In an alleged whistleblower retaliation case, the U.S. District Court for the Northern District of California granted summary judgment in favor of an employer despite evidence of protected whistleblowing.
Background
Biopharmaceutical giant Pfizer employed the plaintiff as the Director of Global Analytics on the Compliance Analytics team. As part of his job, he developed dashboard tools used by the Compliance division. He also helped Pfizer observe the My Anti-Corruption Policy and Procedures ("MAPP"), which ensures compliance with anti-bribery laws. MAPP requires approval when anything of value is offered or provided to any government official who could potentially impact Pfizer’s business. Pfizer internally refers to these individuals as "potentially influential government officials" ("PIGOs").
The plaintiff’s manager reviewed his performance twice a year, and in 2019, she noted in his year-end review that he was "very motivated" and that his "positive attitude and love of learning are a great addition to the team." She also wrote under "areas for improvement" that he "should continue to develop his presentation and communication capabilities to bridge the complexity with what he does to the audience he is for. The plaintiff should also keep focus on project objectives to ensure we are answering the key business questions.”
In his 2020 reviews, the plaintiff received similar feedback. But starting in 2020, the manager began to criticize his work. The plaintiff testified that from March 2020 to the end of his employment, the manager criticized his work weekly, and in his June 2021 performance review, she continued to point out that while the plaintiff's "exploratory work" was great, he needed to "pivot his attention to tangible deliverables to show he can also deliver outputs that the division can use."
In the summer of 2021, the manager asked the plaintiff to select an existing compliance dashboard and identify ways to improve it. He chose a dashboard used by Compliance to review PIGO spend data and developed an algorithm he thought would improve it. His goal was to identify outliers that could indicate an issue for Compliance to review. In November 2021, he sent a PowerPoint to the manager and two other colleagues that contained a list of PIGO spend outliers. No one in the meeting was critical of his work, expressed reservations, or told him to stop working on it. In fact, the manager encouraged him to continue working on it. He was subsequently nominated for "the 2021 Compliance Division Rewards and Recognition Program" by a colleague.
At the end of 2021, the manager again reviewed the plaintiff's performance and criticized his work. In March 2022, she sent him an email that described his performance deficiencies. He continued to receive negative performance reviews, and in August 2022, she sent him a notice of underperformance. The plaintiff forwarded the email to upper management and disputed the manager's notice of underperformance, citing the unusual PIGO spending in China he’d uncovered. He also stated that the manager created an intimidating work environment, yelled at him, prevented him from working effectively, isolated him, and dismissed his achievements. He asked upper management to conduct an independent assessment of his performance review. Pfizer investigated and determined that the manager's review of the plaintiff's performance was fair; that the allegations about the manager's management couldn’t be substantiated; and that no further review of his concerns was needed. Pfizer then terminated him in November 2022.
The plaintiff filed suit, and the district court granted Pfizer's partial motion to dismiss. His remaining causes of action were:
whistleblower retaliation under California Labor Code § 1102.5,
violation of California Business and Professions Code §§ 17200-17208, and
retaliation in violation of public policy pursuant to California Government Code § 12940.
Pfizer also filed a motion seeking summary judgment on the remaining claims, and the plaintiff filed objections to evidence submitted in support of Pfizer's brief.
Discussion
U.S. District Judge Araceli Martínez-Olguín wrote that, as an initial matter, the parties agreed that all of the plaintiff's claims rose and fell with his Labor Code § 1102.5 claim. The section provides:
An employer . . . shall not retaliate against an employee for disclosing information… to a government or law enforcement agency [or] to a person with authority over the employee . . . if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job duties.
To establish a prima facie case of whistleblower retaliation under § 1102.5, the plaintiff must show that he engaged in protected activity under the statute by "disclosing information" that he reasonably believed violated the law to someone with authority over him. He must then show that his protected whistleblowing was a contributing factor to an adverse employment action. Even if the plaintiff makes this showing, the employer isn’t liable if it demonstrates that it would’ve taken the same action "for legitimate, independent reasons" if the plaintiff hadn’t engaged in protected whistleblowing activities.
Did the Plaintiff Engage in Protected Activity?
Pfizer argued that it was entitled to summary judgment on the § 1102.5 claim because the plaintiff didn’t engage in protected activity; even if his communications with Pfizer were considered whistleblowing, there wasn’t any evidence they motivated the termination decision; and even if he demonstrated that the alleged whistleblowing motivated the termination decision, undisputed evidence proved that Pfizer would’ve made the same decision to terminate the plaintiff's employment for legitimate, non-retaliatory reasons.
Pfizer contended that the plaintiff never made a protected disclosure under § 1102.5. Pfizer argued that the PowerPoint wasn’t a disclosure of suspected unlawful conduct, but "a routine progress update on an assignment his manager gave him. Pfizer stated that the plaintiff conceded this project was "no different from his other assignments, all of which were designed to support compliance in identifying risk." But, as Pfizer acknowledged, § 1102.5 applies regardless of whether "disclosing the information is part of the employee's job duties." Accordingly, whether the PowerPoint project was no different from his other assignments was irrelevant.
The same was true for the plaintiff's second alleged whistleblowing incident, the August 2022 performance rebuttal. While his rebuttal included personnel disputes stemming from his increasingly troubled relationship with his manager, it also discussed his concerns about Pfizer's PIGO spend outliers. The plaintiff's email disclosed the possibility that Pfizer's spending was abnormal and worrisome, not only his personnel dispute.
Pfizer argued that the rebuttal didn’t constitute protected conduct because the plaintiff stated in his email that he "had no intention to be a whistleblower of any kind." But Pfizer provided no support for the contention that whether the plaintiff intended to whistleblow was relevant to whether his conduct was protected under § 1102.5. As long as the plaintiff conveyed in his performance rebuttal that he reasonably believed Pfizer was engaging in illegal conduct, his performance rebuttal constituted protected conduct, the judge found.
The plaintiff testified that the purpose of his performance rebuttal was in part to alert upper management of the suspected fraud he’d disclosed to his team in November 2021. If credited by a trier of fact, the plaintiff's testimony and his email to upper management showed that he reasonably believed Pfizer was committing fraud and potentially violating the Foreign Corrupt Practices Act. This was enough to establish that the plaintiff's performance rebuttal was protected conduct. Thus, Pfizer didn’t show it was entitled to summary judgment on the ground that the plaintiff's communications to Pfizer were unprotected disclosures.
Were the Protected Communications Contributing Factors to Termination?
Pfizer also contended the plaintiff couldn’t establish that either allegedly protected communication contributed to the termination decision." Because Pfizer argued that the plaintiff didn’t have enough evidence to carry his burden of persuasion, he had to respond with specific facts, supported by admissible evidence, showing a genuine issue for trial.
The plaintiff asserted that the timing of his termination was circumstantial evidence supporting that the alleged whistleblowing activities contributed to Pfizer's termination decision. When adverse employment decisions are taken within a reasonable period of time after complaints of discrimination have been made, retaliatory intent may be inferred, the judge wrote. About two months passed between the second alleged whistleblowing incident and the plaintiff's termination. This was sufficient circumstantial evidence from which a trier of fact could conclude that there is a causal link between the whistleblowing activities and his termination. As such, the plaintiff carried his burden of establishing that material factual disputes exist as to whether the alleged whistleblowing contributed to Pfizer's termination decision. Judge Martínez-Olguín concluded that Pfizer wasn’t entitled to summary judgment on this ground.
Did Pfizer Have Legitimate, Independent Reasons for Termination?
Finally, Pfizer argued that it would’ve terminated him even if he hadn’t engaged in the alleged whistleblowing. The judge noted that Pfizer bore the burden of providing "evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial."
Judge Martínez-Olguín found that the undisputed evidence in the record showed that the manager had raised concerns about the plaintiff's performance years before his alleged whistleblowing activities. Before the plaintiff submitted his August 2022 performance rebuttal, the manager was already working with Human Resources to prepare a notice of underperformance, which she delivered on August 3, 2022—before the rebuttal. The notice emphasized the same performance issues that the manager noted in his early reviews. During Pfizer's investigation into the plaintiff's complaint that the notice of underperformance was unfair, three of the plaintiff's coworkers noted that he struggled to focus and create deliverables, and one noted that he was difficult to work with.
The plaintiff's effort to create a material dispute of fact fell short, asserting that the manager started “a torrent of unfounded, false, misleading and overblown critiques of his performance,” began falsely berating him, and impeded his ability to perform his job. He believed this was retaliation for having made his PIGO MAPP disclosures in November 2021 and that she was trying to force him out of the company. But a party may not manufacture a triable issue of fact by submitting a declaration or statement that contradicts earlier deposition testimony, the judge explained.
The plaintiff's declaration that he thought the manager was retaliating against him for the PowerPoint contradicted his deposition testimony, and the Court wasn’t required to credit it. Thus, this argument didn’t raise a triable question of fact as to whether the manager would’ve terminated the plaintiff for legitimate reasons absent his alleged whistleblowing.
Though the plaintiff contended he presented “substantial evidence that the manager was impeding him from performing his job," he presented no evidence that the manager impeded him from performing his job because of his alleged whistleblowing activities. Thus, the plaintiff's argument was irrelevant as it had no bearing on whether the manager would’ve terminated him for a legitimate, independent reason even if he hadn’t engaged in the protected activity. Also, the fact that one of the plaintiff's coworkers praised his performance didn’t create a material dispute of fact as to whether Pfizer was dissatisfied with his performance and would’ve fired him for that reason even if no whistleblowing conduct had happened. The view of a single coworker in November 2021 was irrelevant to the decision to terminate him.
The facts showed Pfizer would have terminated the plaintiff for legitimate, independent reasons even if he had not engaged in the alleged whistleblowing activities. Accordingly, the § 1102.5 claim failed. As a result, the Court granted Pfizer's motion for summary judgment. Han v. Pfizer Inc. (U.S. District Court for the Northern District of California, 6/26/2026).
Takeaway
“Protected activity” continues to be interpreted broadly by California courts. Nonetheless, employers should maintain consistent, contemporaneous documentation of an employee’s performance issues and a strong disciplinary process to defend against retaliation claims.
For questions regarding this topic or other employment law matters, contact us at Eanet, PC.