Rasvinder Dhaliwal v. Salix Pharmaceuticals, Ltd.
Filing
128
OPINION AND ORDER.....The defendants renewed motion of July 5, 2019 for summary judgment is granted. The Clerk of Court shall enter judgment for the defendant and close the case. (Signed by Judge Denise L. Cote on 10/9/2019) (gr) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
RASVINDER DHALIWAL,
:
:
Plaintiff,
:
:
-v:
:
SALIX PHARMACEUTICALS, LTD.,
:
:
Defendant.
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:
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15cv706(DLC)
OPINION AND ORDER
APPEARANCES
For the plaintiff:
Danilo Bandovic
Derek Smith Law Group, PLLC
One Penn Plaza, Suite 4905
New York, New York 10119
For the defendant:
Benjamin J. Razi
Steven Winkelman
Covington & Burling LLP
One CityCenter
850 Tenth Street, NW
Washington, DC 20001
DENISE COTE, District Judge:
Following remand from the Court of Appeals, the defendant
has renewed its motion for summary judgment.
For the following
reasons, the motion is granted.
Background
Rasvinder Dhaliwal filed this action on January 30, 2015 as
a qui tam action under the False Claims Act, 31 U.S.C. § 3729-33
1
(“FCA”), and various state false claims laws.
On June 9, 2016,
the federal Government elected to intervene, and stipulations of
settlement and dismissal were filed by Dhaliwal, the defendant
Salix Pharmaceuticals, Ltd. (“Salix”) and the Government.
On
December 2, a joint notice of dismissal was entered between
state governments and Salix.
On December 7, 2016, Dhaliwal gave notice of her intent to
pursue her individual surviving claims against Salix.
Following
discovery on those individual claims, Salix moved for summary
judgment.
motion.
On September 14, 2017, this Court granted that
The Court found that Dhaliwal had failed to supply
evidence that her complaints to her supervisors regarding four
categories of concerns constituted protected conduct under the
FCA.
Dhaliwal v. Salix Pharm., Ltd., No. 15CV706 (DLC), 2017 WL
4083180, at *6 (S.D.N.Y. Sept. 14, 2017).
The four categories
of concerns related to promotion of a product known as Solesta;
to disparities in discounts offered to group purchasing
organizations; to budgeting of continuing medical education
programs; and to an April 2012 “Doc-in-a-Box” program.
Id. at
*1-2. 1
At such “Doc-in-a-Box” events, attendees were supposed to view
a pre-recorded educational presentation concerning Salix
products. The presentations were recorded by doctors and played
on laptop computers -- hence, a “doc in a box.” The
Government’s complaint-in-intervention alleged that at many such
events Salix representatives did not play the presentation, or
1
2
Dhaliwal appealed.
On February 12, 2019, the Court of
Appeals vacated in part and remanded the action.
Dhaliwal v.
Salix Pharm., Ltd., 752 F. App’x 99, 102 (2d Cir. 2019) (summary
order).
It held that this Court erred in holding that Dhaliwal
did not engage in protected activity in connection with one of
the four categories: the April 2012 Doc-in-a-Box program.
at 101-02.
Id.
The Second Circuit found that a reasonable jury
could infer that she told her supervisor that the Doc-in-a-Box
program was improper because it appeared to be a thinly veiled
kickback scheme.
Id.
The Court of Appeals noted that because of the error, this
Court did not conduct a detailed causation analysis to determine
whether Salix retaliated against Dhaliwal on account of this
protected activity.
Id. at 102.
It instructed this Court to
determine whether the plaintiff has adduced evidence, sufficient
to warrant a trial, that “Salix retaliated against her because
she voiced concerns about the ‘Doc-in-a-Box’ program.”
Id.
It
observed that there was evidence that the plaintiff suffered
both personal and work-related stresses during the latter half
of 2012 and that those stresses, not retaliation, were what
caused the plaintiff to depart Salix in early 2013.
Id.
played it in a location where it could not be seen and heard by
attendees.
3
On remand, the parties submitted supplemental briefs on the
issues identified by the Court of Appeals.
They were permitted
to rely on the factual record submitted in connection with the
defendant’s June 16, 2017 motion for summary judgment.
They
were not permitted additional discovery or to supplement that
evidentiary record.
The supplemental briefing was fully
submitted on July 26, 2019.
In opposition to this renewed motion for summary judgment
the plaintiff asserts that she engaged in protected activity on
one occasion:
In April 2012, she called her supervisor John
Temperato to report her concern that a Food and Drug
Administration (“FDA”) employee attending a Salix program for
medical faculty would see the event as improper marketing
activity.
This is the Doc-in-a-Box complaint that the Court of
Appeals has identified as a statement that a jury could find was
protected activity. 2
In opposition to the renewed summary judgment motion,
Dhaliwal has also identified three actions that she asserts
Salix took against her in retaliation for the concerns she
raised in April about the Doc-in-a-Box program.
These three
actions were (1) withholding third-quarter objectives linked to
Dhaliwal has abandoned any claim that she reitereated her
concerns about the Doc-in-a-Box program at a dinner meeting with
Salix superiors on March 14, 2013.
2
4
her compensation until August 14, 2012 and not providing any
objectives for the fourth quarter of 2012; (2) offering Dhaliwal
a demotion disguised as a promotion on December 20, 2012; and
(3) telling Dhaliwal on March 22, 2013 that it was not a good
idea for her to come back to Salix.
The following chronology places these issues in context;
the facts are undisputed or presented in the light most
favorable to Dhaliwal, the non-moving party.
Dhaliwal in 2005.
Manager (“NAM”).
Salix hired
In 2008, she became a National Accounts
She was promoted to Senior Manager, National
Accounts in 2010 and reported to Director of Managed Markets
Phillipe Adams and Senior Vice President John Temperato.
Dhaliwal had difficulties working with Adams beginning in 2010.
As particularly relevant here, Adams provided Dhaliwal with
quarterly objectives two to four weeks late beginning in 2011.
Salix used such objectives to measure employee performance.
Dhaliwal attended the Doc-in-a-Box program in April 2012.
She called Temperato to report her concern that the FDA employee
in attendance would see that the event was simply a fun evening
for medical faculty.
When Dhaliwal said that she would like to
convey these concerns to a Salix legal compliance officer,
Termperato indicated that he would do so himself.
In February 2012, plaintiff had experienced problems with
fumes in her apartment, and was given time off to deal with the
5
issue.
Around October 29, 2012, Hurricane Sandy hit New York
City and Dhaliwal’s apartment lost power, heat, and hot water.
Salix’s CEO Carolyn Logan was supportive and offered Dhaliwal
assistance in finding a hotel room.
On November 12, Dhaliwal
wrote to Salix’s human resources department indicating that she
would “like to go on short term disability effective
immediately.”
She never returned to work.
While on leave, Dhaliwal exchanged text messages with
Logan, explaining that “[it’s] been really rough.
hurricane was the last thing [I] needed.
to get better.”
[T]he
[J]ust trying everyday
In a December 2012 telephone call, Temperato
informed Dhaliwal that he had created a new position for her
“around Key Opinion Leader development.”
This offer constitutes
the second action that Dhaliwal alleges was adverse.
Dhaliwal retained counsel in January 2013.
On March 14,
2013, Dhaliwal met with Logan and Salix’s CFO Adam Derbyshire at
a dinner arranged by Dhaliwal’s attorney.
According to
Dhaliwal, Logan assured her that she was a valued employee.
On
March 22, Dhaliwal again spoke with Logan and Derbyshire, this
time by telephone.
According to Dhaliwal’s notes of the call,
Logan said, “We can’t imagine you not being at Salix.”
Logan
continued, however, “We both agree it’s not a good idea for you
to come back here.”
Dhaliwal contends that this statement
terminated her employment.
During the call, Logan also
6
described a potential severance package for Dhaliwal.
On April
25, Salix asked Dhaliwal to inform it if she would be returning
to work by May 2, 2013.
On May 2, Dhaliwal sent a “letter of
resignation” to Logan.
In the letter, Dhaliwal asserted that
she had been “constructively terminated” and subjected to “such
a hostile and retaliatory environment that I have been forced
out of the company,” but she did not mention the March 22, 2013
call with Logan and Derbyshire.
The Government served a subpoena on Salix on February 1,
2013, requesting documents regarding the sales and promotional
practices for certain Salix products.
In 2014, Dhaliwal began
cooperating with the federal Government’s FCA investigation of
Salix.
Dhaliwal had no contact with the Government regarding
her allegations of impropriety while she was employed at Salix.
Dhaliwal filed this action on January 30, 2015.
Discussion
Summary judgment may not be granted unless all of the
submissions taken together “show[] that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
“Summary
judgment is appropriate when the record taken as a whole could
not lead a rational trier of fact to find for the non-moving
party.”
Smith v. Cty. of Suffolk, 776 F.3d 114, 121 (2d Cir.
7
2015) (citation omitted).
The moving party bears the burden of
demonstrating the absence of a material factual question, and in
making this determination, the court must view all facts in the
light most favorable to the non-moving party.
See Eastman Kodak
Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456 (1992);
Gemmink v. Jay Peak Inc., 807 F.3d. 46, 48 (2d Cir. 2015).
“[W]here the evidentiary matter in support of the motion does
not establish the absence of a genuine issue, summary judgment
must be denied even if no opposing evidentiary matter is
presented.”
Sec. Ins. Co. of Hartford v. Old Dominion Freight
Line Inc., 391 F.3d 77, 83 (2d Cir. 2004) (citation omitted)
(emphasis omitted).
Once the moving party has asserted facts showing that the
non-movant’s claims cannot be sustained, “the party opposing
summary judgment may not merely rest on the allegations or
denials of his pleading; rather his response, by affidavits or
otherwise as provided in the Rule, must set forth specific facts
demonstrating that there is a genuine issue for trial.”
Wright
v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (citation omitted).
“[C]onclusory statements, conjecture, and inadmissible evidence
are insufficient to defeat summary judgment,” Ridinger v. Dow
Jones & Co. Inc., 651 F.3d 309, 317 (2d Cir. 2011) (citation
omitted), as is “mere speculation or conjecture as to the true
nature of the facts.”
Hicks v. Baines, 593 F.3d 159, 166 (2d
8
Cir. 2010) (citation omitted).
Only disputes over material
facts will properly preclude the entry of summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“An
issue of fact is genuine and material if the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party.”
Cross Commerce Media, Inc. v. Collective, Inc., 841
F.3d 155, 162 (2d Cir. 2016).
Salix renews its motion for summary judgment on two
grounds.
It argues that the three acts Dhaliwal asserts were
acts of retaliation (1) do not constitute adverse employment
actions and (2) have no causal relation to Dhaliwal’s April 2012
conversation with Temperato about the Doc-in-a-Box program.
The FCA’s antiretaliation provision entitles an employee to
relief if that employee is “discriminated against in the terms
and conditions of employment because of lawful acts done by the
employee . . . to stop 1 or more violations of [the FCA].”
U.S.C. § 3730(h)(1).
31
To prevail on an FCA retaliation claim, a
plaintiff must show that “(1) he engaged in activity protected
under the statute, (2) the employer was aware of such activity,
and (3) the employer took adverse action against him because he
engaged in the protected activity.”
United States ex rel.
Chorches for Bankr. Estate of Fabula v. Am. Med. Response, Inc.,
865 F.3d 71, 95 (2d Cir. 2017).
9
The Second Circuit has not defined “adverse action” in the
context of an FCA retaliation claim.
Other circuits have
applied the definition used in Title VII cases, to wit, that an
adverse action “must be materially adverse, which means it well
might have dissuaded a reasonable worker from engaging in
protected activity.”
United States ex rel. Bias v. Tangipahoa
Par. Sch. Bd., 816 F.3d 315, 326 (5th Cir. 2016) (citation
omitted); see also Smith v. Clark/Smoot/Russell, 796 F.3d 424,
434 (4th Cir. 2015).
The Second Circuit has likewise relied on
the Title VII standard to analyze other types of retaliation
claims.
See Davis-Garett v. Urban Outfitters, Inc., 921 F.3d
30, 43-44 (2d Cir. 2019) (Age Discrimination in Employment Act
retaliation); Wrobel v. Cty. of Erie, 692 F.3d 22, 31 (2d Cir.
2012) (First Amendment retaliation); Millea v. Metro-N. R. Co.,
658 F.3d 154, 164 (2d Cir. 2011) (Family and Medical Leave Act
retaliation).
While the Second Circuit has not defined the standard of
causation for FCA retaliation claims, the Supreme Court has
written that “[t]he term ‘because of’ . . . typically imports,
at a minimum, the traditional standard of but-for causation.”
EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2032
(2015); see also Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S.
338, 347, 360 (2013) (holding that Title VII retaliation claims
“must be proved according to traditional principles of but-for
10
causation, not the lessened [motivating-factor] causation test,”
and describing but-for causation as the background standard
against which Congress legislates).
Temporal proximity between
the protected activity and the retaliatory action may strengthen
the inference of a causal connection.
See Gorman-Bakos v.
Cornell Co-Op Extension of Schenectady Cty., 252 F.3d 545, 554
(2d Cir. 2001).
“The New York False Claims Act follows the federal False
Claims Act and therefore it is appropriate to look toward
federal law when interpreting the New York act.”
State ex rel.
Willcox v. Credit Suisse Sec. (USA) LLC, 36 N.Y.S.3d 89, 90 n.2
(N.Y. App. Div. 2016) (citation omitted).
The following
analysis thus applies equally to Dhaliwal’s federal and state
claims.
I.
Delayed or Withheld Objectives
Dhaliwal asserts that one of her supervisors, Adams,
delayed providing her quarterly objectives, and later withheld
those objectives altogether, in retaliation for her conversation
in April 2012 with Temperato about the Doc-in-a-Box program.
Because Dhaliwal has failed to provide evidence from which a
jury could find that these actions were caused by her
conversation with Temperato, Salix is entitled to summary
judgment.
11
It was Salix’s practice to provide NAMs like Dhaliwal with
specific company objectives to be accomplished each quarter, and
NAMs’ bonuses were influenced by their success in achieving
those objectives.
Adams was responsible for giving Dhaliwal her
quarterly objectives.
It is undisputed that Adams provided Dhaliwal with her
objectives for the third quarter of 2012 (which ran from July 1
to September 30) on August 14.
Adams did not provide any
objectives to Dhaliwal for the fourth quarter of 2012 (which ran
from October 1 to December 31).
City on October 29.
Hurricane Sandy hit New York
Dhaliwal took medical leave on November 12,
and she never returned to Salix.
It is assumed for purposes of this analysis that refusing
to provide an employee with quarterly objectives or
substantially delaying delivery of those objectives could
constitute an adverse action.
To the extent that such a
practice interfered with an employee’s ability to receive a
bonus or otherwise affected compensation, then a jury may find
that it “could well dissuade a reasonable worker” from engaging
in protected activity.
Duplan v. City of New York, 888 F.3d
612, 626–27 (2d Cir. 2018) (Title VII).
Dhaliwal has not produced evidence from which a jury could
find that Adams’s failure to provide her quarterly objectives at
the beginning of the third and fourth quarters of 2012 was
12
caused by her conversation with Temperato in April 2012.
Dhaliwal herself has accused Adams of “consistently” providing
her with objectives late, including for an extended period
before April 2012.
Dhaliwal’s own notes record that Adams
provided her objectives two to four weeks late in the last three
quarters of 2011, and seven weeks late in the first quarter of
2012.
Providing her with objectives six weeks late in the third
quarter of 2012 fits with this pattern.
No fact finder could
conclude that the delay in the third quarter of 2012 was due
Dhaliwal’s April 2012 conversation with Temperato.
Dhaliwal
also cites no evidence that Adams had any knowledge of her
conversation with Temperato; this constitutes an independent
reason that no reasonable jury could find Adams’s actions were
caused by such a conversation.
Given that Hurricane Sandy
occurred in late October and Dhaliwal left Salix in mid-November
never to return, there is even less reason to link the failure
to give Dhaliwal fourth quarter 2012 objectives with the April
2012 conversation.
Dhaliwal argues that Salix must articulate a nonretaliatory justification for the delay in providing her
objectives to receive summary judgment in its favor.
No such
justification is required where, as here, the plaintiff has
failed to make out a prima facie case of retaliation.
See Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)
13
(noting that the “ultimate burden of persuading the trier of
fact . . . remains at all times with the plaintiff”); Bucalo v.
Shelter Island Union Free Sch. Dist., 691 F.3d 119, 129-30 (2d
Cir. 2012) (holding that the trier of fact must find that the
plaintiff has made out a prima facie case, even when the
defendant articulates no non-retaliatory justification).
One element of the required prima facie case is “that there
was a causal connection between [the plaintiff] engaging in the
protected activity and the adverse employment action.”
Ya-Chen
Chen v. City Univ. of New York, 805 F.3d 59, 70 (2d Cir. 2015)
(citation omitted).
No reasonable factfinder could find such a
causal connection between Dhaliwal’s April 2012 conversation
with Temperato and the pattern of withholding objectives, which
predated that conversation.
See Slattery v. Swiss Reinsurance
Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001), as amended (June 6,
2001) (“Where . . . adverse job actions began well before the
plaintiff had ever engaged in any protected activity, an
inference of retaliation does not arise.”).
II.
Offer of a New Position on December 20, 2012
Dhaliwal asserts that Salix created and offered her a new
position on December 20, 2012 in retaliation for her April 2012
conversation with Temperato about the Doc-in-a-Box program.
On
December 20, Dhaliwal was on leave from Salix, and had been so
since November 2012.
In response to a request from Dhaliwal’s
14
counsel in January 2013, Salix’s attorney provided a summary of
the new position, which bore the title Key Initiative Manager.
Dhaliwal contends that this new position constituted a demotion,
principally because the position came with no “apparent upward
mobility.”
The parties dispute whether the position of Key Initiative
Manager represented a demotion or not.
It is unnecessary,
however, to describe the evidence they offer regarding that
dispute.
For two independent reasons, Salix has shown that it
is entitled to summary judgment on this claim of retaliation.
First, Dhaliwal has failed to establish that the offer of
this job constitutes an adverse employment action.
She has not
presented evidence from which a jury could find that she was
required to accept this newly created position in the event she
decided to return to work.
Being provided the option to change
job roles, or to remain in one’s current role, would not
dissuade a reasonable worker from taking action to prevent the
submission of false claims. 3
Dhaliwal also argues that summary judgment is improper because
there is a dispute about the date on which a document describing
the Key Initiative Manager position was created. Any such
dispute would not be material; the date on which the document
was created has no bearing on whether the offer of the Key
Initiative Manager position was an adverse employment action or
causally related to protected activity.
3
15
Next, Dhaliwal has failed to provide evidence from which a
jury could conclude that this offer, first described to her at
the end of December, was made in retaliation for the concerns
she raised more than half a year earlier, in April 2012.
In
addition to the many months between the two conversations, a
number of intervening events make it even less plausible to
conclude that the job offer was caused by Dhaliwal’s April call
to Temperato.
These events include the leave Dhaliwal took in
response to Hurricane Sandy, the extended leave from work that
Dhaliwal took beginning in late November, and the fact she had
still not returned to work by the time Temperato offered her the
new position on December 20.
“An intervening event between the
protected activity and the adverse employment action may defeat
the inference of causation where temporal proximity might
otherwise suffice to raise the inference.”
Nolley v. Swiss
Reinsurance Am. Corp., 857 F. Supp. 2d 441, 461 (S.D.N.Y. 2012)
(citing cases), aff’d sub nom. Nolley v. Swiss Re Am. Holding
Corp., 523 F. App’x 53 (2d Cir. 2013).
III.
The March 22, 2013 Telephone Call
Finally, Dhaliwal asserts that Logan’s statement during the
March 22, 2013 telephone call -- that she agreed it was not a
“good idea” for Dhaliwal to return to work -- was an act of
retaliation.
Dhaliwal characterizes Logan’s statement as a
termination of her employment.
Salix has shown that it is also
16
entitled to summary judgment on this last asserted act of
retaliation.
Dhaliwal has failed to offer evidence from which a jury
could find that Logan’s statement, coupled with the offer of a
severance package, was an adverse employment action.
Dhaliwal had retained counsel in January 2013.
As noted,
In early March
her attorney wrote to Salix’s counsel that “it may no longer be
practical or realistic for Ms. Dhaliwal to return to work at
Salix.”
Dhaliwal’s attorney attached a proposed settlement
agreement that would have, among other things, terminated
Dhaliwal’s employment and required Salix to make a lump-sum
“Salary, Bonus & Severance Payment.” 4
Dhaliwal’s effort to characterize the Salix offer of a
severance package as a unilateral termination of her employment
Dhaliwal objects that her attorney’s communications are
inadmissible under Federal Rule of Evidence 408, which provides
that evidence is not admissible “either to prove or disprove the
validity or amount of a disputed claim,” if the evidence
consists of “a statement made during compromise negotiations
about the claim.” Dhaliwal’s claim here is that her employment
was terminated on March 22. Her counsel’s March 5 email cannot
possibly have been an effort to compromise about the yet-toaccrue termination claim and is thus admissible in adjudicating
it. See Zurich Am. Ins. Co. v. Watts Indus., Inc., 417 F.3d
682, 689 (7th Cir. 2005) (“In deciding whether Rule 408 should
be applied to exclude evidence, courts must . . . decide whether
the need for the settlement evidence outweighs the potentially
chilling effect on future settlement negotiations. The balance
is especially likely to tip in favor of admitting evidence when
the settlement communications at issue arise out of a dispute
distinct from the one for which the evidence is being offered.”
(citation omitted)).
4
17
does not succeed.
The offer was made in response to her
counsel’s solicitation.
Moreover, when Dhaliwal did not accept
the severance package, Salix inquired by letter whether she
intended to return to work.
resignation” on May 2, 2013.
statement:
Dhaliwal submitted a “letter of
That letter began with the
“For the reasons I’ve outlined in this letter, it is
with regret that I must advise you that I will be unable to
return to my position as Sr. Manager, National Accounts, my
employment having been constructively terminated by Salix.”
The
letter then described a laundry list of complaints she had about
Salix, but nowhere mentioned the March 22 call that Dhaliwal now
asserts terminated her employment.
Despite Dhaliwal’s attempt to reframe this sequence of
events, no reasonable jury could find that Salix’s offer of a
severance package was a unilateral termination of Dhaliwal’s
employment.
Rather, it was a counter-offer to the proposal made
by Dhaliwal’s attorneys, which likewise would have terminated
Dhaliwal’s employment.
Indeed, the record shows that Dhaliwal
and her attorney understood the March 22 call as part of an
ongoing negotiation.
On March 28, Dhaliwal’s attorney wrote to
Salix’s attorney, 5 saying that “Carolyn [Logan] suggested during
Although this email post-dates March 22 and is marked
“Settlement Related/Without Prejudice/Inadmissible,” it is
admissible despite Federal Rule of Evidence 408. The email
never suggests that the March 22 conversation itself was a
5
18
the [March 22] call with Rose [Dhaliwal] that she was putting
Rose back on the payroll effective March 1, 2013, at least
pending further discussions . . . .”
In that same email,
Dhaliwal’s attorney wrote that during the March 22 call Logan
had “seeming [sic] made a separation proposal” and that he had
“been authorized by Rose to make a counter-proposal.”
A
reasonable worker would not be dissuaded from reporting fraud by
an employer’s willingness to engage in negotiations for a
separation agreement.
Finally, Dhaliwal has not offered sufficient evidence to
permit a jury to find that the April 2012 conversation regarding
the Doc-in-a-Box program prompted the March 2013 offer of a
severance package.
The passage of almost a year between these
events prevents any reasonable inference that they are linked.
There is also undisputed evidence of many intervening events
source of liability or that any compromise negotiations were
underway concerning a claim that stemmed from the March 22
conversation. Thus Rule 408 is no bar to the email’s
admissibility concerning the validity of Dhaliwal’s claim that
the March 22 conversation was retaliatory. See PRL USA
Holdings, Inc. v. U.S. Polo Ass’n, Inc., 520 F.3d 109, 114 (2d
Cir. 2008) (noting that Rule 408 permits the admission of
“evidence focused on issues different from the elements of the
primary claim in dispute”). Additionally, if the emails from
Dhaliwal’s attorney constitute “statement[s] made during
compromise negotiations,” within the meaning of Rule 408, then
Logan’s March 22 comment is also such a statement. Dhaliwal
cannot selectively introduce the portion of the negotiation that
she argues constituted an adverse employment action, while
excluding all surrounding context.
19
that are more directly linked to the March 2013 proposal -especially that Dhaliwal had not worked since November 2012 and
that her attorneys had proposed a termination-and-severance
agreement.
Indeed, Dhaliwal does not even seriously argue in opposing
this motion that Logan’s comment was caused by the April 2012
conversation.
Instead she observes that in February 2013 Salix
received a subpoena from the U.S. Attorney’s Office for the
Southern District of New York seeking documents concerning
certain sales and promotional practices.
Dhaliwal then suggests
that Logan terminated her, “[e]vidently fearing that Ms.
Dhaliwal was the whistleblower.”
evidence for this surmise.
But there is not a shred of
It is undisputed that Dhaliwal did
not begin cooperating with the Government’s investigation until
2014.
Dhaliwal offers nothing more than speculation that Salix
might have (incorrectly) believed she was connected to the
subpoena.
This is insufficient to create a genuine dispute as
to causation.
Conclusion
The defendant’s renewed motion of July 5, 2019 for summary
20
judgment is granted.
The Clerk of Court shall enter judgment
for the defendant and close the case.
Dated:
New York, New York
October 9, 2019
____________________________
DENISE COTE
United States District Judge
21
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