United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
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.
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.)
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.)
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.
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
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.
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.
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.) 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” 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.)
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.)
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.)
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.)
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 ...