On May 26, 2005, Plaintiff called the former Wal-Mart executive that was the subject of the grand jury proceedings with the suspicion that documents relevant to the investigation, and potentially beneficial to his defense, were being destroyed in violation of the subpoena. They spoke briefly, and Plaintiff was later contacted by the executive’s attorney to discuss the matter. On May 27, 2005, Plaintiff was contacted by and asked to meet with Tom Brown of the FBI and David Blackorby, then of the United States Attorney’s Office. Later that day, Brown and Blackorby went to Wal-Mart’s home office to discuss the handling of union documents in the Labor Relations Department. That meeting apparently led to an FBI investigation into the matter, during which the FBI seized documents subject to the subpoena. (Doc. 1 ¶ 14.)

there is a genuine issue for trial," and "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 256-57 (citing Fed. R. Civ. P. 56(e)). In order to withstand a motion for summary judgment, plaintiffs must substantiate their allegations with "sufficient probative evidence [that] would permit a finding in [their] favor on more than mere speculation, conjecture, or fantasy." Gregory v. Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992), cert. denied, 507 U.S. 913 (1993). A mere scintilla of evidence is insufficient to avoid summary judgment. Moody v. St. Charles County, 23 F.3d 1410, 1412 (8th Cir. 1994).

   III. Discussion

   Title 18 U.S.C. § 1514A makes it unlawful to "discharge, demote, suspend, threaten, harass, or in any other manner discriminate against" an employee who acts:

(1) to provide information, cause information to be provided, or otherwise assist in an investigation regarding any conduct which the employee reasonably believes constitutes a violation of section 1341, 1343, 1344, or 1348, any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders, when the information or assistance is provided to or the investigation is conducted by–

(A) a Federal regulatory or law enforcement agency;
(B) any Member of Congress or any committee of Congress; or
(C) a person with supervisory authority over the

employee (or such other person working for the employer who has the authority to investigate, discover, or terminate misconduct); or

(2) to file, cause to be filed, testify, participate in, or otherwise assist in a proceeding filed or about to be filed (with any knowledge of the employer) relating to an alleged violation of section 1341, 1343, 1344, or 1348, any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders.

Thus, in order to prevail on a claim under the Act, a plaintiff must show by a preponderance of the evidence that (1) she engaged in protected activity, (2) her employer was aware of the activity, (3) she suffered an adverse employment action and (4) that the protected activity was a contributing factor to the adverse employment action. Mahony v. KeySpan Corp., 2007 WL 805813, *4 (E.D.N.Y. March 12, 2007) (citing Fraser v. Fiduciary Trust Co. Int'l, 417 F. Supp. 2d 310, 322 (S.D.N.Y. 2006); Bozeman v. Per-Se Techs., Inc., 456 F. Supp. 2d 1282, 1358 (N.D. Ga. 2006); Bishop v. PCS Admin., Inc., 2006 WL 1460032, *1 (N.D. Ill. May 23, 2006) (No. 05-C-5683) (citing Collins v. Beazer Homes USA, Inc., 334 F. Supp. 2d 1365, 1375 (N.D. Ga. 2004) (citations omitted). A defendant employer may avoid liability by showing with clear and convincing evidence that it would have taken the same adverse employment action in the absence of the protected activity. Bozeman, 456 F. Supp. 2d at 1358-59; Collins, 334 F. Supp. 2d at 1375-76. Plaintiff has created

genuine issues of material fact as to each of the elements of her claim. Viewing the record in the light most favorable to the Plaintiff, there is sufficient evidence that Plaintiff engaged in protected activity and suffered actionable adverse treatment as a result.

   Plaintiff creates a genuine issue as to whether she engaged in protected activity such that she qualifies as a whistleblower under § 1514A(2). Section 1514A(2) extends protection from retaliation to individuals that assist in a proceeding filed or about to be filed relating to an alleged violation of § 1343. The executive subject to the grand jury proceedings was ultimately convicted of wire fraud under § 1343. Plaintiff assisted in those proceedings by providing information contained in the documents seized by the FBI and the USAO. Defendant contends:

When Miles engaged in her supposed whistleblowing in May 2005, there was an ongoing "investigation," not a "proceeding" that had been "flied" or was "about to be filed." Throughout the history of this case, plaintiff consistently has described the [] matter as an ‘investigation’ . . . . While now belatedly asserting that there was a "proceeding" she assisted, plaintiff does not even identify what that proceeding was."

(Doc. 94 p. 8.) However, Plaintiff clearly identifies the grand jury proceeding against the former Wal-Mart executive, which led to his waiver of indictment, guilty plea and conviction, as the proceeding in which Plaintiff assisted. Plaintiff provided

assistance in response to a subpoena issued in connection with those § 1343 proceedings. An information was later filed against the subject of those proceedings on January 21, 2006. While some eight months elapsed between Plaintiff’s protected activity and the proceedings in federal district court, Plaintiff’s actions were in response to an outstanding subpoena in a § 1514A enumerated matter. Under such circumstances, where Plaintiff reacted to a subpoena issued in relation to a proceeding that resulted in a conviction under § 1343, a predicate offense which provides the necessary foundation under § 1514A for whistleblower protection, the Court must find a genuine issue of fact exists as to whether Plaintiff qualifies as a whistleblower.

   Finding Plaintiff may qualify as a whistleblower under § 1514(a)(2), the Court need not address whether Plaintiff might qualify under other provisions of the Sarbanes-Oxley Act. Thus, the Court proceeds to determine whether Plaintiff creates a genuine issue of material fact as to whether she suffered an adverse employment action.

   In order to show an adverse employment action, Plaintiff must demonstrate "employer actions that would have been materially adverse to a reasonable employee . . ." and "harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination."

complaints on her behalf and corroborated her accusations of retaliatory treatment. Plaintiff alleges misdeeds, including the destruction of her personal property, intimidation, ridicule and exclusion, that, viewed in the aggregate, create a genuine issue of material fact as to whether Plaintiff suffered actionable retaliation. While the Court is aware that antidiscrimination laws should not be read to "create a general civility code," Shaver v. Indep. Stave Co., 350 F.3d 716, 721 (8th Cir. 2003), and "[c]onduct that is merely rude, abrasive, unkind, or insensitive does not come within the scope of the law," Id., the Court finds that the allegations in the case at bar create an issue as to whether actionable conduct, intended to dissuade Plaintiff from continuing with her claim of retaliation, occurred.

   Finding evidence of protected activity and retaliatory conduct, the Court finds a sufficient connection to create a genuine issue of fact as to whether Plaintiff’s employer was aware that she provided assistance in the grand jury proceedings and engaged in retaliatory conduct in response to Plaintiff’s actions.

   X. Conclusion

   Based on the foregoing, the Court determines Plaintiff creates genuine issues as to facts she must prove to prevail on her claim. Accordingly, Defendants’ motion for summary judgment

(Doc. 79) is DENIED.

   IT IS SO ORDERED this 25th day of January 2008.

            /s/ Robert T. Dawson
            Honorable Robert T. Dawson
            United States District Judge