Section 1980.104 - Investigation

7 Citing briefs

  1. Schlicksup v. Caterpillar, Inc. et al

    RESPONSE to Motion re MOTION for Summary Judgment of Defendants Caterpillar Inc. and Edward J. Rapp

    Filed November 15, 2011

    1:09-cv-01208-MMM-BGC # 136 Page 165 of 178 166 With emphasis on the third element under 29 C.F.R. §1980.104(b)(iii), Plaintiff is able to show that he suffered an unfavorable personnel action when Rapp decided to move him.3 Plaintiff can also meet the fourth element of causation using the “contributing factor” test of causation as set forth in 29 C.F.R. §1980.104(b)(iv) and as described in Menendez, supra, at pp. 29-32, when the evidence is judged in the light most favorable to the Plaintiff. As established in the thorough discussion by the Administrative Review Board (ARB) of the U.S. Department of Labor in Menendez v. Halliburton, supra, at pp. 14-29, and as discussed in Plaintiff’s response to Defendant Barbour’s motion for summary judgment, the third element of an unfavorable personnel action does not require a tangible loss.

  2. Opela, Michael v. Wausau Window And Wall Systems et al

    Brief in Support of 6 Motion to Dismiss

    Filed April 13, 2017

    To state a viable SOX claim pursuant to 18 U.S.C. § 1514A(a), Plaintiff must plausibly allege facts that: (1) he engaged in protected activity; (2) his employer knew or suspected that he engaged in protected activity; (3) he suffered an adverse action; and (4) the circumstances are sufficient to raise the inference that the protected activity was a contributing factor in the adverse action. See 29 C.F.R. § 1980.104(e)(2). SOX’s anti-retaliation provision does not encompass all disclosures or complaints; it applies only to certain “protected” activities related to one of the six types of violations specifically enumerated in the statute.

  3. Cloke-Browne v. Bank of Tokyo-Mitsubishi UFJ, Ltd. et al

    MEMORANDUM OF LAW in Support re: 11 MOTION to Dismiss.. Document

    Filed April 30, 2010

    Cloke-Browne must assert that: (1) he engaged in an activity protected by SOX; (2) his employer, BTMU, either actually or constructively, knew or suspected that he engaged in protected activity; (3) he suffered an unfavorable employment action; and (4) “[t]he circumstances were sufficient to raise the inference that the protected activity was a contributing factor in the unfavorable action.” Gattegno v. Admin. Review Bd., 353 Fed. Appx. 498, 500 (2d Cir. 2009) (citing 29 C.F.R. § 1980.104(b)(1)); see also Pardy v. Gray, No. 07 Civ. 6324 (LAP), 2008 WL 2756331, at *5 (S.D.N.Y. July 15, 2008). The protected activity “must implicate the substantive law protected in [SOX] definitively and specifically.” Pardy, 2008 WL 2756331, at *5 (citing Fraser v. Fid. Trust Co. Int’l, 417 F. Supp. 2d 310, 322 (S.D.N.Y. 2006)).

  4. Willliams et al v. Westinghouse Electric Company, Llc

    MOTION to Dismiss for Failure to State a Claim

    Filed March 3, 2017

    29 C.F.R. § 1980.104(e)(2); see also Welch, 536 F.3d at 275.

  5. Erhart v. Bofi Holding Inc.

    MOTION to Dismiss First, Second, Fourth, Seventh, Eighth and Ninth Claims in the First Amended Complaint, MOTION to Strike Under FRCP 12

    Filed October 31, 2016

    As recognized by this Court, to establish a prima facie violation of SOX's whistleblower provisions, a plaintiff must plead and prove, among other elements, that he engaged in a protected activity or conduct. Van Asdale v. Int'l Game Tech., 577 F.3d 989, 996 (9th Cir. 2009) (citing 29 C.F.R. § 1980.104(b)(1)(i)-(iv)); 18 U.S.C. § 1514A(a)(1). An employee has engaged in protected activity if he provided information or assistance concerning one or more of the following types of fraud: (i) mail fraud, (ii) wire fraud, (iii) bank fraud, (iv) securities fraud, (v) any rule or regulation of the SEC, or (vi) any Federal law relating to fraud against shareholders.

  6. Bienstock v. Moody's Investors Services, Inc. et al

    MEMORANDUM OF LAW in Opposition re: 23 MOTION for Summary Judgment.. Document

    Filed September 22, 2010

    One consideration in proving causation is the temporal proximity between the protected activity and the unfavorable personnel decision. See, Mahony v. Keyspan Corp., 2007 WL 805813, at *5 (E.D.N.Y. Mar. 12, 2007); 29 C.F.R. § 1980.104(b). In this instance, the temporal proximity in time is too suspicious to be disposed of by motion.

  7. Bienstock v. Moody's Investors Services, Inc. et al

    MEMORANDUM OF LAW in Support re: 23 MOTION for Summary Judgment.. Document

    Filed July 30, 2010

    Plaintiff Cannot Establish A Prima Facie Case For Retaliatory Discharge The law is clear that to make a prima facie showing of retaliation for SOX whistleblowing, a plaintiff must adduce evidence that: (1) he engaged in a protected activity or conduct; (2) the employer knew or suspected, actually or constructively, that he engaged in the protected activity; (3) he suffered an unfavorable personnel action; and (4) “[t]he circumstances were sufficient to raise the inference that the protected activity was a contributing factor in the unfavorable action.” Gattegano v. Administrative Review Board, 353 Fed. Appx. 498, 500 (2nd Cir. 2009) (citing 29 C.F.R. 1980.104(b)(1)). Plaintiff must do so by a preponderance of the evidence.