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Then, in November 2016, he submitted it confidentially to a federal regulator, the Securities and Exchange Commission (SEC).Under penalty of perjury, Botta described example after example of sloppy if not misleading bookkeeping and weak internal controls at businesses in the Valley.As noted above, Simon declared he made the decision to fire Botta because either Botta “violated his professional, legal, and ethical duties and Pw C policy, which prohibit the fabrication of audit evidence or documentation,” or he “lied about his conduct.” Simon also insists he “was not aware that [Botta] submitted a complaint to the SEC,” and “[t]o this day, . Turns out there is an actual legal theory called “cat’s paws” theory of liability for employment discrimination and retaliation claims based on a Supreme Court decision written by Botta’s fellow Italian-American Justice Antonin Scalia in 2011.Opinion recap: “Cat’s paw” theory upheld form the Scotus Blog: (1) a supervisor of the worker takes a step (writing up a negative report, for example) that is done for a biased reason, (2) that supervisor intends to get the worker fired, demoted or otherwise penalized, and (3) the supervisor’s step is found to be the “proximate” cause of the ultimate decision — even if the executive or supervisor who actually carries out the firing or other penalty is someone else, and that person was not at all biased.Update: On June 27, 2019, Judge Richard Seeborg in the Northern District of California denied Pw C on its motion for summary judgement in the Botta case.Pw C had sought summary judgment based on its argument that the individual who made the determination to terminate Botta had no knowledge of Botta’s SEC complaint.“Until he gets the clients pounding the table for him, I don’t think he’ll ever make partner,” one colleague said.
According to the judge’s decision after Botta filed a complaint with the SEC concerning his experiences with several Pw C Silicon Valley audit clients, the SEC opened an investigation and alerted Pw C by letter dated April 28, 2017.
After more than a dozen years auditing technology companies in Silicon Valley, Mauro Botta took an extraordinary step: He decided to become a whistleblower.
He drafted an account of what he had seen and experienced as a senior manager at Pw C, the accounting firm also known as Pricewaterhouse Coopers.
In the end, the employer is still held responsible. Proctor Hospital, made the cat’s paw theory slightly more employee-friendly.
After Staub, the employer can no longer automatically defend a cat’s paw case by arguing that the non-biased decision-maker investigated other materials (such as the employee’s personnel file) before making the ultimate decision.