Filed: Dec. 16, 2005
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 12-16-2005 Flear v. Glacier Garlock Precedential or Non-Precedential: Non-Precedential Docket No. 04-2994 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Flear v. Glacier Garlock" (2005). 2005 Decisions. Paper 102. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/102 This decision is brought to you for free and open access by the Opinio
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 12-16-2005 Flear v. Glacier Garlock Precedential or Non-Precedential: Non-Precedential Docket No. 04-2994 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Flear v. Glacier Garlock" (2005). 2005 Decisions. Paper 102. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/102 This decision is brought to you for free and open access by the Opinion..
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Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
12-16-2005
Flear v. Glacier Garlock
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2994
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Flear v. Glacier Garlock" (2005). 2005 Decisions. Paper 102.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/102
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2994
JOHN FLEAR,
Appellant
v.
GLACIER GARLOCK BEARINGS,
a division of ENPRO INDUSTRIES, INC.
_______________
Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 02-cv-04238 )
District Judge: Honorable Freda L. Wolfson
Argued on June 28, 2005
Before: ROTH, RENDELL and BARRY, Circuit Judges
(Opinion filed: December 16, 2005)
Bruce L. Harrison, Esquire (Argued
Capehart & Scatchard
8000 Midlantic Drive
Laurel Corporate Center, Suite 300
Mount Laurel, NJ 08054
Counsel for Appellee
Alan B. Epstein, Esquire (Argued)
Michael S. Friedman, Esquire
Nancy Abrams, Esquire
Spector, Gadon & Rosen
1635 Market Street
Seven Penn Center, 7th Floor
Philadelphia, PA 19103
Counsel for Appellant
OPINION
ROTH, Circuit Judge:
John Flear appeals the District Court’s grant of summary judgment against him.
Flear brought suit, alleging that the termination of his employment with Defendant
Glacier Garlock Bearings violated the New Jersey Conscientious Employee Protection
Act (CEPA), N.J.S.A. 34:19-1 et seq. For the reasons stated below, we will affirm the
judgment of the District Court.
I. Jurisdiction and Standard of Review
The District Court had diversity jurisdiction under 28 U.S.C. § 1332. We have
appellate jurisdiction pursuant to 28 U.S.C. § 1291.
We exercise plenary review over the District Court's grant of summary judgment.
Doe v. Cty. of Centre, Pa., 242 F.3d 437, 446 (3d Cir. 2001). A grant of summary
judgment is appropriate where the moving party has established that there is no genuine
dispute of material fact and “the moving party is entitled to judgment as a matter of law.”
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Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R. Civ. P. 56(c)). On a
motion for summary judgment, we must view the facts in the light most favorable to the
non-moving party and must make all reasonable inferences in that party's favor. See
Marzano v. Computer Sci. Corp.,
91 F.3d 497, 501 (3d Cir. 1996).
II. Summary Judgment
As the facts of this case are thoroughly described in the District Court’s opinion,
we will only briefly summarize them here. Flear was Garlock’s environmental, safety
and health (EHS) engineer from 1994 to 2001, when he was terminated. During his years
at Garlock, Flear submitted numerous reports and notices to his supervisors that
demonstrated his concerns over various EHS compliance issues at Garlock. In 2001,
Flear filed a complaint with the Occupational Safety and Health Administration (OSHA)
regarding some of these issues. Ultimately, after a strained relationship with his employer
over Flear’s complaints and performance problems by Flear in his job responsibilities,
Flear was terminated. Flear then brought this suit, claiming that he was terminated in
retaliation for his complaints regarding EHS compliance, in violation of CEPA. Garlock
argues that Flear was terminated due to his poor work performance.
In order to establish a prima facie case under CEPA, an employee must establish
that (1) he reasonably believed that his employer’s conduct was violating the law, (2) he
performed “whistle-blowing” activity as defined in the statute, (3) an adverse
employment action was taken against him, and (4) a causal connection exists between the
whistle-blowing activity and the adverse employment action. Blackburn v. United Parcel
3
Service, Inc., 179 F.3d 81, 92 (3d Cir. 1999). With respect to the first prong of this test,
the employee must show that the evidence supports an objectively reasonable belief that a
violation has occurred. Dzwonar v. McDevitt,
828 A.2d 893, 901 (N.J. 2003).
If an employee can establish a prima facie case, the burden shifts to the employer
to provide a legitimate, nondiscriminatory reason for the termination. Woodson v. Scott
Paper Co., 109 F.3d 913, 920 (3d Cir. 1997). If the employer can make such a showing,
then the employee must establish that the proffered reason is pretextual and that
retaliation for whistle-blowing was the real reason for termination.
Blackburn, 179 F.3d
at 92.
A. Prima Facie Case
Flear fails to satisfy his burden of demonstrating that there is an issue of material
fact as to his prima facie case. We agree with the District Court that Flear fails to show
that he can satisfy the first and fourth prongs of his prima facie case.
In order to show that he had an objectively reasonable belief that Garlock had
violated the law, Flear must show a “substantial nexus” between the conduct he
complained of and the law he identifies as being violated. Dzwonar, 828 A.2d at 901.
Flear cannot do so here because the evidence shows that Flear was basing his complaints
on standards that were higher than those imposed by law. Flear has admitted that OSHA
did not cite Garlock for items included in Flear’s complaints. The record also reflects that
the citations Garlock did receive from OSHA were resolved and that the OSHA
inspectors were complimentary to Flear and his colleagues. Further, Flear also admitted
4
that items that he complained of were not illegal, but simply were not in accordance with
Flear’s view of best practices. Finally, Flear admitted that his perception of compliance
with EHS standards was different from the compliance standards implemented by OSHA.
As Flear himself admits, the items he complained of were not actually violations of the
law or OSHA’s regulations. Thus, he could not have had an objectively reasonable belief
that Garlock was violating the law. The District Court was correct in concluding that
Flear had not shown any issues of fact with regard to the first prong of his prima facie
case.
The District Court also correctly concluded that there were no issues of fact as to
the fourth prong of Flear’s prima facie case. Flear did not show a connection between his
“whistle-blowing” activity and his termination. The record clearly reflects that Flear did
not follow the directions of his managers. When management requested that Flear
provide documentation in support of his allegations, Flear refused to do so.
Further, there were failures in Flear’s performance, unrelated to his complaints
regarding EHS compliance. Flear failed to timely submit a report for which he was
responsible and did not complete elements of Garlock’s EHS program, which were his
responsibility. As the District Court noted, there is no merit in Flear’s argument that
temporal proximity between his complaints and his termination establishes a sufficient
connection. In fact, Flear was not terminated for two months after he notified
management that he was contacting OSHA. Flear has demonstrated no issue of fact
regarding the connection between his “whistle-blowing” activities and his termination.
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Thus, we agree with the District Court’s conclusion that Flear has not upheld his burden
and that there is no issue of fact regarding his prima facie case.
B. Pretext
We also agree with the District Court’s conclusion that, even if Flear had
demonstrated a prima facie case, he has not shown that Garlock’s reasons for termination
were pretextual. The record clearly reflects that Garlock had legitimate,
nondiscriminatory reasons for terminating Flear. As discussed above, Flear had ongoing
problems with his superiors, including a failure to perform specific responsibilities of his
position. There are no inconsistencies or contradictions in the record regarding these
failures. Thus, the District Court was correct in concluding that Flear did not provide
evidence that would allow a fact finder to infer that Garlock’s reasons for terminating
Flear were pretextual.
III. Conclusion
For the reasons stated above, we will affirm the District Court’s grant of summary
judgment for Garlock.
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