Yang v. Navigators Group, Inc.

Filing 93

OPINION AND ORDER re: 84 MOTION for Summary Judgment . filed by Navigators Group, Inc. For the foregoing reasons, Defendant's motion for summary judgment is GRANTED. The Court respectfully directs the Clerk to terminate the motion at ECF No. 84 and to close the case. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 1/4/2016) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

---------------------------------------------------------------){
JENNIFER YANG,
Plaintiff,

13-cv-2073 (NSR)
OPINION AND ORDER

-againstNAVIGATORS GROUP, INC.,
Defendant.

---------------------------------------------------------------){
NELSONS. ROMAN, United States District Judge:
Before the Court is Defendant Navigators Group, Inc.'s ("Defendant") motion for
summary judgment on Plaintiff Jennifer Yang's ("Plaintiff') claims for violations of the antiretaliation provision of the Sarbanes-Oxley Act ("SO){''), 18 U.S.C. § 1514A, and the
whistleblower protection provision of the Dodd-Frank Act ("DFA"), 15 U.S.C. § 78u-6(h)(l).
For the following reasons, Defendant's motion is GRANTED.

BACKGROUND
The Court has reviewed the parties' Local Civil Rule 56.1 statements, declarations, and
accompanying exhibits. The facts as presented in the parties' submissions, construed liberally
and in the light most favorable to Plaintiff, largely track the facts as stated by the Court in its
Memorandum Opinion and Order issued in this matter in connection with Defendant's Rule
12(c) motion for judgment on the pleadings. (Docket No. 56.) The Court therefore assumes the
parties' general familiarity with the pertinent facts and procedural history of this matter, but
highlights certain facts relevant to the resolution ofthis motion below.
Plaintiff was hired by Defendant as its Chief Risk Officer and began work on June 25,
2012. (Pl.'s Opp. to Def.'s Local Rule 56.1 Statement of Undisputed Material Facts ("Pl.'s

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56.1”) ¶ 4.) Prior to joining Defendant, Plaintiff worked at AIG for over five years. (Id. ¶ 1.)
Plaintiff reported directly to Defendant’s Chief Financial Officer (“CFO”), Ciro DeFalco.
At multiple times during her employment, Plaintiff contends that she alerted DeFalco of
certain misrepresentations concerning Defendant’s risk models and risk sub-committees, which
were illegal and constituted shareholder fraud. (Declaration of Jennifer Yang (“Yang Decl.”) ¶
40(c).) Defendant asserts that Plaintiff never stated in any email, memorandum, or document
that she thought Defendant had engaged in anything “illegal,” including “fraud” or “shareholder
fraud.” (Def.’s 56.1 ¶¶ 10-12.) Plaintiff admits that she never stated Defendant did anything
“illegal,” but asserts that she did state Defendant engaged in “fraud” or “shareholder fraud.”
(Pl.’s 56.1 ¶¶ 10-12.) Plaintiff cites to a number of documents as evidence that she raised issues
concerning shareholder fraud to DeFalco. (Yang Decl. ¶ 40(c) (citing Declaration of Daniel J.
Kaiser (“Kaiser Decl.”), Exs. 1, 4, 8, 22, and Declaration of A. Michael Weber (“Weber Decl.”),
Exs. 2, 7.))
Plaintiff also testified that she emailed Defendant’s Chief Executive Officer (“CEO”)
Stanley Galanski on October 25, 2012, roughly one week prior to her termination, because she
was “‘so concerned’ that ‘something untrue’ was being presented to [Defendant’s] Board of
Directors and the rating agencies, thereby ‘constitut[ing] shareholder fraud.’” (Pl.’s 56.1 ¶ 18
(citing Weber Decl., Ex. 1, at 202:16-21.))
Finally, Plaintiff also asserts that she alerted Defendant’s General Counsel, Bruce Byrnes,
that, among other issues, Defendant’s SEC filings did not accurately represent Defendant’s risk
management programs and its risk sub-committees. (Yang Decl. ¶ 26.)
STANDARD ON A MOTION FOR SUMMARY JUDGMENT
Rule 56 of the Federal Rules of Civil Procedure provides: “The court shall grant
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summary judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving
party bears the initial burden of pointing to evidence in the record, “including depositions,
documents [and] affidavits or declarations,” id. at 56(c)(1)(A), “which it believes demonstrate[s]
the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). The moving party may also support an assertion that there is no genuine dispute by
“showing . . . that [the] adverse party cannot produce admissible evidence to support the fact.”
Fed. R. Civ. P. 56(c)(1)(B). If the moving party fulfills its preliminary burden, the onus shifts to
the non-moving party to identify “specific facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal citation and quotation marks
omitted). A genuine dispute of material fact exists when “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Id. at 248; accord Benn v. Kissane, 510 F.
App’x 34, 36 (2d Cir. 2013) (summary order). Courts must “constru[e] the evidence in the light
most favorable to the non-moving party and draw[ ] all reasonable inferences in its favor.”
Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (internal
quotation marks omitted). In reviewing the record, “the judge’s function is not himself to weigh
the evidence and determine the truth of the matter,” nor is it to determine a witness’s credibility.
Anderson, 477 U.S. at 249. Rather, “[t]he inquiry performed is the threshold inquiry of
determining whether there is the need for a trial.” Id. at 250.
Summary judgment should be granted when a party “fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex, 477 U.S. at 322. The party asserting that a fact is
genuinely disputed must support their assertion by “citing to particular parts of materials in the
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record” or “showing that the materials cited do not establish the absence . . . of a genuine
dispute.” Fed. R. Civ. P. 56(c)(1). “Statements that are devoid of any specifics, but replete with
conclusions, are insufficient to defeat a properly supported motion for summary judgment.”
Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999). The nonmoving party “may not
rely on conclusory allegations or unsubstantiated speculation.” FDIC v. Great Am. Ins. Co., 607
F.3d 288, 292 (2d Cir. 2010) (internal citation and quotation marks omitted). Moreover, “[a nonmoving party’s] self-serving statement, without direct or circumstantial evidence to support the
charge, is insufficient to defeat a motion for summary judgment.” Fincher v. Depository Trust &
Clearing Corp., No. 06 Cv. 9959 (WHP), 2008 WL 4308126, at *3 (S.D.N.Y. Sept. 17, 2008)
aff’d, 604 F.3d 712 (2d Cir. 2010) (citing Gonzales v. Beth Israel Med. Ctr., 262 F. Supp. 2d
342, 353 (S.D.N.Y. 2003)).
DISCUSSION
As discussed above, Plaintiff asserts whistleblower claims under SOX and the DFA
arising out her termination for purportedly complaining of shareholder fraud and violations of
SEC rules and regulations. Although these claims arise out of the same set of operative facts, the
Court will address each claim in turn.
1. Claims Under SOX
SOX prohibits publicly traded companies from, inter alia, discharging an employee:
because of any lawful act done by the employee—
(1) to provide 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 [SEC], or any provision of Federal law relating to
fraud against shareholders, when the information . . . is provided to . . .
...
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(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) . . . .
18 U.S.C. § 1514A(a)(1)(C) (emphasis added). Plaintiff bears the initial burden of establishing a
prima facie case under § 1514A, Leshinsky v. Telvent GIT, S.A., 942 F. Supp. 2d 432, 441
(S.D.N.Y. 2013) (quoting Day v. Staples, Inc., 555 F.3d 42, 53 (1st Cir. 2009), and must prove
by a preponderance of the evidence that: “(1) she engaged in protected activity; (2) the employer
knew that she engaged in the protected activity; (3) she suffered an unfavorable personnel action;
and (4) the protected activity was a contributing factor in the unfavorable action.” Bechtel v.
Admin. Review Bd., 710 F.3d 443, 447 (2d Cir. 2013) (quoting Harp v. Charter Commc’ns, Inc.,
558 F.3d 722, 723 (7th Cir. 2009)) (internal quotation marks omitted); accord 49 U.S.C.
§ 42121(b), made applicable by 18 U.S.C. § 1514A(b)(2); 29 C.F.R. 1980.104(e)(2). “To
demonstrate that a plaintiff engaged in a protected activity, a plaintiff must show that [s]he had
both a subjective belief and an objectively reasonable belief that the conduct [s]he complained of
constituted a violation of relevant law.” Leshinsky, 942 F. Supp. 2d at 444 (internal quotation
marks and citations omitted).
Once Plaintiff establishes her prima facie case, the burden shifts to Defendant, which
may “prevail[] only if it can prove by clear and convincing evidence that it would have taken the
same unfavorable personnel action in the absence of that protected behavior.” Sharkey v. J.P.
Morgan Chase & Co., No. 10 CIV. 3824, 2015 WL 5920019, at *10 (S.D.N.Y. Oct. 9, 2015)
(internal quotation marks omitted). At the summary judgment stage:
a plaintiff need only demonstrate that a rational factfinder could determine that [the]
Plaintiff has made [her] prima facie case. Assuming a plaintiff does so, summary
judgment is appropriate only when, construing all of the facts in the employee’s favor,
there is no genuine dispute that the record clearly and convincingly demonstrates that the
adverse action would have been taken in the absence of protected behavior. Thus, the
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defendant’s burden under Section 806 [SOX’s whistleblower section] is notably more
than under other federal employee protection statutes, thereby making summary
judgment against plaintiffs in Sarbanes–Oxley retaliation cases a more difficult
proposition.
Id., at *11 (quoting Leshinsky, 942 F. Supp. 2d at 441) (emphasis in original). Although Plaintiff
pleaded enough facts to survive Defendant’s motion for judgment on the pleadings, the Court
must now determine, following its review of the evidence in this case, whether a rational fact
finder could determine that Plaintiff established her prima facie case.
a. Allegations Concerning Investment Risk Models
Excluding Plaintiff’s own deposition testimony and statements made in her own
Declaration, Plaintiff cites approximately fourteen documents purporting to show that Plaintiff
complained to her superiors about misrepresentations of Defendant’s “market risk without proper
disclosure,” which was “illegal and constituted shareholder[] fraud.” (See Pl.’s Opp. at 14.) A
closer examination of Plaintiff’s purported evidence of her complaints yields a very different
picture.
Of the fourteen documents proffered by Plaintiff, only four appear to contain statements
actually made by or attributed to Plaintiff. (Id., at Kaiser Decl., Exs. 1, 22, and Weber Decl.,
Exs. 2, 7.) Many of the documents consist of presentations or reports made before Plaintiff was
employed by Defendant and therefore cannot demonstrate that Plaintiff made the necessary
complaints to her superiors. (See, e.g., id. at Kaiser Decl. Exs. 7, 12, 13.) And the documents
that contain Plaintiff’s statements to her superiors, even construed liberally and in her favor, fail
to raise any indication, let alone explicitly state, that Plaintiff was complaining of any violations
enumerated in SOX – mail fraud, wire fraud, bank fraud, securities fraud, any rule or regulation
of the SEC, or any provision of Federal law relating to fraud against shareholders.
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For example, Plaintiff cites to Exhibit 1 of the Kaiser Declaration, which contains
Plaintiff’s review of one of Defendant’s risk analyses. Although Plaintiff raised a number of
concerns regarding the usefulness of the risk analysis, including its apparent limitations in
modeling certain types of investments, nowhere in Plaintiff’s email did she state, implicitly or
explicitly, that the analysis violated any of the laws, rules, or regulations enumerated in SOX.
Nor did Plaintiff indicate that Defendant’s conduct was illegal in any way, without regard to the
enumerated violations in SOX. Even construed liberally, on their face, Plaintiff’s statements fail
to demonstrate a subjective belief that Defendant’s conduct was illegal. At best, Plaintiff’s
statements match her conclusion in her email – that the risk analysis did not consist of “the
stressed scenarios that can provide [the] right picture [of] what would happen to our investment
portfolio.” (Kaiser Decl., Ex. 1, at NAV0057473.)
Similarly, in Exhibit 22 of the Kaiser Declaration, Plaintiff again repeated her concerns
about the risk analysis, but failed to imply or explicitly state that Defendant did anything illegal.
(Id., Ex. 22 (“Reviewed VaR analysis from Diane Coogan. Need to revise the analysis to make it
more accurate. Follow up meeting had[sic] been scheduled.”)
Even Plaintiff’s email of October 25, 2012 – which she testified that she sent to
Defendant’s CEO and CFO because she was “‘so concerned’ that ‘something untrue’ was being
presented to [Defendant’s] Board of Directors and the rating agencies, thereby ‘constitut[ing]
shareholder fraud’” (Pl.’s 56.1 ¶ 18) (citing Weber Decl., Ex. 1, at 202:16-21) – contains
absolutely no indication that Plaintiff had any concerns related to shareholder fraud. (See Weber
Decl., Ex. 12.) In this email, which summarized Plaintiff’s thoughts on a risk analysis of
Defendant’s investment portfolio, Plaintiff explained that she needed to “clarify some of the
results,” which “supprised[sic]” her; she then included a number of questions for the CEO and
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CFO related to understanding the reports included in the analysis. (Id.) Even construed liberally
and in Plaintiff’s favor, there is simply no reading of this email that would permit a rational fact
finder to determine that Plaintiff told Defendant’s CEO and CFO that anything untrue was being
communicated to Defendant’s Board of Directors or the rating agencies, let alone that it
constituted shareholder fraud.
As late as October 31, 2012, just days before her termination, Plaintiff emailed
Defendant’s CFO to explain that certain of Defendant’s risk models had “limitations on valuing
some asset classes.” (Weber Decl., Ex. 2, at JY 000099.) Plaintiff noted that Defendant’s risk
management framework needed “some improvements” and had certain “gaps,” (id. at JY
000099-101), but again Plaintiff failed to raise any complaints related to the enumerated
violations in SOX, and instead concluded that “the preliminary results confirmed that the risk of
[the] investment portfolio is well below [Defendant’s] current risk appetite for the investment
risk.” (Id. at JY 000102.)
After a review of the proffered evidence, construed liberally and in Plaintiff’s favor, at
best Plaintiff has shown that she believed Defendant’s risk models were not wholly adequate to
monitor its investment portfolio. But such a belief on its own is insufficient to establish that
Plaintiff engaged in protected activity and that Defendant knew she engaged in such activity.
With the exception of Plaintiff’s own self-serving testimony, there is not a single piece of
evidence that corroborates her allegation that she complained to her superiors about
misrepresentations of Defendant’s “market risk without proper disclosure,” which was “illegal
and constituted shareholder[] fraud.” (See Pl.’s Opp. at 14.) Instead, the evidence presented
here, relied on by both Plaintiff and Defendant in support of their respective arguments, shows at

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most that Plaintiff believed there were certain limitations and gaps in Defendant’s risk models,
but nothing that comes close to alleging shareholder fraud.
It is well settled that at the summary judgment stage, after a defendant has shown that a
plaintiff cannot produce admissible evidence to support its claim, a plaintiff is required to proffer
additional evidence showing there is a genuine issue for trial. Plaintiff has failed to do so here.
Accordingly, Defendant’s motion for summary judgment is granted on Plaintiff’s SOX claim
arising from her purported complaints concerning Defendant’s investment risk models.
b.

Allegations Concerning Risk Sub-Committees

Plaintiff’s second alleged complaint under SOX – that there were misrepresentations
made related to the nature and existence of Defendant’s risk management protocols, and
specifically that certain risk management committees failed to meet – is significantly less
cumbersome for the Court to analyze. Construing the evidence in the light most favorable to
Plaintiff, it is clear that a rational factfinder could determine that Plaintiff satisfied the first three
elements of her prima facie case with respect to this theory.
Plaintiff engaged in protected activity when she told Bruce Byrnes, Defendant’s General
Counsel, that Defendant was mispresenting how often certain risk sub-committees met in its SEC
proxy statement, thus implicating, at a minimum, potential violations of SEC rules and
regulations. 1 Defendant concedes that Plaintiff raised an issue with respect to the subcommittees, (Def.’s Mot. at 3-4), although it disputes that the complaint concerned allegations of
shareholder fraud. (Id. at 4.) As a result of Plaintiff’s complaint, Byrnes checked the
representation in the proxy statement and purportedly confirmed it was not a misrepresentation.
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The Court finds that Plaintiff’s other purported complaints concerning the risk sub-committees and Defendant’s
risk management framework, other than the complaint made to Byrnes discussed here, do not establish that Plaintiff
engaged in protected activity.

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Defendant also asserts that the sub-committees in fact met during Plaintiff’s tenure with
Defendant, making clear that there was no misrepresentation in the proxy statement.
Nevertheless, the simple fact remains that Plaintiff raised a concern related to the veracity of
Defendant’s SEC proxy statement and Defendant reviewed its filings to confirm that the
statement did not include any misrepresentations. Plaintiff’s complaint concerned Byrnes
enough, despite Defendant’s apparent contentions to the contrary, to spur him to review
Defendant’s filing. There is thus no dispute that Plaintiff has provided sufficient evidence for a
rational fact finder to determine that Plaintiff engaged in a protected activity and that Defendant
knew Plaintiff engaged in such an activity, satisfying the first two prongs her prima facie case.
Plaintiff was terminated two weeks after her complaint, purportedly for performance reasons,
which constitutes an unfavorable action and satisfies the third prong of her prima facie case.
The final question for the Court is whether the protected activity was a contributing factor
in Plaintiff’s termination. Plaintiff contends that the record lacks any evidence of Plaintiff’s
inadequate job performance; that the temporal proximity of Plaintiff’s complaint and her
termination is evidence that her complaint was at least a contributing factor to her termination;
and that there is substantial evidence of “pretext” for Plaintiff’s termination. (Pl.’s Opp. at 1625.) Defendant argues that Plaintiff has presented absolutely no evidence that her complaints
contributed, in whole or in part, to her termination, and that her termination was due to her poor
job performance, particularly her purportedly terrible October 26, 2012 presentation. (Def.’s
Reply at 2-3, 6-7.) Following a thorough review of the evidence submitted to the Court by both
parties, there is simply nothing in the record to support the notion that Plaintiff’s complaint to
Byrnes contributed directly to her termination. Absent her own testimony, none of the emails,
documents, and testimony of other individuals cited by Plaintiff provides a basis for the Court to
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infer, let alone a rational fact finder to decide, that Defendant terminated Plaintiff’s employment
as a result of her complaint to Byrnes. This leaves only Plaintiff’s argument based on temporal
proximity for the Court to consider.
“Temporal proximity is an important, though not necessarily determinative, piece of
evidence concerning the motivating factors behind terminating an employee.” Sharkey, 2015
WL 5920019, at *13 (quoting Leshinsky, 942 F. Supp. 2d at 450. When relying solely on
temporal proximity to establish causation, the proximity of the two incidents “must be very
close.” Id. (quoting Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)). Periods
ranging from twelve days to one month between whistleblowing activity and an unfavorable
action have been found to be “very close” in time. Id. Temporal proximity does not, however,
“compel a finding of causation, particularly when there is a legitimate intervening basis for the
adverse action.” Fraser v. Fiduciary Trust Co. Int’l, No. 04 CIV. 6958 (PAC), 2009 WL
2601389, at *6 (S.D.N.Y. Aug. 25, 2009) aff'd, 396 F. App’x 734 (2d Cir. 2010) (quoting Tice v.
Bristol–Myers Squibb Co., 2006–SOX–20, 2006 WL 3246825, at *20 (U.S.D.O.L. Apr. 26,
2006)).
The Southern District of New York recently dealt with the issue of temporal proximity in
Sharkey v. J.P. Morgan Chase & Co., 2015 WL 5920019 (S.D.N.Y. Oct. 9, 2015). In Sharkey,
Judge Sweet found that although the plaintiff had engaged in protected activity – raising issues to
her superiors concerning a client’s potential fraud and money laundering – her termination for
lying to a client provided “a legitimate intervening basis for the adverse action sufficient to
defeat her claim under SOX.” Id. at *14 (quoting Fraser, 2009 WL 2601389, at *6). Plaintiff’s
failure in Sharkey to proffer any contrary evidence indicating that her complaint was a

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contributing factor to her termination required the Court to grant summary judgment to the
defendant.
Here, Plaintiff’s termination occurred less than two weeks after her complaint to Byrnes
about the risk sub-committees, raising an inference that her complaint contributed, at least in
part, to her termination. Nevertheless, Plaintiff’s purportedly terrible presentation occurred in
the intervening time between her complaint and her termination, weakening the inference that
may be drawn from Plaintiff’s complaint to Byrnes. To overcome this weakened inference of
causation, Plaintiff needed to proffer evidence linking her termination to her complaint. The
other evidence she proffered – including that she was not afforded progressive discipline; that the
reason for her firing was her failure to fit into Defendant’s culture; and that she raised the same
risk sub-committee issues to DeFalco 2 – simply does not connect her complaint to Byrnes to her
termination in any way. At best, it raises the absence of certain pieces of evidence, but Plaintiff
is required to affirmatively connect her complaint, by inference or otherwise, to her termination.
She has plainly failed to do so here.
The evidence presented by Defendant makes clear that Plaintiff was fired for her
performance following her October 26, 2012 presentation to Defendant’s senior executive team.
DeFalco testified that “the meeting was an absolute disaster,” (Weber Decl., Ex. 3, at 73:7-8),
and that there was consensus among the senior executive team that Plaintiff should be fired. (Id.,
at 77:8-25.) Defendant’s CEO, Stanley Galanski, testified to the same. (Weber Decl., Ex. 18, at

2
Even the statements Plaintiff made to DeFalco about the risk sub-committees fail to state what Plaintiff
argues they do – Plaintiff merely states that she was rewriting the charters for certain committees and that certain
committee meetings were canceled; she does not state or even imply that there were any violations of any law, rule,
or regulation enumerated in SOX. (See Pl.’s Opp. at 21 (citing Kaiser Decl. 24 and Weber Decl. 7).) Nor on the
face of the documents can the Court find that a rational fact finder could conclude that Plaintiff subjectively believed
that anything unlawful was occurring. (Id.)

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¶¶ 4-5.) These statements are corroborated by Galanksi’s memorandum to Terry Deeks,
Defendant’s founder, Board member, and principal shareholder, just three days after the meeting
(Weber Decl., Ex. 22, at NAV0092854 (Plaintiff’s “performance has been well below
expectations and it appears we may need to make a change in this role . . . .), and Deeks’
response that Plaintiff should be terminated. (Weber Decl., Ex. 23, at NAV0092876.)
Conspicuously absent from the evidence proffered by both parties in this matter is any
indication that Plaintiff was terminated in whole or in part for her complaint to Byrnes about the
risk sub-committees. There is simply nothing that Plaintiff presents that refutes DeFalco’s or
Galanski’s purported reasons for her termination. Accordingly, Plaintiff has failed to establish a
prima facie case of retaliation for her complaint based on purported misrepresentations in
Defendant’s SEC proxy statement.
2. Claims Under The DFA
The DFA provides that “[n]o employer may discharge, demote, suspend, threaten, harass,
directly or indirectly, or in any other manner discriminate against, a whistleblower in the terms
and conditions of employment because of any lawful act done by the whistleblower—
(i) in providing information to the Commission in accordance with this section;
(ii) in initiating, testifying in, or assisting in any investigation or judicial or administrative
action of the Commission based upon or related to such information; or
(iii) in making disclosures that are required or protected under the Sarbanes–Oxley Act of
2002 (15 U.S.C. 7201 et seq.), the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.),
including section 10A(m) of such Act (15 U.S.C. 78f(m)), section 1513(e) of title 18, United
States Code, and any other law, rule, or regulation subject to the jurisdiction of the
Commission.
15 U.S.C. § 78u–6(h)(1)(A). “In order to prevail on a DFA retaliation claim, a plaintiff must
show: (1) [s]he reported an alleged violation to the SEC or another entity, or internally to
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management; (2) [s]he was retaliated against for reporting the alleged violation; (3) the
disclosure of the alleged violation was made pursuant to a rule, law, or regulation subject to the
SEC’s jurisdiction; and, (4) the disclosure was required or protected by that rule, law, or
regulation within the SEC’s jurisdiction.” Genberg v. Porter, 935 F. Supp. 2d 1094, 1105 (D.
Colo. 2013) aff’d in part, appeal dismissed in part on other grounds, 566 F. App’x 719 (10th
Cir. 2014) (citing Nollner v. Southern Baptist Convention, Inc., 852 F. Supp. 2d 986, 995 (M.D.
Tenn. 2012).
Although the elements of a whistleblower retaliation claim brought under the DFA are
slightly different from a whistleblower retaliation claim brought under SOX, the facts of this
case require the Court to reach the same result on both claims. As described in detail above,
Plaintiff failed to report any alleged violations concerning Defendant’s investment risk models to
the SEC or internally to Defendant’s management, and therefore cannot establish the first
element of her first DFA claim. Likewise, Plaintiff’s failed to show that a rational fact finder
could determine that her complaint concerning Defendant’s SEC proxy statements contributed, at
least in part, to her termination. Thus, Plaintiff cannot establish the second element of her
second DFA claim – that she was retaliated against for reporting the alleged violation.
Accordingly, Defendant is granted summary judgment on Plaintiff’s DFA claims.

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CONCLUSION
For the foregoing reasons, Defendant's motion for summary judgment is GRANTED.
The Court respectfully directs the Clerk to terminate the motion at ECF No. 84 and to close the
case.

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SO ORDERED:

Dated: January
White Plains, New York

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