Lead Opinion
Victor E. Simas appeals the district court judgment which dismissed his complaint charging First Citizens’ Federal Credit Union (“Citizens”) and its president and CEO, Barbara M.W. Silva, with violating the “whis-tleblower” provisions of the Federal Credit Union Act, 12 U.S.C. § 1790b(a) (FCUA or “the Act”), by retaliating against him for having informed the National Credit Union Administration (“NCUA”) that Citizens, notwithstanding its longstanding policy, had made a suspect commercial loan to a member of its board of directors. We vacate the district court judgment and remand for further proceedings.
I
BACKGROUND
The district court opinion thoroughly explicates the factual background underlying the present claim. See Simas v. First Citizens’ Fed. Credit Union,
At all relevant times, Simas was a vice-president under Silva’s supervision, with primary responsibility for all delinquent loan collections. In September 1993, Simas
Simas alerted Silva to his concerns, then asked Citizens’ internal auditor to conduct an investigation. The auditor declined. When Simas persisted, the auditor complained to Silva. Simas thereafter informed the auditor that if she chose not to investigate internally, he might be forced to report his concerns to the NCUA or the press.
In October 1993, Silva sent Simas a memorandum advising that his repeated “irrational” and “aggressive” verbal harangues about the Xifiras loan were causing the internal auditor “emotional distress.” She characterized Simas’ announced intention to contact the NCUA or the press as “threats to the credit union,” and his concerns about the Xifiras loan as totally unwarranted. She suggested that Simas was making trouble because he was unhappy with his own working conditions and she explicitly warned that he would be terminated immediately if the “verbal harassments [or] unwarranted charges or threats” occurred again. Shortly thereafter, Silva removed Simas from all responsibility for the Xifiras loan. Following this “final warning” from Silva, Simas was informed by Citizens’ senior vice-president that he believed Silva should have fired Si-mas for “stirring [up]” the Xifiras matter.
After Xifiras defaulted on the Citizens loan and declared bankruptcy, the commercial real estate securing the loan was appraised at $538,000. As required by law, Silva reported the loss to the NCUA Fearing for his job in the event he chose to pursue the Xifiras matter internally, Simas promptly reported his concerns to the FBI and NCUA
Thereafter, Simas “experienced an abrupt and substantial change in the way that he was treated by [Citizens].” Coworkers shunned him, socially and professionally. Citizens disapproved his car loan application for the first time ever. Although Citizens ultimately approved his education loan application, it did so over Silva’s active opposition. Simas was stripped of many work-related privileges consistently accorded him in the past; including (1) attending board of directors meetings, (2) supervising employees in the credit department, (3) approving credit-card applications, (4) personal access to the file vault, and (5) serving as Citizens’ acting president in Silva’s absence. Silva also refused to consider Simas’ request for promotion to a vacant vice-presidency, removed him as network administrator, denied him permission to attend a business-related seminar, and refused his request for a cellular phone. These adverse employment actions were unprecedented.
In January 1994, the NCUA conducted its annual audit of Citizens, devoting an “unusual” amount of time to consultations with Si-mas. Its audit report noted “the presence of adverse conditions and trends [which] [i]f left unresolved ... will jeopardize the financial condition and/or operations of [Citizens].” The NCUA found that the Xifiras loan had been made “without the support of a comprehensive written Member Business Loan program” and that it was improperly preferential in its terms and conditions to a compensated member of the board of directors. The NCUA cited Citizens for allowing Xifiras to engage his own appraiser, directed Citizens to cease making business loans to its members, and ordered that it notify its surety bond carrier of all regulatory violations. Citizens’ board of directors accepted the NCUA report. Thereafter, the
In March 1994, Citizens’ new internal auditor recommended that Simas start looking for another job. After locating a lesser paying job at another bank, on May 2 Simas submitted his resignation to Citizens, effective May 13. Silva, however, made the resignation effective immediately, and directed that Simas be escorted from the credit union premises in full view of his coworkers, several of whom questioned him about the reason for the unprecedented treatment. In reporting Simas’ accelerated “resignation” to the NCUA, Silva characterized Simas as “a disgruntled employee” with access to confidential information. Later, she defined the term “disgruntled employee” as including one who might come into work and shoot his fellow workers.
In due course Simas brought suit against Citizens and Silva in federal district court, alleging violations of the FCUA “whistle-blower” provisions, see 12 U.S.C. § 1790b(a), together with several pendent state-law claims, including wrongful termination, defamation, and tortious interference with an advantageous relationship. Following discovery, both defendants moved for summary judgment on all claims.
The district court granted summary judgment on the FCUA claim, concluding that Simas had not generated a trialworthy dispute as to whether the treatment accorded him after September 1993 was sufficiently adverse to constitute either a “constructive discharge” or “discriminat[ion] ... with respect to compensation, terms, conditions, or privileges of employment,” within the meaning of section 1790b(a). Finally, the pendent state-law claims were dismissed for lack of supplemental jurisdiction. See 28 U.S.C. § 1367(c)(3).
II
DISCUSSION
A. The Statutory Framework
One of several federal “whistleblower” statutes, the FCUA provides in pertinent part:
No insured credit union may discharge or otherwise discriminate against any employee with respect to compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to the request of the employee) provided information to the [National Credit Union] Board or the Attorney General regarding any possible violation of any law or regulation by the credit union or any director, officer, or employee of the credit union.
12 U.S.C. § 1790b(a)(l). Should a federal credit union violate section 1790b, the aggrieved employee may bring suit for compensatory damages and “other appropriate actions to remedy any past discrimination.” Id. § 1790b(c).
In according safeguards against retaliation to credit union employees who report potential irregularities, Congress intended to “enhance the regulatory enforcement powers of the depository institution regulatory agencies to protect against fraud, waste and insider abuse.” H.R.Rep. No. 101-54(1), at 308 (1989), reprinted in 1989 U.S.C.C.A.N. 86, 103-04. Since the case law interpreting section 1790b itself is extremely sparse, however, the courts have looked to ease law construing comparably-phrased anti-retaliation provisions in other federal employment-discrimination statutes, such as Title VII, 42 U.S.C. § 2000e et seq., the Americans with Disabilities Act (ADA), id. § 12101 et seq., and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., as well as other federal whistleblower statutes, such
B. Burdens of Proof
Many of these federal anti-retaliation statutes require the claimant to make a three-part prima facie showing that: (1) the claimant engaged in the protected activity (e.g., filed a complaint or reported information to the government); (2) the defendants subjected the claimant to some materially adverse employment action, and (3) a causal connection existed between the protected activity and the adverse action. Cf. BSP Trans, Inc. v. United States Dep’t of Labor,
Under yet other anti-retaliation statutes, moreover, the claimant’s prima facie burden on the third or “causation” element is further eased, so as to require only a showing that the protected activity was a “contributing factor” in the adverse action, not necessarily its substantial or motivating cause. See Frobose v. American Sav. and Loan Ass’n of Danville,
Once the claimant makes a prima facie showing, a presumption of retaliation arises and the burden shifts to the defendants. With respect to the former category of anti-retaliation statutes, see supra Section II.B, ¶ 1., only the burden of production passes to defendants, i.e., requiring them merely to articulate not prove a nondiscriminatory motive for their actions. See Alvarez-Fonseca v. Pepsi Cola of Puerto Rico Bottling Co.,
Under the latter variety of anti-retaliation statute, however, see supra Section II.B, ¶ 2., the entire burden of persuasion passes to defendants, who must then adduce clear and convincing evidence that the alleged adverse actions would have been taken regardless whether the claimant had engaged in the protected whistleblower activity. See Frobose,
1. Defendants’ Knowledge of the NCUA Contacts by Simas
The summary judgment motion submitted by Silva and Citizens asserted two grounds for dismissing the FCUA claim; namely, that Simas failed to adduce competent evidence from which a jury rationally might infer that (1) defendants were aware of Simas’ contacts with the NCUA prior to his resignation; and (2) their adverse employment actions were consequential enough to constitute either a “constructive discharge” or “discrimination.”
Silva unambiguously attested that she could not have retaliated against Silva for contacting the NCUA, because she never knew whether he had carried out his threat to do so until after he had submitted his resignation on May 2, 1994. See, e.g., Lewis v. Gillette, Co.,
The district court bypassed the question whether Simas had adduced sufficient evidence as to Silva’s knowledge. Instead, it rested its grant of summary judgment for defendants on the independent ground that Simas had not adduced enough evidence of a constructive discharge or sufficiently “adverse employment actions.” Thus, the district court denied the Rule 56(f) motion as moot. On appeal, however, defendants urge us to affirm on this alternative ground. See Sammartano v. Palmas del Mar Properties, Inc.,
First, despite Silva’s attestations to the contrary, we seriously question whether Si-mas needed the DeBarros testimony to survive summary judgment. After all, there is no dispute that Silva knew by the fall of 1993 that Simas had threatened to contact the NCUA, see supra Section I, ¶3., and since there is no evidence that any other Citizens employee ever made such a threat, the January 1994 targeted audit of the Xifiras loan documents was a good deal more than a subtle hint that Simas must have alerted the NCUA. Thus, even absent the DeBarros deposition a jury would not have been compelled to conclude that Silva was unaware that Simas was the likely “whistleblower.” See Perez-Trujillo v. Volvo Car Corp. (Sweden),
Furthermore, the summary judgment record discloses no principled ground which would preclude the reasonable possibility that the DeBarros deposition would bear the expected fruit. Defendants argue, without citation to authority, that Simas’ Rule 56(f) motion was defective because he relied on inadmissible hearsay (e.g., the unnamed “highly reliable source”) — rather than his personal knowledge — to conclude that DeBarros could provide the damaging evidence.
“[A] Rule 56(f) proffer need not be presented in a form suitable for admission as evidence at trial, so long as it rises sufficiently above mere speculation.” Resolution Trust Corp. v. North Bridge Assocs.,
Furthermore, the Rule 56(f) motion filed by Simas did not rely exclusively on the information provided by the unnamed source, but also on the personal knowledge counsel had gained in subsequent consultations with DeBarros’ counsel, who confirmed that De-Barros feared retaliation were he to testify against Silva. The latter evidence would provide rational support for Simas’ counsel’s suspicion that the DeBarros testimony would prove damaging to Silva. See id. at 1207 (finding Rule 56(f) motion valid where multiple sources supported recited facts).
On the present record, therefore, Simas appears to have satisfied all five preconditions for obtaining a Rule 56(f) continuance. See supra note 4. “When all five requirements are satisfied ... a strong presumption arises in favor of relief ... [and the movant] should be treated liberally.” Id. at 1203. Thus, since the district court never resolved the Rule 56(f) motion on the merits, we cannot affirm its summary judgment ruling on the alternative ground suggested by defendants.
2. The Adverse Employment Actions (a) Constructive Discharge
The FCUA prohibits a federal credit union from engaging in two distinct types of retaliatory employment action: (1) an actual or constructive “discharge”; or (2) other “discrimination] ... with respect to compensation, terms, conditions, or privileges of employment” short of discharge, or what we have sometimes labeled “adverse employment actions.” See 12 U.S.C. § 1790b(a)(l). The complaint alleged that Citizens constructively discharged Simas,
The district court concluded, however, that the various “indignities” to which Simas had been subjected were “nothing more than minor slights,” Simas,
Even assuming arguendo the premise that the constructive discharge standard under the FCUA would require proof of more intolerable employment actions than its “discrimination” standard, we need not determine whether the Rule 56 proffer established a prime facie ease of constructive discharge since Simas unquestionably alleged “adverse employment actions” as well. See infra Section 11.0.2(b). Thus, Serrano-Cruz is inap-posite, both legally and factually.
Unlike Simas, Serrano resigned rather than accept transfer to a different position— at the same salary — which she considered demeaning. We affirmed summary judgment for the former employer because, “by not accepting the newly created and ambiguous position, Serrano foreclosed the possibility of presenting concrete evidence, rather than mere assertions, to a jury regarding the [intolerable] nature of her new working conditions.” Serrano-Cruz,
By contrast, the Simas resignation did not foreclose judicial assessment of the adverse working conditions allegedly imposed by Citizens, most of which preceded his resignation. Nor can we agree with Citizens that Simas alleged “little” more than economic damages. Paragraph 32 in the complaint, cited by the district court, alleged “loss of income and employment benefits, loss of personal reputation, other financial losses, and mental and emotional distress.” (Emphasis added.) Moreover, although paragraph 32 is part of the defamation count, and not the FCUA count proper, paragraph 36 of the FCUA count expressly realleges and incorporates paragraph 32 by reference. See also Complaint Prefatory ¶ 21 (alleging that Simas “was the object of anger and scorn from his superiors, and he was suffering emotionally and physically as a result ”) (emphasis added).
Thus, the Simas complaint alleged ongoing emotional damages of a type that arose at the time the defendants imposed the adverse employment actions and long before he resigned, culminating in his humiliating exit from the employment premises under the personal escort ordered by Silva. See Viqueira v. First Bank,
(b) “Adverse Employment Actions ”
We now turn to the sufficiency of the Rule 56 proffer, wherein Simas attested to an extended series of “abrupt and substantial change[s] in the way he was treated as an employee” after he first expressed concerns regarding the Xifiras loan. See supra Section I.
At summary judgment the trial eourt must consider a defendant’s alleged conduct both in context and in totality, not merely assess the respective allegations in isolation. See Calhoun v. Acme Cleveland Corp.,
At the outset we focus on an important consideration — given short shrift by defendants — which sharply distinguishes the present action from the more typical retaliation case. Normally, employers do not leave behind direct evidence of their discriminatory animus, such as express declarations of their retaliatory intentions. Therefore, generally the plaintiff-employee must make do with circumstantial evidence, leaving it to the jury whether to infer from the nature of the materially adverse employment conditions that the defendant-employer harbored a retaliatory animus.
In the present case, however, Simas adduced both circumstantial and direct evidence of Silva’s retaliatory animus. In her October 8, 1993 memo, Silva not only complained that Simas had harassed the internal auditor, but stated directly to Simas that the charges he made about the Xifiras loan were “unwarranted,” .and that if he persisted in making “unwarranted charges or threats [to report his suspicions to the NCUA],” he would be terminated immediately. So too, Citizens’ senior vice-president told Simas that he thought Silva should have fired Si-mas outright for “stirring [up]” the Xifiras matter. See, e.g., Frobose,
The term “making unsubstantiated charges,” as employed in the Silva memo, is amply expansive to encompass Simas’ report to the NCUA, and Silva’s express intention to terminate Simas likewise bespeaks a premeditated plan to punish him for the same activity. Given that Silva orchestrated the loan for her friend Xifiras in the first instance, and that the concerns Simas voiced about the loan eventually proved anything but “unwarranted,” a jury reasonably could conclude that the sole intendment of her October 8 memo was to prevent Silva’s regulatory violations from coming to the attention of the appropriate federal authorities.
So construed, these direct retaliatory expressions by Silva could be considered materially adverse employment actions which sufficed to preclude summary judgment for defendants. See Hemandez-Torres,
Section 1790b prohibits discrimination relating to “conditions” of employment. Although the term “conditions” may mean merely the physical setting in which one’s work is performed, (e.g., reassignment to a remote cubicle), it is not so limited in scope as to exclude illicit supervisory directives conditioning continued employment upon prohibitions against employee conduct which is authorized by federal laws governing employer-employee relations. Thus, the explicit direction from Silva that Simas refrain from exercising his federal legal right to contact the NCUA clearly came within section 1790b.
If nothing else, Congress intended that section 1790b deter federal credit unions from expressly dissuading their employees in exercising the statutory right to report suspected regulatory violations. In our case, it is no exaggeration to observe that the “not-so-veiled” threat made by Silva, which by its terms was self-perpetuating, hung like a sword of Damocles over Simas’ head.
At this juncture, of course, we do not suggest that a jury would be compelled to construe this direct evidence adversely to defendants, who presumably would contend that (i) Silva truly believed the Xifiras loan was not problematic,
Be that as it may, any such credibility determinations are for the factfinder at trial, not for the court at summary judgment. Perez-Trujillo,
Further, given defendants’ concessions regarding the allocation of burdens of proof, see supra Section II.B, the Silva memo would support a finding that whatever other motives Silva may have harbored (e.g., her pique at Silva’s alleged badgering of the internal auditor), a retaliatory motivation was at least one “contributing factor” in her campaign to oust or silence Simas. Thus, the burden of persuasion would pass to the defendants to adduce clear and convincing evidence that they would have engaged in the same litany of alleged employment actions even if Simas had not contacted the NCUA. See Frobose,
In all events it is unnecessary to determine definitively whether the direct evidence, standing alone, demonstrated a materially adverse employment action. At a minimum the direct evidence necessarily colors and informs the circumstantial evidence of the adverse employment action which followed. “ ‘[T]erms, conditions, or privileges’ is pretty open-ended language ... [which] obviously includes opportunities that are not strictly entitlements, and a number of cases have extended coverage to slights or indignities that might seem evanescent.” Randlett v. Shalala,
Our review leads us to conclude that these employment actions, viewed in aggregate, could be considered “materially adverse.” The fact that Citizens did not reduce Simas’ salary or benefits, though plainly relevant, is not conclusive. See Serrano-Cruz,
The district court overlooked the crucial, undisputed fact that Silva withdrew from Si-mas all responsibility for the Xifiras account. See Burlington Indus. v. Ellerth,
There was evidence that Simas had been divested of other responsibilities and perquisites as well. For example, Simas attested that he had been stripped of his supervisory authority over credit department personnel and the power to approve credit-card applications. See Dahm v. Flynn,
It is axiomatic on summary judgment, of course, that “the nonmoving party ‘may not rest upon mere allegation or denials of [the movant’s] pleading, but must set forth specific facts showing that there is a genuine issue’ of material fact as to each issue upon which he would bear the ultimate burden of proof at trial.” DeNovellis,
Although pithy, the attestations made by Simas adverted to such facts and events. Simas undoubtedly would have direct personal knowledge of his own job functions, including whether he had exercised authority over credit department personnel and approved credit-card applications in the past. Therefore, his attestations are statements of fact, not subjective characterizations. Thus, while the defendants may present evidence contesting their truth, to the extent they do so they simply preclude summary judgment for either party. See Brennan,
In a similar vein the district court ruled that the contention that Simas had been denied a car loan could not demonstrate an adverse employment action. Simas,
First, “there is no general rule that proof of a fact will be excluded unless its proponent furnishes the best evidence in his power.” See Allstate Ins. Co. v. Swann,
Second, Simas attested to the fact that Citizens had always approved his loan applications in the past, without objection. At least absent evidence that his financial condition had changed, this constituted competent evidence that Citizens considered Simas financially qualified to receive such loans. See Blackie,
Simas likewise attested that he was denied unfettered access to the file vault. The only rejoinder from defendants is that Citizens banned all officers, not only Simas, from accessing the vault, and that Simas was per
For one thing, Simas was only required to attest that the new vault-access procedure was materially adverse. As vice-president in charge of collections, his need for vault access was evident. Moreover, in light of Silva’s October 8 memo, a jury reasonably could find the timing of the new procedure especially suspect, since it interposed a vault clerk between Simas and important bank documents at precisely the time Silva sought to deter any further investigation of the Xifi-ras loan by Simas. Requiring Simas to make a request for a specific document from a vault clerk clearly had two adverse effects: (1) Simas could not anonymously examine documents in the vault; and (2) Silva could learn from the vault clerk precisely which files Simas was examining. Although Silva explained: “We were having a problem with the vault[,] of officers going into the vault, and pulling files and never being replaced!,]” her decision to make the new vault-access procedure applicable to all bank officers does not preclude a finding that she harbored an illicit motive in doing so; that is, to reduce access to information by Simas.
Finally, although the evidence of yet other adverse employment actions may be less compelling, it is not so obviously makeweight as to compel inferences in defendants’ favor.
The district court judgment is vacated and the case is remanded for further proceedings consistent with this opinion. Costs are awarded to appellant.
SO ORDERED.
Notes
. A summary judgment ruling is subject to de novo review and all facts in genuine dispute are to be viewed in the light most favorable to the nonmovant in determining whether trialworthy issues exist or the movant was entitled to judgment as a matter of law. See Shorette v. Rite Aid of Maine, Inc.,
. Neither of the statutory defenses prescribed in the FCUA is implicated in the present case. See id. § 1790b(d) (relief unavailable where plaintiff "deliberately cause[d] or participated] in the alleged violation of law or regulation,” or “knowingly or recklessly provided] substantially false information to such an agency or the Attorney General”).
. Fed.RXiv.P. 56(f) provides: "Should it appear from the affidavits of a party opposing the [summary judgment] motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.”
. Normally, a Rule 56(f) motion must: (1) be made within a "reasonable time” after the filing of the summary judgment motion; (2) place the district court on notice that movant wants the
. Moreover, Simas implies that he was actually discharged, pointing to Silva's retaliatory decision to accelerate the effective date of his resignation and to cause him to be unceremoniously escorted out of the credit union. See supra Section I, ¶ 7. Given our disposition of the appeal, see infra, it is not necessary to resolve this implicit contention.
. See, e.g., Frobose,
. Conversely, however, even a good-faith belief by Silva that the charges were unwarranted would not entitle her to deter Simas from exercising his § 1790b rights. Section 1790b does not require that the information provided be proven true, so long as the informant did not knowingly or recklessly provide false information. See supra note 2.
. Likewise, in a Title VII case where the claimant adduces direct (rather than circumstantial) evidence of discriminatory animus, and the defendant adduces some countervailing evidence that its motives were "mixed" (i.e., some discriminatory, some not), the burden of persuasion passes to the defendant to show that it would have taken the same actions even if the improper criterion had played no part in its decisionmak-ing. See Price Waterhouse v. Hopkins,
. See DeNovellis,
. Although Simas may have abandoned the argument on appeal, the same is true of his attestation that he was denied promotion to a vacant vice-presidency. The district court discounted this evidence because it was undisputed that Citizens’ board of directors voted not to fill the vacant position; hence denial of the Simas application could not have been discriminatory or retaliatory. Simas,
. The same reasoning applies to the contention that Simas was no longer allowed to attend meetings of the board of directors, where one reasonably might expect the Xifiras loan default to be a topic of debate. See Coffman,
. Simas attested that coworkers shunned him, both socially and professionally. While social ostracism alone is rarely actionable, professional ostracism may be, at least where the plaintiff can show that defendants incited or encouraged coworkers to shun him, and plaintiff suffered some material harm resulting from his inability to consult with his colleagues on matters of business. See, e.g., Parkins v. Civil Constructors of Ill.,
Concurrence Opinion
concurring.
Judge Cyr’s opinion, which I entirely accept, reads very persuasively. So, however, does the district court’s. In choosing to go along with the later one, I note several matters. To begin, whistleblowers face many obstacles. In the first place, they face those whom they charge, and the higher up those persons, the more difficult they are to meet. In the second place, whistleblowers face others who, if not directly concerned, know on which side their bread is buttered. These obstacles must always be remembered. It must also be remembered that whistleblow-ers are Congressionally approved, rather than everybody’s enemy. .
Next, it is to be noted that there is an odor pervading this case. Consider the exception
With all this in mind, I note that this is summary judgment.