BofI Federal Bank, nka Axos Bank v. Charles Matthew Erhart

The whistleblower protection provision of the Sarbanes-Oxley Act of 2002 requires courts to apply the two-step burden-shifting framework set forth in the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR-21”). 18 U.S.C. § 1514A(b)(2)(C). Under AIR-21’s two-step framework, an employee first bears the burden of proving his protected activity “was a contributing factor in the unfavorable personnel action alleged in the complaint.” 49 U.S.C. § 42121(b)(2)(B)(iii). Even if he makes this first-step showing, the employer will not be held liable if it “demonstrates by clear and convincing evidence that [it] would have taken the same unfavorable personnel action in the absence of” the protected activity. 49 U.S.C. § 42121(b)(2)(B)(iv). This second-step showing is known as the employer’s same-action affirmative defense. In Murray v. UBS Securities, LLC, 601 U.S. 23, 38 (2024), this Court instructed that “[t]he right way to think about” the employer’s same-action affirmative defense is to ask “whether the employer would have retained an otherwise identical employee who had not engaged in the protected activity.” (Citation modified). The Question Presented is: Under AIR-21’s two-step framework, can evidence showing an employee’s protected activity was a contributing factor in the unfavorable personnel action at step one discredit the employer’s separate same-action affirmative defense at step two?