Tice v. Bristol-Myers Squibb Co.

325 F. App'x 114
CourtCourt of Appeals for the Third Circuit
DecidedApril 8, 2009
Docket07-3977
StatusUnpublished
Cited by4 cases

This text of 325 F. App'x 114 (Tice v. Bristol-Myers Squibb Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tice v. Bristol-Myers Squibb Co., 325 F. App'x 114 (3d Cir. 2009).

Opinions

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

This appeal presents a question of first impression: whether an administrative ruling under the Sarbanes-Oxley Act may have preclusive effect on a subsequent discrimination claim brought in federal court. We hold that it may, largely for the reasons set forth in the District Court’s comprehensive opinion.

I.

Appellant Carol Tice was a pharmaceutical salesperson for Bristol-Myers Squibb Co. for almost two decades, until she was fired in 2005. Tice claims that her termination was based on gender in violation of 42 U.S.C. § 2000e (Title VII), and age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 (ADEA).1 In a separate claim previously adjudicated before an administrative law judge, Tice unsuccessfully argued that she was fired for reporting illegal corporate activity in violation of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A(b)(2) (SOX). Bristol-Myers has consistently' stated that Tice was fired for falsifying sales reports and failing to account for a significant portion of her assigned inventory of sample medications.

Tice was terminated on April 13, 2005. She filed a SOX claim with the Occupational Safety and Health Administration a month later, which was heard by an Administrative Law Judge (ALJ) in January 2006. The ALJ rejected the SOX claim in April 2006. In December 2006, almost a year after her SOX administrative hearing, Tice brought suit in federal district court under Title VII and the ADEA.2

In support of her SOX claim, Tice argued that Bristol-Myers salespeople falsified reports under corporate pressure to do so. Tice claimed that she was fired for reporting this activity, in violation of SOX. The ALJ rejected these allegations, finding that Tice “was terminated for the act of falsifying calls [herself], not for the reporting of doing so.” Tice v. Bristol-Myers Squibb Co., 515 F.Supp.2d 580, 588 (W.D.Pa.2007) (quoting ALJ). Tice admitted to falsifying her sales call reports, but justified doing so because of purportedly unrealistic goals set by her manager. The ALJ concluded that “Bristol-Myers demonstrate[d] by clear and convincing evidence that it would have disciplined Tice or terminated her even in the absence of [any] protected activity.” Tice, 515 F.Supp.2d at 586 (quoting ALJ). Because Tice failed to establish that the justification proffered by Bristol-Myers was pre-[116]*116textual, the ALJ rejected Tice’s SOX claim.

After the ALJ ruled against her, Tice had a statutory right to appeal. SOX states that a plaintiff “may obtain review of [the final agency decision] in the United States Court of Appeals for the circuit in which the violation ... allegedly occurred or the circuit in which the complainant resided on the date of such violation.” 49 U.S.C. § 42121(b)(4)(A); 18 U.S.C. § 1514A(b)(2) (referring to 49 U.S.C. § 42121(b)(4)(A)). The statute also provides that “[a]n order ... with respect to which review could have been obtained under subparagraph (A) shall not be subject to judicial review in any criminal or other civil proceeding.” Id. § 42121(b)(4)(B) (emphasis added).

Tice chose not to appeal the ALJ’s decision, but pursued Title VII and ADEA claims in federal court, arguing that she was fired because of her age and gender. In support of these claims, Tice alleged that her manager was motivated to retaliate against her because of a sexual harassment claim she filed previously. Instead of relying upon any specific facts indicating age or sex discrimination, Tice alleges that she was fired for reporting SOX violations while unidentified younger and male employees were not fired.

Under the burden-shifting analysis that governs Title VII, ADEA, and SOX claims, the burden of production shifts to the defendant after a plaintiff establishes a pri-ma facie ease of discrimination or retaliation. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If the employer can then produce evidence of a nondiscriminatory or non-retaliatory motive for its actions, the burden shifts back to the plaintiff to produce evidence “from which a factfinder could reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.” Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.1994).

The ALJ who rejected Tice’s SOX claim determined that Bristol-Myers had a legitimate, non-pretextual reason for firing Tice. Although the plain language of SOX dictates respect for final agency decisions, Tice argues that she should be allowed to litigate anew in federal court the reason for her termination. In support of this argument, Tice cites the general rule entitling Title VII and ADEA plaintiffs to de novo review in federal court following an initial hearing before a state or federal agency. See Astoria Fed. Savings & Loan Ass’n v. Solimino, 501 U.S. 104, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991) (unreviewed state agency decisions have no preclusive effect on ADEA' claims brought subsequently in federal court because ADEA requires de novo review); Univ. of Tenn. v. Elliott, 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986) (unreviewed state agency decisions have no preclusive effect on discrimination claims brought subsequently in federal court because Title VII requires de novo review); Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976) (federal employee entitled to de novo review in district court after internal administrative adjudication of her discrimination claim by her agency employer). But see Kremer v. Chem. Constr. Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982) (full faith and credit principles require federal courts to give preclusive effect to state agency decisions that have been reviewed by a state court). To bolster her argument, Tice points to a SOX provision stating that “[n]othing in this section shall be deemed to diminish the rights, privileges, or remedies of any [117]*117employee under any Federal or State law.” 18 U.S.C. § 1514A(d).

The District Court rejected Tice’s argument, finding that de novo

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Bluebook (online)
325 F. App'x 114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tice-v-bristol-myers-squibb-co-ca3-2009.