United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE.
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).(ECF No. 6). Plaintiff opposes the motion.
(ECF No. 11). For the reasons that follow, the Court denies
Defendant's motion to dismiss.
Factual and Procedural Background
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. (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
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.
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).
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 ¶¶
time later, Defendant placed Plaintiff on
“administrative leave.” (Id. at ¶
27). Defendant assured Plaintiff that “she [was] not
being fired, ” 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).
April 7, 2017, Defendant sued Plaintiff and Gosling in state
court for breach of fiduciary duty and civil
conspiracy. (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).
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,  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).
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
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.” 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).
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).