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McEuen v. Riverview Bancorp, Inc.

United States District Court, Ninth Circuit

December 19, 2013

TRACEY McEUEN, Plaintiff,
v.
RIVERVIEW BANCORP, INC., a Washington corporation; RIVERVIEW COMMUNITY BANK, a Washington nonprofit corporation, Defendants.

ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

ROBERT J. BRYAN, District Judge.

This matter comes before the Court on Defendants' motion for summary judgment. Dkt. 67. The Court has considered the pleadings in support of and in opposition to the motions and the record herein.

INTRODUCTION AND BACKGROUND

Plaintiff, Tracey McEuen commenced this action against Defendants Riverview Bancorp, Inc., and Riverview Community Bank (Riverview), asserting causes of action pursuant to Section 806 of the Corporate and Criminal Fraud Accountability Act, Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1514A(a)(1) and Washington common law prohibiting wrongful discharge against public policy. Dkt. 1.

McEuen was hired on February 28, 2011, to be an Internal Auditor and Sarbanes-Oxley Act (SOX) Administrator for Defendant Riverview. Dkt. 68 p. 7. McEuen's responsibilities included generating SOX reports, conducting audits of the bank's departments and branches; documenting work, assisting in evaluating the adequacy of internal control systems and compliance with applicable state and federal regulations, identifying findings and recommendations, and preparing reports. Dkt. 68 p. 9. McEuen's employment was terminated on October 14, 2011. Riverview's justification for the termination was McEuen's violation of Bank policy prohibiting the use of an external hard drive at work. Dkt. 83-2 pp. 34-35; Dkt. 83-1 pp 55-56.

McEuen filed a complaint with the Occupational Safety and Health Administration (OSHA) under Section 806 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1514A(b)(1). Dkt. 1 p. 3. After waiting the statutory period, McEuen filed this action, alleging both a claim for retaliation in violation of the Sarbanes-Oxley Act and a claim for wrongful discharge in violation of public policy under Washington law. Dkt. 1 pp. 7-9.

Riverview moves for summary judgment on both of McEuen's claims. Riverview argues that McEuen has failed to make a prima facie showing that she engaged in protected activity, or that such conduct was a contributing factor in her termination from employment. Riverview further argues that the clear and convincing evidence establishes that McEuen would have been terminated for violation of bank policy, regardless of any alleged protected activity. Dkt. 67 p. 2. McEuen counters with the argument that there exist genuine issues of material fact prohibiting the grant of summary judgment. Dkt. 82.

SUMMARY JUDGMENT STANDARDS

Summary judgment is appropriate only when the pleadings, depositions, answers to interrogatories, affidavits or declarations, stipulations, admissions, answers to interrogatories, and other materials in the record show that "there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In assessing a motion for summary judgment, the evidence, together with all inferences that can reasonably be drawn there from, must be read in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

The moving party bears the initial burden of informing the court of the basis for its motion, along with evidence showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On those issues for which it bears the burden of proof, the moving party must make a showing that is sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party. Idema v. Dreamworks, Inc., 162 F.Supp.2d 1129, 1141 (C.D. Cal. 2001).

To successfully rebut a motion for summary judgment, the non-moving party must point to facts supported by the record which demonstrate a genuine issue of material fact. Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736 (9th Cir. 2000). A "material fact" is a fact that might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute regarding a material fact is considered genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, at 248. There must be specific, admissible evidence identifying the basis for the dispute. S.A. Empresa de Viacao Aerea Rio Grandense v. Walter Kidde & Co., Inc., 690 F.2d 1235, 1238 (9th Cir. 1980). The mere existence of a scintilla of evidence in support of the party's position is insufficient to establish a genuine dispute; there must be evidence on which a jury could reasonably find for the party. Anderson, at 252.

SARBANES-OXLEY ACT

The Sarbanes-Oxley Act's (SOX) whistleblower provision, 18 U.S.C. § 1514A, protects employees of publicly-traded companies from discrimination in the terms and conditions of their employment when they take certain actions to report conduct that they reasonably believe constitutes certain types of fraud or securities violations. Tides v. The Boeing Co., 644 F.3d 809, 813 (9th Cir. 2011). 18 U.S.C. § 1514A(a) provides in relevant part:

No company... or any officer, employee, contractor, subcontractor, or agent of such company, may discharge, demote, suspend, threaten, harass or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee-(1) to provide information, cause information to be provided, or otherwise assist in an investigation regarding any conduct which the employee reasonably believes constitutes a violation of section 1341[mail fraud], 1343 [wire fraud], 1344 [bank fraud], or 1348 [securities fraud], any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders, when the information or assistance is provided to or the investigation ...

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