Dugal v. FortuneBank

          MEMORANDUM AND ORDER

          PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Defendant FortuneBank's motion to dismiss Count II of Plaintiff Amanda Dugal's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).^[1](ECF No. 6). Plaintiff opposes the motion. (ECF No. 11). For the reasons that follow, the Court denies Defendant's motion to dismiss.

         I. Factual and Procedural Background

         The facts, as alleged in the complaint, are as follows: Plaintiff worked for Defendant as a loan coordinator from January 2015 until the date of her termination.^[2] (ECF No. 1 at ¶ 9). From January 2015 until September 30, 2016, Plaintiff reported directly to Defendant's chief lending officer and regional president, Darren Gosling. (Id. at ¶ 12).

         Gosling had developed an over-the-road truck-loan portfolio (“Gosling Portfolio”) that was “underperforming and experiencing deepening losses.” (Id. at ¶¶ 14-15). In 2013 or 2014, investigators from the Federal Deposit Insurance Corporation (“FDIC”) reviewed the Gosling Portfolio and advised bank management that they “should take losses and shut down the portfolio.” (Id. at ¶ 16). Instead of heeding that advice, Defendant's chairman, Dan Jones, directed Gosling to “turn the [Gosling P]ortfolio around and make a profit so that the bank would not take a loss.” (Id. at ¶¶17-18).

         Gosling left Defendant's employment on September 30, 2016. (Id. at ¶ 19). Shortly thereafter, Jones invited Plaintiff to a private meeting and “asked [her] for a commitment of loyalty to the bank.” (Id. at ¶ 20).

         In February 2017, the FDIC again inspected the Gosling Portfolio, and an FDIC investigator interviewed Plaintiff. (Id. at ¶¶ 21-22). After providing the FDIC investigator “truthful responses and information, ” Plaintiff recounted her interview to “her superiors at the bank[.]” (Id. at ¶¶ 22-23).

         A short time later, Defendant placed Plaintiff on “administrative leave.” (Id. at ¶ 27). Defendant assured Plaintiff that “she [was] not being fired, ”^[3] and Defendant's attorney informed Plaintiff that “[Plaintiff and Defendant] needed to separate during the [FDIC] investigation.” (Id. at ¶¶ 27-28). Defendant presented Plaintiff with a separation agreement that was “non-standard” and “seemed designed to protect [Defendant] against a possible FDIC investigation.” (Id. at ¶¶ 30-32). Plaintiff refused to sign the agreement, and Defendant terminated her employment. (Id. at ¶ 33).

         On April 7, 2017, Defendant sued Plaintiff and Gosling in state court for breach of fiduciary duty and civil conspiracy.^[4] (Id. at ¶¶ 34-35). Plaintiff states that Defendant filed the state-court action “in order for insurance coverage to apply so that the bank would not have to take a loss on the [Gosling] Portfolio.” (Id. at ¶ 37). Plaintiff filed her two-count complaint in this Court on August 28, 2017. (Id.). In Count I, Plaintiff alleges that Defendant terminated her, in violation of the FDIC's prohibition on retaliation, 12 U.S.C. § 1831j, because she provided information to the FDIC “regarding a possible violation of law or regulation, and/or gross mismanagement, and/or an abuse of authority by the Bank and certain directors, officers, and other employees of the institution.” (Id. at ¶¶ 39-44).

         In Count II, Plaintiff alleges that Defendant terminated her employment in violation of public policy. (Id. at ¶¶ 45-54). Citing the False Statements Act, 18 U.S.C. § 1001, et seq., and specifically referencing 18 U.S.C. § 1007, ^[5] Plaintiff claims that “[f]ederal law requires people to be truthful with federal investigators.” (Id. at ¶ 45). Additionally, Plaintiff asserts that her termination contravened the Missouri public policy “encourag[ing] employees to communicate with government investigators about their employer's actions without fear of retaliation.” (Id. at ¶ 46). According to Plaintiff, Defendant violated federal and Missouri public policy because it terminated her (1) for “cooperating with the F.D.I.C. investigation into the [Gosling Portfolio]” and in an effort to (2) make her unavailable to FDIC investigators and (3) “utilize her in filing a fraudulent insurance claim.” (Id. at ¶ 47).

         Defendant moved to dismiss Plaintiff's Count II for failure to state a claim. (ECF No. 6). Defendant argues that Plaintiff's claim fails because “it is not based on a well-established or clear mandate of public policy.” (Id. at ¶ 2). In regard to Plaintiff's reliance on 18 U.S.C. § 1007, Defendant contends that the statute “merely sets forth the criminal penalties for individuals who provide untruthful information to the FDIC” and Plaintiff does not allege that Defendant asked her to violate that statute. (ECF No. 7 at 7). As to Plaintiff's claim that her termination violated Missouri public policy, Defendant notes that Plaintiff failed to cite any Missouri statute or regulation to support her claim. (Id. at 6). Defendant states: “[Plaintiff's] blanket claim about Missouri public policy is insufficient to establish a clear mandate of public policy sufficient to support a claim for wrongful discharge.” (Id.).

         In her memorandum in opposition to Defendant's motion to dismiss, Plaintiff asserts, without citation to authority, that “Missouri law provides a cause of action for wrongful termination for retribution against an employee for participating in an investigation and refusing to participate in an illegal scheme.”^[6] Plaintiff reiterates that Defendant terminated her employment “because of the FDIC investigation” and her “refusal to participate in a fraudulent insurance claim made by [Defendant] to cover their losses on bad loans.” (ECF No. 11 at 4).

         In reply, Defendant asserts that, because Plaintiff failed to identify “a clearly mandated public policy as codified in a statute, a regulation, or similar source with respect to her claim that ‘Missouri public policy encourages employees to communicate with government investigators, ' [Plaintiff] has not stated a claim.” (ECF No. 13 at 2). As to 18 U.S.C. § 1007, the statute Plaintiff referenced in her complaint, Defendant argues that it is “a general and broad criminal statute” that “does not even remotely address the claims [Plaintiff] makes in her Complaint[.]” (Id. at 3).

         II. ...