IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JAMES COLLINS, :

:

PLAINTIFF, : CIVIL ACTION

:

v. : No. 05-cv-1853

:

PAREXEL INTERNATIONAL and BARNETT :

INTERNATIONAL, :

:

DEFENDANTS :

MEMORANDUM AND ORDER

Joyner, J. June 12, 2008

Presently before this Court is Defendant Parexel

International’s (“Parexel”) and Defendant Barnett International’s

(“Barnett”) (together “the Defendants”) Motion for Summary

Judgment (“D. Mot.”) (Doc. No. 34), Plaintiff’s Response (“P.

Resp.”) (Doc. No. 53) and Defendants’ Reply (“D. Rep.”) (Doc. No.

58 ). For the reasons set forth below, the Court DENIES

Defendants’ motion.

Background

In January of 2005, Plaintiff James Collins brought an

action against Parexel for retaliatory discharge under the

Sarbanes-Oxley Act of 2002. He later amended his complaint to

include a claim for defamation. Prior to his termination,

Case 2:05-cv-01853-JCJ Document 70 Filed 06/13/08 Page 1 of 14
Plaintiff was hired by Barnett, which, during the course of 1

Plaintiff’s employment became a division of a subsidiary of Defendant

Parexel International Corporation.

2

Plaintiff was the Vice President of Operations for Barnett . 

1

Plaintiff claims that around August 2003, he learned from his

colleague Jeff Klimaski, then Director of Business Planning

Operations for Barnett, that external auditors for the company

had discovered certain accounting irregularities within the

company’s database. Plaintiff engaged in his own investigation

of the accounting issues and, in Fall 2003, he contacted several

of his supervisors in hopes that the irregularities would be

investigated and resolved. Unsatisfied with Parexel’s

investigation of these issues, Plaintiff retained an attorney in

December of 2003 to negotiate an “amicable separation” from his

employer. Operating under the belief that his termination was

imminent, Collins began preparations to launch a consulting

company in February of 2004. In early March of 2004 Parexel’s

general counsel contacted Plaintiff’s counsel and informed him

that Plaintiff’s concerns were being investigated and that

Parexel wanted Plaintiff to continue his employment. Plaintiff

contends that, despite the statements of Parexel’s counsel, he

was gradually stripped of his job responsibilities. He was

terminated on April 28, 2004, shortly after Defendants learned

that he had incorporated a new business in violation of the terms

of his employment agreement.

Case 2:05-cv-01853-JCJ Document 70 Filed 06/13/08 Page 2 of 14
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Plaintiff also claims that following his termination,

Defendants’ repeatedly defamed him. He claims that at least

three Parexel employees published statements stating that he had

been terminated for mishandling and/or mismanaging money. As a

result of these comments, Plaintiff avers that he has suffered

“personal humiliation and harm to his reputation.” (Pl. Resp. at

25.) Defendants have moved for summary judgment on both of

Plaintiff’s claims. 

Standard for Summary Judgment

It is recognized that the underlying purpose of summary

judgment is to avoid a pointless trial in cases where it is

unnecessary and would only cause delay and expense. Goodman v.

Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976). Summary

judgment is proper “if there is no genuine issue as to any

material fact and the moving party is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c). An issue is genuine only

if there is a sufficient evidentiary basis on which a reasonable

jury could find for the non-moving party, and a factual dispute

is material only if it might affect the outcome of the suit under

governing law. Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d

Cir. 2006), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). If the non-moving party bears the burden of

persuasion at trial, “the moving party may meet its burden on

summary judgment by showing that the nonmoving party’s evidence

Case 2:05-cv-01853-JCJ Document 70 Filed 06/13/08 Page 3 of 14
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is insufficient to carry that burden.” Id., quoting Wetzel v.

Tucker, 139 F.3d 380, 383 n. 2 (3d Cir. 1998). In conducting our

review, we view the record in the light most favorable to the

non-moving party and draw all reasonable inferences in that

party’s favor. See Nicini v. Morra, 212 F.3d 798, 806 (3d Cir.

2000). However, there must be more than a “mere scintilla” of

evidence in support of the non-moving party’s position to survive

the summary judgment stage. Anderson, 477 U.S. at 252.

Discussion

A. The Sarbanes-Oxley Act

Plaintiff claims that he was fired from the company in

violation of 18 U.S.C. § 1514(a)(1). Defendants argue that they

are entitled to summary judgment on this claim because

“[p]laintiff cannot establish the threshold requirement that his

alleged protected activity was a contributing factor in the

decision to terminate his employment.” (Def. Mot. at 7.) 

In order to establish a prima facie case under the SarbanesOxley Act of 2002, Plaintiff must establish the following by a

preponderance of the evidence: (1) he engaged in protected

activity or conduct; (2) his employer knew or suspected, actually

or constructively, he engaged in the protected activity; (3)he

suffered an unfavorable personnel action; (4) the circumstances

were sufficient to raise the inference that the protected

Case 2:05-cv-01853-JCJ Document 70 Filed 06/13/08 Page 4 of 14
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activity was a contributing factor in the unfavorable action. 29

C.F.R. § 1980.104 (2004). Once a prima facie case has been

established, the burden then shifts to the defendant to

demonstrate, by clear and convincing evidence, that “a legitimate

purpose or motive for the adverse personnel action” exists. 

Welch v. Cardinal Bankshares Corp., Case No. 2003-SOX-15, 2004

DOLSOX LEXIS 41, at *147 (Dept. Of Labor January 28, 2004).

There is no argument that Plaintiff engaged in protected

activity and that he suffered adverse employment action. The

parties disagree, however, that there is a genuine issue of

material fact whether Plaintiff’s protected activity was a

contributing factor in his termination. A contributing factor is

defined as “any factor, which alone or in combination with other

factors, tends to affect in any way the outcome of the decision.” 

Grove v. EMC Corp., Case No. 2006-SOX-00099, 2007 DOLSOX LEXIS

49, at *73 (Dept. Of Labor July 2, 2007).

Defendants argue that Plaintiff has failed to show that his

alleged protected activity was either a primary motivating factor

or a contributing factor in Parexel’s decision to terminate him. 

They argue that the evidence in the record clearly demonstrates

that Plaintiff was terminated by the company for “legitimate

business reasons, violating his Key Employment Agreement with

Parexel.” (Def. Rep. at 1-2.) The agreement, which Plaintiff

signed, provided that employees were prohibited from “engag[ing]

Case 2:05-cv-01853-JCJ Document 70 Filed 06/13/08 Page 5 of 14
Defendants argue that the passage of time between Plaintiff’s

2

protected activity and his termination (seven months) defeats any

causal connection between the two events, and no reasonable jury could

find otherwise. We disagree that the intervening seven month period

is dispositive of that fact. Courts have denied summary judgment in

situations where a similar period of time has lapsed between the two

events where there was other evidence of causation, namely a pattern

of retaliation that began at the point it became evident that an

employee had engaged in protected activity. See. e.g. Mahony v.

Keyspan Corp., 2007 U.S. Dist. Lexis 22042 at *17.

6

in any employment, consulting, or other business other than for

the Company.” (Def. Mot., Exh. B.)

Defendants point to the following as proof that Plaintiff

failed to comply with the agreement: (1) Plaintiff incorporated

his own independent business while still employed at Parexel and

retained office space; and (2) he agreed to speak on behalf of

his independent company at a conference sponsored by a Parexel

competitor while still employed by Parexel.

Plaintiff argues that he did not begin to operate his

company until after he was terminated and that he did not engage

in any substantive activity with the company prior to his

termination. He has set forth facts demonstrating a pattern of

retaliation following his filing of a Whistleblower Letter in

January 2004. 

2

Upon review of the record, we agree with Plaintiff that

there is a genuine issue of material fact whether his protected

activity was a contributing factor in Parexel’s decision to

terminate him. He has provided sufficient evidence of acts on

the part of Parexel following his Whistleblower Letter that

Case 2:05-cv-01853-JCJ Document 70 Filed 06/13/08 Page 6 of 14
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suggests a pattern of retaliation, including repeated isolation

and exclusion from his employment responsibilities. See. Pl.

Resp., Exh. 3 at 181-4.

Nevertheless, Parexel argues that even if Plaintiff can

establish a prima facie case of retaliation, it had a legitimate

business reason for terminating his employment – that he violated

his employment agreement by incorporating an independent business

and engaging in speaking engagements while still employed by

Parexel. Plaintiff argues, however, that this business reason

offered by Parexel is merely a pretext for his termination. 

Based upon the evidence, we agree that there is ample evidence in

the record to support this claim and thus, Defendants are not

entitled to summary judgment. Plaintiff has set forth facts in

his responsive motion demonstrating that Defendants were aware

that Plaintiff had not engaged in any competitive business

activity prior to April 2004 and that he had assured Defendants

that any speaking engagements in which he participated would be

on behalf of Parexel. (Pl. Resp. at 23).

At the very least, it is disputed whether Plaintiff engaged

in activity in furtherance of his own business interests while

still employed by Defendants. Therefore, we agree with Plaintiff

that there is sufficient evidence to allow a jury to fully

evaluate the merits of this claim.

B. Defamation

Case 2:05-cv-01853-JCJ Document 70 Filed 06/13/08 Page 7 of 14
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Plaintiff alleges that in addition to his alleged unlawful

termination by Defendants, his reputation has also been damaged

as a result of defamatory statements about him made by several

Parexel employees. (Pl. Resp. at 33.) 

Under Pennsylvania law, in order to prove a claim for

defamation, Plaintiff must establish: (1) the defamatory

character of the communication; (2) its publication by the

defendant; (3) its application to the plaintiff; (4) an

understanding by the reader or listener of its defamatory

meaning; (5) an understanding by the reader or listener of an

intent by the defendant that the statement refers to the

plaintiff; (6) special harm resulting to the plaintiff from its

publication; and (7) abuse of a conditionally privileged

position. Clemente v. Espinosa, 749 F. Supp. 672, 677 (E.D. Pa.

1990) (citing 42 Pa. Cons. Stat. § 8343(a) (1988)). A statement

is defamatory “if it tends so to harm the reputation of another

as to lower him in the estimation of the community or to deter

third persons from associating or dealing with him.” Id. at 676

(quoting Cosgrove Studio and Camera Shop, Inc. v Pane, 182 A.2d

751, 753 (Pa. Sup. Ct. 1962)). Under Pennsylvania law, it is for

the court to determine whether the statement at issue is capable

of defamatory meaning. Synygy, Inc. v. Scott-Levin, Inc., 51 F.

Supp. 2d 570 (E.D. Pa. 1999), aff’d, 229 F.3d 1139 (2000).

Defendants contend that Plaintiff has failed to provide

Case 2:05-cv-01853-JCJ Document 70 Filed 06/13/08 Page 8 of 14
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sufficient information to support his claims for defamation as

set forth in Count II of his Amended Complaint. We disagree.

In his responsive motion, Plaintiff has described several

incidents where representatives for the Defendants published

defamatory statements about him which have damaged his reputation

within the business community. (Pl. Resp. at 24-26). 

First, Plaintiff alleges that Lorie Ferraro, Director of

Human Resources at Parexel, admitted at her deposition that

defamatory statements were made by Steve Pugliese about Collins

concerning his mishandling of funds. Citing Ferraro’s December

2005 deposition, Plaintiff argues that “Pugliese told third

parties that Parexel fired Collins because he mismanaged money”

(Pl. Resp. at 33.) Upon review of the relevant portion of Ms.

Ferraro’s deposition, we find no support for such a claim. 

Clearly, Ms. Ferraro does not admit, as Plaintiff suggests,

that Mr. Pugliese published defamatory statements about

Plaintiff. At no point did Ms. Ferraro admit at her deposition

that she heard any other employee make defamatory statements

about Plaintiff. As Defendant accurately points out in its

motion, Ms. Ferraro only stated that if Mr. Pugliese had told the

office that Plaintiff mismanaged money, she would not have been

surprised to hear that. We cannot construe Ms. Ferarro’s

response as an admission that she heard Mr. Pugliese disparage

Plaintiff and thus refuse to consider this evidence in our

Case 2:05-cv-01853-JCJ Document 70 Filed 06/13/08 Page 9 of 14
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analysis.

Plaintiff has alleged, however, that other Parexel employees

made damaging comments about him alleging that he had mismanaged

and/or misappropriated funds. Apparently, Plaintiff was informed

about these comments via other co-workers. While Defendants

argue that these statements are inadmissable hearsay because

“Plaintiff has no firsthand knowledge concerning the content of

the publication of the alleged defamatory statements” (Def. Mot.

at 12), we agree with Plaintiff that the statements are nonhearsay as they are admissions of a party-opponent. See FED. R.

EVID. 801(d)(2)(D) (a statement is not hearsay if [it] is offered

against a party and is [made] by the party's agent or servant

concerning a matter within the scope of the agency or employment

... during the existence of the relationship.) 

Defendants nevertheless argue that Plaintiff fails to

provide evidence that these alleged defamatory statements harmed

his reputation in the business community and they are therefore

entitled to summary judgment on this claim. As stated above, one

of the requirements of a defamation claim is to show “special

harm” resulting to the plaintiff from its publication. Espinosa,

749 F. Supp. at 677. The term “special harm” is defined as

“actual damages which are economic or pecuniary losses.” Sprague

v. Am. Bar Ass’n, 276 F. Supp. 2d 365, 368-69 (E.D. Pa. 2003)

(quoting Restatement (Second) of Torts, § 575, cmt. b (1977)). 

Case 2:05-cv-01853-JCJ Document 70 Filed 06/13/08 Page 10 of 14
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However, Pennsylvania recognizes an exception to the “special

harm” requirement for slander actions. A plaintiff may succeed

in a claim for defamation absent proof of special harm where the

spoken words constitute slander per se. Espinosa, 749 F. Supp.

at 677. There are four categories of words that constitute

slander per se: words that impute (1) criminal offense, (2)

loathsome disease, (3) business misconduct, or (4) serious sexual

misconduct. Id. (citing Restatement (Second) of Torts § 570

(1977)).

Without using the slander per se standard, Plaintiff would

not have a sufficient defamation claim because he cannot

establish any “special” harm. He has not identified any economic

or pecuniary losses suffered as a direct result of the alleged

communications. However, Plaintiff has described “multiple

damages caused by the defamation, namely hindering [his] ability

to get a job...because of his reputation.” (Pl. Mot. at 8.)

In Pennsylvania, a defendant who publishes a statement which

can be considered slander per se is liable for the proven, actual

harm that the publication causes. Walker v. Grand Cent.

Sanitation, 634 A.2d 237, 244 (Pa. Super. Ct. 1993). To show

actual damages in a defamation claim, the plaintiff must show

competent proof. Sprague, 276 F. Supp. 2d at 368. Actual

damages are divided into two types: general and special. Id. 

“General” damages typically flow from defamation, such as

Case 2:05-cv-01853-JCJ Document 70 Filed 06/13/08 Page 11 of 14
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“impairment of reputation and standing in the community, personal

humiliation, and mental anguish and suffering.” Id. The

Restatement (Second) of Torts requires a victim of slander per se

to make some showing of general damage, although he need not

prove “special damage.” Walker, 634 A.2d at 241. Proof of

general damages is required, since it accommodates the Court’s

interest in maintaining some type of control over the amount that

a jury should be entitled to compensate an injured person. Id.

at 251. In determining if a plaintiff has demonstrated any loss

to reputation, it must be measured by the perception of others,

rather than that of the plaintiff himself because “reputation is

the estimation in which one’s character is held by his neighbors

or associates.” Sprague, 276 F. Supp. 2d at 370.

 Previous cases have made assessments of the evidence of such

actual harm. For example, in Marcone v. Penthouse International

Magazine, the plaintiff testified that he was “frustrated,

distraught, upset, and distressed,” and that he feared

“retribution against his family.” Marcone v. Penthouse

International Magazine, 754 F.2d 1072, 1080 (3rd Cir. 1985). 

Likewise, in Sprague, the plaintiff asserted that the defamatory

statements cause him “anger, humiliation, embarrassment, and

fear.” Sprague, 276 F. Supp. 2d at 371. He also alleged that

his fear was “constant and continuous.” Id. at 372. In these

cases, the court found that there was sufficient evidence of

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13

actual harm for a jury to decide the issue. 

We find that under the slander per se standard, Plaintiff

has demonstrated damages sufficient to support his defamation

claim and thus survive summary judgment. As we have previously

found, where a “reasonable jury could find that Plaintiff has

suffered from some continuous fear, embarrassment, or humiliation

to his reputation within the community”, general damages may be

satisfied at the summary judgment phase. See Pennoyer v.

Marriott Hotel Servs., Inc., 324 F. Supp. 2d 614, 619 (E.D. Pa.

2004).

At his deposition, when asked what damages he has suffered,

Plaintiff testified that he has had to explain to “colleagues,

future clients and potential coworkers” alike that he was not

terminated for misappropriating company funds. He clearly

expressed concern about his perceived standing within such a

small business community and the correlation between the nature

of the comments (his mismanagement/misappropriation of money) and

his current and future credibility as an accounting professional. 

At this stage, we find that there is a sufficient evidentiary

basis on which a reasonable jury could find for Plaintiff and

Defendants are not entitled to summary judgment on this claim.

Conclusion

For all of the reasons set forth above, Defendants Motion

for Summary Judgment is DENIED pursuant to the attached order. 

Case 2:05-cv-01853-JCJ Document 70 Filed 06/13/08 Page 13 of 14
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JAMES COLLINS, :

:

PLAINTIFF, : CIVIL ACTION

:

v. : No. 05-cv-1853

:

PAREXEL INTERNATIONAL and BARNETT :

INTERNATIONAL, :

:

DEFENDANTS :

ORDER

AND NOW, this 12th day of June, 2008, upon consideration of

Defendants’ Motion for Summary Judgment, and the responses

thereto, for the reasons stated in the accompanying memorandum,

it is hereby ORDERED that the Motion is DENIED.

BY THE COURT:

s/J. Curtis Joyner 

J. CURTIS JOYNER, J.

Case 2:05-cv-01853-JCJ Document 70 Filed 06/13/08 Page 14 of 14