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Ali Bazzi v. Tyco Healthcare Group

August 31, 2011

ALI BAZZI,
APPELLANT,
v.
TYCO HEALTHCARE GROUP, LP,
APPELLEE.



Appeal from the United States District Court for the Eastern District of Missouri.

The opinion of the court was delivered by: Smith, Circuit Judge.

Submitted: June 14, 2011

Before MURPHY and SMITH, Circuit Judges, and READE,*fn1 District Judge.

Dr. Ali Bazzi sued his former employer, Tyco Healthcare Group, LP ("Tyco"), alleging that Tyco wrongfully terminated his employment by violating Missouri's public-policy exception to the state's at-will employment doctrine. Specifically, Dr. Bazzi alleged that Tyco discharged him either because he refused to "validate" adulterated drugs or because he acted as a "whistle blower" by reporting that Tyco manufactured adulterated drugs. The district court*fn2 granted Tyco's motion for summary judgment because it concluded that Dr. Bazzi had failed to create any genuine issue of material fact concerning his claims. For the following reasons, we affirm.

I. Background

Dr. Bazzi worked for Tyco from August 1981 until his termination on November 1, 2007, for misconduct against a fellow employee. Dr. Bazzi contends that this reason was a pretext for Tyco's firing because he blew the whistle*fn3 on company misdeeds with a company pharmaceutical product called Naltrexone Hydrochloride ("Naltrexone"). Dr. Bazzi worked as an organic chemist and manager of QA Engineering. Dr. Bazzi's duties included overseeing the validation of the production and manufacturing of heavily regulated pharmaceuticals. As the district court explained below, "[t]he validation process tests these substances to ensure that each batch meets standards for quality, purity[,] and compliance with federal law." Bazzi v. Tyco Healthcare Grp., LP, No. 4:08-CV-2034 (CEJ), 2010 WL 1260141, at *1 (E.D. Mo. Apr. 1, 2010).

As part of the manufacturing process, Tyco generates reports on the validation of each Naltrexone batch and requires that various managers sign these reports prior to the batch being validated or "closed." Dr. Bazzi's duties included overseeing Naltrexone's validation and closing the Naltrexone validation reports for each batch that Tyco manufactured. In this capacity, Dr. Bazzi reported directly to Eldon Henson, the director of Tyco's Quality Group.

During the summer of 2007, Marvin Darling, Senior Quality Associate in the Validation Group and one of the individuals who directly reported to Dr. Bazzi, told Dr. Bazzi that Darling and others in Dr. Bazzi's group harbored strong concerns about certain aspects of the Naltrexone validation process. In early September 2007, Darling, Dr. Bazzi, and several others attended a meeting at which Darling aired his concerns that the Naltrexone validation process involved too many "deviations." No one, including Dr. Bazzi, ever mentioned that Dr. Bazzi shared Darling's concerns. In addition, Dr. Bazzi admits that, throughout his time at Tyco, he never reported any concerns about Naltrexone validation through alternative channels, such as Tyco's neutral ombudsman or its 24-hour hotline. Dr. Bazzi also concedes that he never filed a complaint about Naltrexone with the U.S. Food and Drug Administration (FDA) or any other state, local, or federal regulatory agency.

Dr. Bazzi does contend that, in the summer of 2007, apparently in anticipation of the early September 2007 meeting, he "instructed . . . Darling to prepare a risk- based assessment [and] gap analysis . . . regarding the last 16 lots of adulterated Naltrexone[] because the two . . . of them wanted to bring it to the attention of management." In his deposition, Dr. Bazzi testified that Darling's subsequent report concluded that Tyco's Naltrexone validation violated FDA regulations. According to Dr. Bazzi, "if the FDA comes [to Tyco,] [Tyco] probably will be cited big time." Dr. Bazzi testified in his deposition that Tyco employees warned that Darling's memo constituted a "can of worms" and discussed what might arise "if the FDA sees [the memo]." However, the district court struck this evidence from the summary judgment record as inadmissible hearsay because "[Dr. Bazzi] fail[ed] to identify the person making the statement or to show that the employee was his superior so as to bring the statement within the admission of a party-opponent exception." Bazzi, 2010 WL 260141, at *6 n.3. Dr. Bazzi did not complain at the September 2007 meeting or at any other time.*fn4

On October 30, 2007, Dr. Bazzi was observed on a security camera tape entering the office of Claudia Wright, a co-worker, and removing Wright's paycheck stub from her chair without permission and tearing a personal posting off of Wright's wall as he exited. After numerous reports of theft from Wright's office, Tyco's security staff had installed the hidden camera that videotaped the entire incident. Upon learning of the incident, Henson and Krista Miller, Human Resources Generalist, interviewed Dr. Bazzi and inquired whether he knew about the missing item and the vandalism. Unaware of the video evidence that Tyco possessed, Dr. Bazzi flatly denied that he stole anything from Wright's office. Two days later, after learning about the inculpatory video footage, Dr. Bazzi admitted to taking the paycheck stub, tearing down the posting, and lying during the initial interview. That same day, Henson and St. Louis Plant Human Resources Manager Julie Natsch collectively decided to terminate Dr. Bazzi's employment because of his theft, vandalism, and deception, and they communicated this reason to Dr. Bazzi at the time of discharge. On February 6, 2008, in response to Dr. Bazzi's request under Missouri law for a service letter, Tyco reiterated to Dr. Bazzi that "[y]our employment was terminated due to your unauthorized removal of items from a co-worker's office and the fact that you initially lied about this behavior in the investigation."

On November 14, 2008, Dr. Bazzi filed the instant lawsuit in Missouri state court alleging that Tyco wrongfully discharged him in contravention of Missouri's public-policy exception to the at-will employment doctrine. Specifically, Dr. Bazzi averred that Tyco's stated reason for terminating his employment was pretextual and that the company actually fired Dr. Bazzi because he either (1) was a whistle blower, in that he voiced concerns about Tyco's improper validation of Naltrexone; or, alternatively, (2) refused to perform the illegal act of closing the final batch of Naltrexone validations just prior to his discharge. Tyco removed the case to federal court on diversity grounds, and, on December 10, 2009, moved for summary judgment.

In an order dated April 1, 2010, the district court granted Tyco's motion for summary judgment, concluding that Dr. Bazzi failed to create a genuine issue of fact as to several essential elements of his wrongful-discharge claim. Specifically, the district court concluded that Dr. Bazzi failed to create a genuine fact issue (1) whether his good faith belief that Tyco violated FDA regulations and federal law was objectively reasonable; (2) whether he actually acted as a whistle blower by communicating his concerns to a superior not already engaged in the wrongdoing; and (3) whether he refused, outright, to perform an illegal act such that any Tyco superiors or decision makers were aware of that refusal. Bazzi, 2010 WL 1260141.

II. Discussion

Dr. Bazzi appeals the district court's grant of Tyco's motion for summary judgment and maintains that he has raised genuine issues of material fact for all essential elements of his claim for wrongful discharge under Missouri's public-policy exception. "We review de novo the district court's grant of summary judgment, viewing the record and drawing all fair inferences from it in a light most favorable to [Dr. Bazzi]. In a diversity action such as this, we are required to apply Missouri law." Frevert v. Ford Motor Co., 614 F.3d 466, 470 (8th Cir. 2010) ...


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