Leshinsky v. Telvent GIT, S.A.
942 F. Supp. 2d 432
S.D.N.Y.2013Background
- Plaintiff Leshinsky alleges SOX §806 retaliation against Telvent GIT, Farradyne, Caseta, and two managers, arising from his February 2008 objection to a two-overhead-rate bid strategy for the MTA contract.
- Defendants moved for summary judgment on the scope of §806 retaliation and causation.
- Plaintiff reported concerns about potential fraud to a supervisor who was implicated in the conduct.
- Plaintiff’s termination occurred July 10, 2008, after a team decision involving multiple Caseta/Telvent managers.
- Court applies a broad, burden-shifting framework and weighs whether Plaintiff’s protected activity contributed to the termination.
- Escribá separately moves for summary judgment on knowledge of the protected activity; court resolves that Escribá lacked evidence of such knowledge.
- Court previously held that Dodd-Frank SOX retroactivity applies and that §806 protects disclosures to supervisors, even if they are involved in the misconduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Plaintiff engaged in protected activity under §1514A(a)(l). | Leshinsky reported conduct he reasonably believed violated law. | Defendants contend the report was not a protected disclosure. | Protected activity found; report to a supervisor implicated in the misconduct is protected. |
| Whether Plaintiff’s belief was objectively reasonable and subjective belief supported a protected report. | Plaintiff reasonably believed a fraud scheme could occur; both beliefs supported. | The scheme’s plausibility and imminence were not convincing. | There is a genuine factual dispute; objective and subjective belief issues render summary judgment inappropriate at this stage. |
| Whether reporting to a supervisor who was involved in the misconduct is protected under §806. | Reports to a supervisor are protected by §1514A(a)(l)(C). | Some courts limit reporting to wrongdoers; supervisor involvement negates protection. | Report to a implicated supervisor is protected under §806. |
| Whether Plaintiff’s protected activity was a contributing factor in termination. | Temporal proximity and other evidence show causation. | Legitimate non-retaliatory reasons (reduction in force, performance issues) justify termination. | Genuine disputes of material fact exist; contributing-factor issue survives summary judgment. |
| Whether Escribá can be held liable given lack of knowledge of Plaintiff’s protected activity. | Escribá participated in termination decisions. | No evidence that Escribá knew of the protected activity. | Escribá granted summary judgment; lack of knowledge shown. |
Key Cases Cited
- Welch v. Chao, 536 F.3d 269 (4th Cir. 2008) (requires both subjective and objective belief in violation for protected activity)
- Gorman-Bakos v. Cornell Co-op. Extension of Schenectady Cnty., 252 F.3d 545 (2d Cir. 2001) (causation and proximity considerations in retaliation)
- Livingston v. Wyeth, Inc., 520 F.3d 344 (4th Cir. 2008) (present-tense violation requirement for protected activity)
- Day v. Staples, Inc., 555 F.3d 42 (1st Cir. 2009) (prima facie framework and burden shifting in SOX §806)
- Bechtel v. Administrative Review Bd., United States Dep’t of Labor, 710 F.3d 443 (2d Cir. 2013) (burden shift and clear and convincing standard guidance)
- Mahony v. KeySpan Corp., No. 04 Civ. 554(SJ), 2007 WL 805813 (E.D.N.Y. 2007) (summary judgment considerations in §806 retaliation)
- Ryder v. United States, — () ()