Barker v. UBS AG et al

Filing 77

RULING denying 53 Motion for Summary Judgment. Signed by Judge Janet C. Hall on 5/22/2012. (Oliver, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MARY J. BARKER,
Plaintiff,

:
:
:
v.
:
:
UBS AG and UBS SECURITIES, LLC, :
Defendants.
:
:

CIVIL ACTION NO.
3:09-CV-2084 (JCH)

MAY 22, 2012

RULING RE: DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DOC. NO. 53)
I.

INTRODUCTION
Plaintiff, Mary Barker, brings this case against UBS AG and its wholly-owned

subsidiary, UBS Securities, LLC (collectively “defendants” or “UBS”), alleging that
defendants terminated her employment in violation of the Sarbanes-Oxley Act’s
whistleblower provision (hereafter “SOX”), 18 U.S.C. § 1514A.1 Defendants now move
for summary judgment.
II.

STATEMENT OF FACTS
Barker began working at UBS in 1998, and at the time of her termination, worked

as an Associate Director in the Business Management Group of the Equities Chief
Operating Officer’s office. L.R. 56(a)(1) Stmt. ¶¶ 21–22; L.R. 56(a)(2) Stmt. ¶¶ 21–22.
Barker completed her undergraduate degree while working full-time for UBS. L.R.
56(a)(1) Stmt. ¶ 26; L.R. 56(a)(2) Stmt. ¶ 26. In working towards her degree, Barker
completed several entry level accounting courses, a law course, an advanced business
management course, and a course on market risk. Id. In addition, while working at

1

Barker originally brought a claim pursuant to the Age Discrimination in Employment Act as well;
however, the court (Droney, J.) previously dismissed this claim. See Doc. No. 40.

1

UBS, Barker completed an internal online compliance requirement regarding identifying
different kinds of risk. See L.R. 56(a)(2) Stmt. ¶ 27.
Traditionally, a firm must own a minimum number of “exchange seats” on a given
trading exchange, such as the New York Stock Exchange (hereafter “NYSE”), in order
to trade on that exchange. See L.R. 56(a)(1) Stmt. ¶¶ 50–51; L.R. 56(a)(2) Stmt. ¶¶
50–51. In early 2006, UBS’s proprietary trading desk (hereafter “Prop Desk”) began
acquiring, as an investment, additional seats on exchanges that were becoming
privately held companies and converting exchange seats into shares in the newly
formed corporation. See L.R. 56(a)(1) Stmt. ¶ 53; L.R. 56(a)(2) Stmt. ¶ 52. Ownership
in the new corporation was allocated based on exchange seat ownership. See id.
These types of changes were occurring on numerous trading exchanges around this
time, resulting in changes to the minimum number of exchange seats or exchange
shares necessary to trade on various exchanges. See L.R. 56(a)(1) Stmt. ¶ 56; L.R.
56(a)(2) Stmt. ¶ 56. In 2006, in connection with her responsibilities concerning the
administration of UBS’s Prop Desk’s exchange holdings, Barker assisted in reconciling
the NYSE exchange seats held by the Prop Desk only into one consolidated inventory.
L.R. 56(a)(2) Stmt. ¶ 55.
Defendants assert that, due to these changes in the industry, Equities senior
management sought to better understand UBS’s exchange holdings on a uniform,
consolidated basis and assigned Barker to reconcile the holdings (hereafter “the
reconciliation project”). See L.R. 56(a)(1) Stmt. ¶¶ 58, 60. Barker asserts that the
reconciliation project came about after she obtained information regarding firm-wide
holdings from each of the exchanges as part of her work with the Equities Exchange

2

Traded Derivatives Desk and discovered reporting discrepancies. See L.R. 56(a)(2) ¶
58; 67. Barker asserts that she assembled a team of individuals who worked to
reconcile the portfolio of UBS’s exchange assets which were unaccounted for, and that
over the course of May 2007, the team accumulated a list of discrepancies for exchange
seats, shares, or both not accounted for on UBS’s balance sheet. See L.R. 56(a)(2)
Stmt. ¶ 62.
Until around June 2007, Barker reported directly to Angela Sinni and indirectly to
Gerald Hees. See L.R. 56(a)(2) Stmt. ¶ 29. Barker then began reporting directly to
Hees. See id. Around July 2007, Hees became directly responsible for overseeing
Barker’s work on the reconciliation project and maintained that supervision until he was
terminated in May 2008. See L.R. 56(a)(2) Stmt. ¶ 28–29. In the fall of 2007, Kevin
Milgram became Barker’s supervisor. See L.R. 56(a)(1) Stmt. ¶ 28; L.R. 56(a)(2) Stmt.
¶ 28.
In addition to Barker, at least ten UBS employees worked on the reconciliation
project. L.R. 56(a)(1) Stmt. ¶ 63; L.R. 56(a)(2) Stmt. ¶ 63. Barker asserts that senior
management first became aware of the project after Hees updated them in September
2007, following a meeting where he discussed how to “spin” the errors and omissions
related to the firm’s exchange holdings with another employee. See L.R. 56(a)(2) Stmt.
¶ 66. In August 2007, Barker provided Hees with a draft “gap analysis,” a report
regularly prepared at UBS to identify a gap in processes. L.R. 56(a)(1) Stmt. ¶¶ 76–77;
L.R. 56(a)(2) Stmt. ¶¶ 76–77. The parties dispute whether Hees provided any edits to
Barker with regard to this gap analysis. L.R. 56(a)(1) Stmt. ¶ 78; L.R. 56(a)(2) Stmt. ¶
78.

3

The parties dispute whether Hees ever instructed Barker to refrain from
discussing the reconciliation project with UBS’s Operational Risk Control group. L.R.
56(a)(1) Stmt. ¶ 83; L.R. 56(a)(2) Stmt. ¶ 83. Barker asserts that around August 8,
2007, Hees reprimanded her for discussing the reconciliation project with Operational
Risk and directed her not to disclose anything further about the project outside of the
Equities department. See L.R. 56(a)(2) Stmt. ¶ 83.
John Ingrilli became the Chief Operating Officer of Equities around September
2007. L.R. 56(a)(2) Stmt. ¶ 85. On September 19, 2007, Hees presented the results of
the reconciliation project to UBS senior executives, including Ingrilli. See L.R. 56(a)(2)
Stmt. ¶ 92. On September 24, 2007, Hees instructed Barker that she should not
discuss the reconciliation project with Ingrilli directly. See L.R. 56(a)(1) Stmt. ¶ 97; L.R.
56(a)(2) Stmt. ¶ 97. UBS asserts that this instruction was prompted by Ingrilli’s
dissatisfaction with Barker’s work product; however, Barker contends that she had not
presented any work product to Ingrilli prior to receiving this instruction from Hees. See
L.R. 56(a)(1) Stmt. ¶ 92; L.R. 56(a)(2) Stmt. ¶ 92.
Barker admits that she did not use the words “fraud” or “violation of securities
laws” in her gap analysis, or when reporting her work to various superiors. See L.R.
56(a)(1) Stmt. ¶¶ 103–04, 106–07; L.R. 56(a)(2) Stmt. ¶¶ 103–04; 106–07. The
exchange holdings identified in Barker’s gap analysis totaled less than $200 million.
L.R. 56(a)(1) Stmt. ¶ 125; L.R. 56(a)(2) Stmt. ¶ 125. As a result of the reconciliation
project, UBS sold some of its exchange holdings, resulting in over $50 million in
revenue. See L.R. 56(a)(1) Stmt. ¶¶ 136–37; L.R. 56(a)(2) Stmt. ¶¶ 136–37. Hees
nominated Barker for a “Thank You Award” for her work on the reconciliation project,

4

which Barker received on November 23, 2007. L.R. 56(a)(1) Stmt. ¶¶ 138–40; L.R.
56(a)(2) Stmt. ¶¶ 138–40.
During a March 26, 2008 meeting with Milgram, Barker informed him that she felt
that Hees was overlooking her for projects and not adequately supporting her, resulting
in her feeling that she was being retaliated against or constructively discharged. L.R.
56(a)(1) Stmt. ¶ 128; L.R. 56(a)(2) Stmt. ¶ 128–29. An internal investigation found that
no unfair treatment had occurred. L.R. 56(a)(1) Stmt. ¶ 132; L.R. 56(a)(2) Stmt. ¶ 132.
On or about May 6, 2008, UBS conducted a large-scale reduction in force, which
resulted in Barker’s termination. L.R. 56(a)(1) Stmt. ¶ 10; L.R. 56(a)(2) Stmt. ¶ 10.
III.

STANDARD OF REVIEW
A motion for summary judgment “may properly be granted . . . only where there is

no genuine issue of material fact to be tried, and the facts as to which there is no such
issue warrant judgment for the moving party as a matter of law.” In re Dana Corp., 574
F.3d 129, 151 (2d Cir. 2009). Thus, the role of a district court in considering such a
motion “is not to resolve disputed questions of fact but only to determine whether, as to
any material issue, a genuine factual dispute exists.” Id. In making this determination,
the trial court must resolve all ambiguities and draw all inferences in favor of the party
against whom summary judgment is sought. See Loeffler v. Staten Island Univ. Hosp.,
582 F.3d 268, 274 (2d Cir. 2009).
“[T]he moving party bears the burden of showing that he or she is entitled to
summary judgment.” United Transp. Union v. Nat’l R.R. Passenger Corp., 588 F.3d
805, 809 (2d Cir. 2009). Once the moving party has satisfied that burden, in order to
defeat the motion, “the party opposing summary judgment . . . must set forth ‘specific

5

facts’ demonstrating that there is ‘a genuine issue for trial.’” Wright v. Goord, 554 F.3d
255, 266 (2d Cir. 2009) (quoting Fed. R. Civ. P. 56(e)). “A dispute about a ‘genuine
issue’ exists for summary judgment purposes where the evidence is such that a
reasonable jury could decide in the non-movant’s favor.” Beyer v. County of Nassau,
524 F.3d 160, 163 (2d Cir.2008) (quoting Guilbert v. Gardner, 480 F.3d 140, 145 (2d
Cir. 2007)); see also Havey v. Homebound Mortg., Inc., 547 F.3d 158, 163 (2d Cir.
2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)) (stating that a
non-moving party must point to more than a mere “scintilla” of evidence in order to
defeat a motion for summary judgment).
IV.

DISCUSSION
A.

Prima Facie Case

Section 1514A of Title 18 the United States Code makes it unlawful for publicly
traded companies to:
discharge . . . or in any other manner discriminate against an employee in the
terms or conditions of employment because of any lawful act done by the
employee . . . to provide information . . . or otherwise assist in an investigation
regarding any conduct 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.
To demonstrate a violation of section 1514A, a plaintiff bears the initial burden of setting
forth a prima facie case. See Day v. Staples, Inc., 555 F.3d 42, 53 (1st Cir. 2009). To
establish a prima facie case, the plaintiff must demonstrate by a preponderance of the
evidence that: (1) she engaged in protected activity; (2) the employer knew of the
protected activity; (3) she suffered an unfavorable personnel action; and (4)
circumstances exist to suggest that the protected activity was a contributing factor to the
6

unfavorable action. See Vodopia v. Koninklijke Philips Electronics, N.V., 398 Fed.
Appx. 659, 662 (2d Cir. 2010). Courts have construed whistleblower protection broadly.
See, e.g., Mahoney v. Keyspan Corp., 2007 WL 805813, at *5 (E.D.N.Y. Mar. 12, 2007)
(“Given that SOX is a statute designed to promote corporate ethics by protecting
whistleblowers from retaliation, it is reasonable to construe the statute broadly.”). If the
plaintiff meets her burden, the defendant may then avoid liability if it can prove by clear
and convincing evidence that it would have taken the same personnel action in the
absence of the protected activity. See Day, 555 F.3d at 53.
1.

Protected Activity

UBS first argues that Barker cannot establish a prima facie case because she
cannot show that she engaged in protected activity. To demonstrate protected activity,
a plaintiff must show that she “had both a subjective belief and an objectively
reasonable belief that the conduct [s]he complained of constituted a violation of relevant
law.” See Welch v. Chao, 536 F.3d 269, 275 (4th Cir. 2008) (internal quotation
omitted). The employee’s communications “‘must definitively and specifically relate to
[one] of the listed categories of fraud or securities violations [in] 18 U.S.C. §
1514A(a)(1).’”2 See Vodopia, 398 Fed. Appx. at 662–63 (quoting Van Asdale v. Int’l
Game Tech., 577 F.3d 989, 996–97 (9th Cir. 2009)). That is, the employee must
2

The Second Circuit has expressly adopted the “definitively and specifically” standard; however,
a recent decision by the Administrative Review Board of the Department of Labor, the agency charged
with enforcing the SOX whistleblower protections, see 18 U.S.C. § 1514A(b), indicates that the “[definite
and specific] standard . . . has evolved into an inappropriate test and is often applied too strictly.” See
Sylvester v. Parexel Int’l LLC, ARB Case No. 07-123 (May 25, 2011) at 18. Instead, the ARB explains
that “the critical focus is on whether the employee reported conduct that he or she reasonably believes
constituted a violation of federal law.” See id. at 19 (emphasis in original). ARB decisions are entitled to
Chevron deference by this court. See Day v. Staples, Inc., 555 F.3d 42, 54, n. 7 (1st Cir. 2009). As the
court concludes that Barker has come forward with evidence upon which a reasonable factfinder could
find that she meets the higher “definite and specific” standard adopted by the Second Circuit, however,
the court need not resolve the issue of whether this recent decision by the ARB affects Second Circuit
precedent at this time.

7

provide factually specific information to the employer regarding conduct she believes to
be illegal; it is not necessary for the employee to cite to a specific code section she
believes was violated. See Welch, 536 F.3d at 276. The court evaluates the objective
reasonableness of an employee’s belief based on the knowledge available to a
reasonable person in the same factual circumstances and with the same training and
experience as the employee. See Allen v. Admin. Review Bd., 514 F.3d 468, 477 (5th
Cir. 2008).
UBS contends that Barker cannot show that she engaged in protected activity for
several reasons. First, UBS argues that Barker was simply performing her job and is
not entitled to whistleblower protection. See Mem. Supp. Mot. at 20–21. Next, UBS
contends that Barker could not, and did not, reasonably believe that she was blowing
the whistle on securities fraud because it was unreasonable for her to believe that UBS
was either engaged in fraud or that the exchange seat discrepancies were material to
shareholders. See id. at 22–26.
UBS asserts that Barker cannot establish that she engaged in protected activity
because senior managers requested and supported the reconciliation project,
commended Barker and her team on her work, and helped bring about a conclusion to
the project. See Mem. Supp. Mot. at 20. At least one court, relying on cases
discussing other whistleblower laws, has found that a plaintiff must “‘step outside [her]
role’ and take additional action” in order to demonstrate protected activity. See Riddle
v. First Tennessee Bank, 2011 WL 4348298, at *8 (M.D. Tenn. Sept. 16, 2011). The
ARB, however, has made clear that an employee may engage in protected activity even
where the employee is discharging her duties. See Robinson v. Morgan-Stanley, ARB

8

Case No. 07-070 (Jan. 10, 2010) at *24–25 (“[Section 1514A] does not indicate that an
employee’s report or complaint about a protected violation must involve actions outside
the complainant’s assigned duties.”).
Barker contests UBS’s assertion that senior management commenced the
reconciliation project and, instead, asserts that senior management was not aware of
the project until Hees briefed them in September 2007. See L.R. 56(a)(2) Stmt. ¶¶ 58,
66. Further, Barker contends that she went beyond her original assignment in pursuing
the reconciliation project by contacting the exchanges. See Barker Aff. ¶¶ 15 –20. In
addition, Barker asserts that Hees reprimanded her for discussing the reconciliation
project with Operational Risk, held a meeting where he discussed how to “spin” Barker’s
findings regarding errors and omissions in UBS’s exchange holdings, and instructed
Barker not to discuss her findings with Ingrilli or anyone else in senior management.
See Barker Aff. ¶¶ 39, 47–48, 51. Given these disputes, material issues of fact exist as
to whether Barker engaged in protected activity.
UBS then argues that Barker cannot demonstrate that she held either a
subjective or objective reasonable belief that “she was blowing the whistle on securities
fraud.” See Mem. Supp. Mot. at 21–26. An employee does not need to specifically
allege fraud, or reference a specific statute in order to engage in protected activity. See
Van Asdale v. Int’l Game Tech., 577 F.3d 989, 997 (9th Cir. 2009) (finding a plaintiff’s
statements definitively and specifically related to shareholder fraud even where plaintiff
did not use the word “fraud” and only “may have” used the term “Sarbanes-Oxley” or
“SOX”). In addition, an employee need not demonstrate that a violation of law actually
occurred. See Guyden v. Aetna, Inc., 544 F.3d 376, 384 (2d Cir. 2008). Rather, it is

9

sufficient that an employee demonstrates that “she reasonably believed that the
defendant’s conduct violated federal law.” See id. (internal quotations omitted). Barker
asserts that she advised multiple people at UBS, including Sinni, Hees, Ingrilli, the Head
of Compliance, and members of Equities and Operational Risk of her concerns
regarding the firm’s inaccurate and misleading reporting of its exchange assets. See
Mem. Opp. Mot. at 19; Barker Aff. ¶¶ 43, 57, 61. In addition, Barker testified that she
“had no idea” whether someone had intentionally hidden the exchange seat shares.
See Levin Aff., Ex. M at 226–27. Taking this evidence in the light most favorable to the
plaintiff, a reasonable jury could conclude that Barker had a subjectively reasonable
belief that UBS had violated the law by reporting inaccurate information to its
shareholders and adequately conveyed those concerns to various members of
management. See Van Asdale, 577 F.3d at 1002 (“Requiring an employee to
essentially prove the existence of fraud before suggesting the need for an investigation
would hardly be consistent with Congress’s goal of encouraging disclosure.”).
Next, UBS argues that it was not objectively reasonable for Barker to believe that
UBS had violated the law because, given her education and training, she should have
known that the discrepancies discovered through the reconciliation project were not
material to UBS’s shareholders. See Mem. Supp. Mot. at 23–25. Section 1514A does
not contain “an independent materiality requirement.” See Welch, 536 F.3d at 276.
Consequently, Barker may satisfy this requirement so long as she demonstrates that
she held an objectively reasonable belief that the conduct she complained of was in

10

violation of federal law.3 See Day, 555 F.3d at 55 (“[Section] 1514A requires . . . an
objectively reasonable belief that conduct complained of constituted a violation of the
relevant law set out in the statute.”); Zinn v. Am. Commercial Lines Inc., ARB Case No.
10-029 (Mar. 28, 2012) at 9 (“[Plaintiff] need not describe an actual violation of law, as
an employee’s whistleblower communication is protected where based on a reasonable,
but mistaken, belief that the employer’s conduct constitutes a violation of one of the six
enumerated categories of law under Section 806.”); Klopfenstein v. PCC Flow Techs.
Holdings, Inc., ARB Case No. 04-149 (May 31, 2006) at 12 (“SOX protection applies to
the provision of information regarding not just fraud, but also “violation of . . . any rule or
regulation of the Securities and Exchange Commission.”).
Barker points out that she only obtained her undergraduate degree in Business
and Technology the day before she was terminated at UBS. Barker Depo. at 376. In
completing her degree, she took entry level accounting classes and a law class that
“may have” included ethics. See id. at 379. In addition, she took an internal compliance
course at UBS regarding “all kinds of risk” that she completed in a couple of hours. See
id. at 380. Finally, Barker asserts that, while she was familiar with a particular sub-part
of UBS’s balance sheet, she was not familiar with UBS’s overall balance sheet. See
Barker Aff. ¶ 8. While Barker’s education and background may indicate some familiarity
with securities regulation, it does not indicate any particular expertise which would make
it objectively unreasonable for Barker to believe that UBS’s failure to properly disclose
3

In her Complaint, Barker alleges that she believed “UBS’s conduct constituted a violation of
federal securities law, including Rule 10(b)(5).” See Compl. ¶ 83. Consequently, UBS’s assertion that
Barker’s Complaint was limited to Rule 10(b)(5) only and that she now seeks to “change her theory of the
case” appears unfounded. See Reply at 9. Further, even if Barker had solely alleged a violation of Rule
10(b)(5), she is not required to prove the elements of a 10(b)(5) violation in order to state a prima facie
cause of action under Section 1514A. See Sylvester, ARB Case No. 07-123 at 22 (“[A] complainant can
engage in protected activity under Section 806 even if he or she fails to allege or prove materiality,
scienter, reliance, economic loss, or loss causation”).

11

its exchange assets constituted a violation of securities regulation. See, e.g., Harkness
v. C-Bass Diamond, LLC, 2010 WL 997101, at *6 (D. Md. Mar. 16, 2010) (granting
summary judgment where plaintiff, a lawyer with twenty years of experience, “had the
resources available to her,” but failed to conduct any “legal research to ascertain the
applicability of various laws”). Taking the evidence regarding Barker’s education and
experience in the light most favorable to the plaintiff, a reasonable jury could find that
Barker held an objectively reasonable belief that UBS’s had violated one of the laws
specified in section 1514A.
2.

Employer Knew of Protected Activity

UBS does not appear to challenge Barker’s ability to demonstrate that it was
aware of Barker’s protected activity. See Mem. Supp. Mot. at 26. There is ample
evidence in the record of Barker’s discussions with Sinni, Hees, and Ingrilli regarding
the reconciliation project and her concerns regarding the exchange assets. See L.R.
56(a)(2) Stmt. ¶¶ 105–07. Such discussions were sufficient to alert UBS to Barker’s
concerns. See Fraser v. Fiduciary Trust Co. Int’l, 2009 WL 2601389, at *5 (S.D.N.Y.
Aug. 25, 2009) (“A whistleblower must state particular concerns which, at the very least,
reasonably identify a respondent’s conduct that the complainant believes to be illegal.”)
(quoting Lerbs v. Buca Di Beppo, Inc., 2004 WL 5030304 (U.S.D.O.L. June 15, 2004)).
A reasonable jury could find that UBS knew of Barker’s activity.
3.

Unfavorable Personnel Action

Barker suffered an unfavorable personnel action when she was terminated on
May 6, 2008. See Collins v. Beazer Homes USA, Inc., 334 F. Supp. 2d 1365, 1378
(N.D.Ga. 2004).

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4.

Whether Protected Activity was a Contributing Factor

Finally, Barker must demonstrate that “circumstances exist to suggest that the
protected activity was a contributing factor to the unfavorable action.”4 See Vodopia,
398 Fed. Appx. at 662. “A contributing factor is any factor, which alone or in
combination with other factors, tends to affect in any way the outcome of the decision.”
See Klopfenstein, ARB Case No. 04-149, at *13. A plaintiff need not prove that her
protected activity was the primary motivating factor in her termination, or that the
employer’s articulated reason was pretext in order to prevail. See id.; Halloum v. Intel
Corp., ARB Case No. 04-068, at *6 (Jan. 31, 2006).
UBS first argues that Barker cannot demonstrate that any protected activity was
a contributing factor in her termination because Ingrilli did not have knowledge of
Barker’s protected activity and made the decision to terminate Barker’s employment
without any involvement from Hees. See Mem. Supp. Mot. at 26–27. Barker asserts
that she met with Ingrilli on October 19, 2007, and informed him of the meeting where
Hees discussed how to “spin” Barker’s findings, as well as Hees’s instruction to her not
to raise her concerns regarding the reconciliation project with Ingrilli directly. See

4

At oral argument, UBS asserted that, because Barker was separated as part of a reduction in
force, she must meet a higher burden of proof by pointing to an individual who should have been
terminated instead of her. This argument appears to be based on Sixth Circuit precedent with regard to
age discrimination claims pursuant to the Age Discrimination in Employment Act (“ADEA”). See Reply at
2 (citing Schoonmaker v. Spartan Graphics Leasing, LLC, 595 F.3d 261, 265 (6th Cir. 2010)). Under
Sixth Circuit precedent, where an employee who was terminated during a reduction in force pursues an
ADEA claim, the employee must show “additional direct, circumstantial, or statistical evidence tending to
indicate that the employer singled out [the plaintiff] for discharge for impermissible reasons.” See Scott v.
Goodyear Tire & Rubber Co., 160 F.3d 1121, 1126 (6th Cir. 1998) (internal quotation omitted). The court
does not read this caselaw to require that a plaintiff specifically point to a co-worker who should have
been terminated instead of her. Further, it does not appear that the Second Circuit has even adopted this
requirement with regard to ADEA claims. See Duncan v. New York City Transit Auth., 45 Fed. Appx. 14,
15–16 (2d Cir. 2002). Finally, defendants have not cited the court to any cases applying this standard to
a SOX whistleblower claim. Accordingly, the court does not find Barker’s inability to identify an employee
in her group who should have been included in the reduction in force instead of her to be fatal to her
case. See L.R. 56(a)(1) Stmt. ¶ 20; L.R. 56(a)(2) Stmt. ¶ 20.

13

Barker Aff. ¶ 61. In addition, Barker asserts that she told Ingrilli that she had expected
Hees to report her findings from the reconciliation project to senior management and, if
he had not done so, she felt obligated to do so. See id. Further, Barker points to
evidence from which a jury could conclude that Ingrilli consulted with Hees prior to
deciding to terminate Barker’s employment. See Shore Aff., Ex. C at 100.5 On the
basis of this evidence, a jury could reasonably conclude that Ingrilli was aware of
Barker’s protected activity, and it was a contributing factor in his decision to terminate
her employment.
Next, UBS argues that the passage of time between Barker’s protected activity
and the termination of her employment negates any inference of causation. Mem.
Supp. Mot. at 28–29. While causation may be inferred from timing alone where an
adverse employment action closely follows the exercise of protective activity, the
Second Circuit has declined to “define the outer limits beyond which a temporal
relationship is too attenuated to establish a causal relationship.” See Gorman-Bakos v.
Cornell Coop of Schenectady Cnty., 252 F.3d 545, 554 (2d Cir. 2001). Generally,
where a plaintiff relies solely on temporal proximity to establish causation, the amount of
time between the employer’s knowledge of protected activity and an adverse
employment action must be “very close.” See Clark Cnty Sch. Dist. v. Breeden, 532
U.S. 268, 273 (2001) (internal quotation omitted); Garrett v. Garden City Hotel, Inc.,
2007 WL 1174891, at *21 (E.D.N.Y. Apr. 19, 2007) (noting that “in the absence of other
evidence of defendant’s retaliatory motive [a time lapse of two and a half months]
precludes a finding of a causal connection between the protected activity and the
5

UBS points out in its Reply that Milgram later clarified his answer and stated that Ingrilli did not
receive input from anyone else in connection with his decision to terminate Barker. See Levin Decl. Ex. L
at 114. This discrepancy raises an issue of fact for the jury.

14

adverse employment action”). Where other factual circumstances support the
conclusion that a plaintiff’s protected activity was a contributing factor in her termination,
however, a reasonably jury can find this prong to be satisfied. See Gorman-Bakos, 252
F.3d at 555 (“We are particularly confident that five months is not too long to support
such an allegation [of causal connection] where plaintiffs have provided evidence of
exercises of free speech and subsequent retaliatory actions occurring between
December 1997 and April 1998.”); Mahony, 2007 WL 805813, at *6 (“A reasonable juror
could find that the string of retaliatory acts culminating in Plaintiff’s termination is
evidence that Plaintiff’s protected activity was a contributing factor in the adverse
employment action.”); see also Grant v. Bethlehem Steel Corp., 622 F.2d 43, 45–46 (2d
Cir. 1980) (holding that plaintiff has established a causal connection where an eight
month gap existed between his filing an EEOC complaint and retaliatory action).
Barker testified that two months after she met with Ingrilli regarding the
reconciliation project, Hees removed her from consideration for promotion.6 See Levin
Decl., Ex. S. In addition, Barker states that, following her 2007 performance review
which she considered to be disappointing, Milgram told her that Hees had sought to
give her an even lower rating, but Milgram had told him that a lower rating was
inappropriate. See Barker Aff. ¶ 69. In addition, Barker contends that Hees overlooked
her for assignments and stopped interacting with her. Id. at ¶ 73. Finally, on May 6,
2008, Barker was fired. Id. at ¶ 76. Taking this evidence in the light most favorable to
the plaintiff, and considering that Barker need only show that her protected activity was
6

At oral argument, UBS argued that Hees’s decision to remove Barker from consideration for a
promotion does not tend to show causation because Hees initially recommended Barker for a promotion
in August 2007, after he became aware of her work on the reconciliation project. The record, however, is
ambiguous with regard to when Hees became fully aware of Barker’s work on the reconciliation project.
See Barker Aff. ¶ 61.

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a factor which tended to affect Ingrilli’s decision, a reasonable jury could determine that,
by demonstrating a string of actions which began in relatively close proximity to Barker’s
protected activity and culminated with her termination, Barker has satisfied this
causation requirement.
B.

Burden Shifting Analysis

Though Barker sets forth sufficient evidence for a reasonable jury to conclude
that she has met her burden of establishing a prima facie case, UBS may still obtain
summary judgment if it shows by clear and convincing evidence that it would have
terminated Barker even absent any protected activity. See 18 U.S.C. § 1514A(b)(2)(A);
Van Asdale, 577 F.3d at 1004. UBS presents convincing evidence that the firm was
experiencing extreme financial hardship at the time Barker’s employment was
terminated, and a reduction in force was necessary. See L.R. 56(a)(1) Stmt. ¶¶ 1–9.
However, such hardship does not explain why Barker in particular was selected for
termination.
UBS first points to Barker’s performance evaluations and deposition testimony
from various supervisors as evidence of her “performance and interpersonal issues.”
See L.R. 56(a)(1) Stmt. ¶ 32–47. While these performance evaluations do indicate
some performance issues, many also describe Barker in complimentary terms. See,
e.g., Levin Decl., Ex. O at 11–14 (indicating that Barker “had a successful year,” “builds
strong relationships” with outside groups, “showed a great deal of [patience] and
endurance,” “seems to enjoy what she does,” and is “highly motivated”).
UBS next contends that Ingrilli chose Barker in particular because he considered
her to be one of the lowest performers in his group. Mem. Supp. Mot. at 30. UBS

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argues that Ingrilli was displeased with Barker’s work because he had observed
inaccuracies in her work product and deficiencies in her presentations. See L.R.
56(a)(1) Stmt. ¶ 16. Barker asserts that she had not presented any work product to
Ingrilli prior to Hees’s instruction to her not to approach Ingrilli directly with any of her
work, and that the only error Ingrilli ever pointed out to her was one numerical error.
See Barker Aff. ¶ 51. Further, Ingrilli acknowledged that he could not attribute any
specific error in the reconciliation project work product to Barker individually. See L.R.
56(a)(2) Stmt. ¶ 90; Shore Decl., Ex. E at 65.
Taking the evidence in the light most favorable to the plaintiff, such evidence
does not provide clear and convincing evidence that Barker would have been
terminated regardless of any protected activity. Consequently, summary judgment is
inappropriate.7
V.

CONCLUSION
For the reasons set forth above, Defendants’ Motion for Summary Judgment

(Doc. No. 53) is denied.
SO ORDERED.
Dated at Bridgeport, Connecticut this 22nd day of May, 2012.

/s/ Janet C. Hall
Janet C. Hall
United States District Judge

7

As the court denies summary judgment, this case is ready for trial. At oral argument,
defendants asserted that this case would be tried before the court rather than a jury. It is the court’s
understanding that Barker is entitled to a jury trial, and has made a jury demand. See 18 U.S.C. §
1514A(b)(2)(E); Doc. No. 1.

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