Kuba v. Disney Financial Services, LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

SANDRA KUBA,

Plaintiff,

Vv. Case No. 6:21-cv-312-JA-LHP

DISNEY FINANCIAL SERVICES,

LLC,

Defendant.

ORDER

“[N]o department appears perfectly wise to the intimacy of its workers.”

In this case, the Court is asked to determine whether a worker who voiced that

perception was unlawfully retaliated against by her employer—or whether that

question must go to a jury.

Defendant Disney Financial Services (DFS), as the name suggests,

provides financial services to Walt Disney Parks and Resorts, U.S., Inc., a

subsidiary of the Walt Disney Company (Disney). (Bawek Decl., Doc. 38-3, § 3).

On September 21, 2017, DFS fired Plaintiff Sandra Kuba, an eighteen-year

veteran of the company who last served as a Senior Financial Analyst in the

Revenue Operations department. (Kuba Decl., Doc. 37-2, 7{ 4-5, 62). DFS

1 Joseph Conrad, The Secret Agent 73 (Penguin Classics 2007) (1907).

claims that it fired Kuba—an employee with a long history of □□□□□□□

interactions—for making a series of unfounded, bad-faith accusations agains’

her coworkers in violation of company policy. Kuba claims that she was □□□□□□□□

fired for blowing the whistle on the company’s unwise and unlawful accounting

practices, which she reported both internally and to the Securities anc

Exchange Commission (SEC) shortly before her termination.

After her initial complaint to the Occupational Safety and Health

Administration (OSHA) bore no fruit, Kuba filed this lawsuit, alleging that DFS

had retaliated against her reports of financial impropriety in violation of the

Sarbanes—Oxley Act (Count I), the Dodd—Frank Act (Count II), the California

False Claims Act (Count III), and the Florida Private Whistleblower Act (Count

IV). Kuba also alleges that during her time at the company DFS paid her less

than her similarly situated male colleagues in violation of the Equal Pay Act

(Count V).

On May 6, 2022, Kuba filed a Motion for Partial Summary Judgment (Doc.

37), seeking summary judgment solely on Count I of her Complaint.? Shortly

thereafter, DFS filed its own Motion for Summary Judgment (Doc. 38) seeking

a resolution of all counts. The Court heard argument on these motions on

2 Kuba’s Motion also asks this Court to “dismiss[]” a number of DFS’s

affirmative defenses. (Doc. 37 at 25). As DFS correctly points out, Kuba’s request is

effectively an untimely motion to strike, see Fed. R. Civ. P 12(f)(2), and is DENIED on

that basis.

August 9, 2022, and the issues are ripe for adjudication. For the reasons set

forth below, Kuba’s Motion is DENIED and DFS’s Motion is DENIED in part

and GRANTED in part.

I. BACKGROUND

1. Kuba’s History at DFS

Kuba, a Certified Public Accountant with degrees in accounting anc

accounting-forensics, began working as a Financial Analyst at DFS’s

predecessor company in March 1999. (Kuba Decl. § 4; Kuba Dep., Doc. 38-24, at

187).8 Five years into her tenure, in September 2004, Kuba took on the role of

“Code Administrator,” the leader of a “task force” responsible for creating,

mapping, and issuing accounting codes—known as “coupon codes” or “charge

codes”—for transactions on Disney premises paid for with coupons or prepaid

guest packages. (Kuba Decl. {| 8-10; see also LeStourgeon Dep., Doc. Al, at 24—

25). Kuba claims that her position as Code Administrator was essential to

maintaining internal controls over these noncash media. (Kuba Decl. □ 10).

Nonetheless, the task force was eventually “shut down” on October 4, 2012, and

responsibility for administering the codes was dispersed across various teams.

3 Kuba was originally hired by Disney Worldwide Services, Inc. (Kuba Dep. at

189). DFS became her employer in 2015, after a series of corporate restructurings at

Disney. (Id. at 189-90).

(Id. § 11).4 According to Kuba, this led to repeated problems because erroneousl;

mapped coupon codes pointed to the wrong accounts and in some cases led tc

the double-counting of revenue—an issue requiring manual correction. (Kubs

Decl. 16).

In 2013, shortly after losing her Code Administrator role, Kuba was

promoted to Senior Financial Analyst and placed in charge of the Lodging Team.

a group within Revenue Operations that audited and reconciled accounts

throughout Disney’s vast ecosystem of hotels and restaurants. (Kuba Dep. at

201-02). Because of her prior experience, many of Kuba’s coworkers continued

to rely on her to help set up and troubleshoot codes, (Kuba Dep. at 202-04; Kuba

Decl. {J 39, 41-42), and she retained a reputation as an “expert on charge

codes,” (LeStourgeon Dep. at 53). Kuba frequently expressed frustration that

she had lost her position as Code Administrator yet was still being asked to help

with these issues on top of her new responsibilities with the Lodging Team. (See

Doc. 38-7 at 3; Doc. 38-9 at 1-2; Doc. 38-10 at 1-2).

On September 29, 2016, following what she perceived to be a negative

4 Disney appears to dispute Kuba’s characterization of herself as the “Code

Administrator” of a “task force” that was eventually “shut[] down” but agrees in

substance that she was one of several employees responsible for issuing coupon and

charge codes from 2004 until 2012, when she was “directed by her manager to share

the code administration responsibilities with other teams in Revenue Operations.”

(Doc. 38 at 8 n.6).

annual performance review, Kuba emailed her supervisors, Andrew Eun and

Quandra Love, and accused them of blaming her for others’ mistakes so that

they could “get rid of the [Family and Medical Leave Act (FMLA)] girl” and force

her into retirement. (Doc. 38-7 at 2). “What I get out of this evaluation is this:

I’m leading the way in training and moving ahead in safety, but when it comes

to skills I am at the bottom. Nothing I do adds value (Code Admin, Task Force,

Mrs. Potts®) and I am worthless.” (Doc. 38-7 at 2—3). Kuba stated that she would

“not sign something where I have been blamed for things that I did not do nor

will I keep silent against injustice” and claimed that while Eun and Love would

“use this as another example of my negativism . . . I call it Freedom of Speech

which is part of the First Amendment of the Bill of Rights of the U.S.

Constitution ratified on December 15, 1791.” (Id. at 2).

That same day, Kuba filed a complaint with Employee Relations and

Human Resources, alleging, among other things, that (1) her salary was below

that of her less-qualified male colleagues—despite her additional work on code

5 During its annual performance reviews, DFS gives employees one of five

possible ratings: “Leading The Way,” “Moving Ahead,” “Right On Track,” “Falling

Behind,” or “Off Track.” In 2016, Kuba received an overall rating of “Right On Track,”

which evidences “[sJolid [p]erformance,” “[c]onsistently meet[ing] expectations and

occasionally exceed[ing] some expectations,” “[plerforming at an effective and

satisfactory level,” and “[djemonstrat[ing] required skills and abilities.” (Doc. 38-4 at

11).

6 “Mrs. POTTs,” also known as the “Product Online Transmission Tool,” was an

accounting tool developed by Kuba and used by various departments within DFS.

(Kuba Decl. § 14).

administration, (2) she was being discriminated against for taking leave unde

the FMLA and for her “association with individuals with disabilities,” and (3

she was being overworked with little help from her oft-absent subordinates

(Doc. 38-6 at 3-5). In her complaint, Kuba speculated that “it seems the plat

has been to give me the lowest rating and raise possible each year and di

nothing for me. Use my skills, use my education, but let me sit there and rot.

(Id. at 5).

Later that night, Kuba sent another email—this time to George

Kalogridis, then-President of the Walt Disney World Resort.7 There, she

recounted the dissolution of the Code Administrator role and expressed concerr

that she was being blamed when other departments failed to set up code:

properly:

The codes are a mess in all systems because the Code Admin was shut

down in 2012 and anyone and everyone allowed [sic] to set them up. This

is the company’s foundation for the accounting flow. Now it is being

looked at by three departments that have caused some of the issues and

I am being blamed for things they are doing.

(Doc. 38-8 at 3). In addition, Kuba reported that the Advisory & Assurance

department was “working with [Disney’s Animal Kingdom] to set up a Guest

Inconvenience coupon and code for each attraction,” warning that “[t]his wil

7 Kuba claims that she began drafting her email to Kalogradis a few days before

she received her performance review. (Kuba Decl. § 17; Doc. 48 at 3 n.4).

8 One of Kuba’s coworkers, Doris LeStourgeon, explained in her deposition that

the “guest inconvenience” account was used to compensate guests for problems a’

allow these codes to be used all over the property with no ability to contrc

them,” which would be “a fraud magnet and a fraudster’s dream.” (Id.

According to Kuba, she had previously “notified [Advisory & Assurance] of frau

and circumvention of internal controls” related to a similar account. Ud. at 2).

DFS initiated two separate investigations in response to Kuba’s emails

The first, led by Shana Bawek of Employee Relations, looked into Kuba’

personnel complaints, including the allegations about her performance rating

compensation, and FMLA issues. That investigation concluded in June 2017

finding no merit to Kuba’s concerns. (Bawek Decl., Doc. 38-3, {| 8-10; Doc. 38

12). The second investigation, led by Management Audit, considered thi

allegations in Kuba’s email to Kalogridis regarding coupon codes and accountin;

flow. While it is unclear from the record what came of this second investigation

Kuba claims that she met with a Management Audit employee, Meghi Parikh

who stated that she “did not see much fraud” and “acted as though she did no

understand anything [Kuba] was saying with the codes.” (Kuba Decl. § 18)

Kuba admits, however, that she “did not have much time to talk to [Parikh]

because Kuba was “getting ready to go on vacation.” (Id.).

Disney’s dining locations, among other things. (LeStourgeon Dep., Doc. 41, at 68-69)

Like Kuba, LeStourgeon expressed confusion about why guest inconvenience code:

were being set up for individual attractions and explained that long wait times, out-of

service rides, and other issues with the attractions were typically compensatec

through a different “global” account. (Id. at 75).

On November 4, 2016, about a week after their initial meeting, Kub

emailed Parikh with a new allegation. (Id. § 19).° This time, she suggested tha

Glen O’Grady, a Revenue Operations manager, was “using the codes” t

“manipulat[e] data” and “hold back credits into his balance sheet accounts i:

case something in his accounts went awry and he needed to clear it.” Ud.). A fev

weeks later, Kuba spoke with Bawek, Parikh, and Scott Leingang, one of th

Directors in Management Audit. (Id. § 20). Although she “tried to speak to then

about the lack of internal controls” and other accounting issues related to th

codes, Kuba claims that Leingang was only interested in her specific accusation

against O’Grady. (/d.). According to Kuba, Leingang told her that the amount o

money involved was “not so large to be considered material in relation t

Disney’s revenue” but that he was concerned with the “lack of integrity

implicated by O’Grady’s alleged conduct. (Id.). While it is unclear what becam:

of Kuba’s allegations against O’Grady, Kuba claims that Bawek later told he:

that “accounting flow was not important” and “asked if [Kuba] had eve:

° That same day, Kuba again emailed Bawek, stating: “I am now doing the

other teams’ work (you know, the ones that are all better than me and get higher

ratings)” and alleging that this additional workload was interfering with her FMLA

leave. (Doc. 38-9 at 1-2). In a follow-up email that day, she wrote: “I will get no credit

as usual and in reality I am doing most, if not all, of the work. This is why I have a

low rating and never moved up the ladder.” (Id. at 1). Kuba also expressed suspicion

that she was “being set up (again)” and given so much work that she would start to

“get things wrong so they can ‘get me on my work’ (George Gross’ method of going

after people on FMLA).” (Id. at 2).

considered working at a different company.” (Id. § 21).1°

Throughout the next seven months, Kuba continued to express □□□□□□□□□□□

with her treatment at work, the problems caused by the dissolution of the Cod

Administrator role, and the perceived incompetence of her coworkers. O1

January 25, 2017, for example, Kuba emailed Bawek about a series of codes tha

had been set up improperly by another team. “As the Code Administrator, I hac

the ability to stop some of this,” she wrote, “but in my current role I have n

power over it and those setting them up feel they do not need to pay am

attention to me.” (Doc. 38-10 at 1). Kuba then complained about spending “6(

[hours] a week” on code administration issues on top of her formal duties for th:

Lodging Team and relayed a theory from an unnamed coworker that “from thi

look of it, I am being set up for failure . . . they are trying to get me to quit.” (Id

at 1-2). The next week, Kuba forwarded an email chain to Bawek in which :

coworker from Advisory & Assurance asked about her process for setting uy

codes during her time as the Code Administrator. (Doc. 38-10 at 5). Kuba askec

Bawek: “If this model of the Code Admin was so successful . . . then why was i

shut down?” (d.). She then theorized that “[t]hey either want to know what |

did because they want to take the credit for it or because I am being forced int«

10 DFS denies that Bawek told Kuba that accounting flow did not matter anc

explains that Bawek’s “only question to Kuba about alternate employment was t

determine Kuba’s level of satisfaction with her existing role.” (Doc. 47 at 4 n.5).

early retirement and they need to get every bit of knowledge I had before I’n

gone.” (/d.).

A few months later, Kuba sent a lengthy email to Love, her direc

supervisor, with the subject line “Meet the real Sandy Kuba.” (Doc. 38-11). In it

Kuba reiterated her belief that she was overworked and underappreciated

referring to herself as the “FMLA Asperger girl,” and writing: “If [another team

does something wrong, I get blamed for it. If I do something good, someone els

gets credit. I am certain that no matter what I do, it is not any good yet mor

people have stolen my ideas or tried to.” (Id. at 2). Despite this, Kuba insisted

“I still come in, do my work, and never get credit all while being treated like les:

than a human being.” (Id. at 3).

2. The Kalso “Screaming” Incident

On May 24, 2017, Kuba sent another email to Love claiming that she wa:

forced to “FMLA [herself] out of the office,” after a coworker, Channing Kalso

“scream[ed]” at her and accused her of not inviting another coworker, Barbars

Fordham, to important work meetings. (Doc. 38-21 at 1). According to Love, she

immediately met with Kuba to discuss the issue and followed up during thei

weekly one-on-one meeting. (Love Decl., Doc. 38-20, § 4). At that meeting, Love

says, Kuba “acknowledged that Ms. Kalso had not really ‘screamed,’ but hac

used a ‘tone,” and Love left the meeting feeling that the issue had been resolved

10

(Id.).4

A week later, however, on June 2, 2017, Kuba filed a formal complain

with Employee Relations, again alleging that Kalso “scream[ed]” at her anc

frequently “talk[ed] down to [her] very badly—to the point of abuse.” (Doc. 38

33, at 1). Kuba also alleged that Kalso refused to cover Fordham’s work whil

she was on vacation and that “[iJnstead I ended up doing it (AS USUAL). Ni

wonder people call me Cinderella in the building.” (/d. at 2). Kuba ther

complained: “I am dealing with incompetents and laziness—people who do no’

know how to do their jobs despite repeated training and those who sit and gossit

and cause issues all day long.” (Id.).

The next week, Kuba sent a follow-up email in which she again statec

that Kalso and Fordham were “not competent in their jobs or simply too lazy t«

do them” and lamented that “the two non-workers and trouble-makers are

trying to set up the good worker [Kuba] and the only one in the [department

who can do a lot of the work.” (Doc. 38-17 at 1). Then, in a statement apparentls

directed at Employee Relations, Kuba wrote, “[S]omehow I am sure this is al

my fault. That is how you twist it,” before warning that she was “not going to sil

back and let you all set me up—again.” (/d.).

11 Kuba confirms that she discussed the incident with Love during their weekls

one-on-one meeting but denies telling Love that Kalso did not actually scream at her

(Kuba Dep. at 241-42).

11

Kuba’s allegations against Kalso sparked another Employee Relation:

investigation—this time led by Marisa Dye, who scheduled a meeting with □□□□

on June 19, 2017. (Kuba Dep. at 121, 244-45). Before that meeting took place

however, another problem emerged.

3. The “Magic Backstage” Incident

On June 8, the Cast Activities, Recognition, & Experience team notifiec

Kuba that one of her subordinates had won a “Magic Backstage” employee

drawing and asked Kuba to help deliver the prize package, which included fre«

tickets to a Disney park and lunch coupons for a Disney restaurant. (Doc. 38-38

at 10-11). Kuba delivered the prize package to the winner but discovered that

the codes listed on the lunch coupons were incorrect. She emailed Cast Activities

to tell them that the coupons would “need to be reprinted” with the correct codes

and asked who was responsible for the mix-up. (Id. at 6). Cast Activities

responded that they had received the coupon code from Brad Smith and Danette

Martin in Advisory & Assurance and had cleared them with the legal team. (Id

at 5). Eventually, Smith himself joined the email exchange and explained that

he had been out of town and someone from his team had pulled the coupon code

in his absence. He then asked Kuba if it would be “appropriate to make ar

exception for this instance so we can get the coupon out (especially since it’s just

a one time code).” Ud. at 4-5). Martin also joined the exchange and asked: “I:

12

there are ranges for different coupon types, can you please provide them?” (Id

at 4),12

Instead of responding to Smith or Martin, Kuba forwarded the emai

exchange to Employee Relations and Management Audit on Thursday, June 15

claiming that the Advisory & Assurance team had “played Code Administrator

and “[come] up with a code off the cuff” to give to Cast Activities. (Doc. 38-34 a

1). Although admitting that she did not “know how often [Advisory & Assurance

did this,” Kuba warned that using the wrong codes would lead to □□□□□□□□□□

errors and could require manual corrections. (Jd.).

Three days later, on Sunday, June 18, Kuba forwarded the “Magi:

Backstage” email thread again—this time to Kalogridis, the same Disney;

executive to whom she had sent her complaint in 2016. Kuba began her emai

12 When Kuba did not respond to this request, Martin sent a second emai

stating:

Below you indicated [that] because a code starting with [the

wrong number] was used . . . the coupon would need to be reprinted.

Brad explained how that occurred and asked if an exception could be

made. ... Was a new coupon code needed? Did it require a reprint?

In addition, so the issue with an incorrect coupon code range does

not occur again I asked for you to supply us with the ranges. Can you

please provide these at your earliest convenience?

Thanks in advance for your help. We apologize for any

inconvenience this issue caused and appreciate your partnering to

supply us with the needed information to keep it from occurring again.

(Doc. 38-48 at 3).

13

bluntly, stating: “This Manager [Martin] in Advisory & Assurance and her tean

are not setting up codes. They are simply giving 4-digit numbers to anyone wh

wants one.” (Doc. 38-35 at 1). She then explained that “despite [her] complaint:

and warnings . . . there has been a desire to push Code Admin out to everyone

and warned that, as a result, “the company has no internal controls over th

accounting system/accounting flow and, therefore, [is] not in compliance witl

[the Sarbanes—Oxley Act].” (Id.). Because of this, Kuba wrote, “Financia

Statements will become unreliable and fraud will be easier to commit.” (Id.). Sh

also stated that the “lack of segregation of duties for [Advisory & Assurance

and the lack of due diligence has me concerned about ethics,” before concluding

somewhat cynically that “[w]hoever wanted me and the Code Admin out of th:

way|] has gotten what they wanted.” (Id.).

Twenty minutes later, Kuba forwarded her Kalogridis email to Dye anc

Bawek, writing: “I blame [Employee Relations] and [Human Resources] for a lo

of this. You helped to hold me down with little to no raises, promotions, anc

bogus 90-day plans so that I am too low in the organization to fight any of this.’

(Doc. 38-18 at 1). According to Kuba, this was “one reason why Danette Martir

feels she can bully me and run rough shot [sic] over me with setting up codes

She knew full well who to contact for a code .. . but instead decided to take it

over. In addition, [Advisory & Assurance] taking credit for my work in the past

14

has already been established.” (Id.). Kuba then lamented that “Code Admin onc

had internal controls, but it does not any longer.” (Id.).

4, The Employee Relations Investigation

The next day, Monday, June 19, Kuba attended her scheduled meetin;

with Dye. (Dye Dep., Doc. 38-44, at 63). Notes from that meeting indicate tha

in addition to the Kalso “screaming” incident, the duo discussed the “Magi

Backstage” email exchange, Kuba’s allegations against Advisory & Assurance

and her concerns about a lack of internal controls over coupon codes. (Doc. 38

49 at 1-2; Doc. 38-50 at 1-5). The next week, Kuba and Dye met again t

discuss these issues, as well as Kuba’s allegations that Martin had □□□□□□□□□□

her to get access to the code ranges. (Doc. 38-49 at 3-5; Doc. 38-50 at 5-8)

According to Dye, the substance of Kuba’s accounting concerns was beyond th:

purview of her investigation, which was limited to “the concerns that [Kuba

raised about the behavior and conduct of others’—namely, Kalso and Martin

(Dye Dep. at 55). After interviewing Kuba and her colleagues, however, the focus

of this investigation shifted to Kuba’s own behavior, as Dye became concernec

13 Kuba claims that Dye “threatened” her at the end of this meeting, telling he:

that “if [she] told anybody else about [accounting concerns], that they would conside1

it retaliation against the company.” (Kuba Dep. at 289-90). Dye denies this and insteac

claims that she told Kuba that “she would not be . . . retaliated against for raising

concerns in good faith’ and that DFS “would expect . . . other participants in th:

investigation [to] not be retaliated against [by Kuba] for . . . raising any concern:

themselves.” (Dye Dep. at 70). Notes taken by another Employee Relations member a

the meeting reflect that Dye told Kuba “no one will retaliate against you and we asl

you not to retaliate against someone else.” (Doc. 38-49 at 2).

15

that Kuba had made specific allegations against Kalso, Martin, and Advisory 8

Assurance in bad faith. (Id. at 16).

Dye explained the results of her investigation in a pair of executiv

summaries that she presented to Tracy Willis, then co-head of □□□□

Controllership group, on July 14, 2017. (Doc. 38-45).14 In the first summary, Dye

concluded that Kuba’s allegations against Kalso and Martin were false. Basec

on her interviews with Kuba, Kalso, and their coworkers, for example, □□□

determined that Kalso had not “screamed” at Kuba but had rather used a “tone

that Kuba did not like. (Doc. 38-45 at 2). Dye also concluded that the evidence

presented by Kuba did not support her allegation that Kalso “talk[ed] down t«

her very badly, to the point of abuse.” (Id.). Finally, Dye determined that

Martin’s emails to Kuba following the Magic Backstage coupon incident were

“polite, professional, and appropriate, not bullying’—though Dye did not

address whether Martin had a valid reason for requesting the code ranges ir

the first place. (Id.).

In the second summary, Dye turned her attention to Kuba’s owr

culpability. Having already found that Kalso did not “scream” at or act abusivelys

14 The Controllership group was the entity within DFS that oversaw Revenue

Operations, the department in which Kuba worked. Willis led that group until May

2017, when she moved to Burbank, California, to become the Senior Controller at DFS

She maintained joint responsibility for Revenue Operations with her successor.

Andrew Widger, until Widger formally took the reins in mid-July 2017, shortly □□□□□

the duo made the decision to fire Kuba. (Willis Decl., Doc. 38-1, | 2; Willis Dep., Doc

38-56, at 14-16).

16

toward Kuba and that Martin did not “bully” her by asking for coupon code:

following the Magic Backstage incident, Dye determined that Kuba’s allegation:

to the contrary were “not made in good faith,” in contravention of company

policy. (id. at 3). To support this conclusion, Dye explained that Kuba hac

“revealed [a] personal bias” against Kalso during her interviews. (Id.). This wa:

caused in part by Kuba’s “frustration about occasions that she felt she had tc

cover for Kalso’s absences,” as well as a belief that Kalso had “set her up” by

reporting Kuba’s own absence from meetings to which she was never invited

(Id.). With respect to the allegations against Martin, Dye found that Kuba hac

used “provocative and inflammatory language to describe Martin’s conduct” that

was simply not warranted by the evidence. (Jd.).

In addition to her conclusions regarding the allegations against Kalso anc

Martin, Dye also determined that “Kuba did not have a reasonable basis for

raising ethical concerns about Advisory & Assurance” in her June 18 email tc

Kalogridis. Ud.). Dye pointed to three allegations made by Kuba in that email

first, that Martin and her team at Advisory & Assurance were “giving [codes] tc

anyone who wants one”; second, that “the company has no internal controls ove1

the accounting system/account flow and, therefore, [is] not in compliance witl

SOX”; and third, that the “lack of segregation of duties for [Advisory &

Assurance] and the lack of diligence has [her] concerned about ethics.” (Id.).

17

Without passing on the validity of these statements, Dye found that “Kub:

did not articulate a basis for her concern about fraud or ethical violations” anc

“bypassed other opportunities to address her concerns” before □□□□□□□□

Kalogridis. (Id.). Dye suggested, for example, that Kuba could have engagec

directly with Advisory & Assurance, contacted her own supervisors, or raise¢

the issue at her upcoming Employee Relations meeting. (Id.). Dye also □□□□

that “Kuba was upset with [Advisory & Assurance] for personal reasons,

believing that its members were stealing her ideas and taking credit for them

(Id.). Each of these factors contributed to Dye’s determination that Kuba lackec

a reasonable basis for her allegations against Advisory & Assurance. (Dye Dep

at 131). Based on her conclusions, Dye recommended that Kuba be fired. (Id. □□

26).

5. Kuba’s Termination and its Aftermath

Willis received Dye’s executive summaries on July 14, 2017, and met □□□

her later that day to discuss her findings. (Willis Decl., Doc. 38-1, 4). According

to Willis, she left this meeting feeling that “Dye’s investigation was thorough.

(Id. § 5). Willis stated that she “honestly believed that Kuba had not made the

accusations against [Kalso, Martin, and Advisory & Assurance] in good faith.’

(Id.). In Willis’s opinion, that constituted a violation of company policy that

“warranted termination.” (/d.). Willis then discussed Dye’s findings witl

18

Widger, Willis’s incoming successor, and the two agreed that Kuba’

employment would be terminated. (Widger Dep., Doc. 38-58, at 10-11).

The record suggests that Kuba was scheduled to be fired on July 28

2017. (See Kuba Dep. at 311-13, 320-21). On July 27, however, Kuba left worl

and began a weeks-long medical leave of absence. (Jd. at 321). In early August

while still on leave, Kuba contacted the Securities and Exchange Commissio1

(SEC) to report her concerns regarding DFS’s lack of internal controls, first by

phone and then through the SEC’s online Tips, Complaints, and Referrals (TCR

platform. Ud. at 336-38; Kuba Decl. § 61). One month later, at the request o

the SEC, Kuba supplemented her TCR with additional materials. (Kuba Dep

at 338-39).

Kuba returned to work on September 12, 2017. (Id. at 321). On Septembe:

21, during a face-to-face meeting, Widger fired Kuba. (Id.). According to Kuba

Widger and a Human Resources employee began the meeting by recounting □□□

allegations against Kalso, Martin, and Advisory & Assurance and ther

communicated the company’s position that these allegations had been made ir

bad faith. Ud. at 324-25). Kuba claims that before Widger officially fired her she

held up the first page of her TCR and told him that she had filed it. (Id. at 329)

19

After Widger confirmed that she was being fired, Kuba says, she asked him i

he “really want[ed] to do that,” given her TCR, but Widger did not budge. □□□□□□□

One month after her termination, on October 25, Kuba filed ;

whistleblower retaliation complaint with the Occupational Safety and Healtl

Administration (OSHA). (Kuba Decl. § 63). When the Secretary of Labor failec

to issue a final decision within 180 days, Kuba dismissed her OSHA complain’

and filed suit in this Court. (Kuba Dep. at 385). Both parties now move fo1

summary judgment.

II. LEGAL STANDARD

“The court shall grant summary judgment if the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled t

judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court must construe the

facts and all reasonable inferences therefrom in the light most favorable to the

nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 15¢

(2000). “However, [courts] draw these inferences only ‘to the extent supportable

by the record.” Penley v. Eslinger, 605 F.3d 843, 848 (11th Cir. 2010) (quoting

Scott v. Harris, 550 U.S. 372, 381 n.8 (2007)). “Thus, the requirement to view

15 Kuba admitted in her deposition that, to her knowledge, this was the first

time anyone at DFS knew that she had contacted a government agency. (Kuba Dep. at

326). Kuba speculates, however, that Willis and Widger suspected Kuba was talking

to the SEC because of her repeated invocation of the Sarbanes—Oxley Act and Dye’s

alleged warning not to talk to anyone about her concerns. (Id. at 345-46).

20

the facts in the nonmoving party’s favor extends to genuine disputes ove:

material facts and not where all that exists is ‘some metaphysical doubt as t

material facts,” Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.

475 U.S. 574, 586 (1986)). “Essentially, the inquiry is ‘whether the evidenc

presents a sufficient disagreement to require submission to the jury or whethe:

it is so one-sided that one party must prevail as a matter of law.” Sawyer v

Southwest Airlines Co., 243 F. Supp. 2d 1257, 1262 (D. Kan. 2003) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)).

HiIl. DISCUSSION

A. The Sarbanes-Oxley Whistleblower Claim (Count I)

Congress enacted the Sarbanes—Oxley Act (SOX) in 2002 “[t]o safeguarc

investors in public companies and restore trust in the financial market:

following the collapse of Enron Corporation.” Lawson v. FMR LLC, 571 U.S. 429

432 (2014). To that end, one provision of SOX makes it unlawful for a public

company or certain subsidiaries of a public company to “discharge, demote

suspend, threaten, harass, or in any other manner discriminate against an}

employee” who “provide[s] information” to authorities either within or without

the company "regarding any conduct which the employee reasonably believe:

constitutes a violation of section 1341, 1848, 1344, or 1848, any rule o1

21

regulation of the Securities and Exchange Commission, or any provision o

Federal law relating to fraud against shareholders.” 18 U.S.C. § 1514A(a).16

To establish a prima facie case of retaliation under SOX, a plaintiff mus

show by a preponderance of the evidence that “(i) the employee engaged in :

protected activity or conduct; (ii) the [employer] knew or suspected, actually o

constructively, that the employee engaged in the protected activity; (iii) th

employee suffered an unfavorable personnel action; and (iv) the circumstance:

were sufficient to raise the inference that the protected activity was ;

contributing factor in the unfavorable action.” Johnson v. Stein Mart, Inc., 44(

F. App’x 795, 800 (11th Cir. 2011) (quoting 29 C.F.R. § 1980.104(b)(1)).

Unlike Kuba’s other retaliation claims (discussed below), SOX does no

follow the familiar burden-shifting framework outlined in McDonnell Dougla:

Corp. v. Green, 411 U.S. 792, 802-04 (1973). Instead, once a plaintiff ha:

established a prima facie case of retaliation under SOX, an employer may only

escape liability by establishing “by clear and convincing evidence that [it] woulc

have taken the same personnel action in the absence of the protected activity.’

Stein Mart, 440 F. App’x at 801 (quoting Welch v. Chao, 536 F.3d 269, 275 (4tk

Cir. 2008)). The practical effect of this difference is that “the defendant's burder

under [§ 1514A(a)] is notably more than under other federal employee protectior

16 DFS stipulates that it is covered by § 1514A(a) for the purposes of this case

(Doc. 39 ¥ 1).

22

statutes, thereby making summary judgment against plaintiffs in Sarbanes.

Oxley retaliation cases a more difficult proposition.” Leshinsky v. Telvent GIT

S.A., 942 F. Supp. 2d 482, 441 (S.D.N.Y. 2013).

1. The Prima Facie Case

An employee engages in protected activity under SOX when she provide

information about conduct that she “reasonably believes” constitutes a violatiot

under the Act to “a person with supervisory authority over the employee.

§ 1514A(a). To satisfy this requirement, the employee must “demonstrate bot!

a subjective belief and an objectively reasonable belief that the company’

conduct violated” the law in question. Gale v. U.S. Dep’t of Labor, 384 F. App’

926, 930 (11th Cir. 2010). Notably, however, the employee is not required t

prove that a violation actually took place. See, e.g., Collins v. Beazer Home:

USA, Inc., 334 F. Supp. 2d 1365, 1376 (N.D. Ga. 2004).

Here, there is little doubt that the core of Kuba’s June 18 email t

Kalogridis—including her statement the company lacked “internal controls ove!

the accounting system/accounting flow” for coupon codes and was thus “not ir

compliance with SOX’—constituted “protected activity” under § 1514A(a). Ir

fact, DFS has stipulated to just that. (Doc. 39 § 2). Itis also clear that DFS knew

about this protected activity and that Kuba “suffered an unfavorable personne

action” when she was fired from her job. The only question remaining at this

23

stage, then, is whether Kuba’s protected activity was “a contributing factor” it

her termination.

According to the Eleventh Circuit, “[a] ‘close temporal proximity’ □□□□□□□

the protected expression and an adverse action is sufficient circumstantia

evidence of a causal connection for purposes of a prima facie case.” Higdon v

Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004). As DFS correctly points out

“[t]he Supreme Court has established a demanding standard for reliance or

temporal proximity alone . . . , requiring the events to be ‘very close’ in time.

(Doc. 38 at 17 (quoting Clark Cnty. School Dist. v. Breeden, 532 U.S. 268, 27%

(2001)). Indeed, the Supreme Court has “cited with approval decisions in whicl

a three to four month disparity was found to be insufficient to show causa

connection.” Higdon, 393 F.3d at 1220 (citing Breeden, 532 U.S. at 273). At the

same time, however, the Eleventh Circuit has “held that a period as much a:

one month between the protected expression and the adverse action is not toc

protracted.” Jd. (citing Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 145°

(11th Cir. 1998)).

Kuba engaged in protected activity on June 18, 2017. Although she was

not fired until September 21, DFS insists that the decision to fire her was made

on July 14, less than one month after her email to Kalogridis. But the fact that

DFS’s plan to fire Kuba was delayed by her own decision to take medical leave

before that plan was executed does little to undermine the inference of causatior

94

justified by temporal proximity. Perhaps recognizing this, DFS challenge:

causation in a different way. Pointing to Kuba’s first email to Kalogridis it

2016—which the parties stipulate was also protected activity, (Doc. 39 § 2)—

DFS argues that “no reasonable jury could conclude that Willis would no

retaliate after Kuba’s alleged whistleblowing activity in September 2016, bu

then suddenly decide to retaliate against her after” sending a similar email o1

June 18, 2017. (Doc. 38 at 17).17

The Court is not convinced. A reasonable jury might conclude, fo:

example, that Kuba’s second email to Kalogridis demonstrated a doggec

commitment to the issue that DFS was unwilling to humor further

Alternatively, a jury might conclude that the direct allegation in Kuba’s □□□□

18 email—that DFS was “not in compliance with SOX”—provided a more urgen’

cause for retaliation. To be clear, the Court is not suggesting that either of these

suppositions is correct. But their easy invention undermines DFS’s suggestior

that it would be wholly unreasonable to attribute an inference of causation □□

the temporal proximity between Kuba’s June 18, 2017 email and DFS’s decisior

17 DFS also argues that “Kuba’s own actions sever any causal connection she

may attempt to establish through an alleged temporal proximity.” (Doc. 38 at 18 (citing

Hall v. Teva Pharm. USA, Inc., 214 F. Supp. 3d 1281, 1288-89 (S.D. Fla. 2016))). Bu

the only action cited by DFS that occurred after Kuba’s June 18 email to Kalogridi:

was the email she sent later that day to Employee Relations, in which she complainec

that Martin “feels she can bully me and run rough shot [sic] over me with setting ur

codes.” As the Court discusses elsewhere in this Order, that email may itself constitute

protected activity, a possibility fatal to DFS’s severance argument.

25

to fire her less than a month later. The two emails to Kalogridis, though simila:

in kind, are different in degree, and a reasonable jury might fairly treat then

as separate instances of protected activity.

And evidence of temporal proximity is not the only factor suggesting tha

Kuba’s protected activity may have contributed to her termination. Willis anc

Widger, the two leaders who made the decision to fire Kuba, admitted that they

based this decision on the “findings and recommendations” Dye presented in he:

executive summary. (Widger Dep. at 11; Willis Dep. at 15-16). Dye, in turn

admitted that her investigation into Kuba’s behavior was spurred, at least ir

part, by Kuba’s June 18 email to Kalogridis. (Dye Dep. at 90-91).

Although Dye claims that Kuba’s concerns about a lack of interna

controls and non-compliance with SOX were outside the scope of he:

investigation, (id. at 123, 139), she did discuss these issues with Kuba, (id. at

55), and quoted them directly in her executive summary, (Doc. 38-45 at 3). Anc

while Willis and Widger both insist that Kuba’s statements about “interna

controls, SOX, segregation of duties, and ethics” in her June 18 email “were not

a factor in [their] decision to terminate her employment,” (Willis Decl. 4 8; □□□

also Widger Decl. { 6), the jury is free to weigh such testimony against othe:

evidence, including the inclusion of those issues in Dye’s executive summary

and Kuba’s testimony that Dye “threatened” her not to raise her concerns witl

anyone else, (Kuba Dep. at 289-90). Moreover, as the Court discusses below, «

26

jury might reasonably determine that that the proffered reason for Willis anc

Widger’s termination decision—“Kuba’s statement that the [Advisory 8

Assurance] team was giving out codes to anyone who wants one,” (Willis Decl

{| 8; Widger Decl. {| 6)—was itself protected activity, negating any need for ¢

causal inference.

The Court concludes that a reasonable jury could find that Kuba ha:

established by a preponderance of the evidence that she engaged in protectec

activity, that DFS knew of her protected activity, that she suffered ar

unfavorable personnel action, and that circumstances exist which create ar

inference that the protected activity was a contributing factor in tha

unfavorable personnel action. In other words, the jury could find that Kuba ha:

established her prima facie case of retaliation under SOX. Accordingly, DFS

may only succeed at the summary judgment stage if there is no genuine □□□□□□□

that the record clearly and convincingly shows that DFS would have taken the

same unfavorable personnel action in the absence of Kuba’s protected activity.

2. DFS’s Rebuttal

To rebut Kuba’s prima facie case, DFS argues that Willis and □□□□□□

would have fired Kuba regardless of her stipulated protected activity because

they “honestly believed” following Dye’s investigation “that Kuba had not made

the accusations against [Kalso, Martin, and Advisory & Assurance] in good faitk

27

as required by company policy, and... her actions warranted termination.

(Willis Decl. { 5; Widger Decl. 4).

As a threshold matter, the Court is skeptical that such a bare assertion o

propriety, by itself, could possibly satisfy an employer’s heightened burde:

under SOX to provide “clear and convincing evidence” in rebuttal of a1

employee’s prima facie case. To support its argument to the contrary, DFS cite.

Johnson v. Stein Mart, Inc., an unpublished case in which the Eleventh Circui

affirmed a grant of summary judgment to an employer that argued its employe

“would have been terminated for performance reasons regardless of he:

protected activity.” (Doc. 38 at 18 (citing 440 F. App’x 795 (11th Cir. 2011))). In

Johnson, however, the court emphasized that the employer’s “non-retaliatory

rationale” was well-documented and “amply corroborated.” 440 F. App’x at 801

For example, the court highlighted the employee’s “abundantly demonstratec

failure to substantially improve . . . during her probationary period despite

receiving multiple prior warnings . . . [and] several meetings with her superviso:

specifically designed to assist her in handling the position in a more satisfactory

manner.” Id. at 802—03 (emphasis added). Prior to her termination, in fact, the

employee in Johnson “received a ‘Final Warning’ which notified her that he:

performance must improve significantly within 90 days, or she would risk

further disciplinary action.” Johnson v. Stein Mart, Inc., No. 3:06-cv-341-d:

33TEM, 2007 WL 1796265, at *3 (M.D. Fla. June 20, 2007).

28

Here, DFS has offered no comparable documentation or corroboration t

show by clear and convincing evidence that it would have fired Kuba solely fo

her allegedly unprotected accusations.18 See Shea v. Kohl’s Dep’t Stores, Inc., Nc

7:16-cv-01155-TMP, 2019 WL 1452887, at *8-9 (N.D. Ala. Apr. 2, 2019

(distinguishing Johnson and denying summary judgment where the employe

could not provide similar evidence of prior warnings and negative performanc

reviews). While DFS may be inclined to point to Dye’s executive summary fo.

such corroboration, doing so would prove a tricky tactic, as that summar

explicitly references some of the statements from Kuba’s June 18 email t

Kalogridis that DFS acknowledges are protected. (See Doc. 38-45 at 3). Bi

comparison, the district court in Johnson relied on the fact that “[t]he reason:

advanced by Stein Mart for terminating Johnson's employment [were

convincingly unrelated to Johnson's [protected] complaints.” Johnson, 2007 WI

1796265, at *5.

Even if DFS could show by clear and convincing evidence that it woult

have fired Kuba solely for her accusations against Kalso, Martin, and Advisory

18 While the record is replete with instances of Kuba sending ill-tempered anc

unprofessional messages to her coworkers—including her supervisors—DFS does no

argue that it fired Kuba for her vexatious attitude. Instead, DFS argues that it firec

her for making three specific accusations, as outlined in Dye’s executive summary. An¢

while Kuba’s accusation against Kalso—which bore no relation to protected activity—

may have justified Kuba’s termination by itself, DFS has failed to show by clear anc

convincing evidence at this stage of the case that it would have fired Kuba for that

offense alone. To the contrary, Willis’s and Widger’s statements suggest that they were

motivated to fire Kuba based on all three of her allegations taken together.

29

& Assurance, this simply raises the question of whether any of those accusation:

were protected themselves. DFS has stipulated that most of Kuba’s June 1!

email to Kalogridis constitutes protected activity. (Doc. 39 § 2). It insists

however, that Kuba’s specific accusations against Martin and her team a

Advisory & Assurance! are not protected because they “do not relate to th:

violation of any law, rule or regulation” outlined in § 1514A. (Doc. 50 at 3). Th

Court disagrees.

DFS is correct insofar as SOX “does not extend protection to every

employee complaint about possible improper or even illegal conduct.” □□□□□□□□

Grumman Sys. Corp. v. U.S. Dep’t of Lab., Admin. Rev. Bd., 927 F.3d 226, 226

(4th Cir. 2019). Rather, SOX prohibits retaliation only where “the employe:

provides information regarding conduct that he or she reasonably believe:

violates one of six categories listed by Congress in § 1514A(a)(1).” Id. at 229-30

“Those categories are mail fraud, wire fraud, bank fraud, securities fraud, any

SEC rule or regulation or any federal law relating to fraud □□□□□□□

shareholders.” Jd. at 229.

Contrary to DFS’s assertion, a jury could fairly determine that □□□□

reasonably believed her accusations against Martin and Advisory & Assurance

19 Kuba does not and could not claim that her accusations against Kalsc

constitute protected activity under SOX. Again, however, DFS has provided nc

evidence that it would have fired Kuba for those accusations alone.

30

related to a violation of one of these categories. The gravamen of Kuba’s concert

is that, by dissolving the role of a centralized “Code Administrator” anc

diversifying responsibility for mapping and issuing coupon codes, DFS was lef

with “no internal controls over the accounting system/accounting flow” o

noncash media and was therefore “not in compliance with SOX.” (Doc. 38-35 a

2; Kuba Dep. at 393). This general complaint, DFS concedes, is protected. It i:

hard then to understand why Kuba’s specific complaints that Advisory 8

Assurance was “simply giving 4-digit [coupon codes] to anyone who wants one,

(Doc. 38-35 at 1), or that Martin felt she could “bully” Kuba and “run rough sho

[sic] over [her] with setting up codes,” (Doc. 38-18 at 1), would not be similarh

protected. If anything, Kuba appears to be supplementing her protectec

statements about a lack of internal controls with specific examples tha

illustrate her concerns.2°

20 DFS may argue that Kuba could not have reasonably believed that he:

accusations against Martin and Advisory & Assurance were related to a violation o

relevant law because, as Dye determined, Kuba’s description of their conduct wa:

demonstrably untrue. Were a jury to agree with Dye, Willis, and Widger that Kubs

could not have reasonably believed that Martin and Advisory & Assurance □□□□

engaged in the misconduct that she alleged, this would indeed mean that. those

accusations would not be protected. But the Court cannot rule at this stage that Kuba’

accusations were objectively unreasonable as a matter of law. See Burns v. Medtronic

Inc., No. 8:15-cv-2330-T17-TBM, 2016 WL 3769369, at *4 (M.D. Fla. July 12, 2016) (“I

there is any question . . . [that] reasonable minds could disagree about whether [ar

employee’s] belief was objectively reasonable, the issue cannot be decided as a matte!

of law.” (citing Rhinehimer v. U.S. Bancorp Invs., Inc., 787 F.3d 797, 812 (6th Cir

2015))).

31

The cases cited by DFS are inapposite. In Miller v. Stifel, Nicolaus & Co.

which DFS provided during oral argument on the present motions, a distric

court in Minnesota held that an employee’s mere “complaints about allege

violations of internal company policies [were] not protected activities unde

SOX.” 812 F. Supp. 2d 975, 988 (D. Minn. 2011). Here, however, Kuba did no

allege that Martin and Advisory & Assurance were violating internal company

policies. To the contrary, she alleged that their actions demonstrated a lack o

internal company policies that were in fact required under federal securitie:

laws. See Thomas v. Tyco Int'l Mgmt. Co., LLC, 262 F. Supp. 3d 1328, 1337 (S.D

Fla. 2017) (“An employee's complaint concerning inadequate internal contro

over financial reporting can constitute protected activity.”). By comparison

none of the employee’s allegations in Miller—that some of her coworkers “usec

and sold marijuana,” “used [the company’s] copy machine for . . . persona

printing,” “engaged in an affair at the . . . branch office,” and “spent too mucl

time traveling’—were even tangentially related to a violation of federa

securities laws. 812 F. Supp. 2d at 987. And, significantly, the court in Mille:

found “no evidence that [the employee] ‘actually believed the conduc

complained of constituted a violation of pertinent law.” Id. at 988 (quoting Welc/

v. Chao, 536 F.3d 269, 278 n.4 (4th Cir. 2008)).

The remaining cases cited by DFS are similarly unpersuasive, doing littl

to support its argument that Kuba’s allegations are not protected under SOX

32

In Hatmaker v. Memorial Medical Center, for example, the Seventh Circuit hel

in an employment retaliation case brought under Title VII that “participatior

[in a Title VII investigation] doesn’t insulate an employee from being discharge

for conduct that, if it occurred outside an investigation, would warran

termination.” 619 F.3d 741, 745 (7th Cir. 2010).2! According to the employer i

that case, the employee was fired not for participating in an investigation abou

her boss’s alleged sex discrimination but for the employee’s “disturb[ing]” anc

“gratuitous references to Jews, Catholics, Southern Baptists, Don Imus, A

Sharpton, and Jesse Jackson,” which she made in the course of tha

investigation. Id. Unlike the employee in Hatmaker, Kuba was not “trafficking

in stereotypes” or “attributing ‘sexist attitudes’ to assumed tenets” of he:

coworkers’ religions, id. at 746—she was simply reporting what she claimec

were examples of lackluster internal controls over noncash media. Whether o:

not Kuba reasonably believed this claim is a question that the jury will have t

decide.

21 Critically, the court in Hatmaker acknowledged that its core holding i:

contradicted by Pettway v. American Cast Iron Pipe Co., 411 F.2d 998 (5th Cir. 1969)

a case that remains binding on this Court. See Bonner v. City of Prichard, 661 F.2c

1206, 1207 (11th Cir. 1981) (holding that decisions issued by the Fifth Circuit on 01

before September 30, 1981, are binding precedent in the Eleventh Circuit); see □□□□

Booth v. Pasco Cnty., 829 F. Supp. 2d 1180, 1200 (M.D. Fla. 2011) (recognizing tha

Pettway is binding in the Eleventh Circuit). To whatever extent the reasoning o

Hatmaker is not foreclosed by Pettway, the Court is not persuaded.

33

Finally, the Court rejects DFS’s reliance on Armstrong v. BNSF Railwa.

Co., 880 F.3d 377 (7th Cir. 2018), for the proposition that so long as Willis an

Widger “honestly believed” that Kuba’s accusations against Martin an

Advisory & Assurance were made in bad faith—and thus unprotected—DF!

could not be held liable for firing her under SOX. As another court acknowledge:

in a later case, “the only conclusion to be drawn from Armstrong is th.

recognition that it would not be possible to show that an employer retaliated i

response to an employee engaging in protected activity if the employer coul

demonstrate that it honestly believed no protected activity had occurred.” Fros

v. BNSF Ry. Co., 914 F.3d 1189, 1197 (9th Cir. 2019). Here, however, DFS ha

already stipulated that Kuba engaged in protected activity when she sent he:

June 18 email to Kalogridis. The fact that Willis and Widger may have □□□□□□□□□

believed” that certain parts of that email were not protected does nothing t

show by clear and convincing evidence that DFS would have fired Kuba even it

the absence of those parts that were. See Collins, 334 F. Supp. 2d at 1380-8:

(“It is evident that Plaintiff made numerous complaints to her supervisors

many of which would not constitute protected activity under Sarbanes—Oxley

To allow Defendants to obtain summary judgment by singling out thes

complaints and insisting that only unprotected complaints were the basis fo:

their action against Plaintiff would thwart the purpose of Sarbanes—Oxley.”).

34

To sum up, a reasonable jury could find that Kuba has established he

prima facie case of retaliation under SOX, and DFS has failed to show by clea

and convincing evidence that it would have fired Kuba in the absence of he

protected activity. Accordingly, DFS’s Motion for Summary Judgment (Doc. 38

must be denied as to Kuba’s SOX claim.22

B. The Dodd-Frank Act Claim (Count I)

“Passed in the wake of the 2008 financial crisis,” the Dodd—Frank Wal

Street Reform and Consumer Protection Act (Dodd—Frank) “aim[s] to □□□□□□□□

the financial stability of the United States by improving accountability anc

transparency in the financial system.” Digit. Realty Tr., Inc. v. Somers, 138 8

Ct. 767, 773 (2018) (quoting Pub. L. No. 111-203, § 1, 124 Stat. 1376, 137

(2010)). Like SOX, Dodd—Frank encourages employees to “blow the whistle” or

their employers’ financial wrongdoing and shields them from retaliation wher

they do so—with some important differences. See 15 U.S.C. § 78u—6(h).

To establish a prima facie case of retaliation under Dodd—Frank, :

plaintiff must show that “(1) [she] engaged in a protected activity, (2) [she

suffered a materially adverse employment action, and (3) the adverse action wa:

22 Because there are still genuine issues of material fact regarding whether the

protected elements of Kuba’s June 18 email to Kalogridis were “a contributing factor

in her termination and whether she “reasonably believed” that her accusations agains

Martin and Advisory & Assurance related to a violation of relevant law, Kuba’s □□□□□□

for Partial Summary Judgment (Doc. 37) must also be denied.

35

causally connected to the protected activity.” Thomas v. Tyco Int’l Mgmt. Co.

LLC, 416 F. Supp. 3d 1340, 1367 (S.D. Fla. 2019) (quoting Hall v. Teva Pharm

USA, Inc., 214 F. Supp. 3d 1281, 1289 (S.D. Fla. 2016)). Unlike SOX claims

retaliation claims under Dodd—Frank follow the familiar McDonnell Dougla.

framework used for Title VII claims. Thus, “if the plaintiff succeeds in provins

the prima facie case, the burden shifts to the defendant to articulate som:

legitimate, nondiscriminatory reason for the [adverse action]... . [S]hould the

defendant carry this burden, the plaintiff must then have an opportunity t

prove by the preponderance of the evidence that the legitimate reasons offerec

by the defendant were not its true reasons, but were a pretext for [retaliation].

Id. (quoting Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-5:

(1981)).

Also unlike SOX, the anti-retaliation provision of Dodd—Frank does no’

protect the entire genus of busybody employees who voice their concerns abou

financial malfeasance. Instead, it protects only those who meet the statutory

definition of a “whistleblower” under the Act—that is, an “individual whc

provides . . . information relating to a violation of the securities laws to the

[SEC].” § 78u—6(a)(6); see also Digit. Realty, 138 S. Ct. at 777. This limitatior

reflects the “core objective’ of Dodd—Frank’s robust whistleblower program,’

which is to “motivate people who know of securities law violations” not just t

tell their supervisors, but “to tell the SEC.” Digit. Realty, 138 S. Ct. at 77°

36

(quoting S. Rep. No. 111-176, at 38 (2010)). Importantly, an employee who doe:

tell the SEC—and thus meets the statutory definition of a whistleblower unde:

Dodd—Frank—is protected from retaliation even for “reports of wrongdoin;

[made] to an internal supervisor,” so long as those reports are “independenth

safeguarded from retaliation under Sarbanes—Oxley.” Id. at 774 (citing § 78u-

6(h)(1)(A)(iii)); see also id. at 779 (“The employee can recover under the statute

without having to demonstrate whether the retaliation was motivated by th¢

internal report ... or by the SEC disclosure.”).

DFS does not dispute that Kuba became a “whistleblower” for □□□

purposes of her Dodd—Frank claim once she filed her TCR with the SEC o1

August 7, 2017. (See Doc. 39 { 3). It argues, however, that “Kuba’s [Dodd—Frank

claim is fatally defective because she was not a ‘whistleblower’ when the decisior

to terminate her employment was made” on July 14, 2017. (Doc. 38 at 19). O

course, by DFS’s own admission, Kuba was a whistleblower by the time she wa:

actually fired on September 21, 2017.

DFS provides no authority for the proposition that the decision date

rather than the termination date matters for the purpose of an employee’

Dodd—Frank claim, and the Court is skeptical that it could.23 Looking at the

23 DFS does offer one case in which a district court dismissed an employee’:

Dodd—Frank claim because, as DFS characterizes it, the employee “failed to file wit!

the SEC prior to the termination decision.” (Doc. 50 at 4 (citing Slawin v. Bank of Am

Merch. Servs., 491 F. Supp. 3d 1334, 1344 (N.D. Ga. 2020))). DFS curiously omits fron

37

plain text of the statute, Dodd—Frank prohibits an employer from “discharg|[ing

...a whistleblower [for] . .. making disclosures that are required or □□□□□□□□

under [SOX].” § 78u—6(h)(1)(A). To the extent that the decision to discharge a1

employee and the implementation of that decision constitute separate actions

Dodd—Frank is clearly concerned with the latter.24 The Court thus rejects DFS’

argument that Kuba was not a whistleblower under Dodd—Frank during th

relevant period.

As discussed at length above, genuine issues of material fact exis

regarding whether Kuba’s termination was causally connected to he

undisputed protected activity. And although DFS has attempted to offer ;

“legitimate, non-retaliatory reason” for terminating Kuba—her accusation.

against Kalso, Martin, and Advisory & Assurance—the Court has alread:

explained why those accusations themselves may constitute protected activity

its description of that case that the termination decision and the actual □□□□□□□□□□□

occurred on the same day—both before the employee filed his complaint with the SEC

(Slawin, 491 F. Supp. 3d at 1338). That case is therefore distinguishable.

24 As a guide for the (potentially) perplexed: the Court found earlier in this Orde:

that the decision date is relevant in assessing Kuba’s prima facie case for □□□□□□□□□□□

under SOX because it goes to an inference of causation. See supra Section □□□□□□□□ Bu

it is not relevant in assessing whether she is a “whistleblower” under Dodd—Franl

because Kuba is not required to prove that her SEC disclosure was a contributing

factor in her termination, only that she made it before she was actually terminated

See Digit. Realty, 1388 S.Ct. at 777 (“The whistleblower definition [found in § 78u-

6(a)(6)] . . . describes who is eligible for protection. . . . The three clauses of § 78u-

6(h)(1)(A) then describe what conduct, when engaged in by a whistleblower, is shieldec

from employment discrimination.”).

38

Accordingly, DFS’s Motion for Summary Judgment (Doc. 38) must be denied a

to Kuba’s Dodd—Frank claim.

C. The California False Claims Act Claim (Count IT)

In addition to her claims under federal and Florida law, Kuba also bring

a claim under the California False Claims Act (CFCA). Modeled explicitly afte:

its federal eponym, the CFCA “establishes a cause of action against persons wh

submit false claims for money, property, or services to the State of California o

its political subdivisions.” Gavriliuc v. TEKsystems, Inc., No. 8:20-cv-02164

JLS-DFM, 2021 WL 3568252, at *3 (C.D. Cal. Apr. 14, 2021). More relevant t

this case, “[i]t also prohibits retaliation against any employee . . . based or

‘lawful acts’ done by that individual in furtherance of an action under the CFC/

or efforts to stop conduct that violates the CFCA.” Id. (citing Cal. Gov’t Cod

§ 12653(a)).

Like employees pursuing retaliation claims under SOX and Dodd—Frank

an employee seeking to establish a prima facie case of retaliation under th:

CFCA must show: “(1) that he or she engaged in activity protected under th«

statute; (2) that the employer knew the plaintiff engaged in protected activity

and (3) that the employer discriminated against the plaintiff because he or sh«

engaged in protected activity.” Id. (quoting Mendiondo v. Centinela Hosp. Med

Cir., 521 F.3d 1097, 1103 (9th Cir. 2008)). The meaning of “protected activity’

under the CFCA differs from that of other statutes and is “limited to activitie:

39

that reasonably could lead to a [CFCA] action; in other words, investigations

inquiries, testimonies or other activities that concern the employer’s knowin;

submission of false or fraudulent claims for payment to the government.” Id

(quoting Wiitenbrock v. Sunovion Pharms., Inc., No. EDCV 19-342 JVS (SHKx)

2019 WL 4452977, at *3 (C.D. Cal. July 29, 2019)). With that in mind, Kuba’

Complaint alleges that she “engaged in protected activity when she objected t

and/or reported underreporting and errors in [DFS]’s revenue recognition anc

sales tax reporting and payments to the State of California” and that she wa:

fired in part because of those objections. (Doc. 1 § 60-69).

As DFS correctly points out, there is a significant problem with Kuba’

CFCA claim: the statute does not apply to false “claims, records, anc

statements” made under California’s Revenue and Taxation Code. § 12651(f)

Because DFS’s purported “failure . . . to collect[,] report[,] and remit proper [tax

payment to the State of California,” (Doc. 48 at 19), could not reasonably lead t«

an action under the CFCA, Kuba’s “object[ion] to and/or report[ing of]” tha:

conduct is not protected by the CFCA’s anti-retaliation provision.25 See Kaye v

Bad. of Trs. of San Diego Cnty. Pub. L. Libr., 101 Cal. Rptr. 3d 456, 464-65 (Ct

25 In a rather half-hearted effort to circumvent the CFCA’s tax bar, Kuba state:

for the first time in her Response that her CFCA claim actually rests on DFS’s □□□□□

claims against its shareholders, among whom is CalPERS, a subdivision thereof.” (Doc

48 at 19). Kuba offers no authority for or explication of this novel legal argument, whicl

the Court therefore rejects.

40

App. 2009) (“[T]o constitute protected activity under the CFCA ... it must b

reasonably possible for the employee's conduct to lead to a false claims action.”

see also Wilson ex. rel State Bd. of Equalization v. Farmers Ins. Exch., Nc

B188167, 2007 WL 1113332 (Cal. Ct. App. 2007) (unpublished case confirmin:

that § 12651(f) bars a CFCA claim based on the defendant’s underreporting c

revenue in state tax filings). Accordingly, DFS’s Motion for Summary J udgmen

(Doc. 38) must be granted as to Kuba’s CFCA claim.

D. The Florida Private Whistleblower Act Claim (Count IV)

Florida’s Private Whistleblower Act (FWA) provides that “ [aln employe

may not take any retaliatory personnel action against an employee because th

employee has .. . [o]bjected to, or refused to participate in, any activity, policy

or practice of the employer which is in violation of a law, rule, or regulation.

§ 448.102(3), Fla. Stat. In familiar fashion, an employee seeking to establish ;

prima facie case of retaliation under the FWA must show that: “(1) she engage

in statutorily protected expression; (2) she suffered an adverse employmen

action; and (3) the adverse employment action was causally linked to the

protected activity. Graddy v. Wal-Mart Stores East, LP, 237 F. Supp. 3d 1223

1226 (M.D. Fla. 2017) (citing Kearns v. Farmer Acquisition Co., 157 So. 3d 458

462 (Fla. 2d DCA 2015)). Then, in line with the McDonnell Douglas framework

“the burden shifts to the defendant to proffer a legitimate reason for the □□□□□□□

action,” before shifting “back to the plaintiff to prove by a preponderance of □□□

Al

evidence that the ‘legitimate’ reason is merely pretext for prohibited, retaliator:

conduct.” Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 950 (11th Cir. 2000)

Once again, DFS does not dispute that most of Kuba’s June 18 email t

Kalogridis constitutes protected activity for the purpose of her FWA claim. (Doc

39 § 2). Instead, DFS revives its argument that Kuba cannot show a causa

connection between this protected activity and her termination and that, ever

if she could, she cannot prove that DFS’s legitimate explanation is pretextual

(Doc. 38 at 22-24). But the same argument begets the same response. □□□□□□□

genuine issues of material fact exist regarding whether Kuba’s termination wa:

causally connected to her undisputed protected activity, and because DFS’

purportedly legitimate reason for Kuba’s firing may itself constitute protectec

activity, DFS’s Motion for Summary Judgment (Doc. 38) must be denied as t«

Kuba’s FWA claim.

EK. The Equal Pay Act Claim (Count V)

In addition to the retaliation claims stemming from her firing, Kubs

alleges in her Complaint that DFS violated the Equal Pay Act during her tenure

at the company by paying her less than her similarly situated male coworkers

(Doc. 1 {| 69-79). “Under the Equal Pay Act, employers may not pay thei

employees at different rates for the same work based on sex.” Hornsby

Culpepper v. Ware, 906 F.3d 1302, 1813 (11th Cir. 2018) (citing 29 U.S.C

§ 206(d)(1)). To establish a prima facie case, the employee must show that “the

42

employer paid employees of opposite genders different wages for equal work fo

jobs which require ‘equal skill, effort, and responsibility, and which ar

performed under similar working conditions.” Steger v. Gen. Elec. Co., 318 □□□

1066, 1077-78 (11th Cir. 2003) (quoting Irby v. Bittick, 44 F.3d 949, 954 (111

Cir.1995)). “Once the employee presents a prima facie case, the employer ma:

avoid liability by proving by a preponderance of the evidence that the pat

differences are based on (i) a seniority system; (ii) a merit system; (iii) a systen

which measures earnings by quantity or quality of production; or (iv)... am

other factor other than sex.” Id. at 1078 (quoting 29 U.S.C. § 206(d)(1)).

According to DFS, “Kuba has not produced and cannot produce □□□

evidence establishing substantial similarity of work between her and the tw

male alleged comparators . . . she has identified.” (Doc. 38 at 24—25). In fact

Kuba has not even tried to do so, failing to defend her Equal Pay Act claim it

her Response to DFS’s Motion for Summary Judgment. (See Doc. 48)

Accordingly, DFS’s Motion must be granted as to that claim. See Jones v. □□□□

of Am., N.A., No. 1:12-cv-3855-TCB, 2013 WL 12092557, at *2 (N.D. Ga. Apr

19, 2013) (“When a party fails to respond to an argument or otherwise addres:

a claim, the Court deems such argument or claim abandoned.” (quoting Hudsor

uv. Norfolk S. Ry. Co., 209 F. Supp. 2d 1301, 1324 (N.D. Ga. 2001))).

43

IV. CONCLUSION

For the foregoing reasons it is ORDERED as follows:

1. Kuba’s Motion for Partial Summary Judgment (Doc. 37) is

DENIED.

2. DFS’s Motion for Summary Judgment (Doc. 38) is GRANTED

as to Count II and Count V of Kuba’s Complaint. In all other

respects, that Motion is DENIED.

DONE and ORDERED in Orlando, Florida, on August 2, 2022.

fy □□□□

JOHN ANTOON II

United States District Judge

Copies furnished to: ~

Counsel of Record

44