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Yuan Xie v. Hospira

April 27, 2011


The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:


Yuan Xie sued Hospira, Inc., Chris Hagen, Dorothea Stoll, Thomas E. Werner, and Christopher B. Begley (collectively "Hospira"), contending that they retaliated against him for reporting alleged violations of the Sarbanes-Oxley Act ("SOX") by his immediate supervisor, Hagen. Hospira has moved for summary judgment. In response, Xie, who is proceeding pro se, filed a Rule 56(d)*fn1 affidavit seeking additional discovery to enable him to respond to Hospira's motion. Hospira opposes Xie's request. For the reasons stated below, the Court orders Hospira to produce the materials Xie requests in paragraphs eight, nine, and twelve of his affidavit but otherwise denies Xie's request for discovery.


Hospira is an Illinois-based corporation that develops, manufactures, and sells medical delivery systems, pharmaceuticals, and other medical devices. Xie was employed as a deferred margin analyst in Hospira's global manufacturing operations division between May 21, 2007 and April 16, 2009. Xie reported to Chris Hagen, supervisor of international operations finance. Hagen's supervisor was Dorothea Stoll, director of global finance process management. Begley and Werner are the CEO and CFO of Hospira, respectively.

On February 19, 2009, Xie met with Hagen for his 2008 performance review. Hospira's internal review process classifies employees on a four-level scale based on their ability to meet or exceed their goals. Xie was classified as "IR," or "Improvement Required," the lowest of the four performance ratings. Xie disagreed with the review and drafted a long written response (the "rebuttal"). In addition to defending his own performance record at Hospira, Xie's rebuttal accused Hagen of two SOX violations:

(1) evading Hospira's internal control mechanisms for SOX compliance by requiring Xie to sign off on Hospira's "rollforward" schedules, and (2) hiding a $6 million error in a rollforward Excel file used by Hospira to keep track of deferred margins. Xie delivered his rebuttal to Stoll in a second performance review meeting on March 10, 2009.

On April 16, 2009, Hospira terminated Xie's employment. Hospira contends that Xie's termination occurred as a result of a companywide layoff process called "Project Fuel," in which Hospira sought to streamline its organizational structure by reducing its workforce. According to Hospira, Xie's unsatisfactory performance record made his position a target for elimination pursuant to Project Fuel more than a month before Xie gave his rebuttal to Stoll. Xie contends that he was terminated in retaliation for accusing Hagen of violating SOX.

Xie initially pursued his retaliation claim before an administrative law judge ("ALJ") at the U.S. Department of Labor. During these proceedings, Xie served a significant number of document requests and interrogatories on Hospira and deposed two current Hospira employees, Hagen and Stoll, as well as two former employees, Jeff McGuire and Val Yien. Hospira also deposed Xie and later filed a motion for summary decision, the equivalent of a summary judgment motion. On September 8, 2010, before the deadline for his response to Hospira's motion, Xie informed the ALJ that he intended to pursue his retaliation claim in federal court. Accordingly, on September 14, 2010, the ALJ dismissed Xie's administrative complaint.

Xie filed the present lawsuit on October 21, 2010. Hospira filed a motion for summary judgment on December 28, 2010, and Xie filed his Rule 56(d) affidavit on February 23, 2011 arguing that he needed to engage in a significant amount of additional discovery to enable him to respond to Hospira's motion. Hospira filed a response opposing Xie's request for additional discovery on April 7, 2011.


Under Federal Rule of Civil Procedure 56(d), "[i]f a non-movant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order." Fed. R. Civ. P. 56(d). Rule 56(d) "is not a shield that can be raised to block a motion for summary judgment without even the slightest showing by the opposing party that his opposition is meritorious." Lamb's Patio Theatre v. Universal Film Exch., 582 F.2d 1068, 1071 (7th Cir. 1978) (quoting Willmar Poultry Co. v. Morton-Norwich Prod., Inc., 520 F.2d 289, 297 (8th Cir. 1975)). Rather, a party invoking the rule "must do so in good faith" by showing "how postponement of a ruling on the motion will enable him, by discovery or other means, to rebut the movant's showing of the absence of a genuine issue of fact." Id. The rule's requirements apply to pro se litigants as well as represented parties. See Hung Nam Tran v. Kriz, 377 Fed. Appx. 542, 545 (7th Cir. 2010).

Xie brought his retaliation claim pursuant to section 1514A of SOX, which bars an employer from retaliating against an employee for "any lawful act done by the employee . . . to provide information, cause information to be provided, or otherwise assist in an investigation regarding any conduct which the employee reasonably believes constitutes" a violation of federal laws or regulations relating to fraud against shareholders. 18 U.S.C. § 1514A(a); Harp v. Charter Commc'n, Inc., 558 F.3d 722, 723 (7th Cir. 2009). "To prevail under this provision, an employee must prove by a preponderance of the evidence that (1) she engaged in protected activity; (2) the employer knew that she engaged in the protected activity; (3) she suffered an unfavorable personnel action; and (4) the protected activity was a contributing factor in the unfavorable action." Id. (internal quotation marks omitted). To satisfy the first part of this test, the employee "must have actually possessed th[e] belief" that the employer's actions were unlawful, "and that belief must be objectively reasonable." Id. Even if the employee can make this prima facie showing, the employer can still prevail "if it can prove by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of that protected behavior." Id. (internal quotation marks omitted).

Hospira contends that it is entitled to summary judgment on Xie's retaliation claim for three reasons: first, Xie did not engage in protected activity by providing his rebuttal to Stoll; second, Xie cannot show that his rebuttal was a contributing factor to his discharge; and finally, Begley and Werner cannot be held personally liable as a matter of law. See Defs.' Mem. in Supp. of Summ. J. at 4-14. Accordingly, Xie must explain how the discovery he seeks in his affidavit would allow him to ...

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