Murray v. UBS Securities, LLC, 601 U.S. ___ (2024)
Trevor Murray worked as a research strategist at UBS, a securities firm. His job involved reporting on commercial mortgage-backed securities markets to current and future customers. Under SEC regulations, Murray was required to certify that his reports were produced independently and reflected his own views. When two leaders of the CMBS trading desk pressured him to make his reports more supportive of their business strategies, Murray told his supervisor about it. The supervisor told Murray not to alienate the trading desk and to write what the business line wanted. He eventually recommended that Murray be removed from his position, despite having recently given him a strong performance review. When the CMBS trading desk did not accept Murray as a transfer, he was fired.
Murray argued that he was terminated in violation of the whistleblower protection provision in the Sarbanes-Oxley Act because UBS fired him in response to his internal reporting about fraud on shareholders. He prevailed at trial, but the Second Circuit Court of Appeals vacated the jury’s verdict and remanded for a new trial. It found that the whistleblower protection provision requires an employee to prove retaliatory intent, which a clarifying jury instruction had not properly indicated.
The U.S. Supreme Court disagreed, instead agreeing with the Fifth and Ninth Circuits that the whistleblower protection provision does not impose this type of requirement. The Court acknowledged that a whistleblower must prove that his protected activity was a contributing factor in the adverse action against him, but it noted that the text of the statute does not include or refer to a requirement of proving retaliatory intent, which it treated as similar to “animus.” The Court noted that the statute contains a burden-shifting framework, requiring the whistleblower to show that their protected activity was a contributing factor in the adverse action, after which the employer must show that it would have taken the same action anyway. It found that a requirement of proving retaliatory intent would be incompatible with the burden-shifting framework.
The phrase “discriminate against an employee . . . because of ” in the whistleblower-protection provision of the Sarbanes-Oxley Act does not require a whistleblower to prove that their employer acted with retaliatory intent.
SUPREME COURT OF THE UNITED STATES
Syllabus
Murray v. UBS Securities, LLC, et al.
certiorari to the united states court of appeals for the second circuit
No. 22–660. Argued October 10, 2023—Decided February 8, 2024
Congress enacted the whistleblower protections of the Sarbanes-Oxley Act of 2002 to prohibit publicly traded companies from retaliating against employees who report what they reasonably believe to be instances of criminal fraud or securities law violations. Title 18 U. S. C. §1514A(a) specifically provides that employers may not “discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of ” protected whistleblowing activity. In this case, Trevor Murray filed a whistleblower action in District Court alleging that UBS terminated his employment in violation of §1514A. Murray had worked for UBS as a research strategist in a role that required him to certify—in accordance with applicable Securities and Exchange Commission regulations—that his reports to UBS customers on the firm’s securities business were independently produced and reflected his own views. UBS terminated Murray shortly after he informed his supervisor that two leaders of the UBS trading desk were engaging in what he believed to be unethical and illegal efforts to skew his independent reporting.
In the District Court, UBS argued it was entitled to judgment as a matter of law on Murray’s whistleblower claim because Murray “failed to produce any evidence that [his supervisor] possessed any sort of retaliatory animus toward him.” The District Court denied the motion. As relevant here, it instructed the jury that, to prove his §1514A claim, Murray must establish by a preponderance of the evidence that his “protected activity was a contributing factor in the termination of his employment.” App. 126–127. If Murray did so, the burden would shift to UBS to “demonstrate by clear and convincing evidence that it would have terminated [Murray’s] employment even if he had not engaged in protected activity.” Id., at 130. The jury found that Murray had established his §1514A claim and UBS had failed to prove that it would have fired Murray even if he had not engaged in protected activity. On appeal, the Second Circuit vacated the jury’s verdict and remanded for a new trial. The Second Circuit held that “[r]etaliatory intent is an element of a section 1514A claim,” and the trial court erred by not instructing the jury on Murray’s burden to prove UBS’s retaliatory intent. 43 F. 4th 254, 258, 262–263.
Held: A whistleblower who invokes §1514A must prove that his protected activity was a contributing factor in the employer’s unfavorable personnel action, but need not prove that his employer acted with “retaliatory intent.” Pp. 7–15.
(a) Section 1514A(a)’s text does not reference or include a “retaliatory intent” requirement, and the provision’s mandatory burden- shifting framework cannot be squared with one. In explaining why, and consistent with the Second Circuit’s opinion, the Court treats “retaliatory intent” as meaning something akin to animus.
Although the Second Circuit and UBS both rely on the word “discriminate” in §1514A(a) to impose a “retaliatory intent” requirement on whistleblower plaintiffs, the word “discriminate” cannot bear that weight. First, placement of the word “discriminate” in the section’s catchall provision suggests that it is meant to capture other adverse employment actions that are not specifically listed, drawing meaning from the terms “discharge, demote, suspend, threaten, [and] harass” rather than imbuing those terms with a new or different meaning. But even accepting UBS’s argument that “discriminate” relates back to and characterizes “discharge,” the word “discriminate” simply does not require retaliatory intent. The “normal definition” of “discrimination” is “differential treatment.” Babb v. Wilkie, 589 U.S. 399, 405. When an employer treats a whistleblower differently, and worse, “because of ” his protected whistleblowing activity, that is actionable discrimination, and the employer’s lack of “animosity” is “irrelevant.” Bostock v. Clayton County, 590 U.S. 644, 658, 663. Pp. 7–10.
(b) In addition to having no basis in the statutory text, requiring a whistleblower to prove his employer’s retaliatory intent would ignore the statute’s mandatory burden-shifting framework. Burden-shifting frameworks have long provided a key mechanism for getting at “the elusive factual question” of intent in employment discrimination cases. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 986 (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 255, n. 8). Burden shifting “forc[es] the defendant to come forward with some response” to the employee’s circumstantial evidence. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 510–511. Congress decided in Sarbanes-Oxley that the plaintiff ’s burden on intent is only to show that the protected activity was a “contributing factor in the unfavorable personnel action.” 49 U. S. C. §42121(b)(2)(B)(i). If the plaintiff makes that showing, the burden shifts to the employer to “demonstrat[e], by clear and convincing evidence, that the employer would have taken the same unfavorable personnel action in the absence of that behavior.” §42121(b)(2)(B)(ii). The contributing-factor burden-shifting framework is meant to be plaintiff-friendly. Here, the Second Circuit erred by making proof of “retaliatory intent” a requirement for satisfaction of the “contributing factor” element. 43 F. 4th, at 259–260. Showing that an employer acted with retaliatory animus is one way of proving that the protected activity was a contributing factor in the adverse employment action, but it is not the only way. Pp. 10–13.
(c) UBS and its amici argue that, without a retaliatory intent requirement, innocent employers will face liability for legitimate, nonretaliatory personnel decisions. But the statute’s burden-shifting framework does not lead to that result. Section 42121(b)(2)(B)(ii)’s same-action causation inquiry asks whether the employer would have taken the same action against an otherwise identical employee who had not engaged in protected activity. While the contributing-factor framework that Congress chose in Sarbanes-Oxley is not as protective of employers as a motivating-factor framework, that is by design. This Court cannot override Congress’ policy choice by giving employers more protection than the statute provides. Pp. 13–14.
43 F. 4th 254, reversed and remanded.
Sotomayor, J., delivered the opinion for a unanimous Court. Alito, J., filed a concurring opinion, in which Barrett, J., joined.
Judgment issued. |
Judgment REVERSED and case REMANDED. Sotomayor, J., delivered the opinion for a unanimous Court. Alito, J., filed a concurring opinion, in which Barrett, J., joined. |
Argued. For petitioner: Easha Anand, Stanford, Cal.; and Anthony A. Yang, Assistant to the Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.) For respondents: Eugene Scalia, Washington, D. C. |
Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED. |
Reply of petitioner Trevor Murray filed. (Distributed) |
Reply of Trevor Murray submitted. |
Amicus brief of Securities Industry and Financial Markets Association submitted. |
Amicus brief of American Association of Railroads submitted. |
Amicus brief of Airlines for America submitted. |
Amicus brief of Chamber of Commerce of the United States of America submitted. |
Brief amicus curiae of Securities Industry and Financial Markets Association filed. (Distributed) |
Motion of United States for leave to participate in oral argument and for divided argument submitted. |
Brief amicus curiae of Chamber of Commerce of the United States of America filed. (Distributed) |
Brief amicus curiae of American Association of Railroads filed. (Distributed) |
Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed. |
Brief amicus curiae of Airlines for America filed. (Distributed) |
Brief amicus curiae of American Association of Railroads filed. |
Brief amicus curiae of Washington Legal Foundation filed. (Distributed) |
Amicus brief of Washington Legal Foundation submitted. |
Amicus brief of The Society for Human Resource Management submitted. |
Brief amicus curiae of The Society for Human Resource Management filed. (Distributed) |
Brief of UBS Securities, LLC, et al. submitted. |
Brief of respondents UBS Securities, LLC, et al. filed. (Distributed) |
CIRCULATED |
Record from the United States Court of Appeals for the Second Circuit electronically received and available with the Clerk. |
Sealed material from the USDC, S. Dist., NY available with the Clerk. |
Record requested from the United States Court of Appeals for the Second Circuit. |
SET FOR ARGUMENT on Tuesday, October 10, 2023. |
Brief of Trevor Murray submitted. |
Brief amicus curiae of United States filed. |
Brief amici curiae of The Anti-Fraud Coalition; the National Employment Lawyers Association; Better Markets Inc. filed. |
Amicus brief of The Anti-Fraud Coalition; the National Employment Lawyers Association; Better Markets Inc. submitted. |
Amicus brief of Academy of Rail Labor Attorneys submitted. |
Amicus brief of Public Citizen submitted. |
Brief amici curiae of The Anti-Fraud Coalition, et al. filed. |
Brief amicus curiae of Public Citizen filed. |
Brief amicus curiae of Academy of Rail Labor Attorneys filed. |
Amicus brief of National Whistleblower Center submitted. |
Amicus brief of Senator Chalres Grassley & Senator Ron Wyden submitted. |
Brief amicus curiae of National Whistleblower Center filed. |
Amicus brief of Senator Chalres Grassley & Senator Ron Wyden not accepted for filing. (July 05, 2023) |
Brief amici curiae of Senator Chalres Grassley & Senator Ron Wyden filed. |
Amicus brief of Senator Chalres Grassley & Senator Ron Wyden submitted. |
Brief amici curiae of Senator Chalres Grassley, et al. filed. |
Amicus brief of Senator Chalres Grassley & Senator Ron Wyden not accepted for filing. (July 05, 2023 - Duplicate submission) |
Joint appendix filed. |
Brief of Trevor Murray submitted. |
Joint Appendix submitted. |
Brief of Trevor Murray not accepted for filing. (To be corrected and reprinted) |
Brief of petitioner Trevor Murray filed. (Docketed July 13, 2023) |
Motion to extend the time to file the briefs on the merits granted. The time to file the joint appendix and petitioner's brief on the merits is extended to and including June 27, 2023. The time to file respondents' brief on the merits is extended to and including August 8, 2023. |
Motion of Trevor Murray for an extension of time submitted. |
Motion for an extension of time for the filing of the briefs on the merits filed. |
Petition GRANTED. |
DISTRIBUTED for Conference of 4/28/2023. |
DISTRIBUTED for Conference of 4/21/2023. |
Reply of petitioner Trevor Murray filed. (Distributed) |
Brief of respondents UBS Securities, LLC, et al. in opposition filed. |
Brief amicus curiae of Public Citizen filed. |
Brief amici curiae of U.S. Senator Charles E. Grassley, et al. filed. (April 13, 2023) (Distributed) |
Motion to extend the time to file a response is granted and the time is extended to and including March 20, 2023. |
Motion to extend the time to file a response from February 17, 2023 to March 20, 2023, submitted to The Clerk. |
Petition for a writ of certiorari filed. (Response due February 17, 2023) |
Application (22A438) granted by Justice Sotomayor extending the time to file until January 13, 2023. |
Application (22A438) to extend the time to file a petition for a writ of certiorari from December 14, 2022 to January 13, 2023, submitted to Justice Sotomayor. |