                               PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 13-1849


PAUL H. FELDMAN,

                 Plaintiff - Appellant,

           and

MARTIN L. PERRY,

                 Plaintiff,

           v.

LAW   ENFORCEMENT  ASSOCIATES   CORPORATION;  ANTHONY    RAND;
JAMES J. LINDSAY; JOSEPH A. JORDAN; PAUL BRIGGS,

                 Defendants – Appellees,

           and

JOHN H. CARRINGTON,

                 Defendant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:10-cv-00008-BR)


Argued:   March 18, 2014                    Decided:   May 12, 2014


Before GREGORY, WYNN, and THACKER, Circuit Judges.


Affirmed by published opinion. Judge Gregory wrote the opinion,
in which Judge Wynn and Judge Thacker joined.
ARGUED: Adam Augustine Carter, EMPLOYMENT LAW GROUP, PC,
Washington, D.C., for Appellant.   Amy Yager Jenkins, MCANGUS,
GOUDELOCK & COURIE, LLC, Mount Pleasant, South Carolina, for
Appellees. ON BRIEF: R. Scott Oswald, John T. Harrington, Jr.,
EMPLOYMENT LAW GROUP, PC, Washington, D.C.; Michael C. Byrne,
LAW OFFICES OF MICHAEL C. BYRNE, PC, Raleigh, North Carolina,
for Appellant. Helen F. Hiser, Mount Pleasant, South Carolina,
for Appellees.




                              2
GREGORY, Circuit Judge:

     Plaintiff Paul Feldman, who asserts that he was unlawfully

terminated   from     his   employment       in   retaliation   for    protected

activity under the Sarbanes-Oxley Act of 2002 (“SOX”), 18 U.S.C.

§ 1514A, appeals the district court’s grant of summary judgment

to Defendants Anthony Rand, James Lindsay, Joseph Jordan, Paul

Briggs,   and   Law    Enforcement    Associates         Corporation   (“LEA”).

Because we find that Feldman failed to sufficiently establish

that his alleged protected activities were a contributing factor

to his termination, we affirm.



                                     I.

     Sometime prior to 2001, Feldman became President of LEA, a

company that manufactures security and surveillance equipment. 1

He remained President and CEO until his termination on August

27, 2009.    In 2005, LEA’s founder, John Carrington, pled guilty

to   criminal   export      violations       involving    another   company   he

owned, and was ordered to refrain from certain export activities

for five years.       Though Carrington remained a major stockholder,

he resigned from LEA’s Board of Directors (“Board”) and has not


     1
       We resolve any factual disputes and competing, rational
inferences in the light most favorable to Feldman, as the party
opposing summary judgment. Rossignol v. Voorhaar, 316 F.3d 516,
523 (4th Cir. 2003).



                                         3
been an officer or employee of LEA since.                     During the relevant

time period, the Board consisted of two “Inside Directors” —

Feldman and Martin Perry — and three “Outside Directors” — Rand,

Lindsay, and Jordan.

      Since     at   least      November       1,    2007,   an      “extraordinarily

palpable” split existed between the Inside Directors and the

Outside Directors, J.A. 4282, due in some part to the fact that

Carrington planned to sell LEA without first giving Feldman an

opportunity to buy it, as well as the Board’s decision not to

approve a written employment contract that would have increased

Feldman’s salary.          The tension deepened after Feldman confirmed

in   December      2007    that     Carrington      owned    fifty     percent    of   a

company called SAFE Source, to which LEA had shipped some of its

products in 2005 or 2006.              SAFE Source exported these products

overseas, but because Carrington was still banned from making

exports, Feldman became concerned that the exports were illegal.

      The issue of LEA’s business with SAFE Source arose in a

December 27, 2007 Board meeting, but the parties dispute exactly

what was said and by whom.             There are competing versions of the

meeting    minutes,       but   a   majority    of    the    Board    —   the   Outside

Directors — adopted the version produced by Mark Finkelstein, a

lawyer Rand hired for the company, over the version produced by

Eric Littman, another LEA attorney.                    Feldman asserts that he

objected    that     Finkelstein’s      minutes       were   falsified.         Feldman

                                           4
further     contends       that    he    saw    Rand    and       Finkelstein      meet      with

Carrington immediately after the meeting, and suspects that they

informed Carrington of his intention to report the issue to the

government.         On January 14, 2008, Feldman and Perry wrote the

United      States    Department         of     Commerce      about       the     potentially

illegal exports, resulting in a federal investigation and a raid

of SAFE Source’s headquarters shortly thereafter.

       A    number    of    other       conflicts       subsequently         arose      between

Feldman      and    Appellees.          In     February      or    March     2008,      Feldman

relocated LEA’s headquarters from Youngsville, North Carolina to

Raleigh, North Carolina, claiming that it benefitted the company

in    various      ways.     The    Outside         Directors       viewed      this    act    as

insubordinate        since    Feldman         entered       the    new    lease    on    office

space without their prior approval.                     At some point in 2008, the

Outside Directors also took issue with the financial information

and meeting agendas they received from Feldman, asserting that

the     requested     information            was    either        not    provided       or    was

insufficient.         At a March 13, 2008 Board meeting, Finkelstein

became LEA’s primary counsel, while Littman remained on as LEA’s

securities counsel.           Finkelstein submitted various bills for his

legal      services    on    May    1,    2008,       but    Feldman      considered         them

fraudulent      because      they       were    for    services         rendered     prior     to

March 13, 2008, and he refused to pay.



                                                5
       In April 2009, Feldman and other LEA representatives met

with   Joseph   and     Barbara         Wortley,    LEA    shareholders         who     were

threatening to sue LEA over a contractual dispute.                         When Joseph

Wortley     expressed       dissatisfaction         with     the       Board,     Feldman

replied that the Board “could do more to help the company,” and

that “he too wished they would do more.”                    J.A. 4285.          At a July

27, 2009 meeting with Joseph Wortley and Wortley’s son, Feldman

further     stated    that     the       Outside    Directors       were        loyal     to

Carrington    rather    than       to    the    company.        Shortly    after        this

meeting, Feldman wrote a letter to the Outside Directors urging

them to resign from the Board.                  Lastly, in July or August 2009,

Feldman and Perry reported to the Department of Commerce their

suspicion    that     LEA    was    involved       in   insider    trading        because

several prominent North Carolina politicians were shareholders.

       On   August    26,    2009,       Rand    told   Perry    that     the     Outside

Directors    planned    to    terminate         Feldman    at    the    Board     meeting

scheduled for the next day because they had lost confidence in

him and because of the Wortley situation.                       However, Rand told

Perry that the Outside Directors wanted Perry to stay on at LEA.

Perry advised Feldman of the conversation, and neither he nor

Feldman attended the August 27, 2009 Board meeting.                             Feldman’s




                                            6
employment          was     terminated              at     that      meeting,          and    Perry’s

employment was terminated on September 23, 2009. 2

       Feldman          asserts     that       in    the       months      just      prior     to    his

termination, he successfully led negotiations to secure a $225

million          contract       with     the    Department            of       Homeland      Security

(“DHS”), and that, only ten days before firing him, LEA reported

record income and a 260% increase in sales.                                    Appellees counter

that       the    substantive          work    on        the   DHS   contract         was     done    by

another employee, and that LEA had record income in 2009 only

because they unexpectedly received an unsolicited job from the

Census      Bureau       worth     roughly          $7.3       million.         Aside       from    this

particular          contract,       Appellees             claim      LEA       was    a     break-even

business         that     was    not    doing        well      during      the       last    years    of

Feldman’s leadership.

       Feldman filed suit against LEA, Rand, Lindsay, Jordan, and

Carrington         on     January      8,     2010,       asserting        a    claim       under    the

Americans with Disabilities Act (“ADA”) as well as state claims


       2
       After learning of his pending termination, Feldman went to
the hospital on August 26, 2009 claiming that he might be having
a transient ischemic attack.      Perry, who had a history of
multiple sclerosis, went to the hospital on August 27, 2009,
where he was diagnosed as having suffered an acute multiple
sclerosis flare.   Perry did not return to work thereafter, and
when he failed to respond to LEA’s inquiries about when he would
return, LEA sent him a letter on September 23, 2009 stating that
they had to conclude from his lack of response that he had
voluntarily quit.



                                                     7
for civil conspiracy and wrongful termination.                 Perry had sued

separately, and they consolidated their complaints on April 16,

2010.     On June 7, 2010, Feldman and Perry amended the complaint, 3

adding their respective SOX claims that had since become ripe.

The   court   granted    in   part   and    denied    in    part   a    motion   to

dismiss, and all that remained at issue was their ADA and SOX

claims, Perry’s state law claims, and a counterclaim by LEA.

      Feldman argues that he was unlawfully fired in retaliation

for   engaging    in   activities    protected     under    SOX    between   late

December 2007 and early May 2008.              These activities include:

(1) reporting to the Board and the federal government about the

potentially illegal exports with SAFE Source; (2) objecting to

falsified     Board    meeting   minutes;    (3)     objecting     to   leaks    of

information      by    the    Outside   Directors      to     Carrington;        (4)

objecting to and refusing to pay Finkelstein’s legal bills; and

(5) notifying the government of suspected insider trading.

      The district court granted summary judgment to Appellees

and held that plaintiffs failed to make a prima facie showing of

their SOX claims because they did not sufficiently prove that

the alleged protected activities 4 were a contributing factor to


      3
       The amended complaint also added Briggs as a defendant.
On March 10, 2011, Carrington was dismissed as a defendant.
      4
       The court held that plaintiffs had not sufficiently shown
that their report of suspected insider trading was protected
(Continued)
                                        8
their respective terminations.                    The court therefore found that

it need not decide whether LEA could show that it would have

terminated Feldman and Perry otherwise, but noted that LEA had a

legitimate     business       reason      for     its   actions.       Feldman   timely

appealed,     arguing    that       the   court      erred    by    holding    that   the

activities were not contributing factors to his termination and

by failing to decide whether Appellees had sufficiently shown

that   he    would   have     been     fired       regardless.        This    Court   has

jurisdiction pursuant to 28 U.S.C. § 1291.



                                           II.

       The Sarbanes-Oxley Act protects whistleblowers of publicly-

traded      companies    by     prohibiting          employers      from     retaliating

against      employees        who      have        provided        information    about

potentially illegal conduct.               Welch v. Chao, 536 F.3d 269, 275

(4th Cir. 2008).        SOX specifically provides that:

       no [publicly traded] company, or any officer [or]
       employee . . . of such company . . . may discharge
       . . . an employee . . . because of any lawful act done
       by the employee . . . to provide information . . . 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



activity under SOX, but assumed without deciding that                                 the
remaining four activities did constitute protected activity.



                                              9
     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 is conducted by (A) a Federal
     regulatory or law enforcement agency; (B) any Member
     of Congress or any committee of Congress; or (C) a
     person with supervisory authority over the employee
     (or such other person working for the employer who has
     the authority to investigate, discover, or terminate
     misconduct) . . . .

18 U.S.C. § 1514A(a).

     We apply a burden-shifting framework to SOX whistleblower

claims incorporated from the Whistleblower Protection Program of

the Wendell H. Ford Aviation Investment and Reform Act for the

21st Century (“AIR 21”), 49 U.S.C. § 42121(b).       Welch, 536 F.3d

at 275.   The plaintiff must first establish a prima facie case

by proving, by a preponderance of the evidence, that:        “(1) she

engaged in protected activity; 5 (2) the employer knew that she

engaged   in   the   protected   activity;   (3)   she   suffered   an

unfavorable personnel action; and (4) the protected activity was



     5
       In Welch, we held that in order to establish that he
engaged in protected activity, “an employee must show that his
communications to his employer ‘definitively and specifically
relate[d]’ to one of the laws listed in § 1514A.”     536 F.3d at
275 (internal citations omitted).    The Department of Labor has
since concluded that this standard is applied too strictly, and
that “the critical focus is on whether the employee reported
conduct that he or she reasonably believes constituted a
violation of federal law.” Sylvester v. Parexel Int’l LLC, ARB
Case No. 07-123, 2011 WL 2165854, at * 15 (Dep’t of Labor May
25, 2011) (emphasis in original). In light of our holding that
Feldman did not satisfy the fourth prima facie prong, we need
not clarify here where Welch stands since Sylvester was decided.



                                  10
a contributing factor in the unfavorable action.” 6                            Allen v.

Admin.    Review    Bd.,   514     F.3d        468,    475-76      (5th   Cir.    2008)

(internal citations omitted).              See 29 C.F.R. § 1980.109(a); 49

U.S.C.    § 42121(b)(2)(B)(iii).               If     the    employee     meets       this

burden,   the    defendant      must    then     “rebut      the    employee’s    prima

facie case by demonstrating by clear and convincing evidence

that the employer would have taken the same personnel action in

the absence of the protected activity.”                     Welch, 536 F.3d at 275

(citing   § 42121(b)(2)(B)).            Feldman’s       appeal       centers     on   the

fourth prima facie prong and his claim that the burden shifted

to   Appellees     to   prove    that    they       would    have    terminated       him


      6
       Notably, we relied in Welch on a four-part standard which
frames the fourth element as requiring a prima facie showing
that “[t]he circumstances were sufficient to raise the inference
that the protected activity was a contributing factor in the
adverse decision.”   See Welch, 536 F.3d at 275.    However, the
regulation cited in Welch relates to a complainant’s burden to
allege a legally sufficient whistleblower retaliation claim at
the investigatory stage.   See 29 C.F.R. § 1980.104.   “As other
circuits and the [Administrative Review Board (“ARB”)] have
noted, however, at the evidentiary stage, the fourth element
requires the complainant to prove by a preponderance of the
evidence that the ‘protected activity was a contributing factor
in the adverse action,’ 29 C.F.R. § 1980.109(a), and not merely
show that ‘[t]he circumstances were sufficient to raise the
inference that the protected activity was a contributing factor
in the adverse action,’ 29 C.F.R. § 1980.104(e)(2).” Bechtel v.
Admin. Review Bd., U.S. Dep’t of Labor, 710 F.3d 443, 448 n.5
(2d Cir. 2013) (emphasis in original) (internal citations
omitted). In this case, wherein we consider Feldman’s claims on
summary judgment, we therefore apply the contributing factor
element as articulated in § 1980.109(a).      See Livingston v.
Wyeth, Inc., 520 F.3d 344, 351 (4th Cir. 2008) (citing 49 U.S.C.
§ 42121(b)(2)(B)).


                                          11
regardless.         Before    turning    to    the    merits,        however,       we    must

first    address     whether    the     district      court     properly          exercised

jurisdiction over this claim.



                                         III.

      In order to obtain relief under SOX, a plaintiff must file

a complaint with the Secretary of Labor through his designee,

the Occupational Safety and Health Administration (“OSHA”).                                See

§ 1514A(b)(1)(A); 29 C.F.R. § 1980.103.                    If the Secretary has

not issued a final decision within 180 days of the filing of the

complaint, and there is no showing that the delay is due to any

bad   faith    by   the     plaintiff,    the    plaintiff       may       file     suit    in

federal district court, “which shall have jurisdiction over such

an    action    without       regard     to    the     amount        in     controversy.”

§ 1514A(b)(1)(B).            “The   Supreme      Court    has    indicated          that     a

statute requiring plaintiffs to exhaust administrative remedies

before coming into federal court may be either jurisdictional in

nature    or   non     jurisdictional,         depending        on        the    intent     of

Congress as evinced by the language used.”                           Ace Prop. & Cas.

Ins. Co. v. Fed. Crop Ins. Corp., 440 F.3d 992, 996 (8th Cir.

2006) (citing Weinberger v. Salfi, 422 U.S. 749 (1975)).                                   For

the purposes of this appeal, we assume, without deciding, that

the   requirement      to    exhaust     one’s       administrative             remedies    as



                                          12
provided   for   in   § 1514A    is    jurisdictional. 7         See    Stone    v.

Instrumentation    Lab.   Co.,   591    F.3d    239,   240   (4th      Cir.   2009)

(“[T]he Sarbanes-Oxley Act expressly provides a United States

District   Court      jurisdiction     to      entertain     a   whistleblower

action.”); Stone v. Duke Energy Corp., 432 F.3d 320, 322-23 (4th

Cir. 2005) (“Section 1514A(b)(1)(B) confers jurisdiction on a

district court when a qualifying complainant files his complaint

there.”)

     “[I]t is the ‘special obligation’ of appellate courts to

evaluate not only their own subject matter jurisdiction ‘but

also [the jurisdiction] of the lower courts in a cause under

review, even though the parties are prepared to concede it.’”


     7
       Although it does not appear that any federal circuit court
has yet reached this issue, several district courts have held
that a plaintiff’s failure to exhaust his remedies under § 1514A
deprives the district court of jurisdiction. See, e.g., Nieman
v. Nationwide Mut. Ins. Co., 706 F. Supp. 2d 897, 907 (C.D. Ill.
2010); JDS Uniphase Corp. v. Jennings, 473 F. Supp. 2d 705, 710
(E.D.Va. 2007); Murray v. TXU Corp., 279 F. Supp. 2d 799, 802
(N.D. Tex. 2003).    Moreover, the Department of Labor suggested
as much when it denied a complainant’s motion to withdraw his
claim from the agency proceedings and file a de novo lawsuit in
federal district court, stating that “[v]oluntary withdrawal
would be inconsistent with the general principle of exhaustion
of administrative remedies and could arguably run contrary to
Complainant’s expressed intent by depriving the district court
of jurisdiction.” Nixon v. Stewart & Stevenson Services, Inc.,
2005-SOX-1, 2005 WL 4889007, at *5 (Dep’t of Labor Feb. 16,
2005).    We need not and do not answer this question here,
however, because we hold for the reasons explained below that
the   district   court   properly  exercised  jurisdiction   over
Feldman’s SOX claims, even assuming that a failure to exhaust
does impose a jurisdictional bar.


                                       13
Interstate Petroleum Corp. v. Morgan, 249 F.3d 215, 219 (4th

Cir. 2001) (internal citations omitted) (second alteration in

original).       “[W]e must consider questions regarding jurisdiction

whenever they are raised, and even sua sponte.”                                  Id. (citing

Plyler      v.   Moore,      129    F.3d      728,   731    n.6       (4th    Cir.     1997)).

Feldman’s initial complaint was filed before the required 180-

day waiting period expired, but his amended complaint was filed

more than 180 days after he filed his OSHA complaint.                                  Although

neither      party     raised           the   issue,       we        therefore       requested

supplemental briefing to address the following question:

       Does Feldman’s amended complaint, wherein he asserts
       his claim under the Sarbanes-Oxley Act of 2002, relate
       back to the date of the original complaint under Fed.
       R. Civ. P. 15(c), and if so, did the district court
       properly exercise jurisdiction over this claim?

       Under Rule 15(c), an amended pleading relates back to the

date   of    the   original        pleading     when   “the          amendment     asserts     a

claim or defense that arose out of the conduct, transaction, or

occurrence       set   out    —     or    attempted    to       be    set    out   —    in   the

original pleading.”           Fed. R. Civ. P. 15(c)(1)(B).                     Thus, when a

pleading relates back under Rule 15(c), the amended pleading is

considered to have been filed on the date that the original

pleading which it replaces was filed.

       In this case, Feldman filed his OSHA complaint alleging

that LEA had violated the whistleblower protections of SOX on

November     17,   2009.           He    therefore    could      only       obtain     de    novo

                                               14
review of this claim in federal court if, in the absence of any

bad faith on his part, the Secretary had not issued a final

decision within 180 days, that is, by May 16, 2010.                   Although

Feldman filed his initial lawsuit more than four months prior to

this date, there is no dispute that the Secretary never issued a

final decision.         In a motion filed on March 23, 2010, Feldman

indicated that he intended to amend his complaint to add the SOX

claim once it became ripe, and Appellees expressly agreed to the

inclusion of this claim in the plaintiffs’ amended complaint.

        Upon reviewing both complaints, it is evident that, under

Rule 15(c), the SOX claim raised in the amended complaint arises

out of the conduct, transactions, and occurrences set out in the

first      complaint.      Feldman’s    initial   complaint       details     his

reports about SAFE Source and also his claim that he and Perry

told Paul Briggs, LEA’s Chief Financial Officer at the time,

that they intended to report their suspicions of insider trading

to   the    government.      The   complaint   then     alleges    that     Rand,

Lindsay, Jordan, and Carrington thereafter “undertook a campaign

to   discredit,     undermine,     intimidate,    and    retaliate     against

Feldman for his report to the federal government and for his

ongoing cooperation with the resulting federal investigations.”

Appellant’s Supplemental Br. 34-36; see id. 55-56.                 It further

alleges that this retaliatory campaign included the production



                                       15
of falsified Board meeting minutes and leaks of information to

Carrington.

        By comparison, Feldman’s second complaint alleges that he

engaged in protected activity under SOX by, among other things,

reporting his concerns about SAFE Source to the Board and the

government, asking Board members to affirm that they did not

leak information to Carrington, objecting to the falsification

of meeting minutes, and reporting suspected insider trading.                                It

cannot be seriously doubted that this SOX claim arises out of

the same conduct, transactions, and occurrences as the first

complaint.       Thus, under Rule 15(c), the second complaint does

relate back to the date of the first complaint, at which point

the court did not have jurisdiction over Feldman’s SOX claim.

       However,      we   have    previously         held    that    “the    filing    of    a

supplemental      pleading        is    an   appropriate         mechanism     for    curing

numerous possible defects in a complaint.”                          Franks v. Ross, 313

F.3d    184,   198    (4th       Cir.   2002)      (internal       citations    omitted).

Feldman concedes that he should have presented his SOX claim in

a supplemental pleading under Rule 15(d), pursuant to which the

court    may   “permit       a    party      to    serve    a    supplemental    pleading

setting out any transaction, occurrence, or event that happened

after the date of the pleading to be supplemented.”                                  Fed. R.

Civ. P. 15(d).            Considering a similar circumstance, the Eighth

Circuit    has    held     that    “[e]ven        when     the   District    Court     lacks

                                              16
jurisdiction over a claim at the time of its original filing, a

supplemental      complaint            may    cure       the     defect    by    alleging       the

subsequent       fact    which          eliminates          the     jurisdictional          bar.”

Wilson v. Westinghouse Elec. Corp, 838 F.3d 286, 290 (8th Cir.

1988) (internal citations omitted).

       In Wilson, a plaintiff alleging that his employer refused

to     rehire    him    in       violation         of     the     Age     Discrimination        in

Employment Act filed suit without waiting the required 60 days

after filing his claim with the Equal Employment Opportunity

Commission.       Id. at 289.            He sought to cure this jurisdictional

defect    by    filing       a    supplemental            complaint       under     Rule    15(d)

reasserting the claim after the 60 days passed, but the district

court    dismissed       the      claim       on    the    ground       that     the    pleading

related    back    to    the      date       of    the    first     complaint       under    Rule

15(c).     Id.     The Eighth Circuit rejected this “hypertechnical

interpretation of Rule 15(c),” id. at 290, as it resulted in a

“procedural mousetrap” in which the premature assertion of the

claim became an “irretrievable mistake that bars jurisdiction

for the duration of th[e] lawsuit,” id. at 289.                                 The court thus

held    that    “[w]hile         the   District          Court    was     clearly      unable   to

exercise jurisdiction over Wilson’s rehire claim upon the filing

of his original complaint, the expiration of the 60-day waiting

period was exactly the kind of event occurring after firing that



                                                  17
Wilson should have been allowed to set forth in a supplementary

pleading under Fed. R. Civ. P. 15(d).”            Id. at 290.

       Likewise, although Feldman presented his SOX claim in the

form of an amended pleading, he clearly sought and was allowed

by the court — with Appellees’ consent — to add this claim due

to the fact that the 180-day waiting period had since expired.

Because “we are not required to apply the doctrine of relation

back so literally as to carry [a claim] to a time within the

[requisite waiting period] so as to prevent the maintenance of

the action in the first place,” Security Ins. Co. of New Haven,

Connecticut v. United States ex rel. Haydis, 338 F.2d 444, 449

(9th     Cir.   1964),   we   construe     the    present     complaint    as     a

supplemental     pleading     under   Rule      15(d),   thereby      curing    the

defect which otherwise would have deprived the district court of

jurisdiction under Rule 15(c).           See United States v. C.J. Elec.

Contractors, Inc., 535 F.2d 1326, 1329 (1st Cir. 1976) (citing

Security Ins. Co.).         See also Mathews v. Diaz, 426 U.S. 67, 75

(1976)      (treating     a     plaintiff’s       pleadings      as      properly

supplemented     under   Rule    15(d)     in    light   of   the     defendant’s

stipulation that the jurisdictional prerequisites were satisfied

while the case was pending in the district court); Fed. R. Civ.

P. 8(e) (“Pleadings must be construed so as to do justice.”)




                                      18
Finding that the district court had jurisdiction over Feldman’s

SOX claim, we now turn to the merits of his appeal. 8



                                             IV.

       We       review    a   court’s    order     granting     summary     judgment   de

novo.       Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d

277, 283 (4th Cir. 2004).                   Summary judgment should be granted

only when “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(c).       Further,      summary       judgment   must   be   entered

against         “a   party    who   fails    to    make    a   showing   sufficient    to

establish the existence of an element essential to that party’s

case, and on which that party will bear the burden of proof at

trial.”         Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

       “A contributing factor is ‘any factor, which alone or in

combination with other factors, tends to affect in any way the

outcome of the decision.’”                  Allen, 514 F.3d at 476 n.3 (citing

Klopfenstein v. PCC Flow Techs. Holdings, Inc., ARB Case No. 04-

       8
       In response to our inquiry, Appellees argue alternatively
that if the second complaint does not relate back to the first
complaint, then the SOX claim is barred by a two-year statute of
limitations borrowed from 28 U.S.C. § 1658(b).          Even if
Appellees are correct that we should impute a limitations period
from § 1658(b), a question that we do not decide here, this
reasoning would force the Court into a “legal merry-go-round.”
Security Ins. Co., 338 F.2d at 446.    As did the Ninth Circuit,
see id., we reject this circuitous approach.



                                              19
149, 2006 WL 3246904, at * 13 (Dep’t of Labor May 31, 2006)).

“This element is broad and forgiving,” Lockheed Martin Corp. v.

Dep’t    of    Labor,    717    F.3d   1121,    1136        (10th    Cir.    2013),    and

“[t]his test is specifically intended to overrule existing case

law, which requires a whistleblower to prove that his protected

conduct       was   a   ‘significant’,    ‘motivating’,             ‘substantial’,         or

‘predominant’ factor in a personnel action in order to overturn

that action,” Marano v. Dep’t of Justice, 2 F.3d 1137, 1140

(Fed. Cir. 1993) (construing the contributing factor standard in

a   Whistleblower        Protection     Act    case     and        citing    explanatory

statements from the congressional record).                      “Temporal proximity

between    the      protected    activity      and    the     adverse       action    is    a

significant factor in considering a circumstantial showing of

causation,” Tice v. Bristol-Meyers Squibb Co., 2006-SOX-20, 2006

WL 3246825, at *20 (Dep’t of Labor Apr. 26, 2006) (internal

citations omitted), and “[t]he causal connection may be severed

by the passage of a significant amount of time, or by some

legitimate intervening event,” Halloum v. Intel Corp., ALJ No.

2003-SOX-7, 2004 DOLSOX LEXIS 73, at *13 (Dep’t of Labor Mar. 4,

2004).

      In   this     case,   Feldman    argues        that    the    court    imposed       an

improperly onerous burden on him to prove that his protected

activities solely or substantially caused his termination.                                 We

agree that Feldman need not show that the activities were a

                                         20
primary    or    even     a     significant     cause     of    his     termination.

However, he has nonetheless failed to satisfy his rather light

burden    of    showing    by    a   preponderance      of     evidence    that   the

activities tended to affect his termination in at least some

way.     Firstly, Feldman concedes the complete absence of temporal

proximity here, and his most significant protected activity, his

reports regarding SAFE Source, occurred roughly twenty months

before    his   termination.         Such   a   lengthy      gap   in   time   weighs

against a finding that it is more likely than not that the

alleged protected activities played a role in his termination.

See Fraser v. Fiduciary Trust Co. Int’l, No. 04 Civ. 6958 (PAC),

2009 WL 2601389, at *6 (S.D.N.Y. Aug. 25, 2009) (ten month gap

defeated the contributing factor element).

       Secondly, and most significantly, Feldman admits that the

Outside Directors considered him to have thrown them under the

bus during his meetings with the Wortleys.                   Tellingly, Feldman’s

termination came less than one month after his July 27, 2009

meeting with Joseph Wortley and his son, in which he told them

that the Outside Directors were loyal to Carrington and “were

basically worthless.”           J.A. 1057-35.     He then wrote the Outside

Directors telling them it would be in LEA’s best interest if

they resigned, and stating that Wortley would sue them if they

did not do so.            Feldman’s conduct in the meetings with the

Wortleys, whom he was supposed to convince not to sue LEA, and

                                         21
his    subsequent     letter     to   the      Outside    Directors         undoubtedly

constitute a legitimate intervening event further undermining a

finding that his long-past protected activities played any role

in the termination.            Accordingly, this legitimate intervening

event, coupled with the passage of a significant amount of time

after Feldman’s alleged protected activities, severs the causal

connection.      See Halloum, 2004 DOLSOX LEXIS 73, at *13.

       Feldman     nonetheless    urges      us   to    find   that    the     asserted

protected activities played some role in his termination from

his proffered evidence of recurring retaliatory animus.                              For

instance, he claims that the leak of information to Carrington

after his reports regarding SAFE Source is proof of retaliatory

animus.      Certainly, Feldman’s reporting about SAFE Source was

the activity that was most likely to prompt retaliation against

him, as it resulted in a federal investigation.                         Still, most

damaging to his claim, Feldman does not dispute that Perry also

reported the impropriety but was asked to remain at LEA.                          Given

the fact that Perry was urged to stay despite participating in

the very same conduct, Feldman has not shown that it is more

likely the case than not that this particular activity played a

role    in   his    termination.          With    respect        to   the     remaining

activities,      there   was   indeed       animus     between    Feldman      and   the

Outside Directors after Feldman’s conduct, but he has not shown

that the animus was a retaliatory response to his activities.

                                          22
Instead,     he   acknowledges      that     the   acrimony       began    nearly     two

months before his first activity, and has offered no evidence

that his conduct changed the bitter status quo in any way.

      Feldman     further     attempts       to    show    recurring       retaliatory

animus by asserting that the Outside Directors deviated from

LEA’s policies after his protected activities by requiring him

to obtain prior approval before entering a new lease, falsifying

Board   meeting     minutes,       and    asserting       that     he   had    produced

insufficient      financial    information.             Firstly,    Feldman     himself

argued on appeal that the Outside Directors expressed concerns

about entering a new lease in November 2007, before any alleged

protected activity occurred, and that they opposed the move only

because    they    thought    it     would      upset     Carrington.         Thus,   by

Feldman’s own assertions, the change in policy regarding his

ability to enter a new lease was based on a desire to appease

Carrington, rather than a desire to retaliate against him for

conduct that had yet to occur.               Feldman’s claim that LEA changed

its   policies     by   falsifying        its     minutes    is     also   unavailing

because Littman and Finkelstein had produced competing versions

of the meeting minutes starting from the November 1, 2007 Board

meeting, again before any alleged protected activity.

      With    respect    to    the       Board’s    dissatisfaction           with    the

financial information that Feldman provided, he has offered no

evidence to refute Littman’s testimony that there was no per se

                                           23
policy on what had to be provided, but rather a practice where

the Board could contact himself, Littman, or Briggs when they

wanted further information.               Thus, even if the Outside Directors

became unhappy with the information Feldman provided after his

alleged protected activity, their indication that they wanted

more information is consistent with the only record evidence as

to the Board’s practices for accessing financial information.

       Lastly, Feldman argues that his strong work performance and

the company’s successes during his tenure are further proof that

his     termination   was     in     retaliation        for     protected     conduct.

Assuming that LEA was successful during this time because of

Feldman’s      efforts,      he     has     offered      no    evidence     that     LEA

considered him to have a strong performance record.                         See Smith

v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980) (age discrimination

case    explaining    that    an     employee’s        perception     of   himself    is

irrelevant, and “[i]t is the perception of the decision maker

which    is   relevant.”)         Further,       LEA   did    not   cite   substandard

performance as the reason for Feldman’s termination, but rather,

insubordination.       Feldman disputes that he was insubordinate,

but we do not decide whether LEA’s reason for terminating him

was wise, fair, or correct, nor do we “sit as a kind of super-

personnel      department         weighing       the    prudence      of    employment

decisions made by firms charged with employment discrimination.”



                                            24
DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998)

(internal citations omitted).

     The contributing factor standard in SOX cases is indeed

meant    to    be   quite    broad    and   forgiving.        However,   under     the

particular      circumstances         presented    here,     the   standard    would

simply    be    toothless     if     we   held   that   a   preponderance     of   the

evidence       shows    that       these     long-past      activities      affected

Feldman’s termination given the lengthy history of antagonism

and the intervening events which caused the Outside Directors to

view Feldman as insubordinate.                   Feldman has not successfully

established the contributing factor element of his prima facie

case, and we therefore need not consider whether Appellees can

show by clear and convincing evidence that he would have been

fired    regardless     of     any    protected     activities.       Accordingly,

Appellees are entitled to judgment as a matter of law.



                                            V.

     For the aforementioned reasons, the district court is



                                                                         AFFIRMED.




                                            25
