## Facts

- Benjamin Blackburn worked for United Parcel Service, Inc. (UPS) from 1986 to 1994, advancing from driver to management and marketing roles.
- In roles involving pricing and marketing systems, Blackburn raised internal concerns about UPS pricing practices he believed were unlawful, including potential antitrust violations, through memoranda to supervisors.
- UPS terminated Blackburn and asserted a nonretaliatory reason: Blackburn’s alleged violations of company policies on anti-nepotism, favoritism, integrity, and accountability.
- UPS specifically alleged Blackburn failed to disclose that an employee he recommended or assisted was his sister-in-law and that his conduct reflected favoritism and related policy breaches.
- Blackburn sued under the New Jersey Conscientious Employee Protection Act (CEPA), alleging retaliation for whistleblowing.
- The district court granted summary judgment for UPS, concluding Blackburn had not engaged in CEPA-protected activity, and dismissed claims against a human resources supervisor.

## Issues

1. Whether Blackburn’s internal complaints about pricing practices constituted protected activity under CEPA (addressed only by assumption).
2. Assuming a prima facie CEPA retaliation case, whether Blackburn produced sufficient admissible evidence for a reasonable jury to find UPS’s stated policy-violation rationale was pretext for retaliation.
3. To what extent hearsay exceptions, including Fed. R. Evid. 803(19) (reputation concerning family relationships), permitted Blackburn to prove comparative policy enforcement and decisionmaker knowledge relevant to pretext.

## Decision

- The Third Circuit affirmed summary judgment for UPS.
- The court assumed, without deciding, that Blackburn established a prima facie case under CEPA.
- The court held UPS articulated a legitimate, nonretaliatory reason for discharge—violations of anti-nepotism and related policies.
- The court concluded Blackburn failed to present sufficient admissible evidence to create a genuine dispute that UPS’s rationale was pretextual.
- The court determined much of Blackburn’s proffered proof of inconsistent enforcement and managerial knowledge was inadmissible hearsay; the remaining admissible evidence was insufficient to reach a jury.
- Even considering potential admissibility under Rule 803(19), the evidentiary record could not support an inference of pretext.

## Legal Principles

- A CEPA retaliation claim may fail at summary judgment even if protected activity is assumed, where the plaintiff cannot produce sufficient admissible evidence that the employer’s stated reason is pretext.
- Under a burden-shifting approach, once the employer offers a legitimate, nonretaliatory explanation, the plaintiff must show, with admissible evidence, that the explanation is so weak or inconsistent that a reasonable jury could find it a cover for retaliation.
- At the summary-judgment stage, courts evaluate whether the nonmovant’s evidence would be admissible at trial; hearsay that does not fit an exception cannot create a triable issue.
- Fed. R. Evid. 803(19) may permit limited reputation evidence about family relationships, but it does not eliminate the plaintiff’s obligation to present enough admissible proof to support pretext.

## Conclusion

The Third Circuit affirmed judgment for UPS because, even assuming CEPA-protected whistleblowing, Blackburn’s pretext showing depended largely on inadmissible hearsay and the remaining admissible evidence was insufficient for a reasonable jury to find retaliation.


Blackburn v. United Parcel Serv., Inc., 179 F.3d 81 (3d Cir. 1999)