                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 16-3218
                                     ____________

                                 JAMES KERRIGAN,

                                           Appellant

                                           v.

                  OTSUKA AMERICA PHARMACEUTICAL, INC.;
                            MARK ALTMEYER
                              ____________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                              (E.D. Pa. No. 2-12-cv-04346)
                     District Judge: Honorable Wendy Beetlestone
                                     ____________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                    April 7, 2017

            Before: CHAGARES, SCIRICA, and FISHER, Circuit Judges.

                               (Filed: September 1, 2017)
                                     ____________

                                       OPINION*
                                     ____________

FISHER, Circuit Judge.




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
         James Kerrigan appeals the District Court’s grant of summary judgment in favor of

his former employer, Otsuka America Pharmaceutical, Inc. (OAPI), and its President and

Chief Executive Officer, Mark Altmeyer, on his retaliation claim under the New Jersey

Conscientious Employee Protection Act (CEPA)1. We will affirm.

                                             I.

         James Kerrigan was the Senior Director of Global Marketing within OAPI’s patient

and branding strategy group. He led the branding campaign for a drug called Samsca and

was responsible for ensuring his team’s compliance with applicable pharmaceutical

marketing laws. To that end, the company’s internal procedures mandated that Kerrigan

and his team have the promotional review committee (PRC) evaluate promotional materials

before publication.

         In February 2011, the company’s Chief Compliance Officer, found out that an

article about Samsca was posted on a website without prior PRC review and that the article

lacked proper disclosures. Consequently, OAPI’s legal team emailed Kerrigan and the

member of his team responsible for the company’s relationship with the website,

instructing them to remove the article.

         Kerrigan reported the incident to his supervisor and recommended contacting the

Federal Drug Administration (FDA) to determine whether corrective action was needed.

In May 2011, after an internal investigation, the company reported the error to the FDA


1
    N.J. Stat. Ann. § 34:19-1 et seq.
                                             2
without consequence. However, the member of Kerrigan’s team responsible for the

relationship with the website and another employee implicated in the incident resigned in

lieu of termination. Unbeknownst to Kerrigan, the two reviewed the article before it was

published and were not forthright during the course of the company’s internal investigation.

       In June 2011, Kerrigan reported a second Samsca compliance issue. Following an

investigation, OAPI self-reported the error to the FDA which, in turn, required the

company to send corrective communications to over 20,000 individuals. Kerrigan was not

disciplined following either incident.

       In 2012, Kerrigan reported that during the previous year seven investigations arose

from his team, five of which resulted in the company self-reporting to the FDA. The

company spent over $600,000 investigating and addressing those issues. Leaders at OAPI

became concerned about the number and scope of compliance investigations, questioned

Kerrigan’s ability to lead his team, and agreed that a rating of “Needs Improvement” was

warranted for Kerrigan’s performance in 2011. In February 2012, Kerrigan was notified of

his negative performance review, was denied a salary increase, and had his bonus reduced.

Altmeyer explained to Kerrigan that he believed Kerrigan was placing the company at risk

by not knowing what Kerrigan’s team was doing or paying enough attention to catch

compliance issues before they occurred.

       In May 2012, the company discovered that one of its affiliates, Otsuka

Pharmaceutical Europe Ltd., was using the services of a consulting firm owned by

                                             3
Kerrigan’s wife and that Kerrigan had helped his wife secure the contract. The ensuing

investigation revealed that Kerrigan had violated various provisions of OPAI’s code of

conduct and business ethics related to disclosure of potential conflicts of interest. OAPI

immediately terminated Kerrigan’s employment.

       Kerrigan filed this lawsuit under the CEPA, arguing that his negative performance

review, reduced compensation, and termination were adverse employment actions taken in

retaliation for reporting the two Samsca publishing incidents. The District Court entered

summary judgment in favor of OAPI and Altmeyer, reasoning that the timing of the key

events did not suggest retaliatory animus.2 Kerrigan brought this appeal.

                                            II.

       The District Court had jurisdiction under 28 U.S.C. § 1332(a), and we have

jurisdiction under 28 U.S.C. § 1291. “We exercise plenary review over a district court’s

order granting summary judgment and apply the same standard the district court applied.”3

We will affirm if, viewing the evidence in the light most favorable to the nonmoving party,

“there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.”4




2
  2016 WL 3597609, at *4-7 (E.D. Pa. July 05, 2016).
3
  Carvalho-Grevious v. Del. State Univ., 851 F.3d 249, 256 (3d Cir. 2017).
4
  Fed. R. Civ. P. 56(a).
                                            4
                                            III.

       We will affirm the District Court’s decision because Kerrigan has not adduced

evidence from which a reasonable jury could find retaliation in violation of the CEPA.

       A causal connection between the adverse employment action and the protected

activity is an element of a retaliation claim under the CEPA.5 To demonstrate causation, a

plaintiff must show that the “retaliatory discrimination was more likely than not a

determinative factor in the decision”6 by establishing a factual nexus between his protected

activity under the CEPA and the alleged retaliatory conduct7 through either direct or

circumstantial evidence.8 Although temporal proximity may give rise to the requisite

inference of causation, where it is not “unusually suggestive,” we ask whether “the

proffered evidence, looked at as a whole, may suffice to raise the inference” of causation.9

       Here, temporal proximity does not permit an inference of causation. Kerrigan

reported the Samsca publishing incidents in February and June 2011. He received notice

of the negative performance review and reduced compensation in February of 2012 and

was terminated in May 2012. Under our precedent, this timeline—with a gap of six-months




5
  Lippman v. Ethicon, Inc., 222 N.J. 362, 380 (2015) (quoting Dzwonar v. McDevitt, 177
N.J. 451, 462 (2003)).
6
  Donofry v. Autotote Sys., Inc., 795 A.2d 260, 271 (N.J. Super. Ct. App. Div. 2001).
7
  Hancock v. Borough of Oaklyn, 790 A.2d 186, 194 (N.J. Super. Ct. App. Div. 2002).
8
  Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 558-59 (2013).
9
  Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000) (internal quotation
marks omitted).
                                              5
to a year between the adverse employment action and the protected activity—is not

unusually suggestive to infer retaliation.10

       Without an unusually suggestive temporal proximity, we ask whether the record

raises an inference of causation. It does not here. Seeking to establish retaliatory animus,

Kerrigan points to his supervisor’s testimony that Altmeyer started singling out Kerrigan

for criticism following Kerrigan’s reports. But that does not create a triable issue of fact on

causation because the record is devoid of evidence from which a reasonable jury could

conclude that Altmeyer’s attitude towards Kerrigan changed because Kerrigan reported the

Samsca publishing incidents. In his written declaration, Altmeyer explained that his

increased criticism of Kerrigan stemmed out of concerns about Kerrigan’s leadership

following the numerous compliance issues related to Samsca. Kerrigan offered no evidence

to rebut Altmeyer’s explanation, rendering it undisputed. In sum, Kerrigan has failed to

adduce evidence from which a reasonable jury could find a nexus between his alleged

protected activity and the alleged retaliatory conduct.

                                       *       *      *

       A reasonable jury could not find that retaliatory discrimination was more likely than

not a determinative factor for Kerrigan’s negative performance review, reduced

compensation, and termination. We will therefore affirm.


10
   See LeBoon v. Lancaster Jewish Cmty. Cntr. Ass’n, 503 F.3d 217, 233 (3d Cir. 2007)
(three-months insufficient to support an inference of causation); Lichtenstein v. Univ. of
Pittsburgh Med. Ctr., 691 F.3d 294, 307 (3d Cir. 2012) (seven days sufficient).
                                            6
