16-77-cv
Yang v. Navigators Grp., Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 22nd day of December, two thousand sixteen.
PRESENT: PIERRE N. LEVAL,
ROBERT D. SACK,
REENA RAGGI,
Circuit Judges.
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JENNIFER YANG,
Plaintiff-Appellant,
v. No. 16-77-cv
NAVIGATORS GROUP, INC.,
Defendant-Appellee.
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FOR APPELLANT: Daniel J. Kaiser, Kaiser Saurborn & Mair, P.C.,
New York, New York.
FOR APPELLEE: A. Michael Weber, Littler Mendelson, P.C.,
New York, New York.
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Appeal from a judgment of the United States District Court for the Southern District
of New York (Nelson S. Roman, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on January 5, 2016, is VACATED, and the
case is REMANDED for further proceedings.
Plaintiff Jennifer Yang appeals from an award of summary judgment in favor of
defendant Navigators Group, Inc. on Yang’s claim of retaliatory discharge for protected
whistleblowing activity in violation of Section 806 of the Sarbanes-Oxley Act (“SOX”),
see Pub. L. No. 107–204, § 806(a), 116 Stat. 745, 802–04 (2002) (codified at 18 U.S.C.
§ 1514A), and Section 922 of the Dodd-Frank Act, see Pub. L. No. 111–203, Title IX,
§ 922(a), 124 Stat. 1376, 1841–48 (2010) (codified at 15 U.S.C. § 78u–6(h)). We review
an award of summary judgment de novo and will affirm only if the record, viewed in favor
of the nonmoving party, shows no genuine disputes of material fact and the moving party’s
entitlement to judgment as a matter of law. See Jackson v. Fed. Express, 766 F.3d 189,
193−94 (2d Cir. 2014). We assume the parties’ familiarity with the facts and record of
prior proceedings, which we reference only as necessary to explain our decision to vacate
and remand.
To defeat summary judgment, a plaintiff alleging retaliatory discharge in violation
of SOX must adduce facts sufficient to support a prima facie case: (1) her engagement in
protected activity, (2) defendant’s awareness of same, (3) plaintiff’s suffering unfavorable
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personnel action, and (4) the protected activity contributing to the unfavorable action. See
Bechtel v. Admin. Review Bd., 710 F.3d 443, 447 (2d Cir. 2013). If a plaintiff carries the
burden, the defendant employer can still secure a favorable judgment by showing no
genuine dispute that the record clearly and convincingly demonstrates that the employer’s
adverse action would have been taken even in the absence of protected activity. See id.;
Leshinsky v. Telvent GIT, S.A., 942 F. Supp. 2d 432, 441 (S.D.N.Y. 2013). The parties
agree that the elements of a Dodd-Frank claim, while not identical, are sufficiently similar
for the SOX standard to control review on this appeal.
Yang first disputes the district court’s conclusion that she did not engage in
protected activity by communicating concerns regarding Navigators’ investment risk
models because, “[e]xcluding Plaintiff's own deposition testimony and statements made in
her own Declaration,” insufficient evidence supported her claim. Yang v. Navigators
Grp., Inc., 155 F. Supp. 3d 327, 332 (S.D.N.Y. 2016). Yang’s own testimony as to the
communications at issue constituted admissible evidence and, thus, should not have been
excluded from consideration in reviewing defendant’s summary judgment motion. See
Danzer v. Norden Sys., Inc., 151 F.3d 50, 57 (2d Cir. 1998) (declining to hold allegations
insufficient to survive summary judgment merely because they were “self-serving”);
accord Walsh v. N.Y.C Hous. Auth., 828 F.3d 70, 80 (2d Cir. 2016). To the contrary, the
testimony should have been viewed in the light most favorable to Yang, in which
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circumstances it sufficed to give rise to a genuine dispute of material fact as to protected
activity that precluded summary judgment.
Yang further disputes the district court’s conclusion that her claims failed the
fourth, “contributing factor” requirement of a prima facie case. Viewed most favorably to
Yang, the record shows that she was terminated approximately two weeks after she told
Navigators’ general counsel that Navigators’ proxy statement might contain
misrepresentations regarding the adequacy of the company’s risk models and how
frequently the company’s risk management subcommittees met. Such temporal proximity
between protected activity and unfavorable personnel action can support a prima facie
inference that the protected activity was a contributing factor to the termination. See, e.g.,
Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 845 (2d Cir. 2013) (concluding that
three-week period from protected activity to termination was “sufficiently short to make a
prima facie showing of causation indirectly through temporal proximity”). The district
court acknowledged the temporal proximity of Yang’s protected activity and her
termination but concluded nonetheless that the presence of a “legitimate intervening
basis”—an allegedly disorganized and incoherent presentation by Yang to Navigators’
senior executive team—sufficed to defeat Yang’s prima facie case. See Fraser v.
Fiduciary Tr. Co. Int’l, No. 04 Civ. 6958 (PAC), 2009 WL 2601389, at *6 (S.D.N.Y. Aug.
25, 2009) (noting temporal proximity inference may be undermined by “legitimate
intervening basis” for adverse action (quoting Tice v. Bristol-Myers Squibb Co., 2006–
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SOX–20, 2006 WL 3246825, at *20 (Dep’t of Labor Apr. 26, 2006))), aff’d, 396 F. App’x
734 (2d Cir. 2010). In so ruling, the district court relied in its reasoning upon Sharkey v.
J.P. Morgan Chase & Co., No. 10 Civ. 3824 (RWS), 2015 WL 5920019 (S.D.N.Y. Oct. 9,
2015), which dismissed a SOX retaliatory discharge claim predicated on temporal
proximity because of a purported “intervening basis” and the lack of a demonstrated link
between the plaintiff’s termination and the protected activity. See id. at *14.
This court, however, vacated and remanded Sharkey, ruling that disputed facts as to
the intervening basis precluded summary judgment. See Sharkey v. J.P. Morgan Chase &
Co., --- F. App’x ----, 2016 WL 4820997, at *1 (2d Cir. Sept. 12, 2016). The same
conclusion obtains here. Assuming arguendo that a legitimate intervening basis could
defeat an inference from temporal proximity, Yang and her supervisors here offered
substantially different accounts of her October 26, 2012 presentation to Navigators’
executive team. On such a record of conflicting accounts by interested parties, a court
must assume that the factfinder will assess credibility and draw inferences in favor of
Yang. See Simpson v. City of New York, 793 F.3d 259, 265 (2d Cir. 2015). In addition,
Yang points to inconsistencies in Navigators’ description of her performance: while
Navigators now cites generalized performance concerns to justify her termination, Yang
was never told of such concerns while employed at Navigators, and was informed she was
fired only because she did not fit into “Navigators’ culture” and failed to take a “hands on”
approach to her position. See Zann Kwan v. Andalex Grp. LLC, 737 F.3d at 847
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(concluding that “inconsistent explanations” for termination and “very close temporal
proximity” between protected conduct and termination “are sufficient to create a triable
issue of fact”). Yang has thereby adequately placed these issues in dispute such that a
reasonable factfinder could conclude her protected activity contributed to her termination.
See Bechtel v. Admin. Review Bd., 710 F.3d at 447.
We have considered Navigators’ remaining arguments and conclude that they are
without merit. Accordingly, we hereby VACATE the award of summary judgment to
Navigators and REMAND the case for further proceedings consistent with this order.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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