1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

WESLEY ODOM,

Plaintiff,

v. CASE NO. 3:11-cv-75-RS-EMT

CITIGROUP GLOBAL MARKETS

INC., and CITIGROUP INC.,

Defendants.

_________________________________/

ORDER

Before me are Defendant’s Motion for Summary Judgment (Doc. 130), 

Defendant’s Statement of Undisputed Facts in Support of Motion for Summary 

Judgment (Doc. 131), Plaintiff’s Memorandum in Opposition to Defendant’s 

Motion for Summary Judgment (Doc. 140), Plaintiff’s Statement of Material Facts 

in Dispute (Doc. 141), and Defendant’s Reply in Support of Motion for Summary 

Judgment (Doc. 155).

This is a whistleblower case. Wesley Odom, a financial adviser, has sued his 

former employer, Citigroup, for firing him after he complained about Citigroup 

policies that he believed violated the securities laws. He objected to Citigroup’s 

directives to its advisers to (1) market high-interest checking accounts called 

Citigold accounts, and (2) refrain from advising their clients to sell Citi preferred 

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securities. Citigroup counters that these directives were legal, and in any event, 

they fired him because he violated company policies and seemed to be trying to 

redirect their clients to his own startup investment firm. 

After review, I find that Odom’s whistleblower claim about the Citigold 

accounts fails as a matter of law, because marketing these accounts could not have 

been illegal. However, triable issues of fact remain in his claim about the Citi 

preferred securities, and that claim must proceed to trial. Defendant’s motion for 

summary judgment is therefore granted in part and denied in part.

I. STANDARD OF REVIEW

The basic issue before the court on a motion for summary judgment is 

“whether the evidence presents a sufficient disagreement to require submission to a 

jury or whether it is so one-sided that one party must prevail as a matter of law.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S. Ct. 2505, 2512 , 91 L. 

Ed. 2d 202 (1986). The moving party has the burden of showing the absence of a 

genuine issue as to any material fact, and in deciding whether the movant has met 

this burden, the court must view the movant’s evidence and all factual inferences 

arising from it in the light most favorable to the nonmoving party. Adickes v. S. H. 

Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970); 

Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). Thus, if 

reasonable minds could differ on the inferences arising from undisputed facts, then 

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a court should deny summary judgment. Miranda v. B & B Cash Grocery Store, 

Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank & Trust v. 

Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). However, a mere 

‘scintilla’ of evidence supporting the nonmoving party's position will not suffice; 

there must be enough of a showing that the jury could reasonably find for that 

party. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 

477 U.S. at 251).

II. BACKGROUND

I accept the facts in the light most favorable to Plaintiff. See Galvez v. 

Bruce, 552 F.3d 1238, 1239 (11th Cir. 2008). All reasonable doubts about the 

facts shall be resolved in favor of the non-movant. Id.

a. Facts

Plaintiff Wesley Odom was employed for 17 years as a financial advisor in 

the Pensacola, Florida, office of Smith Barney, then a division of Defendants 

Citigroup Global Markets Inc. and Citigroup Inc. (Doc. 140 at 1). In May 2009, 

Odom received a “resign or be fired” ultimatum from his supervisor, Helene Botos, 

and chose resignation. (Id. at 8). Odom contends that he was fired for voicing 

opposition to illegal practices by Citigroup; Citigroup responds that they fired him 

for violating company policies.

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The problems appear to have begun at the height of the global financial 

crisis in late 2008 and early 2009. (Id. at 2). Citigroup encouraged its financial 

advisers to “aggressively market” two different financial products to their clients. 

(Id. at 3-5). First, advisers were asked to market “Citigold” checking accounts, 

high-fee checking accounts that Odom believed were unsuitable for his clients. (Id.

at 3-4). He told Botos that he would not promote them to his clients. (Id.). Second, 

advisers were asked to market Citi’s own preferred securities, which at the time 

were very risky investments. (Id. at 4-5). Citigroup ordered its advisors not to 

encourage their clients to sell the securities and not to recommend sell orders 

without lengthy legal disclaimers. (Id.). Odom again objected to and refused to 

participate in this practice. (Id.).

Odom’s alleged clash with management over these issues came to a head on 

May 4, 2009, when Botos learned that Odom had sent his client a letter. (Id. at 6). 

Botos stated she believed this communication with a client to violate company 

protocol. (Id.). As she was investigating the letter, she also did some research and 

discovered that Odom had founded his own investment firm without informing her. 

(Id. at 6-7). After calling and consulting her superiors in Atlanta, and purportedly 

based on these two violations of company policy, she came to Odom’s office the 

same day and gave him the “resign or be fired” ultimatum. (Id. at 7).

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The first purported violation of company policy involved another investment 

firm that Odom formed in early 2009 called Armada Advisors, Inc. (Id. at 2). 

Odom contends that he formed the firm as a backup option in case he was laid off 

from his current employment in the wake of then-developing financial crisis. (Id.). 

He argues that forming the firm was not in violation of company policy, because 

he had not yet (in 2009) had the opportunity to disclose it at his annual review, as 

required by the company’s disclosure policy.

Citigroup, however, claims that forming the firm was in violation of 

company policy. The Smith Barney 2009 U.S. Employee Handbook and the 

Compliance Desk Top Reference manual explicitly require prior approval before 

employees engage in outside activities such as directorships of corporations. (Doc. 

131 at 7-9).

The second purported violation of company policy involved the letter that 

Odom had sent to a client. The letter was regarding a proposed joint venture 

between Smith Barney and Morgan Stanley, another investment firm. (Id. at 2-3). 

In April 2009, Smith Barney customers were sent a document describing the 

merger and the procedures for opting-out. (Id.). According to Odom, when one of 

his clients asked him about the opt-out procedure, he sent her a sample opt-out 

form consistent with the company’s own form. (Id.).

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Citigroup viewed the letter much differently. Botos found out about the 

letter when a client called and asked to speak to a branch manager about a strange 

communication. (Doc. 131 at 2). The communication was not on Smith Barney 

letterhead and requested the Smith Barney accounts not to be transferred to 

Morgan Stanley but “to another firm.” (Id.). Because the form was not 

preapproved, Citigroup maintains that it violated its correspondence policy, which 

required approval from a branch manager of all communications regarding firm 

business and imposed record-keeping requirements. Furthermore, Botos was 

concerned Odom was attempting to transfer Smith Barney clients elsewhere. (Doc. 

130 at 3). This concern is allegedly what led her to research his outside activity and 

discover Armada Advisers. (Id.).

Odom counters that sending this single form was not in violation of the

correspondence policy and, regardless, it was not the company’s practice to 

immediately fire employees for violating either of these policies. (Doc. 140 at 8).

Furthermore, he says that before Botos found out about either of these purported 

policy violations, Botos had asked him to a sign a form releasing any claims Odom 

had against the company. (Id. at 5). When he refused to sign, a regional manager 

from Atlanta came to Odom’s office to urge and pressure him to do so. (Id.; Doc. 

155 at 6). The form presented to Odom, which contained the release language, was 

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different from the form presented to at least some other financial advisors. (Doc. 

140 at 5; Doc. 155 at 6).

Either way, after learning of the alleged policy violations on May 4, Botos 

returned to Odom’s office and gave him the ultimatum. (Id. at 7-8). Odom 

immediately resigned from Smith Barney rather than be fired. (Id.).

b. Procedure

Odom filed suit in state court on January 6, 2011, alleging unpaid wages 

(Count I), conversion (Count II), violations of the Florida Whistle-Blower Act 

(Count III), fraud (Count IV), negligent misrepresentation (Count V), and 

violations of the Securities Exchange Act of 1934 and Rule 10b-5 (Count VI). 

Citigroup properly removed the case to this Court on the basis of both federal 

question jurisdiction and diversity jurisdiction.

On June 6, 2011, Counts III, IV, V, and VI were transferred to the Southern 

District of New York for consolidated discovery as part of In re: Citigroup Inc. 

Securities Litigation, MDL No. 2070. (See Doc. 18). The parties later stipulated to 

the dismissal of Counts I and II, as well as Citigroup’s counterclaims. (See Doc. 

59). 

More than two years after the transfer, on December 13, 2013, the Southern 

District of New York dismissed with prejudice Counts IV, V, and VI and 

remanded Count III, the Florida Whistleblower Act claim, to this Court. (See

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Odom v. Morgan Stanley Smith Barney, LLC, 1:11-cv-03827-SHS, Doc. 40 

(S.D.N.Y. Dec. 13, 2013)).

The litigation resumed in this Court for Count III, the only remaining claim, 

in February 2014. (See Doc. 75). I denied Citigroup’s motion to dismiss for failure 

to state a claim on August 1, 2014. (See Doc. 109). After additional discovery, 

Citigroup now moves for summary judgment.

III. DISCUSSION

Citigroup contends that Odom’s Florida Whistleblower Act (FWA) claim 

should be dismissed as a matter of law because Odom has failed to make a prima 

facie case for violation of the Act, because it offered a non-discriminatory reason 

for terminating him, and because its reasons were not pretextual.

The Florida Whistleblower Act (FWA), codified as Florida Statutes 

§ 448.102, prohibits retaliatory action against an employee who “[o]bjected to, or 

refused to participate in, any activity, policy, or practice of the employer which is 

in violation of a law, rule, or regulation.” Fla. Stat. §448.102(3). Federal courts 

use the McDonnell Douglas burden-shifting framework to evaluate FWA claims at 

summary judgment. Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 950 (11th 

Cir. 2000). First, a plaintiff has the initial burden of proving a prima facie case. Id.

Second, the burden shifts to the defendant to proffer a legitimate reason for the 

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adverse action. Id. Third, the burden shifts back to the plaintiff to prove that the 

proffered reason is merely a pretext for illegal conduct. Id.

a. The Prima Facie Case

 To establish a prima facie case under the FWA, a plaintiff must establish 

three elements. First, the plaintiff must have engaged in some statutorily protected 

expression. See Castillo v. Roche Labs., Inc., 467 F. App’x 859, 862 (11th Cir. 

2012). Second, the plaintiff must have suffered an adverse employment action. Id. 

Finally, the adverse employment action must have been causally linked to the 

plaintiff’s protected expression. Id. 

1. Statutorily Protected Expression

Odom argues that his refusal to participate in marketing the Citigold 

checking accounts and the Citi preferred securities, and his objections to the firm’s 

policies regarding these accounts, was expression protected by the FWA.1

Citigroup counters that his activity is not protected because their conduct was not 

illegal, and he has not proved an actual violation of a law.

A. The proper legal standard: “actual violation” vs. “reasonable belief”

To establish protected expression under the FWA, a plaintiff must show that 

he objected to or refused to participate in an illegal activity, policy, or practice of 

 

1

In his Amended Complaint (Doc. 122), Odom also alleged that he engaged in protected activity 

by opposing Citi’s policy of prohibiting advisors from advising clients regarding financial impact 

of the joint venture. However, Odom has not pressed this line in his Memorandum in Opposition 

to Defendant’s Motion for Summary Judgment (Doc. 140), and so it appears abandoned.

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an employer. Fla. Stat. §448.102(3); Aery v. Wallace Lincoln-Mercury, LLC, 118 

So. 3d 904, 916 (Fla. Dist. Ct. App. 2013). The parties dispute, however, the 

proper standard for what constitutes “illegal.”

Citigroup argues that the approach followed by numerous federal district 

courts and unpublished Eleventh Circuit opinions should govern. These courts 

require the plaintiff to prove that an actual violation of the law occurred in order to 

benefit from FWA protection. See, e.g., Smith v. Psychiatric Solutions, Inc., 358 

F. App’x 76, 78 (11th Cir. 2009); White v. Purdue Pharma., Inc., 369 F. Supp. 2d 

1335, 1337 (M.D.Fla.2005) (“[A] Plaintiff, in order to prevail under a Florida 

Whistle-Blower action . . . must prove that the activity, policy or practice objected 

to is, in fact, in violation of a law, rule or regulation.”).

2

Odom counters that the long-standing rule has changed. In 2013, the Florida 

Fourth District Court of Appeals, with little analysis, applied a different rule. The 

court held that, in meeting the “illegal” standard for a FWA claim, “all that is 

required is that the employee have a good faith, objectively reasonable belief that 

 

2

See also United States ex rel. Vargas v. Lackman Food Svc., Inc., 510 F. Supp. 2d 957, 968 

(M.D. Fla. 2007); Smith v. Psychiatric Solutions, Inc., 3:08CV3/MCR/EMT, 2009 WL 903624, 

at *7 (N.D. Fla. Mar. 31, 2009); Paulet v. Farlie, Turner & Co., LLC, No. 10-21021-CIV, 2010 

WL 2232662, at *2 (S.D. Fla. June 2, 2010); Gibson v. Walgreen Co., 6:07-CV-1053-ORL28KRS, 2010 WL 366130, at *10 n.13 (M.D. Fla. Jan. 19, 2010); Colon v. Total Renal Care, 

Inc., No. 8:07-cv-151-T-26MAP, 2007 WL 4145940, at *2 (M.D. Fla. Nov. 19, 2007); Blanche 

v. Airtran Airways, Inc., No. 8:01cv1747-T-30MSS, 2005 WL 1051097, at *2 (M.D. Fla. May 2, 

2005); Hogan v. Country Club of Brevard, Inc., No. 604CV272ORL31JGG, 2005 WL 1572985, 

at *7 (M.D. Fla. July 1, 2005); Barlow v. Conagra Foods, Inc., No. 804CV2286T17TGW, 2005 

WL 3133474, at *4 (M.D. Fla. Nov. 23, 2005).

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h[is] activity is protected by the statute.” Aery v. Wallace Lincoln-Mercury, LLC, 

118 So. 3d 904, 916 (Fla. Dist. Ct. App. 2013) (citations and quotations omitted).

The court cited to a federal court opinion, Luna v. Walgreen Co., 575 F. Supp. 2d 

1326, 1343 (S.D.Fla.2008), which applied the “objectively reasonable belief” 

standard simultaneously to both an FWA claim and an Americans with Disabilities 

Act claim. Luna appeared to conflate the FWA and ADA standards.

Only a handful of courts, all federal, have acknowledged Aery. Two declined 

to address the apparent split of authority. See Bonnafant v. Chico's FAS, Inc., No. 

2:13-CV-893-FTM-29CM, 2014 WL 1664554, at *4 (M.D. Fla. Apr. 25, 2014); 

Denarii Sys. LLC v. Arab, No. 12-24239-CIV, 2014 WL 2960964, at *3 n. 4 (S.D. 

Fla. June 30, 2014). Another rejected the majority rule and applied the new Aery

rule. See Hernandez v. Publix Super Markets, Inc., No. 14-20491-CIV, 2014 WL 

1379141 (S.D. Fla. Apr. 9, 2014).

I agree with the well-reasoned order of the Hernandez court that Aery

changed the rule and now governs FWA cases. While the federal courts developed 

the “actual violation” standard, no state court opinion that carries binding authority 

appears to have ever addressed the issue, stated the rule, or even cited approvingly 

to a federal court’s articulation of the rule. Rather, Aery is the only binding Florida 

state court authority on the matter. 

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When interpreting state law, federal courts must apply the substantive law of 

the state. Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 

(1938). Where no Florida Supreme Court precedent exists on a matter, federal 

courts are bound to adhere to the decisions of the state’s intermediate appellate 

courts absent some persuasive indication the state’s highest court would decide the 

issue otherwise. Winn-Dixie Stores, Inc. v. Dolgencorp, LLC, 746 F.3d 1008, 1021 

(11th Cir. 2014). Although the Aery court’s reasoning is minimal, and its logic is 

questionable, it is the only binding statement of authority on the matter from any of 

the Florida appellate courts. Unless and until another Florida appellate court 

disagrees with Aery, or there is some other indication that the Florida Supreme 

Court would change the rule, Aery states the rule on the matter, and I am bound to 

follow it.

I therefore hold that, under the new rule stated in Aery, in claims brought 

under the Florida Whistleblower Act, Fla. Stat. §448.102(3), an employee need 

only demonstrate that he had a “good faith, objectively reasonable belief” that the 

conduct that the employee objects to is illegal; the conduct does not need to 

actually violate the law. Aery, 118 So.3d at 916. If the employee demonstrates such 

a reasonable belief, he satisfies the “protected activity” prong of the prima facie 

case for an FWA claim.

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I now apply this rule to Odom’s objections to the two purported illegal 

activities of Citigroup—the aggressive marketing of the Citigold checking 

accounts and the Citi preferred securities.

B. The Citigold Checking Accounts

Odom argues that Citigroup’s aggressive marketing of the high-fee Citigold 

Checking accounts violated Rule 10b-5. 

Rule 10b-5 was promulgated under § 10(b) of the 1934 Securities Exchange 

Act. Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, 552 U.S. 148, 156-57, 128 

S. Ct. 761, 768, 169 L. Ed. 2d 627 (2008). The rule makes it illegal to 

“(a) To employ any device, scheme, or artifice to defraud,

(b) To make any untrue statement of a material fact or to omit to state a 

material fact necessary in order to make the statements made, in the light of 

the circumstances under which they were made, not misleading, or

(c) To engage in any act, practice, or course of business which operates or 

would operate as a fraud or deceit upon any person, 

in connection with the purchase or sale of any security.”

17 C.F.R. § 240.10b-5.

In the case of the Citigold checking accounts, it is apparent, and the parties 

do not appear to dispute, that the checking accounts are not securities. See 15 

U.S.C. § 77b(a)(1); Marine Bank v. Weaver, 455 U.S. 551, 555, 102 S. Ct. 1220, 

1223, 71 L. Ed. 2d 409 (1982) (holding that certificate of deposit was not a 

security); Lenczycki v. Shearson Lehman Hutton, Inc., No. 88 CIV. 9262 (RWS), 

1990 WL 151137, at *5 (S.D.N.Y. Sept. 29, 1990) (noting that “interest-bearing 

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checking account” was not a security). There is therefore no conceivable way for 

Citigroup’s conduct in marketing the checking accounts to violate Rule 10b-5, 

which applies only “in connection with the purchase or sale of any security.” 

(Emphasis added). 

Odom is required only to prove a “good-faith, objectively reasonable belief” 

that a violation occurred, rather than prove an actual violation of the law. Aery, 118 

So.3d at 916. However, as to the checking accounts, Odom is not able to prove 

even a reasonable belief that he engaged in protected activity. Odom was an 

experienced financial adviser with a large, respected financial institution. Under 

the objective Aery test, no reasonable experienced financial adviser would believe 

that conduct in marketing checking accounts, which are not securities, violated the 

securities laws. Additionally, Odom cannot disclaim ignorance of the substantive 

law to argue that his belief was reasonable. Weeks v. Harden Mfg. Corp., 291 F.3d 

1307, 1317 (11th Cir. 2002). And, other than Rule 10b-5, Odom has not advanced 

any other theories for why the aggressive marketing of the checking accounts was 

illegal.

It is irrelevant whether marketing the checking accounts violated any

FINRA rules regarding suitability. FINRA rules, which are privately enforced, do 

not appear to qualify as a “law, rule, or regulation” under the FWA. Fla. Stat. 

§448.102(3). FINRA is a private securities organization responsible for discipline 

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of its members who violate its rules. See Fiero v. Fin. Indus. Regulatory Auth., 

Inc., 660 F.3d 569, 571 (2d Cir. 2011); 15 U.S.C. § 78o-3(b).

I therefore find as a matter of law that Odom has failed to meet his burden of 

proving that he had an objectively reasonable belief that Citi’s conduct in 

marketing the checking accounts was illegal. Odom thus did not engage in any 

protected expression, and his FWA claims about the Citigold checking accounts 

are dismissed with prejudice.

C. The Citi Preferred Securities

On the other hand, it is undisputed that the Citi preferred securities are 

securities potentially subject to Rule 10b-5. Specifically, Odom contends that 

Citi’s instructions to its financial advisers about the preferred securities violated 

the prohibition against making investment recommendations that are not suitable 

for a client. See Brown v. E.F. Hutton Grp., Inc., 991 F.2d 1020, 1031 (2d Cir. 

1993) (recognizing § 10(b) unsuitability claim where financial adviser knowingly 

recommended purchase of securities unsuited to the buyer’s needs); O’Connor v. 

R.F. Lafferty & Co., 965 F.2d 893, 897-98 (10th Cir. 1992); Sec. & Exch. Comm’n 

v. Solow, No. 06-81041 CIV, 2007 WL 1970806, at *3 (S.D. Fla. May 10, 2007), 

aff’d, 308 F. App’x 364 (11th Cir. 2009).

Odom testified that that Citigroup instructed its financial advisors that they 

could not advise their clients to sell the preferred securities and that they did not 

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fully disclose the risks involved with the securities. (Doc. 140 at 4). Botos, in an 

email, instructed advisers that “Solicitation of sells on Citigroup preferred 

securities may not take place until [a] Disclosure Statement3. . . is verbally 

conveyed” to clients. (Doc. 131-21). This email and the requirement of the 

confusing disclaimer appear to serve as evidence of a policy of at least 

discouraging sell recommendations, even as to securities that became unsuitable 

for the clients.

This evidence, when taking all of the disputed facts in the light most 

favorable to the plaintiff, is sufficient to show that Odom had at least an 

objectively reasonable belief that Citigroup was violating the securities laws. The 

evidence shows that Odom could have reasonably believed that Citigroup had a 

policy of forbidding, restricting, or at least strongly discouraging its advisers from 

advising clients to sell securities that became unsuitable to their needs. Such a 

policy could violate Rule 10b-5, which has been interpreted by numerous courts

and the SEC, by way of “unsuitability claims,” to forbid financial advisers from 

intentionally advising their clients to make unsuitable investment decisions. Such a 

policy would likewise amount to “reckless disregard for the investor’s interests.” 

 

3

The 86-word disclosure statement states that “On February 6, 2009, Fitch downgraded the 

rating on Citigroup' s Preferred Securities from BBB to BB. Moody's currently rates Citigroup's 

Preferred stock structures Baa3 with a negative watch and Trust structures A3 with a negative 

watch. S&P rates Citigroup's Preferred Securities BB. The recent ratings actions taken by Fitch 

lowered the composite rating on Citigroup's Preferred Securities to below investment grade. 

Citigroup is an affiliate of Citigroup Global Markets Inc. (CGMI). CGMI is rated A2 negative 

watch by Moody’s and A stable outlook by S&P.” (Doc. 131-21).

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O’Connor v. R.F. Lafferty & Co., 965 F.2d 893, 898 (10th Cir. 1992). See also In 

the Matter of Olde Disc. Corp., 67 S.E.C. Docket 2045 (Sept. 10, 1998) (“Making 

unsuitable recommendations to customers without disclosing the unsuitability of 

those solicited investments, in breach of an affirmative duty to disclose arising 

from a fiduciary or similar relationship of trust and confidence, violated [Rule 10b5].”).

Citigroup’s argument that the activity could not be illegal because it 

involved only holding securities, rather than purchasing or selling them, has no 

merit. It is true that plaintiffs in private 10b-5 actions may not recover for fraud 

manifested in the mere holding, rather than purchase or sale, of securities. Blue 

Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 755, 95 S. Ct. 1917, 1934, 44 L. 

Ed. 2d 539 (1975). However, the Blue Chip Stamps rule only governs the 

judicially-created private 10b-5 action and does not address illegality of making 

hold recommendations in violation of the securities laws. Rather, the Eleventh 

Circuit has noted that the securities laws, as enforced to their fullest extent by the 

SEC, apply to “holders of securities.” Instituto De Prevision Militar v. Merrill 

Lynch, 546 F.3d 1340, 1348 (11th Cir. 2008). If it were reasonable for Odom to 

believe that Citigroup’s alleged conduct, even though it involved only “hold” 

decisions, was illegal and could be prosecuted by the SEC, then he satisfies the 

“illegality” threshold of the FWA. 

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It is true that, even within the realm of the SEC enforcement powers, which 

are broader than private 10b-5 actions, holder unsuitability claims are a novelty. 

Nonetheless, the question before me is not whether such prosecution would 

actually be valid, but rather whether Odom could have reasonably believed that it 

is valid. “Reasonable belief” includes both a subjective and objective component. 

Gale v. U.S. Dep't of Labor, 384 F. App’x 926, 929 (11th Cir. 2010). In this case, I 

ask whether it was objectively reasonable for an experienced financial adviser to 

believe that the conduct violated the securities laws.

The SEC has stated that violations based on unsuitable trading 

recommendations occur when (1) the securities recommended are unsuitable to the 

client’s needs; (2) the broker knew or reasonably believed that the securities were 

unsuited to the client’s needs; (3) the broker recommended the unsuitable securities 

anyway; and (4) the broker, with scienter, made material misrepresentations (or 

failed to disclose material information) relating to the suitability of the securities. 

In the Matter of Geoffrey A. Newman, 70 S.E.C. Docket 1051 (Sept. 2, 1999). 

Given that SEC enforcement powers extend to holder claims, and there 

appears to be no law stating that such claims are beyond the enforcement powers 

of the SEC, Odom could have at least reasonably believed that such claims are 

within the SEC’s enforcement power. Applying the elements of an unsuitability 

claim to a holder claim, it could have been reasonable to believe that Citigroup’s 

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blanket hold recommendation could have violated the securities laws: (1) the 

securities could have become unsuitable for the client’s needs; (2) the broker could 

have known that the securities were unsuited to the client’s needs; (3) the broker 

could have failed to recommend the sale the of the unsuitable securities, based on 

the directives and pressure from management; and (4) the broker, with scienter, 

could have failed to disclose material information relating to the suitability of the 

securities, based on the directives and pressure from management. 

It was reasonable for Odom, as an experienced stockbroker, to believe that a 

blanket hold directive would have caused financial advisers to make unsuitable 

recommendations and withhold material information regarding suitability from 

clients, and it was reasonable to believe such conduct violated the securities laws.

When Odom objected to the conduct that he reasonably believed was illegal, he 

engaged in protected activity.

Therefore there exists at least a triable issue of fact as to whether Odom 

engaged in protected activity with respect to the Citi preferred securities—that is, 

whether he could have reasonably believed that Citigroup engaged in illegal 

conduct and objected to that conduct.

2. Adverse Employment Action

Citigroup next contends that, even if Odom engaged in protected activity, he 

did not suffer an adverse employment action because he resigned voluntarily.

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Citigroup relies on Hargray v. City of Hallandale, 57 F.3d 1560 (11th Cir. 1995), 

in which the court ruled, although in a due process rather than employment

retaliation context, that “there are two situations in which an employee's 

resignation will be deemed involuntary, and thus a deprivation of due process: (1) 

where the employer forces the resignation by coercion or duress; or (2) where the 

employer obtains the resignation by deceiving or misrepresenting a material fact to 

the employee.” Id. at 1568.

It is unclear whether Hargray applies to retaliation against an at-will 

employee of a private corporation. At least one court has held that it does not. See

Andazola v. Logan's Roadhouse Inc., 871 F. Supp. 2d 1186, 1208 (N.D. Ala. 

2012). I need not decide whether it does, however, because it appears that the rule 

in Hargray is not broad enough to cover the facts of Odom’s termination, taken in 

the light most favorable to him. The Hargray court emphatically noted that 

“resignations can be voluntary even where the only alternative to resignation is 

facing possible termination for cause or criminal charges,” Hargray, 57 F.3d at

1568, because in such cases ‘the fact remains that plaintiff had a choice. [Plaintiff] 

could stand pat and fight.’” Id. (citations and quotations omitted) (emphasis in 

original).

Odom, under his version of the facts, was given an immediate “resign or be 

fired” ultimatum. He had the choice of (1) resigning, or (2) declining resignation 

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and being fired seconds later. Odom, unlike Hargray, did not have the alternative 

between resignation and “facing possible termination.” He had the alternative 

between resignation and facing definite, immediate termination. He likewise did 

not have an opportunity to “stand pat and fight;” it was made clear that no matter 

what he chose, that was the last time he was ever going to be in his office.

Odom’s situation is more appropriately analyzed under an “actual 

termination” theory. “The inquiry as to whether actual termination has occurred 

involves analysis of the employer’s intent.” Thomas v. Dillard Dep’t Stores, Inc., 

116 F.3d 1432, 1434 (11th Cir. 1997). Here, Citigroup intended to have Odom 

walk out of his office that day unemployed; they were simply generous enough to 

give him the choice to avoid the stigma of direct termination.

Where, as here, an employee is given a choice between immediate

resignation and immediate termination, the employee does not have a choice at all 

under Hargray; rather, the employee has been terminated. Odom has therefore 

raised a triable issue of fact as to whether he suffered an adverse employment 

action.

3. Causal Connection

Citigroup next argues that even if Odom engaged in protected expression 

and suffered an adverse employment action, the two were not causally related.

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The causation requirement is “broadly construed,” and a plaintiff may 

establish a prima facie case for retaliation so long as the protected activity and the 

adverse employment action are not completely unrelated. Pennington v. City of 

Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). This causation may be 

established by temporal proximity, Higdon v. Jackson, 393 F.3d 1211, 1220 (11th 

Cir. 2004), as well as by showing that an employer knew of a protected activity 

and adverse employment actions commenced shortly thereafter, Jiles v. United 

Parcel Serv., Inc., 360 F. App’x 61, 66 (11th Cir. 2010), citing Wideman v. WalMart Stores, Inc., 141 F.3d 1453, 1457 (11th Cir. 1998).

Citigroup argues that the four-to-seven month gap between Odom’s 

objections to the preferred securities and his termination is too long to establish

causation. See, e.g., Higdon, 393 F.3d at 1221 (three and four month periods, 

standing alone, did not imply causation).

Here, it is undisputed that Citigroup knew about the purportedly protected 

activity of objecting to the blanket hold instructions. So there is more than mere 

temporal proximity. Furthermore, construed in the light most favorable to Odom, 

Citigroup may have had a reason to delay firing him. Citigroup claims that it had a 

widespread policy of offering employees financial incentives to employees who 

agree to release any potential claims against it. (Doc. 155 at 6). Citigroup, in a 

seemingly unique fact pattern in retaliation jurisprudence, would have had an 

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incentive to wait to fire Odom until after he waived his claims. It was not clear that 

Odom declined to sign the claims form until late March of 2009—barely a month 

before he was terminated. (Id.). The Eleventh Circuit has held that a one-month 

time frame, combined with knowledge of the protected activity, is sufficient to find 

causal relation. See Wideman, 141 F.3d at 1457.

Odom has therefore raised a triable issue of fact as to whether his 

termination was causally related to his protected activity, and thus has met his 

burden of establishing a prima facie case for retaliation in violation of the FWA.

b. Pretext

Because Odom, under the version of the disputed facts most favorable to 

him, has made out a prima facie case for FWA retaliation, the burden shifts to 

Citigroup to proffer legitimate, non-retaliatory reasons for his termination. 

Castillo, 467 F. App’x at 862-63. Citigroup argues that it fired Odom for violating 

two of its policies—the prohibition on unauthorized communications and the 

prohibition on engaging in unapproved outside business activity. (Doc. 130 at 20).

Odom appears to concede that these reasons are legitimate and nonretaliatory, but argues that they are nonetheless merely a pretext for firing him.

Once a defendant has proffered legitimate reasons for the termination, the plaintiff

has the opportunity to respond to those reasons and argue that they are a pretext for 

the termination. Castillo, 467 F. App’x at 862-63. Odom argues that Citigroup’s 

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proferred reasons are pretextual because of timing issues surrounding his 

termination, and because they failed to follow their own enforcement procedures of 

their policies.

To show pretext, a plaintiff must demonstrate that the proffered reason was 

not the true reason for the termination, either by directly showing that the 

discriminatory reason more likely motivated the decision or by indirectly showing 

that the proffered explanation is unworthy of credence. Jackson v. State of 

Alabama State Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005). The 

plaintiff must produce enough evidence of allow a reasonable finder of fact to 

conclude that the defendant’s articulated reasons for its decision are not believable. 

Id.

Here, Odom has demonstrated sufficient “inconsistencies” and 

“weaknesses” in Citigroup’s explanation to allow a reasonable factfinder to 

conclude that its stated reasons for his termination are “unworthy of credence.” 

Jackson, 405 F.3d at 1289. He has pointed to several pieces of evidence that, taken 

in the light most favorable to him, could convince a reasonable jury that 

Citigroup’s stated termination reasons are a pretext for firing him for objecting to 

the blanket hold order on the securities. 

First, there is a triable issue of fact whether Odom’s actions actually violated

the policies of Citigroup, at least in the way that Citigroup normally enforced them 

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in his 17 years of employment. See Hurlbert v. St. Mary's Health Care Sys., Inc., 

439 F.3d 1286, 1299 (11th Cir. 2006) (“[A]n employer’s deviation from its own 

standard procedures may serve as evidence of pretext.”).

As to the communication, the parties dispute the significance of and 

meaning of the communication. Odom testified that he sent the form in response to 

a customer request for a sample opt-out form to opt out of the forthcoming joint 

venture with JP Morgan, and that the form was substantially similar to a form that 

was already approved by Citigroup. Citigroup, either in its motion or its reply 

brief, does not appear to directly rebut this contention. Instead, Citigroup argues

that it appeared to be an attempt to by Odom to transfer the clients to a different 

firm, presumably his own Armada Advisers. While there are weaknesses in 

Odom’s argument—the document was not on Smith Barney letterhead or 

envelopes, and the language “to another firm” seems unusual—a reasonable jury 

could weigh the evidence and determine that Odom had not violated the 

unapproved communication policy, or at least committed a fairly minor violation.

As to the business activities, Odom testified that in the Pensacola branch, in 

practice, all employees disclose any outside business activities at their annual 

review (which had not yet occurred in 2009), rather than preemptively as the firm’s 

formal policies require. Citigroup counters that while this was may have been true

of many minor outside activities, it would not be true in the case of forming a 

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potentially competing investment firm. Odom, however, maintains that his 

intention was never to compete with Citigroup, but merely to have a ready-made 

backup job in the event that he lost his job during the uncertainty of the financial 

crisis. The jury must decide whom to believe. If the jury believes Odom, it may 

reasonably conclude that Odom committed only a trivial and, in practice, excusable 

violation of the policy when he failed to obtain permission to form Armada 

Advisers. 

Therefore, a triable issue of fact remains as to the extent to which Odom’s 

conduct violated Citigroup’s policies as they were applied in the Pensacola branch 

office. 

Second, there is a triable issue of fact whether Citigroup’s response was out

of line with its normal disciplinary procedures. Odom testified that the normal 

procedure for dealing with policy violations, especially minor ones, was to send 

“letters of education” to employees. Citigroup merely responds that it had the right 

to fire him for violating these policies. Taken in the light most favorable to Odom, 

the decision to terminate Odom rather than take less severe disciplinary action 

could lead the jury to conclude that Citigroup was motivated by something other 

than the policy violations.

Third, the timing of Citigroup’s termination decision casts some doubt on its 

legitimacy. Odom testified that he was strongly pressured by a senior executive to 

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sign a form waiving all his claims against the company. Just a month later, Botos 

received word that he had sent a form to a client without permission. She called 

senior management about the issue, decided in response to the form to search for 

additional business activities of Odom, and made the decision the same day to fire 

him. Such a hurried decision to fire a 17-year veteran for what could be construed 

as two relatively minor policy violations, coming shortly after applying aggressive 

pressure on Odom to waive his claims against the company, could lead a jury to 

conclude that the termination was about something other than mere violations of 

these policies. Further, there appear to be factual disputes whether Botos was 

required to ask Odom to explain his conduct, and whether she actually asked him 

to do so. (See Doc. 141 at 8; Doc. 130 at 3; Doc. 140 at 7; Doc. 155 at 5).

Taken as a whole, and in the light most favorable to Odom, Odom has 

produced enough evidence of pretext: Citigroup wanted Odom fired, and it tried to 

pressure Odom to release his claims against the company; when it failed to do so, it 

deviated from its past enforcement methods and fired Odom for two fairly minor, 

otherwise excusable, violations of company policy. Such a narrative, while 

certainly not compelled by the record, is not beyond the realm of plausibility for a 

reasonable jury.

Odom has therefore raised a triable issue of fact whether Citigroup’s reasons 

for firing him were a pretext for retaliation against his protected conduct. Odom’s 

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claim for retaliation against him objected to Citigroup’s blanket hold policy on the 

Citi preferred securities should thus proceed to trial.

IV. CONCLUSION

I therefore find that Odom’s claims about the Citigold checking accounts fail 

as a matter of law, because he could not have reasonably believed that such activity 

was illegal. I find, however, that numerous factual issues remain in dispute in

Odom’s claims about the Citi preferred securities. Odom has produced sufficient 

evidence, taken in the light most favorable to him, that could convince a jury both 

that he has made out a prima facie case for whistleblower retaliation and that 

Citigroup’s stated reasons for firing him were pretextual.

The relief requested in Defendant’s Motion for Summary Judgment (Doc. 

130) is GRANTED IN PART, DENIED IN PART. The motion is granted for the 

claims about the Citigold checking accounts; those claims are DISMISSED 

WITH PREJUDICE. The motion is denied as to the claims about the Citi 

preferred securities; those claims must proceed to trial.

ORDERED on November 20, 2014.

/s/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE

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