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Hartzman v. Wells Fargo Advisors, LLC

United States District Court, M.D. North Carolina

July 12, 2017

GEORGE HARTZMAN, Plaintiff,
v.
WELLS FARGO ADVISORS, LLC, Defendant.

          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 Sarbanes-Oxley 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 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 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 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.)

         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 [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 “[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 ...


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