From Van Asdale v. Int’l Game Tech., 2009 U.S. App. LEXIS 18037 (9th Cir. Aug. 13, 2009):

This case presents our first opportunity to examine the substantive requirements necessary to establish a claim under the whistleblower-protection provisions of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A. ***

We observe at the outset that there are no published cases in this circuit setting forth the substantive elements of a Sarbanes-Oxley claim. The text of the statute and regulations promulgated by the Department of Labor, however, set forth the general framework governing such actions.

Section 1514A(a)(1) of Title 18 prohibits employers of publicly-traded companies from "discriminat[ing] against an employee in the terms and conditions of employment" for "provid[ing] information . . . regarding any conduct which the employee reasonably believes constitutes a violation of section 1341 [mail fraud], 1343 [wire fraud], 1344 [bank fraud], or 1348 [securities fraud], any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders."

Section 1514A(b)(2) further specifies that § 1514A claims are governed by the procedures applicable to whistle-blower claims brought under 49 U.S.C. § 42121(b). Section 42121(b)(2)(B), in turn, sets forth a burden-shifting procedure by which a plaintiff is first required to make out a prima facie case of retaliatory discrimination; if the plaintiff meets this burden, the employer assumes the burden of demonstrating by clear and convincing evidence that it would have taken the same adverse employment action in the absence of the plaintiff 's protected activity. ***

1. Prima Facie Case

Regulations promulgated by the Department of Labor set forth four required elements of a prima facie case under § 1514A: (a) "[t]he employee engaged in a protected activity or conduct"; (b) "[t]he named person knew or suspected, actually or constructively, that the employee engaged in the protected activity"; (c) "[t]he employee suffered an unfavorable personnel action"; and (d) "[t]he circumstances were sufficient to raise the inference that the protected activity was a contributing factor in the unfavorable action." 29 C.F.R. § 1980.104(b)(1)(i)-(iv). We address each element in turn.

a. Protected Activity

In Platone v. FLYi, Inc., 25 IER Cases 278, 287, 2006 DOLSOX LEXIS 105, *33 (Dep't of Labor Sept. 29, 2006), the Administrative Review Board of the Department of Labor ("ARB") held that, to constitute protected activity under Sarbanes-Oxley, an "employee's communications must 'definitively and specifically' relate to [one] of the listed categories of fraud or securities violations under 18 U.S.C.[ ] § 1514A(a)(1)." The three circuits that have addressed the issue have all agreed with the ARB's interpretation, see Day v. Staples, Inc., 555 F.3d 42, 55 (1st Cir. 2009) ("The employee must show that his communications to the employer specifically related to one of the laws listed in § 1514A."); Welch v. Chao, 536 F.3d 269, 275 (4th Cir. 2008) ("[A]n employee must show that his communications to his employer definitively and specifically relate to one of the laws listed in § 1514A.") (internal alteration and quotation marks omitted); Allen v. Admin. Review Bd., 514 F.3d 468, 476 (5th Cir. 2008) ("We agree with the ARB's legal conclusion that an employee's complaint must definitively and specifically relate to one of the six enumerated categories found in § 1514A.") (internal quotation marks omitted), and we similarly defer to the ARB's reasonable interpretation of the statute. ***

b. Knowledge of Decision-Maker

To establish a prima facie case under § 1514A, the Van Asdales also must establish that "[t]he named person knew or suspected, actually or constructively, that the employee engaged in the protected activity." 29 C.F.R. § 1980.104(b)(1)(ii).

[Footnote 4] Section 1980.101, in turn, defines "named person" as "the employer and/or the company or company representative named in the complaint who is alleged to have violated the Act." 29 C.F.R. § 1980.101

This language is hardly a model of clarity (for example, it is not at all clear to us how one can constructively suspect someone of engaging in protected activity) but under any interpretation this element is satisfied here. As we have stated above, taking the Van Asdales' deposition testimony and Shawn's sworn declaration as true, the Van Asdales engaged in protected activity during the November 24, 2003 meeting with Johnson, as well as with Brown, and Pennington. It is undisputed that these persons have "supervisory authority" over the Van Asdales. 18 U.S.C. § 1514A(a)(1)(C).

c. Unfavorable Personnel Action

IGT does not dispute that the Van Asdales satisfy this required element.

d. Contributing Factor

The final element of a prima facie case under § 1514A is that "[t]he circumstances were sufficient to raise the inference that the protected activity was a contributing factor in the unfavorable action." 29 C.F.R. § 1980.104(b)(1)(iv). As the district court correctly observed, the Van Asdales have not put forth any direct evidence that their protected activity was a contributing factor to their termination. The primary evidence on this issue is circumstantial: the proximity of the Van Asdales' terminations to the November 24, 2003 meeting with Johnson.

We conclude that the Van Asdales have raised a genuine issue of material fact regarding whether their protected activity was a contributing factor to their terminations. We have previously held that "causation can be inferred from timing alone where an adverse employment action follows on the heels of protected activity." Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002). In Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987), we held that causation could be inferred where the first adverse employment action took place less than three months after an employee's protected activity. We have since made clear that "a specified time period cannot be a mechanically applied criterion," and have cautioned against analyzing temporal proximity "without regard to its factual setting." Coszalter v. City of Salem, 320 F.3d 968, 977 (9th Cir. 2003). ***

2. Burden-Shifting Analysis

Because we conclude that the Van Asdales have made out a prima facie showing of retaliatory termination in violation of § 1514A, IGT cannot obtain summary judgment unless it shows by clear and convincing evidence that it would have terminated the Van Asdales even absent any protected activity. 18 U.S.C. § 1514A(b)(2)(A); 49 U.S.C. § 42121(b)(2)(B). On appeal, IGT does not argue that it can satisfy this requirement. We thus hold that the district court erred in granting IGT summary judgment on the Van Asdales' Sarbanes-Oxley claim.