Karen Kidd Feb. 22, 2016, 1:26pm


PHILADELPHIA – A recent federal appeals court decision that dismissed a "weak" retaliation case brought by a former Tyco employee was a welcome development, a Connecticut attorney says.

Jeffrey Wiest, a former employee at Tyco, claimed he was retaliated against for raising concerns about company expenses, while the company claimed he was fired for sexual harassment. Tyco's arguments were successful at both the district court and appeals court.

Barry J. Waters - a partner with Murtha Cullina in New Haven, Conn., who handles similar cases - supports the U.S. Court of Appeals for the Third Circuit's ruling.

"From the opinion of the court, it appears that Wiest had a very weak case for having a jury conclude that there was any causal connection between Wiest's insistence on proper documentation for sizable business expenses and his later termination," Waters said.

"It is heartening to see the court's willingness to dismiss a weak retaliation case, saving the employer the time and substantial expense of a trial."

In 2008, Wiest began raising internal concerns about certain company expenses and invoices. Among these was $350,000 event at a Bahamas resort with expenditures for fire dancers, costumed pirates and mermaid greeters.

Wiest, a manager in Tyco's accounts payable department and a 31-year employee of the company, claimed much of the reporting of these expenditures violated Tyco's policies or federal tax laws.

The following year, Wiest was fired for alleged sexual harassment following an investigation. Wiest and his wife, Laura E. Wiest, filed a whistleblower suit under Section 806 of the Sarbanes-Oxley Act with various allegations. These included claims the investigation into his conduct and his termination resulted from his complaints the previous year.

The case was dismissed without prejudice in July 2011 when a district court found Wiest's internal complaints about expenditures weren't considered protected activity under Sarbanes-Oxley because the complaints did not definitively and specifically allege a violation of a statute or rule under the act.

In March of 2013, the Third Circuit partially reversed the district court’s dismissal and remanded the case, finding Wiest's complaints should not have been required to meet that standard.

In April, the U.S. District Court for the Eastern District of Pennsylvania granted Tyco's motion for summary judgment, which the Third Circuit affirmed in a decision handed down earlier this month.

Wiest didn't provide evidence from which a jury could conclude that Wiest's complaints about Tyco's expenditures were linked to the company's decision to fire him, Waters said.

"Several facts broke the chain that might otherwise have been enough to link Wiest's protected activity to the decision to terminate him," Waters said.

These facts included an email from Wiest's boss praising Wiest’s work, an email sent 10 days after what Wiest claimed was protected activity, which happened more than eight months before his termination, Waters said.

Two months after raising concerns about the expenses, Wiest received a bonus that amounted to the maximum percentage of his base salary, 10 percent, for which he was eligible, Waters said.

Other details also weakened Wiest's case, Waters said. It was shortly after receiving the bonus that Tyco's Human Resources Director received complaints of inappropriate sexual comments made by Wiest, which triggered a Human Resources investigation.

Other employees in the accounting department involved in the same alleged protected activity did not receive any discipline. The managers who Wiest claimed had motive to retaliate against him were no longer employed by Tyco during the sexual harassment investigation.

The decision says Tyco met Equal Employment Opportunity Commission standards when it terminated Wiest's employment.

"The 'gold standard' for investigations, as the EEOC has acknowledged, is that they are: 1) impartial; 2) objective; 3) timely; and 4) thorough," Waters said.

"Here, the Tyco Human Resources Director met all four standards. She interviewed at least 10 employees, including Wiest, who changed his story in a follow-up interview.

"A timely, fair and thorough investigation goes a long way in many different contexts in protecting the company against employment claims."

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