DETROIT -- Fiat Chrysler Automobiles told a federal judge in Michigan that sales chief Reid Bigland doesn't merit protected whistleblower status in a pay dispute with the automaker.
In court records filed Monday, FCA asked U.S. District Judge Gershwin Drain to reject Bigland's request to retool his original lawsuit for the second time in a month to add a claim for violation of the whistleblower provision of the Sarbanes-Oxley Act. FCA's request for rejection concludes that Bigland's own allegations undercut his case for whistleblower status.
"Unlike the typical whistleblower case, [Bigland] expressly alleges that the staff of the SEC accuses him of engaging in some wrongdoing as to [FCA's] monthly sales reporting," FCA's counsel said. "Deferring incentive compensation to an individual the government has asked to acknowledge that he has engaged in some wrongdoing is not unlawful retaliation, but an eminently reasonable thing to do."
Bigland, 52, is claiming that his compensation was slashed 90 percent in retaliation for his participation in a U.S. Securities and Exchange Commission investigation into the company's sales reporting and his decision to sell his FCA stock. The complaint portrays Bigland as a scapegoat for sales practices that were changed in July 2016, when the company admitted that a 75-month streak of year-over-year gains had actually ended three years earlier.
Bigland continues to be employed by FCA and has remained active in his current position as the head of U.S. sales. He also has global responsibility for Ram and is CEO of FCA Canada.
The unusual case has continued to fester in the courts over the last few months while Bigland remains the face of FCA to its U.S. dealers.
In the suit, FCA contends Bigland "admittedly failed" to comply with contractual requirements and sought to add a Sarbanes-Oxley Act claim a mere 11 days after filing his previous complaint.
"For a [Sarbanes-Oxley Act] claim of workplace retaliation to proceed in federal court, the plaintiff must first file a complaint with the Department of Labor through OSHA," FCA said. "Plaintiff's assertion that OSHA might not choose to investigate because this lawsuit was already pending is no excuse."
The automaker further claims that Bigland did not engage in protected whistleblowing activity because he "never provided any information regarding any alleged violation of the securities laws to the SEC in his own allegations."
The automaker is arguing that for Bigland to claim whistleblower protection, he must actually believe he violated the law. He claimed he did nothing wrong.
"But to qualify as protected activity, [Bigland] must, at a minimum, actually believe that the conduct complained of constituted a violation of relevant law."
It remains unclear if any settlement talks are taking place between attorneys for Bigland and FCA.
Far from over
Bigland’s lawyer, Deborah Gordon, told Automotive News on Friday that FCA’s opposition for her client’s Sarbanes-Oxley status is a typical move in litigation where the “defendants start to try to nitpick the complaint and get it whittled down as much as possible.”
Gordon said the federal statute says before you can file a Sarbanes-Oxley count in federal court -- unless the defendants agree -- an individual must wait 180 days for the administrative agency to try and resolve it.
“They obviously want to slow me down and they want to drag this out, so they’re going to do what they can to not let me amend my complaint,” she said. “They are just saying that we can’t do this right now, which is fine because whether I can or can’t I’m going to do this Sarbanes-Oxley count. I will just have to wait until the 180 days.”
She added: “It’s a technical issue, not substantive.”
But the pay dispute between FCA and Bigland is far from over. In fact, Gordon said a hearing set for Oct. 3 is going to set the tone for how the litigation will proceed.
“FCA’s whole big-picture motive is that they don’t want this case heard in a federal district court in a public docket,” Gordon said. “They do not want that, so they are making a big deal to push this litigation into the state of Delaware.”
She added: “God knows why Delaware -- other than it’s a corporate business state because none of the witnesses or parties are in Delaware. But they want it there and [they want] private arbitration.”
A spokesman for FCA said the company would have no additional comment on the litigation.
