HARTZMAN v. WELLS FARGO & COMPANY

Filing 171

MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN, JR on 07/12/2017, that Plaintiff's Motion for Summary Judgment (Doc. 107 ) is DENIED, that Defendant's Motion for Summary Judgment (Doc. 124 ) is GRANTED, and that th is case is DISMISSED. FURTHER that Plaintiff's Motion for a Hearing before Summary Judgment Deadline (Doc. 105 ) is DENIED AS MOOT. FURTHER that Defendant's Motion for Dismissal for Non-Compliance with Court Order (Doc. 158 ) is DENIED AS MOOT. A judgment in accordance with this Memorandum Opinion and Order will be entered contemporaneously herewith.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
GEORGE HARTZMAN,
Plaintiff,
v.
WELLS FARGO ADVISORS, LLC,
Defendant.

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1:14CV808

MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Presently before this court is a Motion for Summary
Judgment filed by pro se Plaintiff George Hartzman (“Hartzman”)
(Doc. 107), and a Motion for Summary Judgment filed by Defendant
Wells Fargo Advisors, LLC (“Wells Fargo”) (Doc. 124). Both
parties have responded to the respective opposing party’s motion
(Docs. 140, 135), and both parties have filed a reply (Docs.
147, 146). This matter is now ripe for resolution, and for the
reasons stated herein, Defendant’s motion will be granted and
Plaintiff’s motion will be denied.
I.

PROCEDURAL HISTORY
Plaintiff commenced this action on September 22, 2014, by

filing a complaint alleging that Defendant retaliated against
him for reporting Defendant’s allegedly fraudulent practices, in

violation of the Sarbanes-Oxley whistleblower protection
provisions set forth in 18 U.S.C. § 1514A(b). (See Complaint
(“Compl.”) (Doc. 1).) Plaintiff then amended his Complaint,
filing a “Supplement to Initial Complaint” that included
attachments setting forth additional factual allegations. (See
Suppl. to Initial Compl. (Doc. 8).) Plaintiff moved to amend his
pleadings a second time, filing alongside his motion a proposed
“First Amended Complaint” that was 144 pages in length. (Docs.
24, 24-1.) The Magistrate Judge granted in part and denied in
part Plaintiff’s motion, allowing Plaintiff to amend his
pleading only as to his Sarbanes-Oxley retaliation claim, but
ordering him to do so “without the addition of John Stumpf or
Robert Steel as Defendants or the inclusion of any causes of
action beyond his claim of retaliation related to the SarbanesOxley Act.” (Mem. Op. & Order (Doc. 35) at 19.) Plaintiff filed
a Second Amended Complaint on March 27, 2015 (Doc. 36).
Thereafter, Defendant moved to dismiss, and the issue was fully
briefed. (See Docs. 37-40.)
On February 17, 2016, this court filed a Memorandum Opinion
and Order granting Defendant’s Motion to Dismiss in part. (Doc.
43.) That order dismissed all of Plaintiff’s causes of action
for failure to state a claim save one: a retaliation claim
arising under the Sarbanes-Oxley Act that related to his raising
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of concerns regarding whether government loans were properly
disclosed in Defendant’s filings from 2008 and 2009 with the
Securities and Exchange Commission (“SEC”). (Id. at 32.)
Plaintiff and Defendant have moved for summary judgment on that
one remaining claim. (Docs. 107, 124.)
II.

LEGAL STANDARD
Summary judgment is appropriate where an examination of the

pleadings, affidavits, and other proper discovery materials
before the court demonstrates that no genuine issue of material
fact exists, thus entitling the moving party to judgment as a
matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322–23 (1986). The moving party bears the burden
of initially demonstrating the absence of a genuine issue of
material fact. Celotex, 477 U.S. at 323.
If the moving party has met that burden, then the nonmoving
party must persuade the court that a genuine issue remains for
trial. This requires “more than simply show[ing] that there is
some metaphysical doubt as to the material facts”; the
“nonmoving party must come forward with ‘specific facts showing
that there is a genuine issue for trial.’” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)
(citations omitted) (quoting Fed. R. Civ. P. 56(e)). In
considering a motion for summary judgment, the court is not to
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weigh the evidence, but rather must determine whether there is a
genuine dispute as to a material issue. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986).
Nonetheless, the court must ensure that the facts it
considers can be “presented in a form that would be admissible
in evidence” and that any affidavits or evidence used to support
or oppose a motion are “made on personal knowledge, set out
facts that would be admissible in evidence, and show that the
affiant or declarant is competent to testify on the matters
stated.” See Fed. R. Civ. P. 56(c)(2), (4).
The court must view the facts in the light most favorable
to the nonmoving party, drawing inferences favorable to that
party if such inferences are reasonable. Anderson, 477 U.S. at
255. However, there must be more than a factual dispute, the
fact in question must be material, and the dispute must be
genuine. Fed. R. Civ. P. 56(c); Anderson, 477 U.S. at 248. A
dispute is only “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248.
III. FACTUAL BACKGROUND
Hartzman worked as a financial advisor for Wells Fargo
until he was terminated in October of 2012. (Second Amended
Complaint (“Second Am. Compl.”) (Doc. 36) ¶ 1; Declaration of
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William Spivey (“Spivey Decl.”) (Doc. 80) ¶ 1.)1 William Spivey
(“Spivey”) was Hartzman’s direct supervisor from approximately
2002 through October 2012. (Spivey Decl. (Doc. 80) ¶ 1.) While
employed by Wells Fargo, Hartzman raised “federal criminal
concerns” through a confidential company ethics reporting
channel, “EthicsLine”. (Second Am. Compl. (Doc. 36) ¶ 3.)
Hartzman raised his concerns by contacting the Wells Fargo
EthicsLine on three different occasions, including November 29,
2011, December 2, 2011, and December 3, 2011. (EthicsLine
Complaints (Docs. 126-4, 126-5, 126-6).) The EthicsLine
Complaints seemed to assert that Wells Fargo violated its
internal code of ethics and its Securities and Exchange
Commission (“SEC”) reporting requirements by omitting from its
filings that it had received “secret loans”2 from the Federal
Reserve. (Id.) For documentation available concerning the
incident, the EthicsLine Complaints list “plenty,” “bloomberg
foia request” and “bloomberg.” (Doc. 126-4 at 4; Doc. 126-5 at
5; Doc. 126-6 at 4.)

All citations in this Memorandum Opinion and Order to
documents filed with the court refer to the page numbers located
at the bottom right-hand corner of the documents as they appear
on CM/ECF.
1

These loans are apparently funds that Wells Fargo received
access to under the federal Term Auction Facility during the
financial crisis.
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Brian Mixdorf (“Mixdorf”), a Senior Agent in Corporate
Investigations for Wells Fargo, was assigned to address
Hartzman’s EthicsLine Complaints. (Declaration of Brian Mixdorf
(Doc. 91) ¶¶ 1, 2; Deposition of George Hartzman (“Hartzman
Dep.”) (Doc. 130-1) at 64.) Mixdorf contacted Hartzman on
December 5, 2011, via email. (Doc. 126-8 at 2.) Hartzman
responded to Mixdorf and provided him with additional materials
regarding his complaints entitled “What To Do Now Hartzman
Tactical Allocation.” (Id. at 1; see Hartzman Dep. (Doc. 130-1)
at 65.)
Mixdorf thereafter scheduled a call with Hartzman to
discuss Hartzman’s concerns and the nature of his complaints.
(See Doc. 126-8; Deposition of Mixdorf (“Mixdorf Dep.”) (Doc.
129-7) at 3.) Mixdorf testified that the EthicsLine Complaints
were “very confusing” and that the telephone conversation with
Hartzman was “very, very confusing.” (Mixdorf Dep. (Doc. 129-7)
at 4.) Mixdorf testified that as a result of the telephone call
with Hartzman, he contacted security because “the nature of
[Hartzman’s] actions” caused him to feel “harassed” and to
become concerned with his personal safety, with Hartzman’s
personal safety, and with the safety of other people at the
branch. (Id. at 6-7, 11.) Mixdorf testified that he “looked into

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[Hartzman’s] concerns the best [he] could,” and then closed his
portion of the case. (Id. at 3, 9.)
On December 8, 2011, December 19, 2011, and January 4,
2012, Hartzman emailed Mixdorf with various questions and
requesting an update. (Docs. 126-10, 127-1, 127-2.) Mixdorf
advised Hartzman that “our case is closed” and to “confer with
your manager if you feel the need.” (Doc. 127-1 at 1; Doc. 127-2
at 1.) Mixdorf testified this meant that his portion of what he
could investigate was completed, and further, that since
becoming a Wells Fargo employee, he was trained that results of
EthicsLine Complaints were not to be revealed to callers.
(Mixdorf Dep. (Doc. 129-7) at 8-9; see Doc. 108-14.) On
January 4, 2012, Hartzman then sent an email to his manager
William Spivey with a copy to Mixdorf and another Wells Fargo
employee Janet Eason (“Eason”), referencing his EthicsLine
Complaints and attaching some of the documentation he had
provided in the EthicsLine Complaints. (Doc. 127-3; Doc.
108-12.) Prior to that email, Spivey had been unaware of
Hartzman’s EthicsLine Complaints. (Deposition of William D.
Spivey (“Spivey Dep.”) (Doc. 129-9) at 2-3.)
Shortly thereafter, Ken Tolson (“Tolson”), an Employee
Relations Consultant with Wells Fargo, was contacted. He emailed
Hartzman to answer Hartzman’s questions and stated in part
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“[t]hank you for raising these concerns. They have been
investigated and will be addressed. It is our practice not to
share the outcome of investigations. However, you can rest
assured your concerns have been taken seriously, investigated
and will be addressed.” (Doc. 127-4 at 17-18; see Doc. 108-15;
Deposition of Ken Tolson (“Tolson Dep.”) (Doc. 109-3) at 1-2.)
In response to an email from Hartzman on January 5, 2012, Tolson
again advised him that “we do not share the results [of the
investigation] or how it will be addressed”, and encouraged
Hartzman to discuss other concerns with his manager. (Doc. 127-4
at 14-15; Doc. 127-10 at 1.) In response, Hartzman emailed
Tolson (with copies to Mixdorf, Spivey, and Eason) with more
questions and various statements regarding, for instance,
fiduciary duties. (Doc. 127-4 at 11-13.) He also sent copies of
these emails to three Wells Fargo employees in auditing to whom
he had never spoken previously. (Doc. 127-4 at 1, 11; Hartzman
Dep. (Doc. 130-1) at 82-84.)
On January 19, 2012, Hartzman emailed Mixdorf, Spivey,
Eason and Tolson, as well as three other Wells Fargo employees,
with various information relating to his EthicsLine Complaints
and with a subject line “[p]lease provide an update on this
ethics issue.” (Doc. 127-5 at 2-10; Doc. 127-6.) Spivey
responded stating “George, I thought we agreed that you would
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stop this,” and “[y]ou have been warned to stand down from
this.” (Doc. 127-5 at 1-2.) Hartzman replied that he “would like
to escalate this up the management chain.” (Doc. 109-8.)
Hartzman also tried to call several Wells Fargo employees
regarding his emails including Danny Ludeman (“Ludeman”), who
Hartzman understood “ran Wells Fargo Advisors.” (Hartzman Dep.
(Doc. 130-1) at 91-92.)
On February 14, 2012, Hartzman had a discussion via email
with Wells Fargo Managing Director Aaron Landry (“Landry”), who
had been contacted by Spivey after Hartzman’s request to
escalate. (Doc. 127-7; Doc. 109-9.) Hartzman requested an
“update on the ethics thing” and who “at the region” was
handling it. (Doc. 127-1 at 1.) Landry replied that “I am your
contact and will facilitate your inquiry and allegation.” (Id.)
On February 22, 2012, Hartzman sent an email to Landry and six
other Wells Fargo employees with subject line “[p]lease provide
an update on the ethics thing” and containing EthicsLine
Complaints documentation and apparent quotes from Robert Dahl
and Bruce Judson. (Doc. 127-8.) Landry responded via email
stating that “the region is looking into your concerns and [I]
will be back to you when we have a response.” (Doc. 127-9.)
On March 4, 2012, Hartzman sent an email to at least 13
Wells Fargo employees, including Ludeman and the CEO of Wells
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Fargo Corporation, asking for an update and attaching some
EthicsLine Complaints information that Hartzman had attached to
several of the other previous emails. (Doc. 128-1.) Mixdorf
responded to the email on March 9, 2012, at 10:06 a.m. advising
Hartzman that “the Company received your initial Ethics Line
allegations. The Company’s practice is not to share information
relating to its review of such allegations. . . . To the extent
you continue to raise the same issues . . . , you will not
receive any further response.” (Doc. 128-2 at 1.) Mixdorf also
advised Hartzman in the email of the following:
I would like to remind you that we expect that you,
like all other Team Members, will use the appropriate
channels when raising an issue, meaning that issues
should be raised to the appropriate contact person,
and not others. The investigations group that I am a
part of is charged with investigating Ethics Line
allegations, so your complaints have made it to the
right place. Your continuous requests for updates from
individuals with no knowledge of or involvement with
your complaints are unproductive, interfere with the
conduct of business, and hinder the Company’s review
of your allegations. Accordingly, the Company expects
that all future communications regarding your Ethics
Line allegations will be directed only to my attention
(or others I may designate to assist with the
Company’s review of your allegations).
If you have a workplace concern, you may contact HR
Advisor at 1-866-649-9589. With respect to any other
questions that pertain to your business, please
continue to direct your inquiries to your manager.
Once again, we take your concerns seriously. Please
advise if you have an available time next Monday or
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Tuesday to discuss your new allegations in more
detail.
(Id. at 1-2.) Hartzman responded at 10:13 a.m. and 11:13 a.m. by
emailing the same group of Wells Fargo employees, in addition to
Mixdorf and Spivey, again asking for an update and including
information he had provided in previous emails. (Doc. 110-5;
Doc. 128-3.)
On March 13, 2012, Hartzman was issued a Formal Warning
stating that “you have repeatedly requested updates on your
Ethics Line complaint from individuals with no knowledge of or
involvement in your complaints. You have been advised repeatedly
. . . that the Company’s practice is not to share information
relating to its review of such allegations.” (Doc. 126-1 at 1.)
The warning also noted that “[o]n Friday, March 9 . . . [y]ou
were also explicitly directed not to involve other team members
who were not involved in or responsible for addressing your
concerns.” (Id.) However, “[m]inutes after receiving the e-mail
[from Mixdorf] you then sent an e-mail, requesting yet again an
‘update’ from 16 senior leaders across WBR and Wells Fargo.”
(Id.) The warning further stated that such “insubordinate
conduct is not acceptable and will not be tolerated at Wells
Fargo. . . . If this conduct continues, you may be subject to

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further corrective action up to and including termination of
your employment.” (Id. at 2.)
On March 26, 2012, Spivey emailed Hartzman advising
Hartzman to contact him with questions about the Formal Warning
or other client/business concerns; to contact HR Advisor with
workplace concerns; to contact the new investigator from the
Corporate Investigations team about his EthicsLine concerns; and
providing Hartzman with advice on his Asset Advisor accounts.
(Doc. 128-4.) Spivey also emailed Hartzman on March 28, 2012,
providing him with additional advice and instructions. (Doc.
111-10.) Spivey’s reference to a new investigator was because
after Hartzman made complaints against Mixdorf alleging he
violated his code of ethics, a new investigator from the
Corporate Investigations team was assigned. (Hartzman Dep. (Doc.
130-1) at 95-96.) However, Hartzman declined to speak with the
new investigator. (Id. at 97-98.)
On May 1, 2012, Hartzman received a Memorandum of Warning
for his “failure to comply with Wells Fargo Advisors’ policy
regarding documentation of ongoing advice section 15.F.4 of
associates guide.” (Doc. 126-2 at 1.) The warning further stated
that “[y]ou are hereby directed to immediately comply with the
Firm’s policies and procedures . . . [and] material failure to
comply with this Memorandum of Warning or any other Firm policy
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or procedure may result in further disciplinary action,
including termination of your employment.” (Id. at 1-2.)
On May 8, 2012, Spivey sent Hartzman an email “in response
to your recent emails asking about whether the Company has
obtained material loans that it has not disclosed. I have looked
into your questions and am writing to provide you with a
response on behalf of the Company.” (Doc. 129-6.)
Thereafter, in June 2012, Hartzman advertised, via the
internet, a seminar for certified public accountants entitled
“George Hartzman’s Wells Fargo Whistleblower Filing and the
Accounting Industry in Chapel Hill” to take place on June 21,
2012. (Doc. 128-5; Hartzman Dep. (Doc. 130-1) at 33-34, 110.)
Wells Fargo had previously approved Hartzman to teach seminars,
which were unaffiliated with Wells Fargo, but it was conditioned
upon Hartzman not disclosing his position with Wells Fargo in
connection with promoting or conducting the seminars. (Spivey
Decl. (Doc. 80) ¶ 4(c); Hartzman Dep. (Doc. 130-1) at 111.)
Therefore, Hartzman’s advertisement violated Wells Fargo
policies, of which he was aware. (Spivey Decl. (Doc. 80) ¶ 4(c);
Hartzman Dep. (Doc. 130-1) at 29-30.) Spivey told Hartzman to
remove any advertisements regarding the seminar and to cancel
the event, which Hartzman agreed to do. (Doc. 128-6.)

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Wells Fargo also designates certain information and
documents as “internal use only” in order to comply with
regulatory requirements and to protect confidential information.
(Spivey Decl. (Doc. 80) at ¶ 4(d).) Hartzman was aware of these
policies. (Hartzman Dep. (Doc. 130-1) at 28-30.) However,
Hartzman posted on his public blog various “internal use only”
documents and internal emails. (Doc. 128-8; Hartzman Dep. (Doc.
130-1) at 34.) Spivey instructed Hartzman to remove the portions
of the blog that violated Wells Fargo policies. (Spivey Decl.,
Ex. 1 (Doc. 80-1) at 2.)
On July 23, 2012, Hartzman was issued a Final Warning in
relation to his violations concerning the seminar advertisement
and his blog postings. (Doc. 126-3.) The warning instructed
Hartzman to comply with all Wells Fargo policies and to
immediately remove any information in violation of the policies
from his blog. (Id. at 3.) The warning advised that “[i]f
further infractions of this nature occur again at any
time . . . , your employment will be terminated immediately, as
this is a Final Warning resulting from your continued violation
of Firm policy despite repeated warnings. Further violations of
other Firm policies may also lead to immediate termination.”
(Id.)

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During this time, Wells Fargo decided to bring in an
outside investigator to perform a review of Hartzman’s
complaints. (Spivey Dep. (Doc. 129-9) at 7.) Wells Fargo
retained Hank Sanchez (“Sanchez”), Associate Director of Oyster
Consulting, LLC, who had not previously done business with Wells
Fargo. (Deposition of Henry Sanchez, Jr. (“Sanchez Dep.”) (Doc.
129-10) at 7.) Sanchez was given “carte blanche from Wells
[Fargo] to do whatever [he] needed” to investigate Hartzman’s
concerns. (Sanchez Dep. (Doc. 129-10) at 7-8.) Thereafter,
Sanchez met with Hartzman on July 2, 2012, to discuss Hartzman’s
concerns. (Dep. of Sanchez (Doc. 129-10) at 6-7.) Following his
investigation, Sanchez prepared a report of findings. (See id.
at 4-5.) Sanchez also spoke with Hartzman and Spivey on July 20,
2012, to advise Hartzman of his findings. (Dep. of Sanchez (Doc.
129-10) at 4-5; Dep. of Spivey (Doc. 129-9) at 8.)
On September 10, 2012, Hartzman sent an email to thousands
of recipients, including non-Wells Fargo employees, entitled
“Whistleblower Evidence for the SEC and FINRA: How to Manipulate
a Financial Plan.” (See Hartzman Dep. (Doc. 130-1) at 8.) This
email contained Wells Fargo “internal use only” information in
violation Wells Fargo policies. (See Hartzman Dep. (Doc. 130-1)
at 10-12, 23-24.) Hartzman admitted he sent the email to
approximately 2,400 individuals, including Wells Fargo customers
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and individuals he did not know. (Spivey Decl. (Doc. 80) at 5;
Hartzman Dep. (Doc. 130-1) at 8, 17.) Hartzman also admitted
that he was aware of the Wells Fargo policies that prohibit
sharing “internal use only” information with people outside of
Wells Fargo. (Hartzman Dep. (Doc. 130-1) at 18, 28-29.)
When Spivey learned of the email, he contacted the Wells
Fargo Human Resources and Compliance departments. (Spivey Decl.
(Doc. 80) ¶ 7.) Spivey also contacted Hartzman and set up an
interview between Hartzman and Wells Fargo compliance
investigators regarding the email. (Hartzman Dep. (Doc. 130-1)
at 13.) On October 8, 2012, Spivey and Landry notified Hartzman
that he was being terminated because of the September 10, 2012
email. (Id. at 22.)
On January 30, 2013, Hartzman filed a complaint with the
Occupational Safety and Health Administration (“OSHA”), alleging
that Wells Fargo “discriminated against him in violation of SOX
[the Sarbanes-Oxley Act].” (OSHA Letter (Doc. 128-10) at 2.) On
July 2, 2013, OSHA entered a decision finding that there was “no
reasonable cause to believe that [Wells Fargo] violated SOX” and
dismissed the complaint. (Id. at 1-2, 4.) Plaintiff commenced
this action on September 22, 2014.

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IV.

ANALYSIS
Plaintiff claims that Wells Fargo retaliated against him

for whistleblowing, in violation of the Sarbanes-Oxley Act.
Title VIII of SOX is designated as the Corporate and Criminal
Fraud Accountability Act of 2002. Section 806 of this Act,
codified at 18 U.S.C. § 1514A, provides “whistleblower”
protection to employees of publicly traded companies. SOX
prohibits retaliation against an employee who “provide[s]
information, cause[s] information to be provided, or otherwise
assist[s] in an investigation regarding any conduct which the
employee reasonably believes constitutes” mail, wire, or
securities fraud, a violation of any rule or regulation of the
SEC, or a violation of any federal law relating to fraud against
shareholders. 18 U.S.C. § 1514A(a)(1).
A plaintiff asserting a SOX whistleblower claim must prove,
by a preponderance of the evidence, that: “(1) []he engaged in
protected activity; (2) the employer knew that []he engaged in
the protected activity; (3) []he suffered an unfavorable
personnel action; and (4) the protected activity was a
contributing factor in the unfavorable action.” Feldman v. Law
Enf’t Assocs. Corp., 752 F.3d 339, 344 (4th Cir. 2014) (footnote
omitted). In this case, there appears to be no dispute as to the
second and third elements that Wells Fargo was aware of
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Hartzman’s alleged protected activity, and that Hartzman
suffered an adverse personnel decision when he was given formal
warnings and ultimately terminated. Wells Fargo, however,
disputes that Hartzman can prove the first and fourth elements.
Protected activity, as required in the first element, is
“report[ing] conduct that [the employee] reasonably believes
constituted a violation of [certain] federal law[s].” Id. at 344
n.5 (internal quotation marks and citation omitted). Under this
standard, a plaintiff need not prove that the employer’s conduct
actually constituted fraud, only that the employee had “both a
subjective belief and an objectively reasonable belief” that the
conduct was illegal. Welch v. Chao, 536 F.3d 269, 277 n.4 (4th
Cir. 2008). An objectively reasonable belief is present when “a
reasonable person in [Plaintiff’s] position would have believed
that the conduct constituted a violation.” Livingston v. Wyeth,
Inc., 520 F.3d 344, 352 (4th Cir. 2008) (emphasis added). As
such, to qualify for protection, Hartzman’s belief that the
alleged activities were illegal must have been objectively
reasonable to a person with his years of experience as a
financial advisor and as a teacher of CPA ethics courses.
Hartzman contends that he “blew the whistle” regarding
Wells Fargo’s failure to include certain funds received from the
Federal Reserve (the “secret loans”) in their SEC filings from
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2008 and 2009. (See Second Am. Compl. (Doc. 36) ¶¶ 12, 60.)
There is no dispute as to Hartzman’s subjective belief that
Wells Fargo was violating the law. Wells Fargo’s argument is
that Hartzman cannot establish an objectively reasonable belief
that these actions violated the law.
As to the fourth element, “[a] contributing factor is ‘any
factor, which alone or in combination with other factors, tends
to affect in any way the outcome of the decision.’” Allen v.
Admin. Review Bd., 514 F.3d 468, 476 n.3 (5th Cir. 2008) (citing
Klopfenstein v. PCC Flow Techs. Holdings, Inc., ARB Case No. 04–
149, 2006 WL 3246904, at *13 (ARB May 31, 2006)). “This element
is broad and forgiving,” Lockheed Martin Corp. v. Admin. Review
Bd., 717 F.3d 1121, 1136 (10th Cir. 2013), and “[t]his test
[was] specifically intended to overrule existing case law, which
requires a whistleblower to prove that his protected conduct was
a ‘significant’, ‘motivating’, ‘substantial’, or ‘predominant’
factor in a personnel action in order to overturn that action.”
Marano v. Dep’t of Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993).
“Temporal proximity between the protected activity and the
adverse action is a significant factor in considering a
circumstantial showing of causation,” Tice v. Bristol–Myers
Squibb Co., 2006–SOX–20, 2006 WL 3246825, at *20 (Dep’t of Labor
Apr. 26, 2006) (internal citations omitted), and “[t]he causal
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connection may be severed by the passage of a significant amount
of time, or by some legitimate intervening event.” Halloum v.
Intel Corp., ALJ No. 2003–SOX–0007, 2004 WL 5032613, at *16
(Dep’t of Labor Mar. 4, 2004). Wells Fargo argues that Hartzman
has no admissible evidence to show that the alleged protected
activity contributed to his termination, and that Hartzman’s
intervening policy violations caused his termination.
Wells Fargo further argues that even if this court were to
find that Hartzman established a prima facie case, Wells Fargo
has sufficient evidence to establish that it would have taken
the same action, terminating Hartzman, in the absence of the
protected activity. Under the burden-shifting framework of SOX
whistleblower claims, “[i]f the plaintiff carries his burden,
the employer may nonetheless defeat the plaintiff’s claim for
relief by showing by clear and convincing evidence that the
employer would have taken the same unfavorable personnel action
in the absence of [the protected activity].” Livingston, 520
F.3d at 351 (internal quotation marks omitted) (alteration in
original).
Assuming without deciding that Hartzman satisfied his prima
facie burden under SOX, this court finds that Wells Fargo has
presented clear and convincing evidence detailing the rationale
behind the unfavorable personnel actions, including the decision
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to terminate Hartzman, and demonstrating that such actions were
tied to numerous policy violations, such as his public
disclosure of confidential internal company documents after
being repeatedly warned, and that such actions would have
occurred in the absence of any protected activity. Wiest v. Tyco
Elecs. Corp., 812 F.3d 319, 322, 333 (3d Cir.), cert. denied,
137 S. Ct. 82 (2016) (affirming summary judgment where employer
demonstrated that it would have taken the same actions with
respect to employee “given the thorough, and thoroughly
documented, investigation conducted by its human resources
director” because it is not the court’s “role to second-guess a
human resources decision that followed a thorough
investigation”).
Hartzman was aware of the Wells Fargo policies related to
teaching seminars and to internal company documents, yet chose
to violate those policies in advertising for his seminar, in
posting inappropriate material on his public blog, and in
sending a mass email with “internal use only” documents to
non-Wells Fargo recipients. Hartzman was told in unequivocal
terms that if he continued to violate those company policies, he
would be subject to termination.
Hartzman was also told in unequivocal terms that he was not
to send emails to Wells Fargo employees who were not involved in
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the investigations of his complaints. He was provided with
numerous other points of contact for his questions and was
encouraged to provide information on any concerns he had, but
that he was to adhere to Wells Fargo policies. See Formella v.
U.S. Dep’t of Labor, 628 F.3d 381, 393 (7th Cir. 2010)
(terminated truck driver claimed retaliation in violation of
Surface Transportation Assistance Act for his raising of safety
concerns, but court held that “[a]lthough some allowance must be
made for impulsive and emotional behavior on the part of a
driver with safety-related concerns, he can nonetheless be
expected to demonstrate civility and respect for his superiors
in voicing those concerns.”) Instead, minutes after being
directed on this point, Hartzman sent a second email to the
exact same recipients he was directed not to email. JDS Uniphase
Corp. v. Jennings, 473 F. Supp. 2d 705, 712 (E.D. Va. 2007)
(summary judgment appropriate when undisputed facts clearly and
convincingly reflect that employer would have terminated
employee for reasons unrelated to his alleged protected
activity, such as his admitted disdain for, and deliberate
disregard of, employer’s policies and procedures).
Along with providing Hartzman with numerous points of
contact for questions and concerns, Wells Fargo assigned at
least three investigators, including an independent
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investigator, to address Hartzman’s EthicsLine Complaints and
other concerns. However, Hartzman refused to even speak with one
of the assigned investigators. Instead, Hartzman continued to
violate company policies and sent another inappropriate email
with internal and confidential documents to approximately 2,400
email addresses, knowing that some were not Wells Fargo
employees. Hartzman was warned of possible termination and given
several chances to comply, but chose to continue with conduct he
knew violated established policies.
Hartzman’s argument that Wells Fargo’s reasoning is
pretextual is unsubstantiated, as he has presented no evidence
other than his own subjective interpretation of Wells Fargo’s
actions. An employee cannot show pretext by merely disagreeing
with documented concerns. Hartzman cannot hide behind his belief
that Wells Fargo accepted “secret loans.” Whistleblower
provisions are not “intended to be used by employees to shield
themselves from the consequences of their own misconduct or
failures.” Trimmer v. U.S. Dep’t of Labor, 174 F.3d 1098, 1104
(10th Cir. 1999). In short, Wells Fargo has shown by clear and
convincing evidence that it would have terminated Hartzman in
the absence of his EthicsLine Complaints. Therefore, Defendant’s
motion for summary judgment is granted on Plaintiff’s claim
for retaliation.
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V.

CONCLUSION
For the reasons stated herein, IT IS HEREBY ORDERED that

Plaintiff’s Motion for Summary Judgment (Doc. 107) is DENIED,
that Defendant’s Motion for Summary Judgment (Doc. 124) is
GRANTED, and that this case is DISMISSED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for a Hearing
before Summary Judgment Deadline (Doc. 105) is DENIED AS MOOT.
IT IS FURTHER ORDERED that Defendant’s Motion for Dismissal
for Non-Compliance with Court Order (Doc. 158) is DENIED AS
MOOT.
A judgment in accordance with this Memorandum Opinion and
Order will be entered contemporaneously herewith.
This the 12th day of July, 2017.

______________________________________
United States District Judge

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