United States District Court, S.D. Indiana, Evansville Division
JAMES B. BLALOCK, Plaintiff,
FIFTH THIRD BANK, Defendant.
ENTRY ON DEFENDANT'S MOTION TO DISMISS
PLAINTIFF'S FIRST AMENDED COMPLAINT AND PLAINTIFF'S
MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
RICHARD L. YOUNG, JUDGE
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prior pleading is in effect withdrawn as to all matters not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”).
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.
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).
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).
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).
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.
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.
filed the present action on October 25, 2017, and moved for
leave to file a Second Amended Complaint on March 27, 2018.
Motion to Dismiss
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).