The second element of a SOX claim is knowledge of protected conduct. A whistleblower may establish employer knowledge by demonstrating that a supervisor or senior executive knew of the activity (actual knowledge) or that a person with knowledge of the disclosure influenced the official who decided to take the retaliatory action (constructive knowledge).
In a SOX retaliation suit against an employer, a whistleblower need only make a protected disclosure to someone who has either supervisory authority over them or authority to investigate and address misconduct. The supervisor’s knowledge is imputed to the final decision maker.[i]
SOX whistleblowers can demonstrate knowledge of protected conduct using the cat’s paw theory, i.e., by showing that the decision-maker followed the biased recommendation of a subordinate without independently investigating the reason or justification for the proposed adverse personnel action.
In Jayaraj v. Pro-Pharmaceuticals, Inc.,[ii] the employer was a start-up biotechnology company whose primary executives were a chief executive officer (“CEO”) and a chief operating officer (“COO”). The CEO testified that when he decided to terminate the complainant’s employment, he was unaware that she had engaged in protected activities. However, based on evidence that the CEO and COO worked closely together since the founding of the company, the ALJ found that the COO had likely told the CEO about the complainant’s protected activity.
The Supreme Court has held that a “cat’s paw” theory of causation can apply in retaliation cases. Staub v. Proctor Hosp., 562 U.S. 411, 419-22 (2011). A “cat’s paw” theory of causation applies when the protected activity has no bearing on the decision-maker, but does bear on the actions of a lower-level supervisor, who in turns influences or causes the decision-maker to take the adverse action. Id. at 415; see also Bobreski v. J. Givoo Consultants, Inc., ARB No. 09-057, ALJ No. 2008-ERA-003, slip op. at 16 (ARB June 24, 2011); Zinn v. American Commercial Lines, 2009-SOX-25, slip. op. 18 (Nov, 19, 2012) (“A complainant is not required to prove direct knowledge on the part of the employer’s final decision maker because the law will not permit itself to insulate it by creating layers of bureaucratic ignorance between a whistleblower’s direct line of management and the final decision maker.”).
“A complainant may show contribution via a cat’s paw theory. See Kuduk, 768 F.3d at 790–91. This theory applies when the impermissible consideration has no bearing on the decision–maker, suggesting no discrimination, but does bear on the actions of another supervisor who in turns acts to bring about the ultimate adverse action in some way. See Staub v. Proctor Hosp., 562 U.S. 411, 422–23 (2011). If the impermissible factor contributed to actions of one supervisor, and those actions contributed to the ultimate decision resulting in the adverse action, then the impermissible factor was a contributing factor in the adverse action. The complainant need only show that one individual among multiple decision makers influenced the final decision and acted, in part, because of the protected activity. Rudolph, ARB No. 11–037 at 16–17 (citing Bobreski v. J. Givoo Consultants, Inc, ARB No. 09–057, ALJ No. 2008–ERA–3, slip op. at 13–14 (ARB June 24, 2011).” Klinger v. BNSF Railroad Co., ALJ No. 2016-FRS-00062, at 16 (ALJ Sept. 29, 2022).
Yes. A decision denying summary judgment in Erhart v. BofI Holding, Inc., Dist. Court, SD California 2017 (Sept. 11, 2017) illustrates the type of evidence that can establish knowledge of protected whistleblowing:
Erhart must allege that BofI “knew or suspected that [he] engaged in the protected activity.” 29 CFR § 1980.104(e)(2)(ii); see also Tides, 644 F.3d at 814. This requirement is satisfied. Erhart alleges he reported much of the conduct he discovered to members of BofI’s management team—particularly VP Ball. Some of Erhart’s discoveries also made their way directly to SVP Tolla. As for Erhart’s “two whistleblower tips to the SEC,” he alleges that “BofI had knowledge of his whistleblowing.” (Id. ¶ 31.)
Further, the events that allegedly transpired around the time Erhart called off sick from work indicate BofI, at the minimum, “suspected that [he] engaged in the protected activity.” See 29 CFR § 1980.104(e)(2)(ii). These circumstances include BofI accessing Erhart’s work computer, BofI “going through all the documents” in Erhart’s locked file cabinets, SVP Tolla locating Erhart’s review of CEO Garrabrants’s personal accounts, BofI preparing a letter terminating Erhart, BofI’s alleged statements to the OCC about Erhart, and BofI’s general counsel demanding that Erhart “come to a conference room to speak” when he returned his work laptop. (See FAC ¶¶ 56-74.) If these allegations are true, a factfinder could draw the inference that BofI suspected or knew Erhart engaged in protected activity. Accordingly, Erhart’s pleading meets the second element of a prima facie case for whistleblower retaliation under Sarbanes-Oxley.
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