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Blalock v. Fifth Third Bank

United States District Court, S.D. Indiana, Evansville Division

May 17, 2018

JAMES B. BLALOCK, Plaintiff,



         Plaintiff, James B. Blalock, an employee of Defendant, Fifth Third Bank, filed the present Complaint alleging he was denied incentive compensation under the Indiana Wage Payment Statute and was retaliated against for voicing concerns that Fifth Third was violating the Employee Retirement Income Security Act (“ERISA”) by claiming improper tax deductions. Fifth Third now moves to dismiss Plaintiff's First Amended Complaint, and Plaintiff moves for leave to file a Second Amended Complaint. Because the proposed Second Amended Complaint adds only a claim for Sarbanes-Oxley Act whistleblower retaliation, and allegations and remedies relating to that claim, the court finds the Motion to Dismiss is still ripe for adjudication. See 188 LLC v. Trinity Indus., Inc., 300 F.3d 730, 736 (7th Cir. 2002) (stating that “[a]n amended pleading ordinarily supersedes the prior pleading, ” and that “[t]he prior pleading is in effect withdrawn as to all matters not restated in the amended pleading”).

         The court, having read and reviewed the parties' written submissions and the applicable law, now GRANTS in part and DENIES in part Defendant's Motion to Dismiss and GRANTS Plaintiff's Motion for Leave to File Second Amended Complaint.

         I. Background

         Plaintiff is Vice President and Managing Client Consultant at Fifth Third Bank. (Filing No. 16, First Am. Compl. ¶ 7). He maintains, and is a participant in, an Employee Stock Option Plan (“ESOP”), both of which are governed by ERISA. (Id. ¶¶ 8, 33). In 2009, Plaintiff discovered that Fifth Third was claiming tax deductions for all dividend payments to ESOP participants who were less than 100% vested in their account balances. (Id. ¶ 9). Plaintiff immediately reported the problem to the Plan Administrator and Sponsor, and inside and outside legal counsel. (Id. ¶ 15). He reported the problem again in October 2014 by calling the Fifth Third Ethics Line after discovering the problem had not been fixed. (Id. ¶ 21).

         Plaintiff is also covered by Fifth Third's 2011 Incentive Compensation Plan. (See Filing No. 24-1, 2011 Incentive Compensation Plan at 1). His incentive compensation was based on growth in book of business, new sales, referrals, and other qualitative factors like “performance effectiveness.” (See id.; First Am. Compl. ¶¶ 22, 46).

         In December 2014, Fifth Third informed Plaintiff that it was revoking his 2011 Incentive Compensation Plan. (Id. ¶ 23). For whatever reason, Fifth Third continued to pay Plaintiff his incentive compensation for 2014 and 2015. (Id. ¶ 24). But it denied Plaintiff's incentive compensation for 2016, which was due for payment in April 2017. (Id. ¶ 28).

         On October 28, 2015, Plaintiff participated in a telephone conference with Howard Hammond, Senior Vice President of Fifth Third Securities, and his immediate supervisor, Christine Pigorsh. (Id. ¶ 26). During the call, he alleges Hammond and others criticized and attacked him. (Id.). Plaintiff also alleges that in a separate call, Pirgorsh told Plaintiff that Hammond wanted to “poke [Plaintiff] in the eye” because of the time Plaintiff had “bested” him, including Plaintiff's reporting of the ESOP tax issue. (Id.). Plaintiff made an internal complaint of retaliation against Hammond on March 24, 2016. (Id. ¶ 27).

         Plaintiff applied for the position of Managing Director of Retirement Corporation of America on August 1, 2017. (Id. ¶ 19). On November 14, 2017, three weeks after Plaintiff filed his original Complaint, Fifth Third announced that it had selected another candidate for the position. (Id.).

         Plaintiff filed the present action on October 25, 2017, and moved for leave to file a Second Amended Complaint on March 27, 2018.

         II. Motion to Dismiss

         A. Legal Standard

         “A pleader's responsibility is to state a claim for relief that is plausible on its face.” Huri v. Office of the Chief Judge of the Circuit Court of Cook Cnty., 804 F.3d 826, 832-33 (7th Cir. 2015) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009)). When reviewing a motion to dismiss, the court accepts all facts alleged in the complaint as true and draws all reasonable inferences from those facts in favor of the plaintiff. Smith v. Dart, 803 F.3d 304, 309 (7th Cir. 2015).

         B. ...

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