On July 26, 2021, the United States District Court for the Northern District of California held, after a bench trial, that Plaintiff Botta failed to prove that Defendant PricewaterhouseCoopers LLP (“PwC”) terminated his employment in retaliation for his filing of a complaint with the SEC, and dismissed his whistleblower claims brought under SOX and California law.  Botta v. PricewaterhouseCoopers LLP, No. 18-cv-02615.

Background

Plaintiff was an auditor at PwC for nearly two decades.  In 2016, he filed a whistleblower complaint with the SEC, alleging that PwC supervisors willingly overlooked accounting errors and internal-control deficiencies in order to retain business.  The SEC investigated, but chose not to take action against PwC.

In August 2017, PwC terminated Plaintiff’s employment.  Plaintiff claimed the termination, as well as certain other employment actions, were taken in retaliation for his complaint to the SEC.  Plaintiff subsequently sued PwC, alleging violations of SOX, supplemental whistleblower claims under California law, and breach of his employment contract.  The court held a bench trial using Zoom.

Ruling

In its Findings of Fact and Conclusions of Law, the court ruled that PwC was justified in terminating Plaintiff’s employment, and that Plaintiff had not established that PwC retaliated against him.  Although Plaintiff focused on the timing of his termination (four months after the SEC opened an investigation into his whistleblower complaint), the court held that the temporal proximity “wasn’t bolstered by other evidence,” and PwC had “offered a different, persuasive side of the story.”  PwC asserted at trial that Plaintiff’s employment had been terminated because he “fabricated an internal control or lied about doing so,” which was a violation of PwC internal standards.  The court ultimately found that “[Plaintiff], in the end, simply didn’t put forward enough evidence to prove that his SEC complaint contributed to PwC’s decision to fire him.  The temporal proximity between his complaint and his termination generated suspicion, but at trial that suspicion wasn’t confirmed.”  PwC representatives also testified persuasively that they had not even known Plaintiff had filed a whistleblower complaint.

The court also found that Plaintiff was removed from other client engagements for legitimate reasons, including his “lack of rapport,” “bedside manner,” and lack of “sensitivity.”  Therefore, the court held that Plaintiff had not proven that his protected activity was a “contributing factor” to the adverse actions taken against him.  For the same reasons, Plaintiff had not established a causal link between his protected activity and any adverse employment action as required under California law.

Implications

This case demonstrates that temporal proximity between a whistleblower complaint and an adverse employment action likely will not, standing alone, establish retaliation.  Instead, the factfinder considers all of the evidence and makes a context-specific determination regarding whether an adverse employment action was motivated by retaliatory animus.

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Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular…

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular focus on defending companies against claims of employment discrimination, retaliation and harassment; whistleblower retaliation; restrictive covenant violations; theft of trade secrets; and wage-and-hour violations. He has successfully tried cases in multiple jurisdictions, and defended one of the largest Illinois-only class actions in the history of the U.S. District Court for the Northern District of Illinois. He also secured one of only a few ex parte seizures orders that have been issued under the Defend Trade Secrets Act, and obtained a world-wide injunction in federal litigation against a high-level executive who jumped ship to a competitor.

Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has testified in federal court. His investigations have involved complaints of sexual harassment involving C-suite officers; systemic violations of employment laws and company policies; and fraud, compliance failures and unethical conduct.

Steven was recognized as Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. He is a Fellow of the College of Labor and Employment Lawyers.  Chambers describes Steven as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field.” Steven was 1 of 12 individuals selected by Compliance Week as a “Top Mind.” Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a “Rising Star Under 40” in the area of employment law and 1 of “40 Illinois Attorneys Under Forty to Watch” selected by Law Bulletin Publishing Company. Steven is a Burton Award Winner (U.S. Library of Congress) for “Distinguished Legal Writing.”

Steven has served on Law360’s Employment Editorial Advisory Board and is a Contributor to Forbes.com. He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is regularly quoted in leading publications such as The Wall Street Journal.

The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts of appeal. He was appointed to serve as a Special Assistant Attorney General for the State of Illinois in employment litigation matters. He has presented with the Solicitor of the DOL, the Acting Chair of the EEOC, an EEOC Commissioner, Legal Counsel to the EEOC and heads of the SEC, CFTC and OSHA whistleblower programs. He is also a member of the Sedona Conference, focusing on trade secret matters.

Photo of Pinchos Goldberg Pinchos Goldberg

Pinny Goldberg is a senior counsel in the Labor & Employment Law Department. Pinny represents employers in a broad array of matters before federal and state courts, FINRA and other arbitration panels, and administrative agencies, including the EEOC and its state equivalents, and…

Pinny Goldberg is a senior counsel in the Labor & Employment Law Department. Pinny represents employers in a broad array of matters before federal and state courts, FINRA and other arbitration panels, and administrative agencies, including the EEOC and its state equivalents, and in pre-litigation negotiations. Matters he works on include discrimination and harassment, wage and hour, wrongful discharge, whistleblowing and retaliation, covenants not to compete, breaches of fiduciary duty, unjust enrichment, and tort and contract claims.

In addition to handling litigation and dispute resolution, Pinny regularly advises clients on a wide variety of employment issues, including drafting, reviewing and revising handbooks and workplace policies. He also addresses questions and concerns related to hiring, wage and hour issues, employee leave, performance problems, terminations of employment, and separation agreements and releases.

Photo of Jordan Glassberg Jordan Glassberg

Jordan Glassberg is an associate in the Labor & Employment Law Department. Jordan represents employers in a broad array of matters before federal and state courts, FINRA and other arbitration panels, and administrative agencies, including the Equal Employment Opportunity Commission.  Jordan’s practice includes…

Jordan Glassberg is an associate in the Labor & Employment Law Department. Jordan represents employers in a broad array of matters before federal and state courts, FINRA and other arbitration panels, and administrative agencies, including the Equal Employment Opportunity Commission.  Jordan’s practice includes a wide range of labor and employment matters, including employment discrimination, harassment, wage and hour claims, and wrongful termination.  Jordan has assisted in single-plaintiff lawsuits and class and collective actions.  Jordan also provides significant assistance on counseling matters on a wide array of issues.  Jordan has represented clients across many different industries, including financial services, sports, news and media, entertainment, real estate, and healthcare.  Jordan also maintains an active pro bono practice, focusing on assisting asylum seekers and disabled veterans.

Prior to joining Proskauer, Jordan clerked for the Honorable William H. Pauley III in the Southern District of New York.

Before clerking, Jordan graduated from Duke Law School, where he was managing editor of the Duke Journal of Constitutional Law & Public Policy and a member of Duke’s Moot Court and Mock Trial Boards. While at Duke, Jordan received the Labor and Employment Law Award for the Class of 2017, won the Hardt Cup 1L Moot Court Tournament and interned for the United States Attorney’s Office for the District of New Jersey.