case 9:16-cv-80501-KAM Document 64 Entered on FLSD Docket 11/20/2017 Page 4 of 21 5 also, In the matter of James Karl Reid, II v. The Boeing Company, 2010 WL 10092299, 52-53, 2010 O.S.H.D. (CCH) P 33065. In James Karl Reid, II, as Plaintiff does here, the complainant argued that he engaged in protected activity due to alleging a violation of SOX section 404(a.) Id. The Administrative Law Judge (“ALJ”) found that the complainant failed to demonstrate how his alleged communications, which included concerns over the process of issuing passwords for an internal risk system and his own suspicions about the adequacy of the system, addressed activities that one could objectively perceive to be a violation of Section 404. Id. “Such complaints go only to the sorts of ‘purely internal practices’ (if anything) which do not constitute protected activity under § 1514A(a)(1).” Id. (citing Day, 555 F.3d at 58.) The ALJ further found that Complainant failed to demonstrate how his communications demonstrated a “failure to put in place a system of internal accounting controls…such communications [are] not objectively reasonable in the context of a perceived violation of a SEC rule or regulation under § 1514A(a)(1).” Id. Plaintiff has reported to Tyco (i) that there were “irregularities” in Tyco’s internal workflow system for approvals of the tie-out process and (ii) that Garcia misrepresented her academic credentials to Tyco. (Ex. DEF000083-84; DEF000383–386; DEF00073–74, and DEF000067-68.) These reports involve only purely internal practices held not to constitute protected activity under § 1514A(a)(1). i. SharePoint There is also a plethora of case law that holds that the “mere possibility that a challenged practice could adversely affect the financial condition of a corporation ... is not enough to constitute protected activity under SOX.” Pearl v. DST Sys., Inc., 2008 WL 8602367, at *15 (W.D. Mo. Apr. 25, 2008), aff'd, 359 Fed. Appx. 680 (8th Cir. 2010)(unpublished.) Even claims of outright accounting fraud--as opposed to claims of violations of internal policies--require more than “a belief in a mere accounting irregularity.” Day v. Staples, Inc., 555 F.3d 42, 57 (1st Cir. 2009.) “The fact that the concerns involved accounting and finances in some way does not automatically mean or imply that fraud or any other illegal conduct took place.” Marshall v. Northrup Grumman Synoptics, ALJ No. 2005-SOX-0008, 2005 DOLSOX LEXIS 63, *12 (Dep't of Labor June 22, 2005); see also Skidmore v. ACI Worldwide, Inc., 2008 U.S. Dist. LEXIS 64313, at *12-13 (D. Neb. June 18, 2008) (no protected activity where “only thing the complaint alleges is an accounting dispute”.) An employee’s theories about potential violations of security Case 9:16-cv-80501-KAM Document 64 Entered on FLSD Docket 11/20/2017 Page 5 of 21 6 laws or internal accounting practices or ethics rules are not enough to constitute protected conduct for purposes of 18 U.S.C. § 1514A(a.) See Fraser v. Fiduciary Trust Co. Int’l, 2009 WL 2601389 (S.D. N.Y. 2009) aff’d, 396 F. App’x 734 (2d Cir. 2010) (employee’s complaint regarding a financial document improperly including non-managed accounts, overstating the Fiduciary’s Assets Under Management, was not protected under SOX); Wade S. Lerbs v. Buca Di Beppo, Inc., 2004 WL 5030304 at *11 (U.S. Dept. of Labor SAROX) (questions to management concerning the reclassification of a negative cash account balance to accounts payable were simply “general inquiries” and did not constitute protected activity.) See also Miller v. Stifel, Nicolaus & Co., Inc., 812 F. Supp. 2d 975 (D. Minn. 2011) (finding that a financial advisor’s complaints about alleged violations of internal company policies were not “protected activity” under SOX); Pearl v. DST Sys., Inc., 2008 WL 8602367 at *16, 18 (W.D. Mo. Apr. 25, 2008) aff’d, 359 F. App’x 680 (8th Cir. 2010) (holding that plaintiff did not engage in protected activity by complaining of violations of an internal ethics policy or the company’s possible understatement of its earnings.) Thus, it is clear that communications regarding a “failure to put in place a system of internal accounting controls” are “not objectively reasonable in the context of a perceived violation of a SEC rule or regulation under § 1514A(a)(1.)” In the matter of James Karl Reid, II, 2010 WL 10092299, 53, 2010 O.S.H.D. (CCH) P 33065. Additionally, speculations about potential violations especially when no intent to harm shareholders can be found are not sufficient to constitute protected conduct under SOX. See Livingston v. Wyeth, 520 F.3d 344, 2008 WL 756068, at *6; Walton v. Nova Info. Sys., 2008 WL 1751525, at *9 (E.D. Tenn. Apr. 11, 2008.) In Livingston, an employee complained to management about “serious deficiencies” in a required training program and that the company would likely not meet compliance deadlines. Livingston, at *6. The employee warned that his employer would provide false and misleading information in violation of federal law if it did not indicate to outside auditors that additional time was needed to become compliant with training program deadlines. Id. The employee was subsequently terminated and claimed retaliation under SOX. In affirming summary judgment dismissing the Section 806 claim, the Fourth Circuit focused on the lack of evidence of the employer manifesting “even an intent to misrepresent facts or conceal any wrongdoing concerning training documentation.” Id. at *9. The court found that the employee's complaints Case 9:16-cv-80501-KAM Document 64 Entered on FLSD Docket 11/20/2017 Page 6 of 21 7 relied on speculative future contingencies that failed to establish “reasonable belief” of a violation of securities laws. Id. at *8-9 (“This chain of speculation is simply too long to support a claim that [the employer] in fact covered up anything and made misrepresentations to the FDA or was in the process of doing so, as is required to support a violation of securities laws.”) In Walton, an employee filed a complaint under SOX Sec. 806 and claimed that she blew the whistle on the company’s failure to comply with database security standards and the failure to make required disclosures, which implicated internal control requirements established by the SEC and described in SOX, including 15 U.S.C. § 7262 (“Section 404”.) Walton, at *9. The court held that Plaintiff's complaints about database security compliance were “too speculative for a reasonable belief of a violation of securities laws.” Id. It reasoned that while the statutes and regulations relied upon by the Plaintiff addressed reporting and disclosure requirements by management, including 15 U.S.C. § 7262, Plaintiff’s concerns were “at best potential violations of the cited statutes if the security standards were not met and the required disclosures and reports were not made by management.” Id. The court found “no evidence that Defendants intended to not make the disclosures required by Section 302, Section 404, Section 906, or 17 C.F.R. § 229.303(3) at the time of Plaintiff's complaints.” The court held that Plaintiff’s “speculative beliefs do not comprise an existing violation as required by Section 806.” Id. Accordingly, it granted summary judgment as to the SOX claim because Plaintiff could not establish that she engaged in a protected activity. Id. Plaintiff cannot carry her initial burden of showing that she engaged in protected conduct. Johnson v. Stein Mart, Inc., 440 Fed. Appx. 795, 801 (11th Cir. 2011)(unpublished.) She cannot show that an actual violation of securities laws occurred, for example that Tyco intended not to make the disclosures required by Section 404, or that Tyco engaged in any fraudulent activities, or that it otherwise fail comply with securities laws. Plaintiff’s complaints center around the allegation that there is no segregation of duties because an Analyst also had administrative access to the computer approval system used for the tie-out control mechanism, which in her opinion caused the potential that the excel file that reflects the approval of the tie-out could be manipulated or deleted. (DEF000073–74; DEF0000083–84; DEF000067-68.) She also felt that the delegation of authority was inappropriate because the approvals of the tie-out were being done by the Director of Financial Reporting Janine Albano because she is a member of the same team as the Financial Analysts Case 9:16-cv-80501-KAM Document 64 Entered on FLSD Docket 11/20/2017 Page 7 of 21 8 that creates the approval workflow. Id. Plaintiff admits however, that these “systemic failures” did not result in a violation of any legal obligation. (Pl. Depo. pp.316:25–318:8.) Indeed, she is of the opinion that she prevented any violation of law from happening. (Pl. Depo. pp.316:25– 318:8.) As in In James Karl Reid, II, where the court held that concerns over the process of issuing passwords for an internal risk system and the employees own suspicions about the adequacy of the system were insufficient do not amount to a reasonable belief that the company failed to put in place a system of internal accounting controls, here the allegations involve purely internal practices that do not constitute protected activity under Section 404(a) or Rule 21F. 2010 WL 10092299, 52-53. Again, 15 U.S.C. § 7262 leaves it up to the company to determine what is adequate and appropriate. Plaintiff also cannot show that she had reasonable concerns or that there was an intent by Tyco to defraud shareholders or to violate the law by not fining the § 7262 disclosure, as is required under Livingston or Walton. Plaintiff knew that Tyco launched two internal investigations with internal investigators to ensure that any potential issues are immediately remedied, which again clearly shows that the company was complying with 15 U.S.C. § 7262 by ensuring that all potential issues are immediately eliminated upon discovery. (DEF000383–386 and Ex. DEF000399–403.) As in Walton, Livingston, and James Karl Reid, II, Plaintiff’s concerns were no more than pure speculation that a violation of law may occur. Plaintiff speculated that that “[i]f for some reason a late entry goes in the GL [General Ledger], the excel file could be manipulated to force the tie out and nobody would ever notice it, perhaps the auditors at a later point.” (DEF000067-68.) “To ‘reasonably believe’ that company conduct ‘constitutes a violation’ of law, as those terms are used in § 1514A(a)(1), [an employee] must show not only that he believed that the conduct constituted a violation, but also that a reasonable person in his position would have believed that the conduct constituted a violation.” Gale, 384 F. App.’x, at 929 (citing Welch v. Chao, 536 F.3d 269, 277 n.4 (4th Cir.2008).) Plaintiff indeed testified that she prevented such a violation from happening and that to her knowledge no faulty audits happened. (Pl. Depo. pp. 317:16–318:12.). The evidence also supports that no incorrect information was reported to the SEC. (DEF000399–403.) Thus, this court should hold, as the courts in Walton, Livingston, and James Karl Reid, II, that no protected activity or violation of Section 404 occurred because plaintiff’s belief that upon some future contingency, which include that someone either accidentally or intentionally Case 9:16-cv-80501-KAM Document 64 Entered on FLSD Docket 11/20/2017 Page 8 of 21 9 changes the excel sheet with the tie-out approvals and all controls by internal and external auditors fail as well, incorrect data may be reported to the SEC and an incorrect report to the SEC may be issues did not comprise an existing violation. ii. Garcia Plaintiff’s reports to Tyco and reports filed with OSHA and FDBPR do not include any allegations that Tyco failed to check Ms. Garcia’s credentials or generally hired unqualified personnel. (DEF000083–84, DEF00073–74, and DEF000067-68, Ex. PL2735–2746.) Plaintiff only communicated to them that Ms. Garcia misrepresented her credentials. Tyco is not responsible for Ms. Garcia’s conduct unless she acted on Tyco’s behalf, which she clearly did not when she applied for employment with Tyco. Furthermore, even if Ms. Garcia did misrepresent her credentials, such a discovery, by itself, cannot lead a reasonable person to believe that the Tyco generally lacks the controls that would prevent the company from employing incompetent people. Thus, it is clear that Plaintiff cannot carry her burden of proving that she complained about an violation of a provision of federal law relating to fraud against shareholders with regard to the hiring of Ms. Garcia either. However, even if Plaintiff had informed the Company or a government agency that she believed that the company was hiring unqualified employees in violation of SOX because they did not checking Ms. Garcia’s credentials, her believe would not have been objectively and subjectively reasonable. Plaintiff knew that the position that Ms. Garcia applied for and was hired for did not require a CPA or Master’s degree. (DEF000083–84.) In fact, Plaintiff worked in the same position and did not hold a CPA or Master’s degree. (DEF000014; Ex. DEF000338– 339 and 000342-343; Ex. B Pl. Depo. pp. 30:24–35:5.) Additionally, Plaintiff was also fully aware of the fact that Ms. Garcia was working for Tyco for fifteen (15) months as a contractor before she was hired in a regular position, giving the company ample time to evaluate Ms. Garcia’s skills. (Depo. Alida Garcia, pp 76–10-14; Ex. PL2735–2746, at 2740.) Thus, even if Plaintiff had voiced the concerns that Tyco hired unqualified employees, such a belief would be objectively unreasonable. In so far as Plaintiff alleges that Tyco or its employees violated its internal ethics policies, it is well established that such complaints are not protected activities under SOX. See Wiest v. Lynch, 2011 WL 2923860, at *9 (E.D. Pa. 2011) (holding that “raising a complaint about a violation of an internal policy is not considered protected activity”) (quoting Marshall v. Case 9:16-cv-80501-KAM Document 64 Entered on FLSD Docket 11/20/2017 Page 9 of 21 10 Northrup Gruman Synoptics, 2005 WL 4889013, at *3–4 (ALJ 2005).) Similarly, as stated by the Department of Labor Administrative Review Board, and reiterated by the courts, there is “no authority for the contention that the failure to address personnel matters in a manner satisfactory to the complaining party constitutes a violation of SOX.” See Pearl, 2008 WL 8602367, at *16. Thus, Plaintiff’s complaints regarding the hiring of Garcia cannot possibly be protected conduct under SOX. In short, Plaintiff has no evidence that she reasonably believed the conduct complained of, which involved alleged breaches of internal company policies and contingent future violations of financial protocols, constituted a violation of federal securities law, or that a reasonable person in her position would have believed such, as required to support her claims under the whistleblower provision of SOX. See 18 U.S.C. § 1514A(a)(1.) As Plaintiff’s complaints do not fall in the three categories of complaints protected by SOX, she cannot prove the first element of a prima facie case of retaliation and for this reason alone summary judgment should be granted to the Tyco on Count II of the Amended Complaint. Plaintiff’s Concerns Were Not A Contributing Factor In Any Adverse 2. Personnel Decision. Even if Plaintiff’s voiced concerns regarding Ms. Garcia and the workflow system would constitute protected activity, her retaliation claim still fails because Tyco can show with clear and convincing evidence that Plaintiff’s complaints were not a contributing factor in any adverse employment decision and that Tyco would have taken the same personnel action in the absence of any complaints. Plaintiff seems to claim that the following retaliatory and unfavorable personnel actions were taken against her: (1) assigning Alida Garcia one more subordinates; (2) receiving a negative performance review; (3) receiving a lower bonus; (3) her termination. Only a discharge, demotion, suspension, threat, harassment, or other discrimination in the terms and conditions of employment are considered to constitute an unfavorable personnel action as defined by SOX. See 18 U.S.C. § 1514A(a.) Clearly it does not affect someone’s terms and conditions of employment when a different employee is assigned another subordinate. Therefore, even if true, such action would not constitute an unfavorable personnel action. Besides, the evidence establishes clearly that Plaintiff and Ms. Garcia each had three (3) subordinates. (DEF 000347-348.) Plaintiff’s belief Case 9:16-cv-80501-KAM Document 64 Entered on FLSD Docket 11/20/2017 Page 10 of 21 11 that Ms. Garcia was assigned another employee was evidently incorrect and based on an assumption made after seeing an organization chart where the lines between people were missing and in which it seems like a contractor is reporting to Ms. Garcia even though this was not the case. (DEF000334–335.) Plaintiff’s performance review does also not fall under the definition for unfavorable personnel actions. “Negative performance evaluations, standing alone, do not constitute adverse employment action.” See e.g. Martin v. Eli Lilly & Co., 16-11537, 2017 WL 3098122, at *3 (11th Cir. July 21, 2017.) Plaintiff cannot even claim that her complaints about Ms. Garcia and the new SharePoint tie-out approval system were a contributing factor for the performance review, as she complained about the review on December 4, 2013. (DEF 000059–000060), long before she first brought up issues about the tie-out system, which did not occur until January 23, 2014. (DEF000083-84.) Plaintiff can also not claim that this performance review was somehow related to her complaints as she stated in her first ombudsman complaint that the reason that Ms. Albano gave her a “negative performance review” was retaliation for Plaintiff contacting HR about an equity adjustment for her wages. (DEF 000059–000060.) Plaintiff can also not now claim that she received a lower bonus as a result of her complaint about Ms. Garcia or the new tie-out approval procedures because her bonus is tied to her performance review and because Plaintiff admitted that her bonus was not affected by the performance review. (DEF000059–000060 and DEF000083–84.) Thus, her termination on May 14, 2014 would be the only action that would qualify as an unfavorable personnel action. However, Plaintiff cannot show that her complaints were a contributing factor in the termination as the undisputed material facts show that they were not. . “To survive summary judgment, the plaintiff must present concrete evidence in the form of specific facts which show that the defendant’s proffered reason is mere pretext. Mere conclusory allegations and assertions will not suffice.” Crawford v. Chao, 158 Fed. Appx. 216, 219 (11 th Cir. 2005) (emphasis added; citations omitted.) Tyco would have taken the same personnel action in the absence of the protected activity. See Johnson, 440 Fed. Appx., at 801. Plaintiff was terminated on May 14, 2014 because she violated Tyco’s Guide to Ethical Conduct when she initiated unauthorized contact with two separate universities in Columbia using her Tyco e-mail account in an effort to obtain educational records on her co-worker Alida Garcia. (DEF000511–000513; DEF000156-161; Case 9:16-cv-80501-KAM Document 64 Entered on FLSD Docket 11/20/2017 Page 11 of 21 12 DEF000511–000513.) It is undisputed that Plaintiff emailed and called University ICESI and Universidad Libre in Columbia between February 5, 2014 and February 14, 2014 and inquired with the University ICESI about Ms. Garcia’s graduation date, type of certification, specialization, and master’s degree and with Universidad Libre about Ms. Garcia’s graduation date, student number, career specialization, and certifications. (DEF000154–155 and DEF000156-161.) Plaintiff readily admits that she contacted the Columbian universities via her Tyco email account and cell phone and that when asked where she worked, Plaintiff stated Tyco. (Ex. PL1426–1429, at 1428; Pl. Depo., p. 137:3–138:8.) On May 13, 2014, Ms. Fonda presented the North America Regional Compliance Committee, Disciplinary Subcommittee with the following summary: Carolina Thomas contacted two separate Universities in Colombia using her Tyco e-mail account in an effort to obtain official education records on her co-worker Alida Garcia. Carolina used her Tyco e-mail account to give herself credibility with the Universities so that they would release this information to her. These actions not only invaded Alida Garcia's privacy but are a violation of Tyco’s ethics. The recommendation is termination. (DEF000511–000513; Deposition Corp. Rep. Mason Hurst, pp. 22:8–22:12.) Based on this summary the Subcommittee decided to terminate Plaintiff. (DEF000162.) The independent committee was not given any other information about Plaintiff. (Ex. Ozlem Fonda Deposition, pp.64:7-68:17.) Plaintiff’s conduct violated Tyco’s Guide to Ethical Conduct. At the time of Plaintiff’s termination, Tyco’s Guide to Ethical Conduct stated, that: “We are expected to respect the privacy and protect the data of our customers, and employees. We will collect, process, store, and transmit such data lawfully, for proper business purposes only . . . .“ Ex. DEF000103-119, at 114. Plaintiff committed to embracing and utilizing this Code. (DEF 000032.) The fact that the provision about respecting other employee’s private data was later removed as part of an NLRB approved settlement agreement cannot reasonably be interpreted as Tyco having any retaliatory motive when it terminated Plaintiff. See, Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1984) (“an employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory [or retaliatory] reason.”.) Neither Tyco nor Ms. Garcia authorized Plaintiff to Case 9:16-cv-80501-KAM Document 64 Entered on FLSD Docket 11/20/2017 Page 12 of 21 13 conduct background checks on their behalf as would be required by the Fair Credit Reporting Act. (Pl. Depo., p. 137:22–138:8.) While Plaintiff seemed to believe that her purported whistleblower status gave her authority to hold herself out as being authorized to conduct a background check on Ms. Garcia’s educational records on behalf of Tyco, it did not. Thus, there is clear and convincing evidence that Tyco would have taken the same personnel action in the absence of the protected activity. I sum, summary judgement is due to be granted on plaintiff’s SOX retaliation claims as Plaintiff cannot even state a prima facie case but even if she could, there is clear and convincing evidence that Plaintiff’s complaints were not a contributing factor in any adverse employment decision and that Tyco would have taken the same personnel action in the absence of any complaints. C. Plaintiff Dodd-Frank Claim Fails With No Protected Activity, And No Causal Relation Between Alleged Reports And Termination To state a whistleblower retaliation claim under the Dodd-Frank Wall Street Reform and Consumer Protection Act, 15 U.S.C. §§ 78u–6 (“Dodd-Frank Act”), Plaintiff must show that: “(1) plaintiff engaged in a protected activity, (2) plaintiff suffered a materially adverse employment action, and (3) the adverse action was causally connected to the protected activity.” Hall v. Teva Pharm. USA, Inc., 214 F. Supp. 3d 1281, 1289 (S.D. Fla. 2016), 1 “Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the [adverse action]. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by the preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for [retaliation].” Id. (citing Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (internal quotations and citations omitted.) 2 Plaintiff’s conclusory allegations are insufficient to state a claim because: (1) her reports are not protected activity and (2) there is no causal relation between her termination and the alleged reports. 1 The Eleventh Circuit has not yet addressed the elements of a Dodd-Frank retaliation claim, but this standard is consistent with the elements the Eleventh Circuit has established for other whistleblower retaliation statutes. See Kearns v. Farmer Acquisition Co., 157 So. 3d 458, 462 (Fla. 2d DCA 2015) (Florida whistleblower claim). 2 In Hall v. Teva Pharm. USA, Inc., 214 F. Supp. 3d 1281, 1289 (S.D. Fla. 2016) this Court decided that Dodd-Frank whistleblower cases will be analyzed the same as retaliation claims under the Florida Whistleblower Act, applying same McDonnell Douglas analysis. Case 9:16-cv-80501-KAM Document 64 Entered on FLSD Docket 11/20/2017 Page 13 of 21 14 Plaintiff’s Reports Are Not Protected 1. The Dodd–Frank Act protects whistleblowers from retaliation for making disclosures that are required or protected under any law, rule, or regulation subject to the jurisdiction of the SEC. See § 78u–6(h)(1)(A)(iii); Asadi v. G.E. Energy (USA), L.L.C., 720 F.3d 620, 625 (5 th Cir. 2013.) In essence, Dodd-Frank prohibits an employer from discharging a whistleblower for “making disclosures that are required or protected under the Sarbanes-Oxley Act of 2002.” Beacom v. Oracle America, Inc., No. 15-1729, 2016 BL 178950 (8 th Cir. June 06, 2016.) Plaintiff did not make a disclosure protected under SOX, as shown above under Section III.B.1. There is No Causal connection 2. Furthermore, there was no causal connection between any reporting and Plaintiff’s termination. As established above, the reason Plaintiff was terminated on May 14, 2014 because she violated Tyco’s Guide to Ethical Conduct when she initiated unauthorized contact with two separate universities in Columbia using her Tyco e-mail account in an effort to obtain private educational records on her co-worker Alida Garcia. (DEF000511–000513; DEF000156-161; DEF000511–000513.) The decision making committee was not given any other information about Plaintiff. (Ex. Ozlem Fonda Deposition, pp.64:7-68:17.) There is no evidence that Plaintiff’s complaints played any role in Tyco’s decision to terminate her employment. Such allegations are pure speculation. “To survive summary judgment, the plaintiff must present concrete evidence in the form of specific facts which show that the defendant’s proffered reason is mere pretext. Mere conclusory allegations and assertions will not suffice.” Crawford v. Chao, 158 Fed. Appx. 216, 219 (11 th Cir. 2005) (emphasis added; citations omitted.) A plaintiff’s “opinions or belief, no matter how sincere” do not defeat a properly supported motion for summary judgment. Clark v. Hancock, 45 F.R.D. 512, 514 (S.D. Ga. 1968) (citations omitted.) The nearly four month gap between the alleged protected activity and the end of plaintiff’s employment is not sufficient to show temporal proximity. Plaintiff began articulating her concerns about Ms. Garcia and the SharePoint system on January 24, 2014. (DEF000083- 84.) She voiced the same concerns to OSHA on February 26, 2014. (Ex. H Plaintiff’s Production I –FOIA DOL OSHA, p. 5–7.) She was terminated on May 12, 2014. (DEF 00051.) Several Courts in this jurisdiction have found that gaps even less than 4 months are insufficient for an inference of causation. Barnett v. Athens Regional Med. Ctr. Inc., 550 F. App’x 711, 715-16 Case 9:16-cv-80501-KAM Document 64 Entered on FLSD Docket 11/20/2017 Page 14 of 21 15 (11 th Cir. 2013) (several month gap between the protected activity and the adverse employment action was insufficient to establish causation and summary judgment on unlawful retaliation claim was therefore mandated); Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11 th Cir. 2007) (three month gap was insufficient to establish prima facie case on causation and affirming summary judgment for employer on retaliation claim); Drago v. Jenne, 453 F.3d 1301, 1308 (11 th Cir. 2006) (holding that three-month disparity “is insufficient to create a jury issue on causation.”); Higdon v. Jackson, 393 F.3d 1211, 1220 (11 th Cir.2004) (stating that United States Supreme Court has cited with approval decisions in which a three to four month disparity was insufficient to show casual connection) (citing Clark County School Dist. V. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001)); Wascura v. City of South Miami, 257 F.3d 1238, 1244–45 (11 th Cir.2001) (three and one-half months, standing alone, does not show causal connection); Burden v. City of Opa Locka, No. 11-22018-CIV, 2012 WL 4764592, at *20 (S.D. Fla. Oct. 7, 2012)(four months too long to show causal connection based on temporal proximity for FWA claim); Gaston v. Home Depot, 129 F.Supp.2d 1355, 1377 (S. D. Fla. 2001) (three to five months insufficient.) Here, the nearly four month gap is too attenuated to establish the requisite causation. Accordingly, Plaintiff cannot establish two of the three requirements for a retaliation claim under Dodd-Frank. Tyco Has Established a Non-Retaliatory Reason For the Termination and 3. Plaintiff Cannot Show Pretext. As laid out in detail under Section III. B. 2. Tyco terminated Plaintiff’s employment for a legitimate non-retaliatory reason. Plaintiff cannot show that this reason was pretextual. Once a defendant has sustained its “extremely light” burden of production, Batey v. Stone, 24 F.3d 1330, 1334 (11 th Cir. 1994), the burden returns to Plaintiff to prove by a preponderance of the evidence that the reason offered by Tyco was “not its true reason[],” but was “a pretext for discrimination.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981.) Stated differently, Plaintiff must come forward with evidence to show both that the stated reason is false and that retaliation was the real reason. See Brooks v. Cnty. Comm’n of Jefferson Cnty., 446 F.3d 1160, 1162-62 (11 th Cir. 2006.) Plaintiff may establish pretext “either directly by persuading the court that a discriminatory reason more likely motivated the defendant or indirectly by showing that the proffered explanation is unworthy of credence.” Jackson v. Case 9:16-cv-80501-KAM Document 64 Entered on FLSD Docket 11/20/2017 Page 15 of 21 16 Ala. Tenure Comm’n, 405 F.3d 1276, 1289 (11 th Cir. 2005.) That being said, mere conclusory allegations of discrimination are not enough to show pretext. See Coutu v. Martin Cnty. Bd. Of Comm’rs, 47 F.3d 1068, 1073 (11 th Cir. 1995.) Plaintiff also cannot prove pretext by “recasting” the proffered non-discriminatory reasons, substituting Plaintiff’s business judgment for that of the defendant, or by “simply quarreling with the wisdom” of the defendant’s reason. Chapman v. AI Transp., 229 F.3d 1012, 1030 (11 th Cir. 2000.) “The inquiry into pretext centers upon the employer’s beliefs, and not the employee’s own perceptions of his performance.” Holifield v. Reno, 115 F.3d 1555, 1565 (11 th Cir. 1997) (emphasis added.) Plaintiff cannot show any pretext, as she has admitted that no one has stated to her that the end of her employment with Tyco was in anyway tied to the issues upon which she alleges she “blew the whistle.” Further, Plaintiff cannot come forth with any evidence that would constitute pretext. Simply put, there is no genuine issue of material fact that any retaliatory motive was involved in the decision to terminate Plaintiff. Plaintiff has nothing more than her subjective beliefs that her employment ceased due to complaints she made. While Plaintiff may claim that she should not have been terminated because the section in the ethics guide that addresses respect for privacy rights was removed as a result of the settlement with the NLRB and after her termination, her perceptions do not constitute evidence of pretext. See, e.g., Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11 th Cir. 1984) (“an employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.”.) See also Penalty Kick Mgmt., 164 F.Supp.2d at 1378 (“unsupported, self-serving statements of the party opposing summary judgment are insufficient to avoid summary judgment.”) (citing Midwestern Waffles, Inc., 734 F.2d at 714); Aldabblan, 380 F. Supp. 2d at 1353-54 (holding that mere belief, speculation, or conclusory allegations are not enough to withstand summary judgment.) A plaintiff’s “opinions or belief, no matter how sincere” do not defeat a properly supported motion for summary judgment. Clark v. Hancock, 45 F.R.D. 512, 514 (S.D. Ga. 1968) (citations omitted.) In essence, Plaintiff’s claim for retaliation under the Dodd-Frank Act fails because such a cause of action would require a report of a violation of SOX, which Plaintiff cannot make, and Case 9:16-cv-80501-KAM Document 64 Entered on FLSD Docket 11/20/2017 Page 16 of 21 17 because Plaintiff cannot carry her burden to proof that her termination was casually related to her reports or that Defendant’s non-retaliatory reason was mere pretext. D. Plaintiff Failed To State A Claim Under The Florida Whistleblower Act Because She Did Not Allege An Actual Violation Of A Law, Rule, Or Regulation. The Florida Whistleblower Act (“FWA”) prohibits an employer from taking retaliatory personnel action against an employee because the employee has disclosed, or threatened to disclose, provided information to, or testified before any appropriate governmental agency or “objected to, or refused to participate in “any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation.” Fla. Stat. § 448.102. Claims of retaliation under the FWA are analyzed the same as retaliation claims under Title VII. Rutledge v. SunTrust Bank, 262 Fed.Appx. 956, 958 (11 th Cir. 2008.) In order to establish a prima facie case, Plaintiff must show that: (1) she objected to or refused to participate in any activity, policy or practice of Tyco that was in violation of an actual law, rule or regulation; (2) she suffered an adverse employment action; and (3) the adverse employment action was causally linked to the protected expression. See Fla. Stat. § 448.102(3); Bell v. Ga.- Pac. Corp., 390 F. Supp. 2d 1182, 1187 (M.D. Fla. 2005.) “[A]ctual retaliatory intent and, therein, knowledge comprise a necessary element of [a plaintiff’s FWA] claim.” Jones v. Sch. Bd. Of Orange Cnty., Fla., No. 6:04-cv-540, 2005 WL 1705504, at *10 (M.D. Fla. July 20, 2005) (citing Silvera v. Orange Cnty. Sch. Bd., 244 F.3d 1253, 62 (11 th Cir. 2001).) Plaintiff Has Not Shown That She Opposed An Actual Violation Of Any Law, Rule 1. Or Regulation. Plaintiff cannot proof the first element of her prima facie case because Plaintiff did not object to, or refuse to participate in, any activity, policy, or practice of her employer, which was in violation of a law, rule, or regulation. To establish statutorily protected activity, Plaintiff must allege that she objected to (i) an illegal activity, policy, or practice of her employer, (ii) illegal activity of anyone acting within the legitimate scope of their employment, or (iii) illegal activity of an employee that has been ratified by the employer. Pinder v. Bahamasair Holdings Ltd., Inc., 661 F.Supp.2d 1348, 1351 (S.D. Fla. 2009.) Plaintiff cannot establish an actual violation of any law, rule or regulation as would be required for a retaliation claim under the FWA. United States ex rel. Vargas v. Lackmann Food Svc., Inc., 510 F. Supp. 2d 957, 968 (M.D. Fla. 2007) (“With respect to Case 9:16-cv-80501-KAM Document 64 Entered on FLSD Docket 11/20/2017 Page 17 of 21 18 allegations of a violation of Section 448.102(3), the plaintiff must prove an actual 'violation of a law, rule, or regulation' occurred in order to establish a prima facie case.”); White v. Purdue Pharma, Inc., 369 F.Supp.2d. 1335, 1337 (M.D. Fla. 2005) (holding that to prevail on a claim of retaliation under the FWA a plaintiff “must prove that the activity, policy or practice objected to is, in fact, in violation of a law, rule or regulation.”). Here, Plaintiff claims that she engaged in protected activity when she reported that (1) her own perception that Garcia fraudulently represented her academic credentials and (2) ”systemic failures” in Tyco’s internal financial workflow system, both of which supposedly violated 15 U.S.C. § 7262 (SOX § 404.) (Ex. Pl. Depo. pp. 291:20–291:23.) This statute requires management and a company’s external auditor to report on the adequacy of the company's internal control on financial reporting (ICFR.) See 15 U.S.C. § 7262(b.) As established above Tyco did not violate SOX or acted illegal in any other way. To summarize: a. Complaints Regarding Garcia In September 2013, Tyco conducted a background check on Ms. Garcia based on her online application, as it does for all other employees before employing them. (DEF000516–531.) The Financial Reporting Manager position that Plaintiff and Ms. Garcia were holding did not require a CPA Certification and the job description merely states “CPA Certification Preferred”. (DEF000338–339 and 000342-343.) Ms. Garcia holds a Columbia “Certifican” which gives her the title “Cantador(a) Público(a.)” Ex. DEF 000356. Additionally, Ms. Garcia also holds a degree from the Universidad Libre and an advanced finance degree from the Instituto Columbiano de Estudios Superiores de Ancolda (ICESI) in Columbia. (DEF000514; Ex. DEF000515; Ex. Depo. Alida Garcia pp.98–102:11) and 109:14–113:5.) Ms. Garcia was working for Tyco for fifteen (15) months as a contractor before she was hired permanently, giving the company ample time to evaluate Ms. Garcia’s skills. (Depo. Alida Garcia, pp 76–10-14; Ex. PL2735–2746, at 2740.) b. Complaints Regarding the Workflow Tyco has several controls for accurate financial reporting, among them the tie-out consolidation and intern and external auditors that review the data. (Depo. Albano, pp. 147:2– 147:24); (Depo. Geal Barney, pp 92:11–92:23.) It is not the financial reporting team in Boca Raton, but the corporate office that reports financial data to the Security and Exchange Commission (SEC.) (Depo. Albano, pp. 149:1–149:12.) Before anything is reported to the SEC Case 9:16-cv-80501-KAM Document 64 Entered on FLSD Docket 11/20/2017 Page 18 of 21 19 there are eliminations and adjustment, further consolidations, and more reviews of the financial data by the corporate office and business partners. (Depo. Albano, pp. 149:7–150:3.) While this is happening, the Boca Raton team does not have access to the financial data any longer. (Depo. Albano, pp. 149:13–150:3.) Plaintiff admits that thanks to her reporting the company was able to prevent any problems with the audits and that to her knowledge no failed audits happened. (Pl. Depo. pp.316:25–318:8.) This was confirmed by an internal forensic investigation, which concluded that while improvements can be made to avoid conflicts in interest, no workflow was deleted, no financial statements were manipulated, and the risks were mitigated because the managers kept a signed hardcopy of the approval forms and the tie-out file was kept on a shared drive. (DEF000399–403.) Thus, the undisputable evidence proofs that there was no actual violation of SOX. Plaintiff Cannot be A Whistleblower under the FWA. 2. Even if Plaintiff had complained of an actual violation of SOX, Plaintiff’s actions still do not amount to any protected activity as she was reporting issues that arose as part of her employment. (Ex. Pl. Depo. 86:12–87:11.) It was part of Plaintiff job duties as Manager of Financial reporting to by identifying potential areas of improvement in the newly implemented system, the system that she claims had compliance problems. (Ex. Pl. Depo. 86:12–87:11.) Finding these issues was part of Plaintiff’s job, as she readily admits. Performing part of your own duties cannot constitute “blowing the whistle” as this was part of Plaintiff’s job. This Circuit has held that such activities do not constitute protected activity. In Wolf v. Pac. Nat. Bank, No. 09-21531-CIV, 2010 WL 5888778, at *10 (S.D. Fla. Dec. 28, 2010) report and recommendation adopted sub nom. Wolf v. Pac. Nat. Bank N.A., No. 09-21531-CIV, 2011 WL 772853 (S.D. Fla. Feb. 28, 2011), the Court granted summary judgment for the defendant and found that: [Plaintiff] Wolf was the President of the bank. If anyone was responsible for ensuring compliance with federal banking regulations it was Wolf. His fiduciary duty to the bank included doing what it is he is now alleging to have done. He is thus not the type of “employee” that whistleblower statutes like section 1831j were addressing because his actions are not engaging in protected activity. His actions were in furtherance of his own fiduciary obligations as part of his job responsibilities. And if, as he alleges, his efforts culminated in Pacific ultimately making adequate disclosures to banking officials, as Case 9:16-cv-80501-KAM Document 64 Entered on FLSD Docket 11/20/2017 Page 19 of 21 20 required by law, that does not translate into Wolf satisfying the strict requirements of this particular whistleblower statute which strictly requires that Wolf himself provide triggering information to a federal banking agency or the Attorney General. Id.; see also Langer v. Dep't of Treasury, 265 F.3d 1259, 1267 (Fed. Cir. 2001) (disclosures not protected “because they were required as part of Langer's normal job function”); Grant v. Dominion E. Ohio Gas, 2004-SOX-63 at 40, 45 n.46 (A.L.J. Mar. 10, 2005) (reporting not protected in part because it was complainant's responsibility to raise questions regarding accounting and assure compliance with regulations); Robinson v. Morgan Stanley, 2005-SOX-44 at 3, 115-16, 118 n.15 (A.L.J. Mar. 26, 2007) (senior internal auditor's discovery of bankruptcy reporting problem and presentation of her findings to audit management was not a protected activity because she was merely discharging her auditor duties; however, the complainant engaged in protected activity when she went beyond her assigned duties by presenting the bankruptcy issue in a memorandum to the president and CFO based on her belief that the issue was not getting sufficient attention.) Plaintiff Cannot Establish A Causal Connection Between Alleged “Protected 3. Activity” And Her Termination, and Has No Evidence Of Pretext. As discussed at length under Section III. B. 2 and Section III C. 3. Tyco terminated Plaintiff’s employment for a legitimate non-retaliatory reason and Plaintiff cannot show that this reason was pretextual. There is no genuine issue of material fact that any retaliatory motive was involved in the decision to terminate Plaintiff. Plaintiff has nothing more than her subjective belief of retaliation. Because Plaintiff has no evidence of an actual violation of a law, rule or regulation, causation, or pretext her FWA claim fails. WHEREFORE, Defendant respectfully requests that the Court grant this motion and enter final summary judgment against Plaintiff. [SIGNATURE LINES ON FOLLOWING PAGE] Case 9:16-cv-80501-KAM Document 64 Entered on FLSD Docket 11/20/2017 Page 20 of 21 21 DATED: November 20, 2017. Respectfully submitted, /s/ Kevin D. Zwetsch Kevin D. Zwetsch Florida Bar No: 0962260 kevin.zwetsch@ogletreedeakins.com Dee Anna D. Hays Florida Bar No. 64790 deeanna.hays@ogletree.com Ina Crawford Florida Bar No. 117663 ina.crawford@ogletreedeakins.com OGLETREE, DEAKINS, NASH, SMOAK, & STEWART, P.C. 100 N. Tampa Street, Suite 3600 Tampa, Florida 33602 Telephone: (813) 289-1247 Facsimile: (813) 289-6530 Attorneys for Defendant Tyco International Management Company, LLC CERTIFICATE OF SERVICE I HEREBY CERTIFY that on November 20, 2017, I electronically filed the foregoing with the Clerk of Court by using the CM/ECF system which will send a Notice of Electronic Filing to: Raymond C. Fay Fay Law Group PLLC 1250 Connecticut Avenue NW, Suite 200 Washington, DC 20036 Cathleen Ann Scott Scott Wagner & Associates, P.A. 250 South Central Boulevard Jupiter Gardens Suite 104 Jupiter, FL 33458 /s/ Kevin D. Zwetsch Attorney 31293052.1 Case 9:16-cv-80501-KAM Document 64 Entered on FLSD Docket 11/20/2017 Page 21 of 21