On July 30, 2002, Congress enacted the Sarbanes-Oxley Act (“SOX”), as part of a comprehensive effort to address corporate misconduct and fraud. The SOX whistleblower protections were included in response to “a culture, supported by law, that discourage[s] employees from reporting fraudulent behavior not only to the proper authorities . . . but even internally. This ‘corporate code of silence’ not only hampers investigations, but also creates a climate where ongoing wrongdoing can occur with virtual impunity.” See Corporate and Criminal Fraud Accountability Act of 2002, S. Rep. 107-146, at 5 (May 6, 2002). The SOX whistleblower provisions are contained in Title VIII of the SOX, designated as the Corporate and Criminal Fraud Accountability Act of 2002. Section 1514A prohibits covered employers and individuals from retaliating against employees for providing information or assisting in investigations related to certain fraudulent acts. That provision states:
(a) Whistleblower Protection For Employees of Publicly Traded Companies.–No company with a class of securities registered under section 12 of the Securities Exchange Act of 1934 (15 U.S.C. 78l), or that is required to file reports under section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78o(d)), or any officer, employee, contractor, subcontractor, or agent of such company, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee–
(1) to provide information, cause information to be provided, or otherwise assist in an investigation regarding any conduct which the employee reasonably believes constitutes a violation of section 1341 [mail fraud], 1343 [wire, radio, TV 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, when the information or assistance is provided to or the investigation is conducted by–(A) a Federal regulatory or law enforcement agency; (B) any Member of Congress or any committee of Congress; or (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); or
(2) to file, cause to be filed, testify, participate in, or otherwise assist in a proceeding filed or about to be filed (with any knowledge of the employer) relating to an alleged violation of section 1341, 1343, 1344, or 1348, any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders.
18 U.S.C.A. § 1514A.
To prevail on a § 1514A claim, a complainant must prove by a preponderance of the evidence that: (1) she engaged in activity or conduct that § 1514A protects; (2) the respondent took an unfavorable personnel action against her; and (3) the protected activity was a contributing factor in the adverse personnel action. However, relief may not be granted if the respondent demonstrates by clear and convincing evidence that it would have taken the same adverse action in the absence of any protected behavior. 29 C.F.R. § 1980.109(a).