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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