USDOL/OALJ: Federal Court Whistleblower Decisions 2015

Federal Court Whistleblower Decisions - 2015

Aviation Investment and Reform Act
Consumer Financial Protection Act
Energy Reorganization Act
Federal Railroad Safety Act
Sarbanes-Oxley Act
Surface Transportation Assistance Act

Aviation Investment and Reform Act

Bombardier, Inc. v. USDOL, No. 15-cv-604 (D. D.C. Nov. 12, 2015) (2015 U.S. Dist. LEXIS 152856) (case below 2014-AIR-00017)
Memorandum Opinion Granting Defendant's Motion to Dismiss and Denying as Moot Plaintiff's Motion for Preliminary Injunction
PDF
Summary:
XXXX
Williams v. Perez, No. 14-788 (D.D.C. June 16, 2015) (2015 WL 3745148; 2015 U.S. Dist. LEXIS 77309) (case below ARB No. 08-063, ALJ No. 2008-AIR-3)
Memorandum Opinion
PDF
Summary:
District court found that it lacked jursidiction to entertain the Plaintiff's action challenging certain DOL actions pertaining to his AIR21 whistleblower complaint. The court stated that the AIR21 statute "is clear: there is no collateral review of orders of the Secretary of Labor regarding whistleblower claims through any civil or criminal action, other than through the specified procedure for obtaining review in the Courts of Appeals. See 49 U.S.C. 42121(b)(4)(B)." Slip op. at 6. The district court also found that the Plaintiff's action was neither a civil action to enforce an order of the Secretary of Labor, nor a petition for mandamus. The district court further found that the judicial review provisions of the APA are inapplicable because the statute established a scheme for judicial review.
Leon v. Securaplane Technologies Inc., No. 13-71450 (9th Cir. Mar. 2, 2015) (unpublished) (2015 WL 858758; 2015 U.S. App. LEXIS 3221) (case below ARB No. 11-069, ALJ No. 2008-AIR-12)
Memorandum
PDF
Summary:
XXXX

Consumer Financial Protection Act (Dodd-Frank)

Rock v. Lifeline Systems Co., No. 13-11833 (D. Mass. Oct. 23, 2015) (2015 U.S. Dist. LEXIS 144335; 2015 WL 6453139)
Memorandum and Order Re: Defendant's Motion for Summary Judgment
PDF
Summary:
Lifeline's products are â€œdevicesâ€� registered under the Federal Food, Drug, and Cosmetic Act, and are not â€œconsumer productsâ€� within the meaning of CPSIA.
Wimmer v. Gateway Funding Diversified Mortgage Services, L.P., No. 15-cv-241 (S.D. Ohio Sept. 17, 2015) (2015 U.S. Dist. LEXIS 124277; 2015 WL 5453058)
Order Denying Motion to Dismiss or Stay Lawsuit
PDF
Summary:
XXXXX
Dressler v. Lime Energy, No. 14-cv-7060 (D. N.J. Aug. 13, 2015) (not for publication) (2015 U.S. Dist. LEXIS 106532; 2015 WL 4773326)
Opinion
PDF
Summary:
XXXXX
Somers v. Digital Realty Trust, Inc., No. 14-cv-5180 (N.D. Cal. July 22, 2015) (not for publication) (2015 U.S. Dist. LEXIS 97132; 2015 WL 4483955)
Amended Order Denying (1) Defendant's Motion to Dismiss; (2) Plaintiff's Motion to Disqualify Defense Counsel
PDF
Summary:
XXXXX
Safarian v. American DG Energy Inc., No. 14-2734 (3d Cir. July 21, 2015) (not precedential) (2015 U.S. App. LEXIS 12548)
Opinion
PDF
Summary:
XXXXX
Murray v. UBS Securities, LLC, No. 14-cv-927 (S.D.N.Y. Feb. 24, 2015) (2015 WL 769586; 2015 U.S. Dist. LEXIS 22024)
Opinion and Order
PDF
Summary:
SOX AND CFPA RETALIATION CLAIMS WERE NOT IMPERMISSIBLY DUPLICATIVE CLAIMS OF EARLIER DODD-FRANK CLAIM WHERE WAITING PERIODS FOR FILING DE NOVO ACTION HAD NOT YET EXPIRED
In Murray v. UBS Securities, LLC, No. 14-cv-927 (S.D.N.Y. Feb. 24, 2015) (2015 WL 769586; 2015 U.S. Dist. LEXIS 22024), Plaintiff had filed suit in district court alleging termination in violation of Dodd-Frank, and on the same day filed complaints with the USDOL alleging termination in violation of SOX and the CFPA. The latter statutes' anti-retaliation provisions require that complaints first be filed with the Secretary of Labor, but allow complainants to file actions in federal court if no decision has been rendered by DOL within, respectively, 180 and 210 days. Plaintiff suggested that he would seek leave to amend his Dodd-Frank complaint by adding his SOX and CFPA claims once the necessary period had elapsed. Plaintiff did not amend that complaint, but rather filed a claim shortly after the court's opinion compelling arbitration of Plaintiff's Dodd-Frank claim. The new claim was based on Plaintiff's rights to bring SOX and CFPA claims de novo due to the failure of DOL to act. The court held that because the statutory waiting periods barred suit on Plaintiff's SOX and CFPA claims at the time of his earlier Dodd-Frank suit, Plaintiff's current claims were not impermissibly duplicative.
CONSUMER FINANCIAL PROTECTION ACT RETALIATION PROVISION REQUIRES ACTUAL CFPB REGULATION TO PROVIDE COVERAGE
In Murray v. UBS Securities, LLC, No. 14-cv-927 (S.D.N.Y. Feb. 24, 2015) (2015 WL 769586; 2015 U.S. Dist. LEXIS 22024), Plaintiff, a Senior Commercial Mortgage-Backed Security Strategist and Executive Director performed research and created reports for Defendant's clients with regard to its products, services and transactions regulated by the SEC and the Consumer Financial Protection Bureau ("CFPB"). Plaintiff alleged that senior personnel made a "concerted effort" to influence him to skew his research to improve market conditions for its products and to produce reports about their products and services that did not conform with Federal consumer financial law but were intended to be unfair and deceptive. Plaintiff maintained that while he did not publish any report inconsistent with his research, he was criticized by his supervisors with regard to the "off-message" nature of his articles and excluded from meetings. Plaintiff maintained that he reported these negative encounters and exclusions to managers. Plaintiff alleged that his termination was motivated, in part, by his reporting the attempts by UBS personnel to skew his research to his supervisors. Plaintiff claimed that his termination thus violated the anti-retaliation provisions of Sarbanes-Oxley and the Consumer Financial Protection Act (CFPA). The court granted Defendant's motion to dismiss the CFPA claim.
The CFPA's anti-retaliation provision defines a "covered employee" as "any individual performing tasks related to the offering or provision of a consumer financial product or service." 12 U.S.C. Â§ 5567(b). In relevant part, the CFPA defines a "consumer financial product or service" as "any financial product or service" within a list of enumerated products. 12 U.S.C. Â§ 5481(5). The district court held that Plaintiff could not reasonably have believed that his reports or covered services fell within the Dodd-Frank/CFPA's provision defining a financial product or service as "such other financial product or service as may be defined by the [CFPB], by regulation, for purposes of this title." 12 U.S.C. Â§ 5481(15)(A)(xi). The Court rejected Plaintiff's contention that such phrase defined a covered product or service as one which the CFPB had the authority to cover. Rather, it is a catch-all provision that requires enactment of an actual CFPB regulation; it does not extend coverage to regulations that did not exist at the time of Plaintiff's conduct. The court summarized:
Because the CFPA's catch-all provision requires an actual CFPB regulation to provide coverage, and because no such regulation existed at the time of Plaintiff's conduct, it was not reasonable for Plaintiff to believe that his reports were covered products or services within the meaning of 12 U.S.C. Â§ 5481. Accordingly, his claim of retaliatory termination in violation of the CFPA is dismissed.

Slip op. at 13-14.

Energy Reorganization Act

Ma v. American Electric Power, Inc., No. 13-cv-89 (W.D. Mich. Aug. 18, 2015) (2015 U.S. Dist. LEXIS 108537)
Opinion
PDF
Summary:
XXXX

Federal Railroad Safety Act

Jensen v. BNSF Railway Co., No. 13-cv-5955 (N.D. Cal. Nov. 4, 2015)
Judgment [in favor of defendant]
PDF
Summary:
XXXX
Rookaird v. BNSF Railway Co., No. 14-cv-176 (W.D. Wash. Oct. 29, 2015) (2015 U.S. Dist. LEXIS 147950; 2015 WL 6626069) (case below 2014-FRS-9)
Order Granting in Part and Denying in Part Plaintiff's Second Motion for Partial Summary Judgment and Denying Defendant's Motion for Summary Judgment
PDF
Summary:
XXXX
Miller v. CSX Transp., Inc., No. 1:13-cv-734 (S.D. Ohio Oct. 21, 2015) (case below 2013-FRS-64)
Order [dismissing based on settlement]
PDF
Summary:
XXXX
Heim v. BNSF Railway Co., No.13-cv-369 (D. Neb. Sept. 30, 2015) (2015 U.S. Dist. LEXIS 133913; 2015 WL 5775599) (case belwo 2013-FRS-40)
Memorandum and Order
PDF
Appeal filed in 8th Circuit, No. 15-3532
Summary:
XXXX
Lee v. Norfolk Southern Railway Co., 802 F.3d 656 (4th Cir. Sept. 17, 2015) (No. 14-1586) (case below No. 13-cv-00004 (W.D. N.C.); 2013-FRS-4 (ALJ))
Opinion reversing and remanding
PDF
Summary:
FRSA ELECTION OF REMEDIES PROVISION DOES NOT BAR FRSA SUIT WHERE THE PLAINTIFF PREVIOUSLY FILED A RACE DISCRIMINATION SUIT
On September 17, 2015 the Fourth Circuit issued a published decision in Lee v. Norfolk Southern Railway Co., 802 F.3d 656 (4th Cir. 2015), a Federal Railroad Safety (FRSA) case involving FRSA's election of remedies provision. FRSA's election of remedies provision, 49 U.S.C. § 20109(f), prohibits an employee from seeking protection under FRSA and "another provision of law for the same allegedly unlawful act of the railroad carrier."
The Secretary of Labor participated as amicus curiae. The Fourth Circuit agreed with the Secretaryâ€™s position that the election of remedies provision does not bar an employee from seeking protection under FRSA in the circumstance where the plaintiff previously filed a lawsuit alleging that his employer discriminated against him on the basis of race.
The court concluded that the plain language of the statute indicated that an adverse action on the basis of race is not â€œthe same allegedly unlawful actâ€� as an adverse action in retaliation for FRSA whistleblowing. The court further reasoned that, even if it had found the statutory language ambiguous, the legislative history and statutory context show that the provision is narrow. It applies only to overlapping anti-retaliation or whistleblower statutes that provide protections similar to FRSA, such as section 11(c) of the OSH Act and similar state laws.
Armstrong v. BNSF Ry. Co., No. 12-cv-7962 (N.D. Ill. Sept. 4, 2015) (2015 U.S. Dist. LEXIS 118224; 2015 WL 5180589)
Memorandum Opinion and Order
PDF
Summary:
XXXX
Blackorby v. BNSF Ry. Co., No. 4:13-cv-908 (W.D. Mo. Aug. 28, 2015) (2015 WL 5095989; U.S. Dist. LEXIS 114185) (case below 2013-FRS-68)
Order
PDF
Summary:
XXXX
Blackorby v. BNSF Ry. Co., No. 4:13-cv-908 (W.D. Mo. Aug. 28, 2015) (2015 WL 5095989; U.S. Dist. LEXIS 114185) (case below 2013-FRS-68)
Order
PDF
Summary:
XXXX
Jensen v. BNSF Railway Co., No. 13-cv-5955 (N.D. Cal. Aug. 27, 2015) (2015 U.S. Dist. LEXIS 114690; 2015 WL 5095720)
Order Denying Defendant's Motion for Summary Judgment
PDF
Summary:
XXXX
Miller v. CSX Transp., Inc., No. 1:13-cv-734 (S.D. Ohio Aug. 25, 2015) (2015 U.S. Dist. LEXIS 112507; 2015 WL 5016507)(case below 2013-FRS-64)
Order
PDF
Summary:
XXXX
Bjornson v. Soo Line Railroad Co., No. 14-cv-4596 (D. Minn. Aug. 24, 2015) (2015 U.S. Dist. LEXIS 111960; 2015 WL 5009349) (case below 2014-FRS-127)
Memorandum Opinion and Order Adopting Report and Recommendation of Magistrate Judge
PDF
Summary:
XXXX
Clift v. BNSF Railway Co., No. 14-cv-152 (E.D. Wash. Aug. 5, 2015) (2015 U.S. Dist. LEXIS 103424; 2015 WL 4656151)
Order Re Defendant's Motion for Reconsideration (ECF No. 62); and Plaintiff's Motion to Join a Party
PDF
Summary:
XXXX
Fields v. Southeastern Pennsylvania Transportation Authority, No. 14-cv-2491 (E.D. Pa. July 31, 2015) (2015 WL 4610876)
Memorandum [granting defendent's motion for partial summary judgment]
PDF
Summary:
XXXX
Mosby v. Kansas City Southern Railway Co., No. 14-472 (E.D. Okla. July 30, 2015) (case below 2014-FRS-34)
Judgment Dismissing Action by Reason of Settlement
PDF
Summary:
XXXX
Jones v. Union Pacific Railroad Co., No. 14-cv-3908 (N.D. Ill. July 27, 2015) (2015 U.S. Dist. LEXIS 97327)
Memorandum Opinion and Order
PDF
Summary:
(discovery order)
Hernandez v. Metro-North Commuter Railroad, No. 15-327 (2d Cir. July 24, 2015)
Mandate [order of dismissal]
PDF
Summary:
XXXX
Mosby v. Kansas City Southern Railway Co., No. 14-472 (E.D. Okla. July 20, 2015) (2015 U.S. Dist. LEXIS 93869; 2015 WL 4408406) (case below 2014-FRS-34)
Order and Opinion
PDF
Summary:
XXXX
Bjornson v. Soo Line Railroad Co., No. 14-cv-4596 (D. Minn. June 15, 2015) (2015 U.S. Dist. LEXIS 112307) (Magistrate Judge) (case below 2014-FRS-127)
Report and Recommendation
PDF
Summary:
XXXX
Howell v. BNSF Railway Co., No. 14-cv-997 (N.D. Ill. June 4, 2015) (2015 WL 3528237)
Memorandum Opinion and Order
PDF
Summary:
Whether state law whistleblower action can be maintained given protections afforded by the FRSA.
Mullen v. Norfolk Southern Railway Co., No. 14-cv-917 (W.D. Pa. May 29, 2015) (case below ARB No. 13-059, ALJ No. 2012-FRS-3) (2015 WL 3457493; 2015 U.S. Dist. LEXIS 69706)
Memorandum Opinion and Order
PDF
Summary:
District court lacks subject matter jurisdiction under FRSA kick-out provision if district court complaint is filed after DOL issued a final decision, even if that final decision was rendered more than 210 days after the filing of the administrative complaint (disagreeing with Glista v. Norfolk S. Ry. Co., No. CIV.A. 13-04668, 2014 WL 1123374 (E.D. Pa. Mar. 21, 2014))
Green v. Grand Trunk Western Railroad, No. 14-cv-11125 (E.D. Mich. Apr. 13, 2015) (case below ARB No. 13-100, ALJ No. 2013-FRS-51) (2015 WL 1637442; 2015 U.S. Dist. LEXIS 47819)
Opinion and Order Granting Respondent's Motion to Dismiss
PDF
Summary:
DISTRICT COURT LACKS JURISDICTION TO REVIEW ARB'S DECISION TO DENY INTERLOCUTORY REVIEW OF ALJ'S DISCOVERY ORDER
In Green v. Grand Trunk Western Railroad, No. 14-cv-11125 (E.D. Mich. Apr. 13, 2015) (case below ARB No. 13-100, ALJ No. 2013-FRS-51) (2015 WL 1637442; 2015 U.S. Dist. LEXIS 47819), the Petitioner sought de novo review by the U.S. District Court of the ARB's denial of an interlocutory appeal of the ALJ's discovery order compelling the Petitioner to disclose certain relevant medical records and denying the Petitioner's motion for a protective order. The Respondents filed a motion to dismiss. The court granted the motion. The provision of the FRSA at 49 U.S.C. Â§ 20109(d)(4) governing appeals by a "person adversely affected or aggrieved by an order issued pursuant to" the procedures governing the Secretary of Labor's review of a complaint, provides for review by a court of appeals, and only for "final orders" issued by the Secretary of Labor. The court found that the ARB's denial of interlocutory review of a discovery dispute clearly was not a final order. The provision of the FRSA at 49 U.S.C. Â§ 20109(d)(3) provides for district court jurisdiction for de novo consideration of an FRSA claim provided that more than 210 days have lapsed without the Secretary of Labor issuing a final decision on the administrative complaint. The court found, however, that the Petitioner's petition in this case was unambiguously seeking review of the ARB's decision on the interlocutory appeal rather than a commencement of judicial proceedings on the underlying claim of retaliation. The court noted that the ALJ had issued an order dismissing the administrative proceedings for lack of jurisdiction based on the Petitioner's filing in federal district court, but found that the ALJ's views on jurisdiction were not binding on the court. The court also found that jurisdiction did not arise under the APA or the All Writs Act.
Jensen v. BNSF Railway Co., No. 13-cv-5955 (N.D. Cal. May 19, 2015) (2015 U.S. Dist. LEXIS 66072)
Order Re Discovery Letter Brief at ECF No. 53
PDF
Summary:
XXXX
Jensen v. BNSF Railway Co., No. 13-cv-5955 (N.D. Cal. May 19, 2015) (2015 WL 3662593)
Order Re Discovery Letter Brief at ECF No. 56
PDF
Summary:
XXXX
Murphy v. Norfolk Southern Railway Co., No. 13-cv-863 (S.D.Ohio Mar. 3, 2015) (2015 WL 914922; 2015 U.S. Dist. LEXIS 25631) (case below 2014-FRS-4)
Order
PDF
Summary:
XXXX
Norfolk Southern Ry. Co. v. Perez, No. 14-3274 (6th Cir. Feb. 18, 2015) (case below ARB Nos. 12-081, -106, ALJ No. 2011-FRS-22) (2015 WL 670158; 2015 U.S. App. LEXIS 2460)
Opinion
PDF
Summary:
The Sixth Circuit holds that the employee's prior grievance did not bar his retaliation claim under the FRSA's election-of-remedies provision.
Port Authority Trans-Hudson Corp. v. Secretary, USDOL, No. 13-4547 (3rd. Cir Jan. 15, 2015) (776 F.3d 157; 2015 WL 178459; 2015 U.S. App. LEXIS 676) ("Bala") (case below ARB No. 12-048, ALJ No. 2010-FRS-26)
Opinion
PDF
Summary:
THIRD CIRCUIT RULES THAT PROTECTED ACTIVITY UNDER SECTION 20109(c)(2) DOES NOT APPLY TO OFF-DUTY INJURIES
In Port Authority Trans-Hudson Corp. v. Secy of Labor, No. 13-4547 (3rd. Cir Jan. 15, 2015) (2015 WL 178459; 2015 U.S. App. LEXIS 676) ("Bala") (case below ARB No. 12-048, ALJ No. 2010-FRS-26), the U.S. Court of Appeals for the Third Circuit overturned the ARB's decision and held, as a matter of statutory interpretation, that 49 U.S.C. Â§20109(c)(2) involving the prohibition against discipline for following the orders or a treatment plan of a treating physician does not apply to off-duty injuries. The Court agreed with the railroad that "during the course of employment" limitation of (c) (1) applies to subsection (c)(2) .
Cash v. Norfolk Southern Railway Co., No. 13-56 (W.D.Va. Jan. 14, 2015) (2015 WL 178065)
Memorandum Opinion
PDF
Summary:
TEMPORAL PROXIMITY
The Defendant suspended the Plaintiff following a hearing conducted under CBA procedures. The Plaintiff had suffered an injury to his shoulder in February 2010, and sought medical attention for the injury, but did not report the injury until December 17, 2012. The failures to report were determined to have violated the Defendant's rules, and the Plaintiff was suspended for 30 days. The Plaintiff filed an FRSA retaliation complaint. The court denied cross motions for summary judgment. The court found that there was sufficient evidence in the record to present a genuine issue of material fact on whether the Plaintiff's act of reporting his shoulder injury as work-related could have been a "contributing factor" that led to the investigation and subsequent suspension. The court observed that the Defendant began disciplinary proceedings the very same day that it claimed to learn that the Plaintiff's injury had been reported as work related.
Hernandez v. Metro-North Commuter Railroad, No. 1:13-cv-02077 (S.D.N.Y. Jan. 9, 2015) (74 F. Supp. 3d 576; 2015 WL 110793; 2015 U.S. Dist. LEXIS 2457)
Opinion and Order
PDF
Summary:
PROTECTED ACTIVITY; REASONABLE BELIEF TEST; COMPLAINANT'S REPORT OF A DE MINIMIS WASTE OF COMPANY TIME FOUND NOT TO REFLECT A SUBJECTIVELY OR OBJECTIVELY REASONABLE BELIEF OF OF UNLAWFUL BEHAVIOR RELATED TO RAILROAD SAFETY, SECURITY OR GROSS, FRAUD, WASTE OR ABUSE OF FUNDS FOR SAFETY OR SECURITY
In Hernandez v. Metro-North Commuter Railroad, No. 1:13-cv-02077 (S.D.N.Y. Jan. 9, 2015) (2015 WL 110793; 2015 U.S. Dist. LEXIS 2457), the Plaintiff reported an incident in which wreck crew employees spent 25-45 minutes repairing scratched paint on an employee's personal car. After an investigation, the Defendant gave an verbal reprimand to all involved. The superintendent considered it to be a minor incident. The Plaintiff alleged, however, was thereafter harrassed for being a squealer. The Plaintiff filed an FRSA retaliation complaint. The Defendant filed a motion for summary judgment. The court granted the motion on the ground that the Plaintiff had not satisfied the reasonable belief factor required to establish a protected activity under the FRSA. Drawing all reasonable inferences in the Plaintiff's favor, the court did not question that the Plaintiff honestly believed that the conduct was an unlawful use of company time. The court, however, found that the FRSA requires a reasonable belief that the unlawfulness was related to railroad safety or security or that the conduct constitutes "gross fraud, waste, or abuse of Federal grants or other public funds intended to be used for railroad safety or security." 49 U.S.C. Â§ 20109(a)(1). The court found no indication that the Plaintiff considered what he reported was a safety concern, and therefore the Plaintiff failed to establish a subjectively reasonable belief. The court likewise found that no no objectively reasonable person in the same factual circumstances as the plaintiff could possibly believe that any railroad safety laws were violated by spending less than an hour of company time repairing a personal vehicle in the company paint shop, or that such amounted to a gross fraud, waste or abuse of funds (much less funds to be used for safety or security).

Sarbanes-Oxley Act

Puffenbarger v. Engility Corp., No. 15-cv-188 (E.D. Va. Dec. 31, 2015) (2015 U.S. Dist. LEXIS 173764)
Memorandum Opinion
PDF
Summary:
XXXXX
Wiggins v. ING U.S., Inc., No. 14-cv-1089 (D. Conn. Dec. 15, 2015) (2015 U.S. Dist. LEXIS 167362; 2015 WL 8779559)
Ruling Re: Motion for Reconsideration (Doc. No. 47); Motion to Dismiss (Doc. No. 50); Motion to Stay (Doc. No. 51; Motion to Stay (Doc. No. 72)
PDF
Summary:
XXXXX
Rock v. Lifeline Systems Co., No. 13-11833 (D. Mass. Oct. 23, 2015) (2015 U.S. Dist. LEXIS 144335; 2015 WL 6453139)
Memorandum and Order Re: Defendant's Motion for Summary Judgment
PDF
Summary:
Lifeline's products are â€œdevicesâ€� registered under the Federal Food, Drug, and Cosmetic Act, and are not â€œconsumer productsâ€� within the meaning of CPSIA.
Wadler v. Bio-Rad Laboratories, Inc., No. 15-cv-2356 (N.D. Cal. Oct. 23, 2015) (2015 U.S. Dist. LEXIS 144468; 2015 WL 6438670)
Order Granting in Part and Denying in Part Defendants' Motion to Dismiss
PDF
Summary:
XXXX
Sharkey v. J.P. Morgan Chase & Co., No. 10-cv-3824 (S.D.N.Y. Oct. 9, 2015) (2015 U.S. Dist. LEXIS 138357)
Opinion [granting defendant's motion for summary judgment]
PDF
Summary:
XXXX
Anthony v. Northwestern Mut. Life Insurance Co., No. 14-cv-1416 (N.D. N.Y. Sept. 8, 2015) ( 2015 U.S. Dist. LEXIS 118961; 2015 WL 5226651)
Memorandum Decision and Order
PDF
Later history: Anthony v. Northwestern Mut. Life Insurance Co., No. 15-2987 (2d Cir. Dec. 14, 2015) (Order [approving stipulation of withdrawal]) PDF
Summary:
XXXX
Hill v. Komatsu America Corp., No. 14-cv-2098 (N.D. Ill. Aug. 26, 2015) (2015 U.S. Dist. LEXIS 116611; 2015 WL 5162129)
Memorandum Opinion and Order
PDF
Summary:
XXXX
Wallace v. Tesoro Corp., No. 13-51010 (5th Cir. July 31, 2015) (796 F.3d 468; 2015 U.S. App. LEXIS 13414; 2015 WL 4604967)
Opinion
PDF
Summary:
XXXX
Perez v. Progenics Pharaceuticals, Inc., No. 10-cv-8278 (S.D.N.Y. July 2, 2015) (case below 2013-SOX-28)
Order [denying reconsideration]
PDF
Summary:
XXXX
Perez v. Progenics Pharaceuticals, Inc., No. 10-cv-8278 (S.D.N.Y. June 24, 2015)(2015 WL 411551; 2015 U.S. Dist. LEXIS 83557) (case below 2013-SOX-28)
Memorandum and Order [ruling on motions for limine]
PDF
Summary:
XXXX
Bogenschneider v. Kimberly Clark Global Sales, LLC, No. 14-cv-743 (W.D. Wis. June 29, 2015) (2015 WL 3948137; 2015 U.S. Dist. LEXIS 83827) (case below 2013-SOX-28)
Opinion and Order
PDF
Summary:
XXXX
Wiggins v. ING U.S., Inc., No. 14-cv-1089 (D. Conn. June 16, 2015) (2015 U.S. Dist. LEXIS 78129)
Ruling Re: Defendants' Motion to Stay (Doc. No. 13) and Defendants' Motion to Dismiss (Doc. No. 14)
PDF
Summary:
XXXXX
Levi v. Perez, No. 14-9583 (10th Cir. May 29, 2015) (unpublished) (case below ARB No. 13-047, ALJ No. 2012-SOX-39) (2015 WL 3423243; 2014 U.S. App. LEXIS 8921)
Order and Judgment
PDF
Summary:
In an appeal of DOL's denial of a Â§ 1514A SOX complaint, the 10th Circuit found that substantial evidence supporteed the agency's determination that the Plaintiff failed to demonstrate that he sufffered an adverse personnel action. The Plaintiff argued that he suffered adverse action in regard to his pension benefits when records were changed in regard to the effective date of his termination. DOL had found that the pension benefits at isse were based on the date of suspension and that the effective date of the termination was irrelevant.
Rhinehimer v. U.S. Bancorp Investments, Inc., No. 13-6641 (6th Cir. May 28, 2015)
Opinion
PDF
Summary:
XXX
Wiest v. Tyco Electronics Corp., No. 10-3288 (E.D.Pa. Apr. 10, 2015) (2015 WL 1636860; 2015 U.S. Dist. LEXIS 47935)
Memorandum
PDF
Summary:
Court granted summary judgment to Defendant, finding that "Plaintiffs have insufficient evidence as a matter of law to prove that Mr. Wiest's protected activity was a contributing factor in Tyco's preliminary or final decision to terminate Mr. Wiest." Slip op. at 22.
Moldauer v. Constellation Brands Inc., No. 14-cv-1984 (D.D.C. Apr. 3, 2015) (cases below ALJ Nos. 2003-SOX-26, 2008-SOX-73, 2010-SOX-9, 2014-SOX-35) (2015 WL 1541961; 2015 U.S. Dist. LEXIS 44011)
Memorandum Opinion and Order
PDF
Summary:
The court found a lack of subject matter jurisdiction over the part of Moldauer's complaint that was directed at DOL. The district court noted that it could have jurisdiction of a SOX case only under 18 U.S.C. Â§ 1514A(b)(1), which provides for a complainant's right to file a de novo action in district court where DOL did no t issue a final decision within 180 days of the filing of the complaint. But such a complaint would be filed against the named respondent and not DOL. Thus, DOL would not be a proper party to such a suit.
The court noted that if Moldauer was seeking review of DOL's decision to deny the administrative complaints, the appeal goes to the court of appeals rather than district court.
The court dismissed the complaint against the employer for lack of personal jurisdiction.
The court denied Moldauer's request to amend his complaint to allege defamation and breach of privacy against DOL and the FTC because there was no evidence that Moldauer exhausted administrative remedies on such claims.
Hartzman v. Wells Fargo & Co., No. 14-cv-808 (M.D.N.C. Mar. 19, 2015) (case below 2013-SOX-45) (2015 WL 1268267; 2015 U.S. Dist. LEXIS 33945)
Memorandum Opinion and Order
PDF
Summary:
XXXX
Halliburton v. Administrative Review Board, USDOL, No. 13-60323 (5th Cir. Mar. 11, 2015) (case below ARB Nos. 12-026, ALJ No. 2007-SOX-5) (2015 WL 1058102; 2015 US App LEXIS 3814)
Order [denying rehearing en banc]
PDF
Summary:
DISCLOSURE OF EMPLOYEE'S IDENTITY AS A MATERIALLY ADVERSE EMPLOYMENT ACTION UNDER BURLINGTON NORTHERN
In Halliburton v. Administrative Review Board, USDOL, No. 13-60323 (5th Cir. Mar. 11, 2015) (case below ARB Nos. 12-026, ALJ No. 2007-SOX-5), the Fifth Circuit denied rehearing en banc of Halliburton v. Administrative Review Board, USDOL, No. 13-60323 (5th Cir. Nov. 12, 2014) (per curiam) (Revised Opinion - Dec. 29, 2014). Three Circuit Judges filed a dissent stating that the panel's decision concerning whether the disclosure of an employee's identity may be a materially adverse employment action under Burlington Northern was ad hoc, and should be reheard en banc "to provide some contours to the concept of an adverse employment action so that we mete out employee rights on the same standard to all."
Leary v. Centene Corp., No. 14-cv-2547 (D.Kan. Mar. 10, 2015) (2015 WL 1034343; 2015 U.S. Dist. LEXIS 28918)
Memorandum & Order
PDF
Summary:
XXXX
Lutzeier v. Citigroup, Inc., No. 14-cv-183 (E.D.Mo. Mar. 9, 2015) (2015 WL 1033696; 2015 U.S. Dist. LEXIS 28231)
Memorandum and Order
PDF
Summary:
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Lutzeier v. Citigroup, Inc., No. 14-cv-183 (E.D.Mo. Mar. 2, 2015) (2015 WL 892565; 2015 U.S. Dist. LEXIS 24608)
Memorandum and Order
PDF
Summary:
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Kshetrapal v. Dish Network, LLC, No. 14-cv-3527 (S.D.N.Y. Feb. 27, 2015) (2015 WL 857911; 2015 U.S. Dist. LEXIS 24573) (case below 2014-SOX-23)
Opinion and Order
PDF
Summary:
SOX Section 1514A covers post-termination protected activity by former employee; Plaintiff's deposition testimony in lawsuit involving Defendant company found covered.
Injunctive and declaratory relief is not available under Dodd-Frank Act, Section 78u-6(h) but is available under the Sarbanes-Oxley Act, Sectin 1514A.
Bogenschneider v. Kimberly Clark Global Sales, LLC, No. 14-cv-743 (W.D. Wis. Feb. 25, 2015) (case below 2013-SOX-28) (2015 U.S. Dist. LEXIS 22377)
Opinion and Order
PDF
Summary:
ALJ's decision has no preclusive effect where there had not been a final DOL decision within 180 days of the filing of the administrative complaint. The Plaintiff filed his federal court action within 10 days of the ALJ's decision. Defendants did not show at this stage of the proceedings that the doctrines of laches or election of remedies require dismissal of this case.
Where the Plaintiff did not allege that he had an employment relationship with the Employer-Defendant's law firm, Godfrey & Kahn, he could not sustain a claim against the law firm under Â§ 1514A.
Court denies Defendant's motion to dismiss based on argument that statements of counsel do not, as a matter of law, constitute an adverse employment action. Court defers consideration of whether litigation privilege applies. Claim that Defendant retaliated by filing a frivilous counterclaim in state court was not timely raised.
Murray v. UBS Securities, LLC, No. 14-cv-927 (S.D.N.Y. Feb. 24, 2015)
Opinion and Order
PDF
Summary:
Because the statutory waiting periods barred suit on Plaintiff's Sarbanes-Oxley and CFPA claims at the time of his earlier Dodd-Frank suit, the current claims are not impermissibly duplicative.
Duffy v. United States, No. 14-288T (Fed.Cl. Feb. 13, 2015) (2015 WL 648411; 2015 U.S. Claims LEXIS 118) (related to ALJ No. 2007-SOX-63)
Opinion
PDF
Summary:
Proceeds of settlement of SOX case taxable as ordinary income and not capital gains.
Westawski v. Merck & Co., Inc., No. 14-3239 (E.D.Pa. Feb. 4, 2015) (2015 WL 463949; 2015 U.S. Dist. LEXIS 13363)
Opinion
PDF
Summary:
"Because the facts as alleged in the Complaint show that Merck, through its employees, was aware of the Plaintiff's protected activity, her Sarbanes-Oxley claim is 'sufficient to cross the federal court's threshold.' Skinner v. Switzer, 131 S. Ct. at 1297. Thus, the Defendant's motion to dismiss the Sarbanes-Oxley claim in Count I is denied." Slip op. at 13 (footnote omitted).
Jones v. Southpeak Interactive Corp. of Delaware, No. 13-2399 (4th Cir. Jan. 26, 2015) (2015 WL 309626; 2015 U.S. App. LEXIS 1114)
Opinion
PDF
Summary:
SOX RETALIATORY DISCHARGE SUIT IN FEDERAL COURT IS GOVERNED BY FOUR YEAR STATUTE OF LIMITATIONS UNDER 28 U.S.C. Â§ 1658(a), AND NOT THE TWO YEAR STATUTE OF LIMITATIONS UNDER 28 U.S.C. Â§ 1658(b)(1)
In Jones v. Southpeak Interactive Corp. of Delaware, No. 13-2399 (4th Cir. Jan. 26, 2015) (2015 WL 309626; 2015 U.S. App. LEXIS 1114), after more than 180 days passed without a final order from OSHA on her SOX complaint, the Appellee notified OSHA that she was electing to file a federal lawsuit. The Appellee waited nearly two years to file the federal suit, which was a little less than three years after her termination from employment. The district court held that the SOX claim was timely because it was commenced within the four-year statute of limitations under 28 U.S.C. Â§ 1658(a). On appeal, the Appellants argued that the two-year limitations period set forth in Â§ 1658(b)(1) applied. The Fourth Circuit rejected the Appellants' argument, finding that the SOX complaint alleged, not fraud as covered by Â§ 1658(b), but retaliatory discharge. In a SOX retaliatory discharge case, the whistleblower is not required to prove that the employer's conduct was, in fact, a legally actionable fraud. The court recognized that the Appellee's complaint approximated the basic elements of a section 10(b) securities fraud claim, but noted that the retaliation complainant is not under an obligation to establish scienter. The court therefore held that Section 1658(a) controls, and that because the Appellee brought her suit within that Section 1658(a)'s four-year window, her claim was timely.
EXHAUSTION OF ADMINISTRATIVE REMEDIES; WHERE OSHA COMPLAINT PUT INDIVIDUAL DEFENDANTS ON NOTICE THAT IT WAS BEING ALLEGED THAT THEY HAD VIOLATED SOX, EXHAUSTION REQUIREMENT WAS MET EVEN THOUGH THE OSHA COMPLAINT DID NOT CLEARLY NAME THE INDIVIDUALS AS RESPONDENTS IN THE ADMINISTRATIVE PROCEEDING
In Jones v. Southpeak Interactive Corp. of Delaware, No. 13-2399 (4th Cir. Jan. 26, 2015) (2015 WL 309626; 2015 U.S. App. LEXIS 1114), the Appellee's original SOX complaint filed with OSHA, Southpeak Interactive was named as the respondent. The complaint mentioned the company's chief executive and the complaint's chairman as persons who were alleged to have violated the Act, but did not specifically identify them as respondents. After OSHA had not issued a final decision within 180 days of the complaint, and the Appellee filed a complaint in federal district court, the chief executive and the chairman were named as defendants. The Appellants argued that the Appellee had not exhausted administrative remedies in regard to the named individuals. The Fourth Circuit held that the administrative complaint satisfied the exhaustion requirement. The record did not suggest that the Appellee was trying to circumvent the SOX exhaustion requirement. The complaint filed with OSHA was substantially similar to the complaint filed in district court, and the alleged harm of a retaliatory discharge was identical. The OSHA complaint plainly identified the individuals as persons who allegedly violated the Act who the complaint was being filed against. The court found that nothing more precise was required for the form of the OSHA complaint, and that OSHA's subsequent treatment of the complaint could not take away the Appellee's opportunity to seek recourse. The record showed no doubt that the individuals were well aware of the allegations against them and that it had been alleged that they personally had violated the Act. The court found that it would not have been surprising, therefore, when the Appellee named them in the instant civil action.
DAMAGES FOR EMOTIONAL DISTRESS ARE AVAILABLE UNDER THE SOX WHISTLEBLOWER PROVISION; DISTRICT COURT HAS DISCRETION TO REDUCE JURY'S AWARD BASED ON COMPARISON TO AWARDS IN COMPARABLE CASES
In Jones v. Southpeak Interactive Corp. of Delaware, No. 13-2399 (4th Cir. Jan. 26, 2015) (2015 WL 309626; 2015 U.S. App. LEXIS 1114), the Appellants argued that damages for emotional distress are not permissible under the whistleblower provisions of the Sarbanes-Oxley Act. The Fourth Circuit rejected this argument because 18 U.S.C. Â§ 1514A(c)(1) expressly entitles a prevailing employee to "all relief necessary to make [her] whole." In this regard, the Fourth Circuit joined the Fifth Circuit and the Tenth Circuit in holding that emotional distress damages are available under the statute. Halliburton, Inc. v. Admin. Review Bd., 771 F.3d 254, 266 (5th Cir. 2014); Lockheed Martin Corp. v. Admin. Review Bd., 717 F.3d 1121, 1138 (10th Cir. 2013). The court also afforded deference to the Administrative Review Board's history of upholding non-pecuniary compensatory damages in Sarbanes-Oxley Act whistleblower cases, citing Menendez v. Halliburton, Inc., ARB Nos. 12-026, ALJ No. 2007-SOX-5 (ARB Mar. 15, 2013) (reissued with corrected caption Mar. 20, 2013) (2013 WL 1282255, at *11), aff'd sub. nom.. Halliburton, Inc. v. Admin. Review Bd., 771 F.3d 254, 266 (5th Cir. 2014). The court found that the district court had not abused its discretion when reducing a jury's award for emotional distress to $100,000 when comparing the jury's damages assessment to awards in comparable cases.
[Editor's note: The court cited the ARB's Menendez decision using ARB Case Nos. 09-002 and 09-003 in the case citation. However, those case numbers were an error on the caption of the ARB's decision as originally issued on March 15, 2013. The ARB reissued the decision on March 20, 2013, with a correction to show the ARB Case No. as 12-026.]
ALLOCATION OF ATTORNEYS' FEES; JOINT AND SEVERAL LIABILITY
In Jones v. Southpeak Interactive Corp. of Delaware, No. 13-2399 (4th Cir. Jan. 26, 2015) (2015 WL 309626; 2015 U.S. App. LEXIS 1114), the Defendants objected to the district court's joint-and-several allocation of attorneys' fees among the defendants. The 4th Circuit found that the district court had not abused its discretion, noting that the district court enjoys considerable latitude in deciding how it will allocate attorneys' fees. The court noted that the7th Circuit and the DC Circuit have identified several situations in which it may be appropriate to hold all defendants jointly and severally liable for attorneys' fees, and that a defendant's ability to pay the award may be relevant. In the instant case, the Defendants requested that the Court of Appeals redistribute the fee award in proportion to each appellant's share of the damages awarded. The court denied the request, writing:
We have never required a defendant's share of a fee award to equal his share of damages, nor have other circuits. See, e.g., Corder v. Gates, 947 F.2d 374, 383 (9th Cir. 1991) ("We have never mandated apportionment based on each defendant's relative liability under a jury's verdict."). Such a requirement would take away the discretionary power that district courts have traditionally enjoyed in this area.

Slip op. at 41.
Bogenschneider v. Kimberly Clark Global Sales, LLC, No. 14-cv-743 (W.D. Wis. Jan. 14, 2015)(case below 2013-SOX-28) (2015 U.S. Dist. LEXIS 4383)
Order
PDF
Summary:
Denial of Plaintiff's motion for default judgment for Defendant's failure to timely respond to complaint where no prejudice shown.

Surface Transportation Assistance Act

Carr v. Thompson, No. 15-1769 (D.S.C. Oct. 21, 2015)
Order [adopting Magistrate's Report and Recommendations]
PDF
Summary:
Order adopting Magistrate Judge's report and recommendation that STAA claim be dismissed.
Carr v. Thompson, No. 15-1769 (D.S.C. Oct. 1, 2015) (2015 U.S. Dist. LEXIS 143038)
[Magistrate's] Report and Recommendation
PDF
Summary:
Failure to exhaust administrative remedies under 49 U.S.C. § 31105.
Marinkovic v. Vasquez, No. 14-3069 (D. Md. June 16, 2015) (2015 U.S. Dist. LEXIS 77463)
Memorandum Opinion
PDF
Summary:
[STAA Digest VII B 7]
VEHICLE RATING OR WEIGHT
In Marinkovic v. Vasquez, No. 14-3069 (D. Md. June 16, 2015) (2015 U.S. Dist. LEXIS 77463), the Plaintiff alleged that the Respondent directed him to drive an ambulance, which he believed had a carbon monoxide leak. The court found that the Respondent's ambulance did not fit within the STAA, 49 U.S.C. § 31101(1) defintion of "commercial motor vehicle." The court found that the ambulance only weighed 9,400 pounds, only seated approximately six individuals, and did not transport any hazardous material nor a sufficient quantity of hazardous materials to require placarding under the statute. Thus, the Plaintiff could not, as a matter of law, assert a viable claim under the STAA.
Peacock v. Suffolk Bus Corp., No. 14-4479 (E.D.N.Y. Apr. 23, 2015) (100 F. Supp. 3d 225; 2015 U.S. Dist. LEXIS 53539)
Memorandum Opinion
PDF
Summary:
[STAA Whistleblower Digest XIII B]
STAA DOES NOT CREATE A PRIVATE RIGHT OF ACTION
In Peacock v. Suffolk Bus Corp., No. 14-4479 (E.D.N.Y. Apr. 23, 2015) (100 F. Supp. 3d 225; 2015 U.S. Dist. LEXIS 53539), the court granted the Defendant's FRCP 12(b)(6) motion to dismiss the Plaintiff's STAA, 49 U.S.C. § 31105, on the ground that the STAA expressly sets forth a comprehensive administrative scheme for the resolution of claims of retaliation and does not create a private right of action.