The Second Circuit rejected an appeal of a former executive (“Bechtel”) from an order dismissing his SOX whistleblower claim against Competitive Technologies, Inc. (“CTI”). Bechtel v. Admin. Review Bd., 710 F.3d 443 (2d Cir. 2013) (No. 11-4918). Bechtel filed a whistleblower complaint with the DOL, claiming that he had been retaliated against for refusing to sign SOX disclosure forms. The Second Circuit held that the ARB used the correct standard in reviewing Bechtel’s claim and had not acted arbitrarily or capriciously in rejecting his claim. The court also took Bechtel’s appeal as an “opportunity to clarify the burden-shifting framework applicable to whistleblower retaliation claims under the act,” and adopted the burdens of proof adopted by other circuits. The Second Circuit explained that to prevail on a SOX whistleblower retaliation claim, employees must show that they engaged in protected activity that the employer knew about, suffered an unfavorable personnel action, and the protected activity was a contributing factor in that adverse action. An employer can then rebut that prima facie case by “clear and convincing evidence” that it would have taken the same action absent the protected activity
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The Second Circuit clarifies burden of proof in SOX whistleblower suit
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