Pennsylvania Record

Saturday, December 14, 2019

GlaxoSmithKline IT analyst loses retaliation case in federal district court

Federal Court

By Charmaine Little | Jul 30, 2019

U.S. District Court Judge James Curtis Joyner

PHILADELPHIA -- An IT analyst failed to convince the U.S. District Court for the Eastern District of Pennsylvania that his former employer terminated him because of retaliation. The court granted the company’s motion for summary judgment July 16.

U.S. District Court Judge James Curtis Joyner ruled on the case.

Thomas Reilly alleged GlaxoSmithKline (GSK) retaliated against him when it fired him following his reports of issues with a computer stability program. He had been with the company for 16 years. GSK argued that the entire lawsuit infringes on the corporate whistleblower provision in the Sarbanes-Oxley Act (SOX Act).

Section 806 of SOX “provides corporate employees protection from retaliation by their employers for reporting fraud or a violation of an SEC rule or regulation by a covered company or one of its employees."

GSK first argued Reilly’s claims were outside of the 180-day statute of limitation that’s allowed when filing a whistleblower complaint under SOX. The court pointed out that Reilly knew GSK was getting rid of his position because of outsourcing on March 2014, but he didn’t file his first claim until July 20, 2015. 

Although contended he didn’t get his final notification until April 8, 2015, the court pointed out that he was hopeful that an investigation into his claims, in which he alleged GSK used as retaliation, would actually keep his position alive.

Ultimately, the court had to decide if there were a genuine issue that GSK changed its mind and decided not to terminate Reilly through outsourcing. After ruling that the internal investigation into Reilly’s issues was not a “grievance” or even a piece of collateral that could determine his ultimate employment status, the court ruled, “We find this evidence to be ‘collectively sufficient to cast doubt upon whether a reasonable employee in [Reilly’s] position should have known that he had been discharged.’”

As for the second issue of whether Reilly is owed whistleblower protection under SOX, the court said it doesn’t apply to his case, mainly because Reilly’s complaints weren’t founded on the idea that GSK’s alleged behavior infringed on SEC rules that are protected in SOX. Instead, Reilly’s main concern was to improve performance concerns and issues.

Considering this, the district court granted GSK summary judgment.

In 2011 Reilly worked as a senior analyst in GSK’s IT department. He allegedly told colleague Rich Oberholzer he had concerns with a system not performing properly after Oberholzer stared using uncapped processors. Once the uncapped processers were enabled, GSK consumers started to complain about the overall performance, the complaint stated. 

Oberholzer and Reilly ended up having a confrontation over the processors, and, after more back-and-forth, Reilly also complained about the performance of the servers in 2013, the suit alleges. 

The lawsuit states he sent an e-mail to his service manager, Jo Taylor, and later to Taylor’s supervisor, Steve Miller, the vice president of enterprise systems and technologies. After not being happy with the responses he received from GSK, Reilly took his issues up with the Global Compliance Office via the company’s “Speak Up” line. He then filed a complaint with the GSK CEO Andrew Witty in 2015.

His complaints were then investigated per GSK policy, the suit states. However, GSK then made an announcement in March 2014 that it was outsourcing, and that Reilly’s position would be ending. He allegedly was told he could apply for an analyst position and even testified that GSK told him if he didn’t apply for that position, that would be his agreement to be terminated. The same went for his other coworkers, including Oberholzer. 

Still, Reilly did not apply for the position, the suit alleges, because he thought his own position would be “protected.” Reilly took short-term disability leave in July 2014. At the same time his “official notification of separation” was “postponed,” according to the lawsuit. 

Reilly went back to work in January 2015. Later that month he allegedly received a memo with the subject “administrative leave,” that let him know he’d be placed on paid administrative leave during a postponement of the official notification because of the complaint he filed 2015. He was later told his “official notification of separation from GSK” was April 8, 2015. Reilly’s final day at GSK was June 30, 2015, the lawsuit states.

That month, the complaint states, Reilly responded with a complaint to the Occupational Safety and Health Administration (OSHA), which dismissed his SOX complaint, saying it was untimely. He appealed, and an administrative law judge also stated his complaints were untimely. Reilly then filed a petition of review for the judge's decision in March 2017, and followed up with the current complaint on May 4, 2017.

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