1 

RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 15a0102p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

MICHAEL RHINEHIMER, 

Plaintiff-Appellee, 

v. 

U.S. BANCORP INVESTMENTS, INC., 

Defendant-Appellant. 

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No. 13-6641 

Appeal from the United States District Court 

for the Eastern District of Kentucky at Covington. 

No. 2:11-cv-00136—William O. Bertelsman, District Judge. 

Argued: November 21, 2014 

Decided and Filed: May 28, 2015 

Before: DAUGHTREY, MOORE, and CLAY, Circuit Judges. 

_________________ 

COUNSEL 

ARGUED: Gregory Parker Rogers, TAFT, STETTINIUS & HOLLISTER LLP, Cincinnati, 

Ohio, for Appellant. Lynn D. Pundzak, Cincinnati, Ohio, for Appellee. ON BRIEF: Gregory 

Parker Rogers, Aisha H. Monem, TAFT, STETTINIUS & HOLLISTER LLP, Cincinnati, Ohio, 

for Appellant. Lynn D. Pundzak, Cincinnati, Ohio, for Appellee. 

_________________ 

OPINION

_________________ 

 CLAY, Circuit Judge. Defendant U.S. Bancorp Investments, Inc. (“Defendant” or 

“USBII”) appeals from judgment following a jury trial on Plaintiff Michael Rhinehimer’s claim 

that he was disciplined and fired in retaliation for his complaint about fraud perpetrated on 

USBII customer Norbert Purcell, in violation of the Sarbanes–Oxley Act, 18 U.S.C. § 1514A. 

>
No. 13-6641 Rhinehimer v. U.S. Bancorp Investments, Inc. Page 2

The only issue on appeal is whether Plaintiff established that he engaged in activity protected by 

§ 1514A(a)(1). For the reasons set forth below, we AFFIRM the judgment of the district court. 

BACKGROUND

Plaintiff filed his complaint in the instant action in 2011, alleging a single count of 

retaliation in violation of the Sarbanes–Oxley Act. The case was tried to a jury over five days in 

2013. At trial, Plaintiff presented evidence that he was disciplined and fired in retaliation for an 

email he sent alerting one of his superiors to unsuitable trades made by a co-worker, Patrick 

Harrigan, to the detriment of Plaintiff’s elderly client, Norbert Purcell. The trades, which are 

undisputed, occurred while Plaintiff was on disability leave. Plaintiff learned of the trades from 

his personal assistant shortly after they were made. He called his immediate supervisor twice to 

express concern about the trades, and finally wrote an email to his supervising principal, 

criticizing the trades for “destroy[ing]” Purcell’s estate plan and asserting that the trades should 

never have been placed or approved. Upon returning, Plaintiff was specifically reprimanded for 

his email. His superiors also threatened his job, placed him on an aggressive “performance 

improvement plan,” and fired him when he ultimately failed to meet the plan goals. 

 The jury returned a verdict for Plaintiff and awarded damages for economic loss and 

emotional damages. Via special verdict form, the jury specifically found (1) that Plaintiff 

“proved by a preponderance of the evidence that, at the time of the complaint, he had an 

objectively reasonable belief that Mr. Harrigan had committed unsuitability fraud;” (2) that 

Plaintiff “further proved, by a preponderance of the evidence, that [Plaintiff’s] email was a 

contributing factor in his termination;” and (3) that Defendant did not prove “by clear and 

convincing evidence that it would have discharged [Plaintiff] even if he had not sent the email.” 

(R. 114, Special Verdict Form, PGID 3850-51.) 

A. Plaintiff’s Employment at U.S. Bancorp Investments and His Knowledge 

Regarding Norbert Purcell 

 Plaintiff is a certified financial planner. He testified at trial that he had about twenty 

years of experience in financial consulting. Plaintiff testified that certification as a financial 

planner requires approximately three to five years of professional experience and three years of 

study on topics like insurance, investment, taxes, and estate planning, followed by a rigorous 
No. 13-6641 Rhinehimer v. U.S. Bancorp Investments, Inc. Page 3

exam. Following the initial certification, a financial planner must adhere to certain ethical 

standards and engage in continuing education. Plaintiff was certified as a financial planner in 

1999, and in 2005 he earned a charter financial consultant designation. 

 Plaintiff worked at USBII and a predecessor bank for eleven years as a financial advisor. 

In that capacity, he was assigned a territory covering four offices in Kentucky. Through his 

work at USBII, Plaintiff became acquainted with an elderly gentleman named Norbert Purcell. 

Plaintiff met Purcell early in his time with USBII through his work as a financial advisor for 

Purcell’s brother. Plaintiff testified at trial that he and Purcell became friends over time. All of 

Purcell’s assets were in a trust at the bank. Plaintiff described Purcell as a conservative investor 

who favored cash-like instruments. 

 Plaintiff testified that Purcell discussed estate planning with Plaintiff. The beneficiaries 

of Purcell’s trust included his alma mater and his preferred charity. Purcell told Plaintiff that he 

wanted to leave some money for family members, and they discussed the need to set up an 

account solely in his name to fulfill those wishes. Plaintiff testified that they discussed this issue 

repeatedly over their ten year acquaintance. Plaintiff also testified that he observed Purcell’s 

faculties decline over the decade he knew him: 

He was elderly when we first met. I would imagine the mid 80s when I met him. 

And he was pretty sharp. But as time goes by, I would notice that he would ask 

me the same things at multiple meetings or we discussed at the last meeting. 

You know, you could just tell that – he was in his mid 90s by this point, and he 

just, you know, was not nearly as sharp or cognizant of the things as he used to 

be. He was deteriorating. 

(R. 126, Rhinehimer Tr. Test., PGID at 4050-51.) 

 Plaintiff testified that their discussions about Purcell’s desire to leave money for his 

family “came to a head” in 2009, as Plaintiff was preparing to take disability leave. (Id. at 4051.) 

The two men discussed available options, and Plaintiff opened a brokerage account in Purcell’s 

name so that he would have assets apart from the trust. Plaintiff linked the account in Purcell’s 

name to the trust so that purchases in the brokerage account would be paid for by the trust, and 

any interest or sale proceeds from the brokerage account would return to the trust. 
No. 13-6641 Rhinehimer v. U.S. Bancorp Investments, Inc. Page 4

 Plaintiff testified that he and Purcell decided to remove a “relatively small” portion of the 

trust assets, $465,000, and invest it through the brokerage account in Purcell’s name. (Id. at 

4052.) Plaintiff purchased a TransAmerica short term bond fund for Purcell. Due to the 

recession, the bond fund had lowered its “break point”—the point at which a buyer was not 

charged for purchasing shares—from one million dollars to $250,000. The shares he bought 

were “A shares,” which had a low operating expense at a quarter of one percent. The purchase 

was made on October 30, 2009. 

B. Plaintiff’s Disability Leave and Communications with Patrick Harrigan 

 Plaintiff went on disability leave the first week of November 2009 and remained on 

leave, with the exception of a brief two week period in March, until August 2010. While he was 

on leave, he stayed in touch with his personal assistant, his immediate supervisor and his 

supervising principal (Jeff Harper and Susan Gattermeyer, respectively), as well as some other 

colleagues. 

 One of the other colleagues that Plaintiff reportedly spoke with was Patrick Harrigan, 

another USBII financial advisor. According to Plaintiff, Harrigan contacted him to let him know 

that he was covering the Cold Springs branch in Plaintiff’s absence and to ask if there was 

anything in particular Harrigan should know. Plaintiff testified: 

I told him that my assistant, Becky Smith, was handling most of the day-to-day 

operations, stuff like that, but I did have one particular client, Norbert Purcell, 

who was very elderly, diminished capacity, had a lot of money in a trust in cash 

that the bank was wanting to have invested to produce revenue. And I informed 

Pat that his estate plans were long and thought out, I’d known him for over ten 

years; and I asked him not to do any transactions with Mr. Purcell, due to his 

advanced age and his declining facilities. 

(R. 128, Rhinehimer Tr. Test., PGID. at 4106-07.)1 

C. Plaintiff’s Knowledge of the Trades and Email to Susan Gattermeyer 

 Plaintiff’s assistant, Becky Smith, called Plaintiff shortly after his conversation with 

Harrigan and informed him that there had been trades on Purcell’s account. She informed him 

 1

Although there is some dispute about whether the two men actually spoke, the record does not preclude a 

finding that this conversation in fact occurred. 
No. 13-6641 Rhinehimer v. U.S. Bancorp Investments, Inc. Page 5

that Harrigan purchased $250,000 worth of a certain LDLAX fund for Purcell. The purchase 

was made on May 5, 2010. Plaintiff testified that this purchase was a short term bond fund 

similar to the TransAmerica fund he had purchased for Purcell, but that the trade was more 

costly for a number of reasons—because it was in a different family, because the shares 

purchased were C-Shares (which had a higher operating expense), and because it had a higher 

“break point.” The trade was also inconsistent with Purcell’s estate plans, as Plaintiff understood 

them, because it took money out of the trust. Plaintiff also testified that the trade placed by 

Harrigan resulted in significantly more compensation to the firm and to the broker than the trade 

he had placed for Purcell the previous year. 

 After learning about the May 5, 2010 purchase from Becky Smith, Plaintiff called his 

direct supervisor, Jeff Harper and “let him know that [he] felt there was a situation that had 

developed or was developing between Mr. Harrigan and Mr. Purcell that [he] thought was 

unsuitable and could reflect poorly on everyone involved.” (Id. at 4111.) Jeff Harper told 

Plaintiff to stay out of it. 

 Soon after, Plaintiff again heard from Becky Smith about a second trade placed by 

Harrigan for Purcell. The trade withdrew $650,000 from the trust and invested it through the 

brokerage account in a TransAmerica fund that Plaintiff described as “another leg up on the risk 

scale.” (Id. at 4143.) Plaintiff explained why the trade caused him concern: 

I did not agree with that purchase either, for the same reasons I just recounted. 

You’re depriving one group of people and enriching another. Now you’ve went 

from being in a short-term conservative fund to something that has stocks in it. 

And this is all overlaying Mr. Purcell with 95 years old, and these are intricate 

math problems and estate problems, and I don’t think he appreciated the 

ramifications that was going on. 

(Id.) Plaintiff immediately called Jeff Harper to express concerns about this trade. He testified 

that Harper “reminded” him that “[he] was out on medical disability and [he] should stay out of 

this matter.” (Id. at 4144.) On May 28, 2010, Plaintiff sent the following email to Susan 

Gattermeyer, who was his supervising principal: 

I’m sure you know how upset I am over pat h totally disregarding our agreement 

to leave Norbert [Purcell] alone, not only did he not, he did it behind mine & 

Becky’s back.... 
No. 13-6641 Rhinehimer v. U.S. Bancorp Investments, Inc. Page 6

in doing so he destroyed his estate plan.... Norbert now has over 1.5 million 

exposed to probate. the brokerage account ( which is under my rep code as are 

the worthless, innappropriate [sic] trades that has [sic] lost 30 or 40 k in seven 

days) needs to be tod [transfer on death] to trust or re-registered to trust. 

pat is untrained, uneducated, irresponsiable [sic] & careless.... 

please keep this between us....... those trades should have NEVER been placed 

let alone approved. 

(R. 127 at 4161-66; PX 37; R. 46, Rhinehimer Dep. Ex. 35.) 

D. Retaliation 

 Three days after Plaintiff returned from disability leave in August 2010, he was given a 

written warning by Jeff Harper and Susan Gattermeyer. Plaintiff testified that when they met 

with him about the warning, Harper and Gattermeyer “let [him] know that they were there on a 

very, very serious matter, and [his] e-mail . . . had prompted a FINRA investigation . . . and 

anybody associated with this was really feeling the heat.” (R. 128, Rhinehimer Trial Test. 4182.) 

Defendant describes the warning as based on the unprofessional language used in the email to 

describe Harrigan. 

 On October 6, 2010, Plaintiff was called out of a company meeting and into the office of 

his new supervisor, Sukh Sandhu, together with Division Manager John Eckman. Both Plaintiff 

and Sandhu testified that Eckman locked the office door, inquired whether Plaintiff liked his job, 

and asked if he had consulted an attorney. Plaintiff also testified that Eckman asked him about 

Norbert Purcell and whether Plaintiff was aware of the FINRA investigation. After Plaintiff 

admitted that he had contacted an attorney, Eckman told him that his career at USBII was over, 

and that if he sued the bank his career in the city would be over. 

 Shortly afterwards, Plaintiff was placed on a performance improvement plan that required 

him to increase his revenue to $40,000 per month. Plaintiff did not meet that goal, and he was 

fired on January 11, 2011. 
No. 13-6641 Rhinehimer v. U.S. Bancorp Investments, Inc. Page 7

DISCUSSION

Standard of Review 

 We review de novo a district court’s denial of a motion for judgment as a matter of law 

under Federal Rule of Civil Procedure 50(b). Barnes v. City of Cincinnati, 401 F.3d 729, 736 

(6th Cir. 2005). Judgment on the motion may only be granted where, “when viewing the 

evidence in a light most favorable to the non-moving party, giving that party the benefit of all 

reasonable inferences, there is no genuine issue of material fact for the jury, and reasonable 

minds could come to but one conclusion in favor of the moving party.” Id. “The evidence 

should not be weighed, and the credibility of the witnesses should not be questioned. The 

judgment of this court should not be substituted for that of the jury.” Balsley v. FLP, Inc., 

691 F.3d 747, 757 (6th Cir. 2012) (quoting Williams v. Nashville Network, 132 F.3d 1123, 1130-

31 (6th Cir. 1997)). 

Analysis

The Sarbanes–Oxley Act makes it illegal for publicly traded companies to retaliate 

against an employee who reports suspected fraud, or who assists in a fraud investigation or 

enforcement proceeding. 18 U.S.C. § 1514A. Prior to 2010, employees complaining of 

retaliation were required to submit their claims to the Secretary of Labor for administrative 

adjudication.2

 See § 1514A(b). The 2010 Dodd–Frank Wall Street Reform and Consumer 

Protection Act (“Dodd–Frank”) created a private right of action allowing employees who believe 

they have been retaliated against for engaging in protected activity under § 1514A to file suit 

directly in federal court. 15 U.S.C. §§ 78u-6(h)(1)(A)(iii) and (B)(i); see also Khazin v. TD 

Ameritrade Holding Corp., 773 F.3d 488, 491 (3d Cir. 2014) (discussing the Dodd–Frank and 

Sarbanes–Oxley causes of action). 

Whistleblower claims alleging a violation of § 1514A are subject to a burden-shifting 

framework. Feldman v. Law Enforcement Associates Corp., 752 F.3d 339, 344 (4th Cir. 2014). 

First, the plaintiff must establish a prima facie case by proving, under a preponderance of the 

 2

Under the Sarbanes–Oxley scheme, an employee may bring a de novo action at law or equity in federal 

court if the Secretary fails to issue a final decision within a certain period—90 days, prior to 2010, and 180 under the 

Dodd–Frank amendments to § 1514A. See Pub. L. 111-203, Title IX § 922(c). 
No. 13-6641 Rhinehimer v. U.S. Bancorp Investments, Inc. Page 8

evidence standard, that (1) he engaged in protected activity; (2) the employer knew or suspected, 

either actually or constructively, that he engaged in the protected activity; (3) he suffered an 

unfavorable personnel or employment action; and (4) the protected activity was a contributing 

factor in the unfavorable action. Id.; Riddle v. First Tenn. Bank, Nat’l Assoc., 497 F. App’x 588, 

594 (6th Cir. 2012). The employer may then avoid liability if it proves “by clear and convincing 

evidence that the employer would have taken the same personnel action in the absence of the 

protected activity.” Feldman, 752 F.3d at 345. (quoting Welch v. Chao, 536 F.3d 269, 275 (4th 

Cir. 2014)). 

 The sole issue on appeal is whether the jury could find that Plaintiff engaged in protected 

activity under § 1514A. Resolving this issue requires us to first determine the appropriate legal 

standard in this evolving area of law. 

I. Legal Standard for Protected Activity 

In the language of the statute, protected activity under § 1514A includes “any lawful act 

done by the employee” to provide information to a supervisor (as relevant here) regarding 

any conduct which the employee reasonably believes constitutes a violation of 

section 1341, 1343, 1344, or 1348, any rule or regulation of the Securities and 

Exchange Commission, or any provision of Federal law relating to fraud against 

shareholders[.] 

18 U.S.C. § 1514A(a)(1) (emphasis added). The parties agree that most aspects of this definition 

of protected activity were satisfied by the evidence at trial. “Unsuitability fraud,” the accusation 

Plaintiff levels against USBII in connection with the May 2010 trades for Norbert Purcell, “is a 

type of section 10(b) fraud claim.” Robert N. Clemens Trust v. Morgan Stanley DW, Inc., 

485 F.3d 840, 848 (6th Cir. 2007) (referring to Section 10(b) of the Securities and Exchange Act, 

15 U.S.C. § 78j(b), and the accompanying regulation promulgated by the Securities and 

Exchange Commission, 17 C.F.R. § 240.10b-5). Providing information to a supervisor regarding 

suspected unsuitability fraud thus qualifies as protected activity under the statute so long as the 

reasonable belief requirement is met. See § 1514A(a)(1). 

 Defendant contends on appeal that the evidence did not support a finding that Plaintiff 

could have had an objectively reasonable belief that Harrigan’s conduct constituted unsuitability 
No. 13-6641 Rhinehimer v. U.S. Bancorp Investments, Inc. Page 9

fraud. Defendant argues that to satisfy the reasonable belief standard, Plaintiff was required to 

establish facts from which a reasonable person could infer each of the elements of an 

unsuitability fraud claim, including the misrepresentation or omission of material facts, and that 

the broker acted with intent or reckless disregard for the client’s needs.3

 Def.’s Br. at 22-25. 

This argument is based on this Circuit’s unpublished decision in Riddle v. First Tennessee Bank, 

National Association, 497 F. App’x 588 (6th Cir. 2012) adopting the standard that under 

§ 1514A an employee’s complaint “must definitively and specifically relate to one of the six 

enumerated categories” of fraud by “approximat[ing] the basic elements” of the fraud claim. 

497 F. App’x at 595 (citations omitted). 

 The district court accepted Defendant’s statement of the legal standard and instructed the 

jury that Plaintiff must show that he had “an objectively reasonable belief” that each of the 

elements of unsuitability fraud “existed in connection with the sale by Mr. Harrigan to Mr. 

Purcell.” (R. 114, Jury Instructions, PGID 3844-45.) Plaintiff unsuccessfully argued for a lower 

standard, citing jurisprudential developments that we will shortly discuss in depth. On appeal, 

Defendant argues that Plaintiff cannot show he had adequate information to form a reasonable 

belief that USBII intentionally or with reckless disregard misrepresented or omitted material 

facts in its communications with Purcell about the trades. 

 For the reasons discussed below, we reject the “definitively and specifically” standard 

recited in Riddle as inconsistent with § 1514A and the statutory scheme, and we adopt the 

emerging rule that the employee’s reasonable belief is a simple factual question requiring no 

subset of findings that the employee had a justifiable belief as to each of the legally-defined 

elements of the suspected fraud. See Nielsen v. AECOM Tech. Corp., 762 F.3d 214, 220-21 (2d 

Cir. 2014); Weist v. Lynch, 710 F.3d 121, 131 (3rd Cir. 2013). Although Plaintiff does not renew 

his challenge to the “definitively and specifically” standard on appeal, because we must identify 

and apply the correct legal standard, we nonetheless address it. Courts “are not bound to 

 3

In essence, unsuitability fraud occurs where a broker knows or reasonably believes certain securities to be 

unsuitable to a client’s needs, but recommends them anyway. Robert N. Clemens Trust v. Morgan Stanley DW, Inc., 

485 F.3d 840, 849 (6th Cir. 2007). Unsuitability is judged with regard to the client’s investment objectives; “a 

mechanical comparison of costs” is not dispositive. Id. To be actionable, the broker must have either made material 

misrepresentations about the transaction, or, owing a duty, failed to disclose material information. Banca Cremi, 

S.A. v. Alex. Brown & Sons, Inc., 132 F.3d 1017, 1032 (4th Cir. 1997). Robert N. Clemens Trust, 485 F.3d at 849. 

Reckless disregard of the investor’s interests satisfies the scienter requirement. Id.
No. 13-6641 Rhinehimer v. U.S. Bancorp Investments, Inc. Page 10

accept[,] as controlling, stipulations as to questions of law,” and we decline to rely on the parties’ 

stipulation to a standard that has elsewhere been called into significant doubt. Neuens v. City of 

Columbus, 303 F.3d 667, 670 (6th Cir. 2002) (citation omitted); see also Young v. United States, 

315 U.S. 257, 259 (1942) (“[O]ur judgments are precedents, and the proper administration of the 

criminal law cannot be left merely to the stipulation of parties.”). 

A. The Rise and Fall of the “Definitively and Specifically” Standard 

 The “definitively and specifically” standard was introduced into the adjudication of 

Sarbanes-Oxley whistleblower claims by the Administrative Review Board of the U.S. 

Department of Labor (“ARB”) in a case named Platone v. FLYi, Inc., ARB Case No. 04-154, 

2006 WL 3246910 (ARB Sept. 29, 2006), aff’d sub nom. Platone v. U.S. Dep’t of Labor, 

548 F.3d 322 (4th Cir. 2008). In Platone, the ARB held that “the employee’s communications 

must ‘definitively and specifically’ relate to any of the listed categories of fraud or securities 

violations under 18 U.S.C.A. § 1514A(a)(1).” Platone, 2006 WL 3246910 at *8. The ARB 

concluded that Platone did not meet this standard because her “revelations” to her supervisors 

“[did] not even approximate any of the basic elements of a claim of securities fraud – a material 

misrepresentation (or omission), scienter, a connection with the purchase, or sale of a security, 

reliance, economic loss, and loss causation.” Id. at *11. For example, the ARB noted that the 

employee only testified to losses of less than $1,500, and found it “unlikely that a reasonable 

shareholder would find a loss of less than $1,500.00 material.” Id. Accordingly, Platone stands 

for two propositions: first, that a whistleblower’s complaint must “definitively and specifically” 

relate to an enumerated legal violation to qualify for protection; and second, that the complaint 

must “approximate . . . the basic elements” of the kind of fraud or violation alleged. See id. at 

*8, *11. 

 The Platone standard was soon after adopted by a number of circuits. Van Asdale v. Int’l 

Game Tech., 577 F.3d 989, 996-97 (9th Cir. 2009); Welch, 536 F.3d at 276-77, 279 (4th Cir.); 

Allen v. Admin. Rev. Bd., F.3d 468, 477 (5th Cir. 2008)); see also Vodopia v. Koninklijke Philips 

Elecs., N.V., 398 F. App’x 659, 662-63 (2nd Cir. 2010). Some of these courts explicitly based 

their decision to adopt the standard on deference to the ARB. See, e.g., Welch, 536 F.3d at 276, 
No. 13-6641 Rhinehimer v. U.S. Bancorp Investments, Inc. Page 11

n.2 (granting Chevron deference to the ARB’s interpretation of § 1514A); Van Asdale, 577 F.3d 

at 997 (“[W]e similarly defer to the ARB’s reasonable interpretation of the statute.”). 

 Although Platone addressed what communications were sufficient to qualify as protected 

activity, circuit courts following Platone extended the ARB’s reasoning to inform the standard 

for establishing the objective reasonableness of an employee’s belief. The First Circuit borrowed 

Platone’s language when it announced in Day v. Staples, Inc., 555 F.3d 42, 55 (1st Cir. 2009) 

that “[t]o have an objectively reasonable belief there has been shareholder fraud, the complaining 

employee's theory of such fraud must at least approximate the basic elements of a claim of 

securities fraud.” See also Allen, 514 F.3d at 480 n.9 (“the objective reasonableness of the 

employee’s belief is evaluated in part through reference to the elements of a 10b-5 claim”); 

Welch, 536 F.3d at 279 (affirming the dismissal of a whistleblower claim due to the plaintiff’s 

failure to justify the reasonableness of his belief that the company’s conduct was fraudulent 

under the then-existing legal standards governing securities fraud). Riddle, following Day, stated 

that to establish reasonable belief the plaintiff’s “theory of [] fraud must at least approximate the 

basic elements” of the applicable type of fraud. 497 F. App’x at 594-96 (quoting Day, 555 F.3d 

at 55). 

 The ARB reversed course in 2011 and abrogated Platone in Sylvester v. Parexel Int’l 

LLC, ARB Case No. 07-123, 2011 WL 2165854, at *12 (ARB May 25, 2011) (en banc). 

Observing that the requirement that a complaint “definitively and specifically” relate to an 

enumerated legal violation was drawn from cases arising under the Energy Reorganization Act, 

42 U.S.C.A. § 5851, the ARB concluded that such a requirement was “inapposite” in the 

Sarbanes–Oxley context, and that it also presented “a potential conflict with the express statutory 

authority of § 1514A, which prohibits a publicly traded company from discharging or in any 

other manner discriminating against an employee for providing information regarding conduct 

that the employee “reasonably believes” constitutes a [Sarbanes–Oxley] violation.” Id. at *14. 

 The ARB in Sylvester also specifically rejected the requirement that a complainant’s 

theory of impropriety must closely imitate the elements of the pertinent fraud. Such a 

requirement “merged the elements required to prove a violation of the fraud statute, e.g. 

materiality and scienter, with the requirements that a whistleblower must allege or prove to 
No. 13-6641 Rhinehimer v. U.S. Bancorp Investments, Inc. Page 12

engage in protected activity.” Id. at *18. The ARB held that such a requirement conflicted with 

the protections of the statute, which did not require a complainant “to prove a violation of the 

substantive laws,” but merely to have “a reasonable belief of a violation of the enumerated 

statutes.” Id. Sylvester also emphasized the purpose of § 1514A “to protect and encourage 

greater disclosure” by exposing existing fraud as well as potentially fraudulent behavior, 

expressing a concern that “the purposes of the whistleblower protection provision will be 

thwarted if a complainant must, to engage in protected activity, allege, prove, or approximate” 

the substantive elements of a given category of fraud. Id. 

Sylvester directed instead that the Sarbanes–Oxley Act’s “plain language provides the 

proper standard for establishing protected activity,” i.e., whether the employee “‘reasonably 

believes’ that the conduct complained of constitutes a violation of the laws listed at Section 

1514[A(a)(1)].” Id. at *11. Sylvester relied on the established understanding that “reasonable 

belief” requires a complainant “to have a subjective belief that the complained-of conduct 

constitutes a violation of relevant law, and also that the belief is objectively reasonable” in light 

of the factual circumstances, including the “training and experience” of the aggrieved employee. 

Id. 

 Federal courts have recognized that Sylvester casts substantial doubt on the continuing 

validity of the “definitively and specifically” standard. The Second Circuit in Nielsen held the 

ARB’s decision in Sylvester was entitled to at least Skidmore deference and rejected an earlier 

unpublished Second Circuit case setting out the “definitively and specifically” standard. Nielsen, 

762 F.3d at 219 (abrogating Vodopia, 398 F. App’x 659, 662-63 (2nd Cir. 2010)); see also

Feldman v. Law Enforcement Ass. Corp., 752 F.3d 339, 344 n.5 (4th Cir. 2014) (noting Sylvester

but not deciding the validity of the “definitively and specifically” standard adopted in Welch

because it was unnecessary to the disposition of the case); Lockheed Martin Corp. v. Admin. 

Review Bd., 717 F.3d 1121, 1132 n.7 (10th Cir. 2013) (noting Sylvester but declining to pass on 

the appropriate standard for protected activity because plaintiff met the higher “definitively and 

specifically” standard); Stewart v. Doral Fin. Corp., 997 F. Supp. 2d 129, 135-36 (D.P.R. 2014) 

(determining that Day was no longer good law in light of the ARB’s reversal of its position and 

adopting the Sylvester standard). The Third Circuit granted Chevron deference to the ARB’s 
No. 13-6641 Rhinehimer v. U.S. Bancorp Investments, Inc. Page 13

interpretation of § 1514A in Sylvester and rejected the “definitively and specifically” standard. 

Weist v. Lynch, 710 F.3d 121, 131 (3rd Cir. 2013). 

 Indeed, we have not found a decision by a federal court of appeals that considers and 

rejects the reasoning in Sylvester. Defendant emphasizes that the Sixth Circuit decided Riddle

after Sylvester.

4

 Def.’s Br. at 20-21. Riddle, however, did not discuss Sylvester, much less 

consider and reject its reasoning or analyze whether the ARB’s decisions are entitled to 

deference. See 497 F. App’x at 594-96. And, of course, because it is unpublished, it is not 

precedential. Crump v. Lafler, 657 F.3d 393, 405 (6th Cir. 2011). 

B. Deference Due to the ARB’s Interpretation of § 1514A

 The Sixth Circuit has not decided whether the ARB’s reasonable interpretations of 

§ 1514A are entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense 

Council, Inc., 467 U.S. 837 (1984). Under Chevron, courts defer to an agency’s permissible 

interpretation of the law if Congress has not spoken to the precise issue by statute. 467 U.S. at 

842-43. Chevron deference should be applied “when it appears that Congress delegated 

authority to the agency generally to make rules carrying the force of law, and that the agency 

interpretation claiming deference was promulgated in the exercise of such authority.” United 

States v. Mead Corp, 533 U.S. 218, 226-27 (2001). Agency interpretations not entitled to 

Chevron deference may nonetheless “merit some deference” in light of agency expertise and the 

value of uniformity in interpreting of the law. Mead, 533 U.S. at 234. The deference due in such 

cases is governed by Skidmore v. Swift & Co., 323 U.S. 134 (1944). Mead, 533 U.S. at 238-39 

(remanding with instructions for the Federal Circuit to determine whether the customs ruling 

letters at issue were entitled to deference under Skidmore). 

 Circuits holding that the ARB’s decisions interpreting § 1514A are entitled to Chevron

deference note that the statute expressly provides for adjudication of whistleblower complaints 

by the Secretary of Labor, who in turn “delegated the authority to review appeals under Section 

806 and issue final agency decisions to the ARB.” Weist v. Lynch, 710 F.3d at 131 (citing 

 4

Defendant also cites Ind. Mich. Power Co. v. U.S. Dep’t of Labor, 278 F. App’x 597 (6th Cir. 2008) and 

Am. Nuclear Res. v. U.S. Dep’t of Labor, 134 F.3d 1292 (6th Cir. 1998) as embracing the “definitively and 

specifically” standard—both cases, however, arise under the Energy Reorganization Act. See Def.’s Br. at 20-21.
No. 13-6641 Rhinehimer v. U.S. Bancorp Investments, Inc. Page 14

Delegation of Authority and Assignment of Responsibility to the Administrative Review Board, 

75 Fed. Reg. 3924, 3924-25 (Jan. 25, 2010)); Welch, 536 F.3d at 276 n.2 (same); see also 

Lockheed, 717 F.3d at 1131 (granting Chevron deference to the ARB’s “interpretation of 

[§ 1514A] as expressed in formal adjudications”). In a recent case construing a different aspect 

of § 1514A, the Supreme Court declined to decide whether the ARB’s interpretations of the 

statute were entitled Chevron deference. Lawson v. FMR LLC, 134 S. Ct. 1158, 1165 n.6 (2014). 

In her dissent, Justice Sotomayor argued that Congress granted the SEC, rather than the 

Secretary of Labor, interpretive authority over § 1514A. Id. at 1186-87 (Sotomayor, J., 

dissenting) (arguing that the ARB has not been granted interpretive authority over § 1514A). 

 The Second Circuit decided Nielsen shortly after Lawson came down. See Nielsen, 

762 F.3d at 220 (discussing Lawson and lower court decisions granting Chevron deference to the 

ARB). The Second Circuit concluded that Sylvester’s rejection of the “definitively and 

specifically” standard “is persuasive even under lesser Skidmore deference” and declined to 

reach whether the ARB’s interpretations of § 1514A were entitled to Chevron deference. Id. 

We do the same. 

Skidmore deference is grounded in the recognition that “the rulings, interpretations, and 

opinions” of the agency that administers an act “constitute a body of experience and informed 

judgment to which courts and litigants may properly resort for guidance.” 323 U.S. at 140. “The 

weight of such a judgment in a particular case will depend upon the thoroughness evident in its 

consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, 

and all those factors which give it power to persuade, if lacking power to control.” Id. In 

determining whether an agency’s interpretation is persuasive under Skidmore, “we look to the 

statute’s text and design, including whether the [interpretation] is consistent with the 

congressional purpose.” S. Rehab. Grp., PLLC v. Sec’y of Health & Human Servs., 732 F.3d 

670, 685 (6th Cir. 2013) (citations omitted). 

 The text and design of § 1514A does not suggest any heightened showing of a factual 

basis for the suspected fraud. The statute prohibits retaliation for “any lawful act done by the 

employee . . . to provide information, cause information to be provided, or otherwise assist in an 

investigation regarding any conduct which the employee reasonably believes constitutes a 
No. 13-6641 Rhinehimer v. U.S. Bancorp Investments, Inc. Page 15

violation” of the enumerated provisions. § 1514A(a)(1). Indeed, at every juncture, the statute 

sweeps broadly, encompassing a wide swath of acts, limited only by their legality, to provide 

information or assistance to an investigation “regarding any conduct” reasonably believed by the 

employee to constitute a violation of relevant law. See id. 

 The well-established intent of Congress supports a broad reading of the statute’s 

protections. The Sarbanes–Oxley Act was enacted in 2002, in the wake of the Enron scandal, to 

“prevent and punish corporate and criminal fraud, protect the victims of such fraud, preserve 

evidence of such fraud, and hold wrongdoers accountable for their actions.” S. Rep. No. 107-

146, 2002 WL 863249, at *2 (2002), quoted in Lawson, 134 S.Ct. at 1162. In particular, 

Congress sought to counteract the “corporate code of silence” resulting from practices that 

discouraged employees from reporting fraud “not only to the proper authorities . . . but even 

internally,” finding that such practices had allowed Enron’s fraudulent accounting practices to 

flourish in a climate of impunity. Id. The whistleblower provisions of the Act address this 

concern, and were drafted broadly for that purpose. Lawson, 134 S.Ct. at 1163. “The legislative 

history of Sarbanes–Oxley makes clear that its [whistleblower] protections were ‘intended to 

include all good faith and reasonable reporting of fraud, and [that] there should be no 

presumption that reporting is otherwise, absent specific evidence.’” Van Asdale v. Int'l Game 

Tech., 577 F.3d 989, 1002 (9th Cir. 2009) (quoting 148 Cong. Rec. S7418–01, S7420 (daily ed. 

July 26, 2002) (statement of Sen. Leahy) (second edit in original)). 

 We agree with the ARB that an interpretation demanding a rigidly segmented factual 

showing justifying the employee’s suspicion undermines this purpose and conflicts with the 

statutory design, which turns on employees’ reasonable belief rather than requiring them to 

ultimately substantiate their allegations. Sylvester, 2011 WL 2165854, at *18; see also id. at *17 

(“[T]he critical focus [of § 1514A] is on whether the employee reported conduct that he or she 

reasonably believes constituted a violation of federal law.”). As the Second Circuit cogently 

reasoned, 

[R]elief pursuant to § 1514A turns on the reasonableness of the employee's belief 

that the conduct violated one of the enumerated provisions—which is contrary to 

the “definitively and specifically” standard. The objective prong of the reasonable 

belief test focuses on the basis of knowledge available to a reasonable person in 

the circumstances with the employee's training and experience. Many employees 
No. 13-6641 Rhinehimer v. U.S. Bancorp Investments, Inc. Page 16

are unlikely to be trained to recognize legally actionable conduct by their 

employers. Accordingly, the centrality of the belief of the whistleblower that her 

employer has engaged in wrongdoing leads us to conclude, in accord with the 

ARB's interpretation in Sylvester, that the “definitively and specifically” 

requirement is not in keeping with the language of the statute. 

Nielsen, 762 F.3d at 221 (citation and quotation marks omitted). 

 We agree with this analysis. Even Platone’s more modest requirement that an 

employee’s communications “definitively and specifically” relate to a category enumerated 

under the statute has the strong potential to defeat claims where a lay person, not familiar with 

the niceties of federal securities law, reports something he or she reasonably believes to be illegal 

but omits reference to the type of violation or fails to approximate each of its elements. See 

Platone, 2006 WL 3246910 at *11. The cases that extended Platone to address the employee’s 

reasonable belief, including the basis for the belief, necessarily sharpened this conflict. See Day, 

555 F.3d at 55, quoted in Riddle, 497 F. App’x at 594-96. We agree with the Third Circuit that 

an employee “should not be unprotected from reprisal because she did not have access to 

information sufficient to form an objectively reasonable belief that there was an intent to defraud 

or [that] the information communicated to her supervisor was material to a shareholder’s 

decision.” Wiest, 710 F.3d at 132. An interpretation of § 1514A that would leave such an 

employee without protection is inconsistent with the statutory design and well-established 

Congressional intent. 

 We therefore adopt as persuasive the reasoning of the ARB in Sylvester and reject the 

“definitively and specifically” standard applied in this Court’s previous unpublished opinion of 

Riddle v. First Tenn. Bank, Nat’l Ass’n, 497 F. App’x 588, 595 (6th Cir. 2012). 

C. Reasonable Belief 

 We agree with the ARB that the statute’s “plain language provides the proper standard 

for establishing protected activity.” Sylvester, 2011 WL 2165854 at *11. Namely, to sustain a 

complaint based on protected activity under § 1514A, “the complainant need only show that he 

or she ‘reasonably believes’ that the conduct complained of constitutes a violation” of the 

enumerated laws. Id. As the term itself indicates, reasonable belief involves both a subjective 

component and an objective component. Nielsen, 762 F.3d at 221. The subjective component is 
No. 13-6641 Rhinehimer v. U.S. Bancorp Investments, Inc. Page 17

satisfied if the employee actually believed that the conduct complained of constituted a violation 

of relevant law. Id. “Objective reasonableness ‘is evaluated based on the knowledge available 

to a reasonable person in the same factual circumstances with the same training and experience 

as the aggrieved employee.’” Harp v. Charter Commc'ns, Inc., 558 F.3d 722, 723 (7th Cir. 

2009) (quoting Allen, 514 F.3d at 477). 

 Thus, the inquiry into whether an employee had a reasonable belief is necessarily factdependent, varying with the circumstances of the case. For this reason, “[t]he issue of objective 

reasonableness should be decided as a matter of law only when no reasonable person could have 

believed that the facts [known to the employee] amounted to a violation” or otherwise justified 

the employee’s belief that illegal conduct was occurring. Livingston v. Wyeth, Inc., 520 F.3d 

344, 361 (4th Cir. 2008) (Michael, J., dissenting) quoted in Sylvester, 2011 WL 2165854 at *12. 

If, on the other hand, “reasonable minds could disagree about whether the employee's belief was 

objectively reasonable, the issue cannot be decided as a matter of law.” Id. In accordance with 

our discussion above, an employee need not establish the reasonableness of his or her belief as to 

each element of the violation. Instead, the reasonableness of the employee’s belief will depend 

on the totality of the circumstances known (or reasonably albeit mistakenly perceived) by the 

employee at the time of the complaint, analyzed in light of the employee’s training and 

experience. See id; Weist, 710 F.3d at 135 (applying the Sylvester reasonable belief standard). 

II. Application to Rhinehimer 

 Applying the proper legal standard for protected activity under § 1514A, we conclude 

that the evidence submitted in this case was more than adequate to sustain the judgment that 

Plaintiff possessed an objectively reasonable belief that Harrigan’s conduct with regard to the 

contested trades constituted unsuitability fraud. Consistent with the standard of review for 

motions for judgment as a matter of law under Rule 50(b), we give Plaintiff, the nonmoving 

party, “the benefit of all reasonable inferences.” Barnes, 401 F.3d at 736. 

 Plaintiff knew the structure of Purcell’s long-held estate plans, and learned of trades that 

a reasonable investment professional (and particularly one with Plaintiff’s training and 

experience) would recognize as inconsistent with those plans. Indeed, as Plaintiff explained, he 

understood that the trades changed how the affected funds were titled and how they would be 
No. 13-6641 Rhinehimer v. U.S. Bancorp Investments, Inc. Page 18

distributed upon Plaintiff’s death, including whether they would be exposed to probate. Plaintiff 

was also well aware of Purcell’s relative vulnerability as an elderly man with increasingly 

diminished faculties, and he was familiar with Harrigan’s incentives to place the trades and with 

USBII’s past efforts to encourage Purcell to invest the funds in his trust account so that the bank 

would earn more money. Viewing the evidence in the light most favorable to Plaintiff, we must 

also assume that Harrigan placed the contested trades after a phone call in which Plaintiff warned 

Harrigan of Purcell’s diminished capacity and asked Harrigan not to make any trades for Purcell. 

 Based on the totality of these circumstances, the evidence was more than sufficient to 

sustain the jury’s finding that Plaintiff reasonably believed that the trades constituted 

unsuitability fraud. Although it is true that Plaintiff had no specific knowledge of whether 

Harrigan had omitted or misrepresented material information in his communications with 

Purcell, much less any knowledge of whether Harrigan did so intentionally or with reckless 

disregard, these gaps in Plaintiff’s knowledge are immaterial. Even if, in fact, everything about 

the trades were above board, courts universally recognize that § 1514A protects employees who 

reasonably but mistakenly believe that the conduct at issue constitutes a violation of relevant 

law. See, e.g., Wiest v. Lynch, 710 F.3d 121, 132 (3d Cir. 2013) (“Congress chose statutory 

language which ensures that ‘an employee's reasonable but mistaken belief that an employer 

engaged in conduct that constitutes a violation of one of the six enumerated categories . . . is 

protected.” (citation omitted)); Van Asdale v. Int'l Game Tech., 577 F.3d 989, 1001 (9th Cir. 

2009) (same); Welch v. Chao, 536 F.3d 269, 277 (4th Cir. 2008) (same); Allen v. Admin. Review 

Bd., 514 F.3d 468, 477 (5th Cir. 2008) (same). The information that was available to Plaintiff 

was more than adequate to allow him reasonably to believe that the trades were the result of 

conduct constituting unsuitability fraud. When USBII retaliated against him for reporting that 

information, it therefore violated Sarbanes–Oxley’s whistleblower protections. 

CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.