Opinion
Case No. 1:18-cv-151
09-16-2019
Jodi RITTENBERRY, Plaintiff, v. CITIZENS TRI-COUNTY BANK, Defendant.
Jackie Sharp, Jr., Sharp Law, P.C., Nashville, TN, for Plaintiff. Bradford G. Harvey, Jessica Malloy-Thorpe, Megan Welton, Miller & Martin, PLLC, Chattanooga, TN, for Defendant.
Jackie Sharp, Jr., Sharp Law, P.C., Nashville, TN, for Plaintiff.
Bradford G. Harvey, Jessica Malloy-Thorpe, Megan Welton, Miller & Martin, PLLC, Chattanooga, TN, for Defendant.
MEMORANDUM OPINION
Christopher H. Steger, UNITED STATES MAGISTRATE JUDGE
I. Introduction
In this lawsuit, Plaintiff Jodi Rittenberry ("Plaintiff" or "Rittenberry") sued her former employer, Citizens Tri-County Bank ("Defendant" or "Citizens"), alleging that Citizens wrongly terminated her under 12 U.S.C. § 1831j(a) and the Tennessee Public Protection Act, Tenn. Code Ann. § 50-1-304 [Doc. 11], because she provided information regarding a possible violation of a law or regulation to the FDIC.
Briefly, the sequence of events leading to Plaintiff's termination began when an account holder deposited a large sum of cash at the Citizens bank. Complicating matters, the cash smelled of marijuana. Plaintiff Rittenberry, who worked as a compliance officer for the bank, was alerted to this situation. Rittenberry contacted a representative of the Federal Deposit Insurance Corporation ("FDIC") to solicit guidance on how the bank should handle a cash deposit potentially tied to illegal drug sales. The FDIC representative responded affirmatively to Rittenberry's query as to whether she could report the transaction to local law enforcement. As a result, Rittenberry called local authorities—Tennessee's Twelfth Judicial District Drug and Violent Crime Task Force—and reported the marijuana-scented cash deposit. Two law enforcement agents then came to the bank, interviewed several witnesses, and confiscated the cash. Later that day, Citizens' President & CEO, John Barker, terminated Rittenberry's employment for violating Citizens' privacy policy in how she handled the investigation of the drug-related cash deposit. Rittenberry's firing prompted her to file the present lawsuit.
Citizens responded to the lawsuit with the present motion to dismiss [Doc. 13] arguing that Rittenberry's complaint fails to state a claim upon which relief can be granted. More specifically, Citizens contends that the federal and state statutes upon which Rittenberry bases her claims do not provide a legal basis for her to sue Citizens under the existing facts. Two months after briefing closed with respect to the underlying Motion to Dismiss, Rittenberry requested leave to amend her complaint. [Doc. 18]. Citizens responded that the amendment is untimely and prejudicial. [Doc. 19]. Citizens also argued that the proposed amendment is futile because Rittenberry's federal and state claims cannot survive its 12(b)(6) motion. [Id. ]. On July 17, 2019, this Court conducted a hearing on the underlying Motion to Dismiss and Motion to Amend.
At the motion to dismiss stage, the Court accepts the plaintiff's allegations as true. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555–56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
Citizens, a regional bank with operations in eight Tennessee counties, is insured by the FDIC. In April 2014, Citizens hired Rittenberry to serve as its "Bank Secrecy Act Officer in Training" in Dunlap, Tennessee. In this role, Rittenberry became certified as a Bank Secrecy Act and Anti-Money Laundering Compliance Officer. Following her training, Citizens named Rittenberry as its Bank Secrecy Act Officer in March 2016.
As Bank Secrecy Act Officer, Rittenberry's duties included ensuring that all of the Citizens branch locations were compliant with the Bank Secrecy Act. Among other things, this law requires Citizens and other banks to file a Currency Transaction Report with the Department of Treasury's Financial Crimes Enforcement Network ("FinCEN") for deposits over $10,000. For suspicious activity involving transactions more than $5,000, the Bank Secrecy Act requires that banks also file a "Suspicious Activity Report" with the Treasury Department's FinCEN. As part of her duties, Rittenberry filed between 20-40 Suspicious Activity Reports per month on Citizens' behalf. A Bank Security Act Committee then met bi-monthly to review Rittenberry's reports.
According to Rittenberry's First Amended Complaint, "suspicious activity" refers to "a transaction that a bank knows, suspects, or has reason to suspect either[ ] involves funds from an illegal activity[,] appears to be an attempt to evade [Bank Secrecy Act] requirements, seems to have no business or other lawful purpose, or involves the use of the bank to facilitate criminal activity." [Doc. 18-1, ¶ 28].
Against that backdrop, the chain of events leading to the present lawsuit was precipitated by a cash deposit at a Citizens branch in Tracy City, Tennessee. The depositor nervously approached a bank teller with a bundle of cash and asked her to count the money. While counting the cash, the teller noticed that it smelled distinctly of marijuana. The total cash sum amounted to $17,200. The depositor instructed the teller to deposit $14,600 of that amount into his checking account.
The teller—suspicious that the cash could be the result of illegal drug trade—waited until the depositor left, then contacted Rittenberry for guidance. Rittenberry advised her to put the cash in a plastic bag and await further instruction. Rittenberry completed a Suspicious Activity Report and filed it with the Treasury Department's FinCEN. Rittenberry then contacted a representative from the FDIC, explained what happened, and asked how Citizens should handle the cash deposit. Rittenberry also asked the FDIC representative if she could report the transaction to local authorities. The FDIC representative advised her that she could contact local authorities.
After consulting with the FDIC, Rittenberry contacted local police—Tennessee's Twelfth Judicial District Drug and Violent Crime Task Force—to report the suspicious cash deposit. Two drug task-force agents later arrived at Citizens' Tracy City branch to investigate. The agents inspected—then confiscated—the plastic bag containing the marijuana-scented cash. The bank also provided the depositor's name and address to the agents. Rittenberry was not physically present at the Tracy City branch when the agents performed their on-site investigation.
John Barker, president and CEO of Citizens, was Rittenberry's immediate supervisor. Barker met with Rittenberry at the Dunlap branch that afternoon. Rittenberry told him about the suspicious cash deposit and explained the various steps she took—including her phone call to the FDIC. Barker then terminated Rittenberry's employment, noting that she had violated Citizens' privacy policy. Barker told Rittenberry that she had "put everybody's lives in danger" in reporting the suspicious deposit the way she did.
The details of Rittenberry's meeting with Barker are the basis of her request to amend her complaint for the second time [Doc. 18 at PageID #: 94 (Specifically, Plaintiff adds to her "Statement of Facts" section several paragraphs detailing a meeting between Citizens' President/CEO and herself. This meeting took place before Ms. Rittenberry's termination, and the newly-added paragraphs make clear that Citizens had knowledge of Ms. Rittenberry's protected activities prior to her termination) (citations omitted) ]. The Court will consider those facts in assessing the amendment's futility in light of Citizens' Motion to Dismiss [Doc. 13]. See Miller v. Calhoun Cnty. , 408 F.3d 803, 817 (6th Cir. 2005) (noting that an amendment is futile "when the proposed amendment would not permit the complaint to survive a motion to dismiss.").
The following day, the same two drug task-force agents executed a search warrant at the depositor's house. When agents arrived at the house, they discovered a line of people waiting outside for the depositor to return so that they could buy marijuana from him. When the depositor arrived, the agents arrested him. In a post-arrest interview, the depositor admitted that he sold marijuana furnished by a supplier who was involved with a Mexican drug cartel. Law enforcement ultimately charged the depositor with possession of a Schedule I substance for resale under Tennessee law.
Following the depositor's arrest, a hearing was held in the General Sessions Court of Marion County regarding the agents' seizure of the cash deposit and the forfeiture of the money. Citizens appeared through counsel to argue that it had 30 days to report the subject transaction and that Rittenberry should not have reported the deposit to authorities on the day of the transaction. The General Sessions Court judge found that the funds amounted to proceeds from illegal drug activity and were subject to forfeiture. The depositor later pled guilty to the criminal charges.
III. Analysis
A. Standard of Review
Defendant has filed a Rule 12(b)(6) motion to dismiss, asserting that the complaint fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). Such a motion to dismiss is meant to test the sufficiency of the complaint; it does not resolve the facts of the case. Cox v. Shelby State Cmty. Coll. , 48 F. App'x 500, 503 (6th Cir. 2002) ; Metz v. Supreme Court of Ohio , 46 F. App'x 228, 233 (6th Cir. 2002). Defendants bear "the burden of showing that the plaintiff has failed to state a claim for relief." Crugher v. Prelesnik , 761 F.3d 610, 614 (6th Cir. 2014) (quoting Directv, Inc. v. Treesh , 487 F.3d 471, 476 (6th Cir. 2007) ). In determining whether a party has set forth a claim in his complaint upon which relief can be granted, all well-pleaded factual allegations contained in the complaint must be accepted as true. Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). This tenet does not apply to legal conclusions. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. More than "unadorned, the-defendant-unlawfully-harmed me accusation[s]" are required to state a claim. Id. "Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ " Id. at 696, 129 S.Ct. 1937 (brackets original) (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ). The complaint must state "a plausible claim." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678, 129 S.Ct. 1937. In determining whether a complaint states a plausible claim for relief, the Court may draw on its judicial experience and common sense. Id. at 679, 129 S.Ct. 1937. Well-pleaded facts that permit the court to infer no more than a mere possibility of misconduct will not allow a complaint to survive a motion to dismiss. Id.
B. Overview of 12 U.S.C. § 1831j
Utilizing the framework of the 12(b)(6) standard, the Court turns to the first statute governing Rittenberry's claim. The Financial Institutions Reform, Recovery and Enforcement Act, 12 U.S.C. § 1831j(a)(1), provides in relevant part:
No insured depository institution may discharge or otherwise discriminate against any employee with respect to compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to the request of the employee) provided information to any Federal banking agency or to the Attorney General regarding—
(A) a possible violation of any law or regulation ...
by the depository institution or any director, officer, or employee of the institution.
12 U.S.C. § 1831j(a). This statutory provision protects a financial institution's employees from retaliation for providing a specific type of information to a "Federal banking agency" or to the United States Attorney General. To prove her case, Rittenberry must establish that: (1) she was an employee of an insured depository institution; (2) who was discharged for reporting a possible violation of any law or regulation to a federal banking agency or the Attorney General; and (3) that the possible violation was by the institution, or one of its directors, officers, or employees.
There is no dispute as to the first prong: Rittenberry's employer, Citizens, is an FDIC-insured depository institution. With respect to the second prong, the parties do not dispute that Citizens discharged Rittenberry. The remaining requirements of the second and third prongs § 1831j(a) are in dispute. More specifically, Citizens denies that: (1) Rittenberry was discharged for reporting a possible violation of any law or regulation to a federal banking agency; and (2) the possible violation was by Citizens or one of its directors, officers, or employees.
1. Did Rittenberry Report to a Federal Banking Agency or to the Attorney General
As an initial matter, in determining whether Rittenberry reported a possible violation of any law or regulation to a "Federal banking agency," it is essential to define the possible entities to whom this applies. The statute strictly limits "Federal banking agency" to mean "the [FDIC], the Board of Governors of the Federal Reserve System, the Federal Housing Finance Agency and the Comptroller of the Currency." 12 U.S.C. § 1831j(e).
In this case, Rittenberry made three communications to three different entities: (1) the United States Department of Treasury's FinCEN; (2) the FDIC; and (3) the Tennessee Twelfth Judicial District Drug and Violent Crime Task Force. Under the statute's strict definition, the Treasury's FinCEN does not constitute a "federal banking agency." Consequently, Rittenberry's communication to that agency is not protected by 12 U.S.C. § 1831j. The FDIC is, however, a federal banking agency, and Rittenberry's communication to that agency—depending on the substantive content of the communication—falls within the protection of the statute.
As indicated, Rittenberry also communicated with the Tennessee Twelfth Judicial District Drug and Violent Crime Task Force. The Court understands that the agents who investigated the drug-tainted deposit were characterized as "task force agents." In the Court's experience, "task force agents" are normally working in conjunction with—and deputized by—the federal Drug Enforcement Agency ("DEA"). The DEA is part of the Department of Justice which, in turn, is headed by the United States Attorney General. Consequently, Rittenberry's report to the Tennessee Twelfth Judicial District Drug and Violent Crime Task Force may be tantamount to a report to "the Attorney General," but the Court does not possess sufficient facts to make that determination. The Court will reserve judgment on that issue and will proceed based on the information reported by Rittenberry to the FDIC.
2. Rittenberry's Substantive Communication with the FDIC
Having established that Plaintiff reported to a federal banking agency, the Court must now address whether Rittenberry's substantive communication with the FDIC constitutes a protected activity under 12 U.S.C. § 1831j(a)(1). Citizens argues that Rittenberry's communication with the FDIC did not constitute a protected activity. In making this argument, Citizens relies upon § 1831j(a)(1)(A), which prohibits retaliation against an employee for providing information regarding "a possible violation of any law or regulation ... by the depository institution, or any director, officer, or employee of the institution." Citizens argues that Rittenberry did not call the FDIC to report a possible violation by Citizens. Rather, her call to the FDIC related to a possible violation of the law by a depositor (who was attempting to deposit drug money). Consequently, Citizens asserts that Rittenberry did not engage in protected activity under 12 U.S.C. § 1831j(a)(1).
Citizens acknowledges—but completely discounts—Rittenberry's argument that, if Citizens had accepted the deposit and failed to report it, such conduct would have constituted money laundering in violation of 18 U.S.C. § 1957. [Doc. 14 at PageID #: 54]. The Court is unwilling to dismiss Plaintiff's argument so quickly. Rittenberry is correct in asserting that, had the bank accepted the deposit—despite its strong suspicion that the cash represented the proceeds of illegal drug dealing—the bank could have been complicit in violating the federal prohibition against money laundering in 18 U.S.C. § 1957. The federal statute upon that Plaintiff relies in asserting her retaliation claim, 12 U.S.C § 1831j(a)(1), protects her from retaliation for providing information to the FDIC regarding a "possible violation of any law or regulation ... by [Citizens] or any director, officer, or employee of the institution." When Rittenberry called the FDIC to seek advice concerning the bank's receipt of possible drug money, the Court has to assume that she was providing information to the FDIC that could have led to a "possible violation of any law or regulation" by the depositor, Citizens, or its employees. Indeed, depending upon how Citizens handled this situation, all of these parties could have been implicated in violating federal law. On its face, the Court finds that Plaintiff has pled facts that would enable her to claim protection under 12 U.S.C § 1831j(a)(1). At the very least, disposition of this issue would require additional analysis of facts that would convert this issue to a summary judgment motion.
C. Causal Connection Between Protected Activity and Termination
Citizens argues that Plaintiff cannot establish a causal connection between any protected activity and the decision to terminate her employment. This argument is based primarily upon Citizens' assertion that Rittenberry did not engage in any "protected activity." As discussed above, the Court finds that Plaintiff has pled a viable claim that she engaged in protected activity under 12 U.S.C. § 1831j(a)(1). A determination as to whether she engaged in such protected activity ultimately will be upon facts not presently before the Court which, in any event, should be tested and weighed by a jury rather than a judge. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge....").
Having concluded that Rittenberry did engage in protected activity, the question before the Court is whether she is entitled to pursue a claim that there was a causal connection between her protected activity and the bank's decision to fire her. 12 U.S.C. § 1831j(f) makes clear that the anti-retaliation provision contained in § 1831j(a) is governed by the whistleblower-friendly burdens of proof established in the Whistleblower Protection Act. 5 U.S.C. § 1221(e)(1). See Hill v. Mr. Money Fin. Co. , 491 F. Supp. 2d 725, 731 (N.D. Ohio 2007), aff'd sub nom. Hill v. Mr. Money Fin. Co. & First Citizens Banc Corp. , 309 F. App'x 950 (6th Cir. 2009) (noting that § 1831j incorporates the legal burdens provided in 5 U.S.C. § 1221 ).
"[t]he legal burdens of proof that prevail under subchapter III of chapter 12 of Title 5 shall govern adjudication of protected activities under this section."
Under the Whistleblower Protection Act, an employee need only prove that her complaint was "a contributing factor" in the adverse personnel action. 5 U.S.C. § 1221(e)(1) ; Hill , 491 F. Supp. 2d at 731. That is, an employee may demonstrate that the disclosure to the appropriate agency was a contributing factor in the 518 personnel action through circumstantial evidence, such as evidence that
(A) the official taking the personnel action knew of the disclosure; and
(B) the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action.
5 U.S.C. § 1221(e)(1). While "a contributing factor" is not specifically defined in the Whistleblower Protection Act, courts have taken language from the statute's legislative history to define this phrase as "any factor which alone, or in connection with other factors, tends to affect, in any way, the outcome of the decision." See Marano v. Dep't of Justice , 2 F.3d 1137, 1140 (Fed. Cir. 1993). "[A] whistleblower need not demonstrate the existence of a retaliatory motive on the part of the employee taking the alleged prohibited personnel action in order to establish that [their] disclosure was a contributing factor to the personnel action." Id. at 1141. Once a plaintiff establishes a prima facie case under the Whistleblower Protection Act, the burden shifts to the defendant to prove "by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure." 5 U.S.C. § 1221(e)(2). See Lippert v. Cmty. Bank, Inc. , 438 F.3d 1275, 1279 (11th Cir. 2006) ("Once a plaintiff makes out a prima facie case of retaliation under § 1831j, the defendant must articulate, by clear and convincing evidence, a legitimate, non-discriminatory reason for the termination."); Hill , 491 F.Supp.2d at 731.
At this Rule 12(b)(6) stage, Rittenberry need not demonstrate that Citizens had a retaliatory motive for terminating her employment. She need only plead that the protected activity in which she engaged (i.e., calling the FDIC to discuss a possible violation of a law or regulation) was a contributing factor in the decision to terminate her employment. Assuming that Rittenberry revealed to the bank president that she had called the FDIC—in close proximity to the time that he decided to fire her—she will have established a prima facie case under the Whistleblower Protection Act. The burden would then shift to Citizens to prove that it would have made that same decision in the absence of such disclosure.
For these reasons, the Court finds that Plaintiff has—premised upon the protection of § 1831j(a) —stated a retaliatory discharge claim upon which relief can be granted.
D. Reporting within the Scope of Rittenberry's Employment
Citizens contends that Rittenberry cannot seek whistleblower protection under § 1831j because whistleblower protections only extend to employees who put their jobs at risk by reporting illegal activities. And, as Citizens' Bank Secrecy Act Compliance Officer, it was Rittenberry's job to investigate and report wrongdoing. Consequently, when she called the FDIC and other authorities, she was only fulfilling her fiduciary duty. In support of this argument, Citizens cites Wolf v. Pac. Nat. Bank (a Florida district court decision) and Sasse v. Department of Labor (a binding Sixth Circuit case). Both of these cases do support Citizens's argument; however, the Court rejects this argument for two reasons.
No. 09-21531-CIV, 2010 WL 5888778, at *10 (S.D. Fla. Dec. 28, 2010), report and recommendation adopted sub nom. Wolf v. Pac. Nat. Bank N.A. , No. 09-21531-CIV, 2011 WL 772853 (S.D. Fla. Feb. 28, 2011).
409 F.3d 773, 779-80 (6th Cir. 2005).
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First, the statute relied upon by Rittenberry to assert her lawsuit, § 1831j specifically points toward the Whistleblower Protection Act, 5 U.S.C. § 1221(e)(1), for guidance as to the legal burdens of proof that shall "govern adjudication of protected activities under this section." See 12 U.S.C. § 1831j(f). Congress amended the Whistleblower Protection Act in 2012—postdating both the Wolf and Sasse decisions—to clarify that an employee is not excluded from whistleblower protection because their "disclosure is made during the normal course of duties." 5 U.S.C. § 2302(f)(2). To the extent Congress intended for the prosecution of Section 1831j retaliation actions to follow the model of the Whistleblower Protection Act, it is clear that even an employee who reports a possible violation of law or regulation in the normal course of her duties would not be excluded from whistleblower protection.
Second, and more persuasively to this Court, § 1831j identifies the class of employees who are—and who are not—entitled to assert protection from retaliation for reporting a possible violation of any law or regulation. In defining those employees who are protected, the statute provides in relevant part:
(1) Employees of depository institutions. No insured depository institution may discharge or otherwise discriminate against any employee with respect to compensation, terms, conditions or privileges of employment because the employee (or any person acting pursuant to the request of the employee) provided information ...
See 12 U.S.C. § 1831j(a)(1).
Consequently, employees who are protected from retaliation include "any employee" who reports on possible violations of laws or regulations. Bartlik v. U.S. Dep't of Labor , 62 F.3d 163, 165 (6th Cir. 1995) (noting that "statutes, regulations, and rules of court must be read in a ‘straightforward’ and ‘commonsense’ manner.") (quoting Hubbard v. United States , 514 U.S. 695, 696, 115 S.Ct. 1754, 131 L.Ed.2d 779 (1995) ). The only exception to the protection offered by the statute is specified in 12 U.S.C. § 1831(d), as follows:
(d) Limitation. The protections of this section shall not apply to any employee who—
(1) deliberately causes or participates in the alleged violation of law or regulation; or
(2) knowingly or recklessly provides substantially false information to such an agency or the Attorney General.
See 12 U.S.C. § 1831j(d).
The Court is being called upon to interpret and apply 12 U.S.C. § 1831j as the federal basis for this lawsuit. The statute does not except employees whose job it is to investigate and report wrongdoing. See Cmty. for Creative Non–Violence v. Reid , 490 U.S. 730, 739, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989) (internal quotation marks and alterations omitted) ("It is ... well established that where Congress uses terms that have accumulated settled meaning under the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms."); see also N.L.R.B. v. Amax Coal Co. , 453 U.S. 322, 329, 101 S.Ct. 2789, 69 L.Ed.2d 672 (1981) ; Perrin v. United States , 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979). Instead, § 1831j excepts out only those: (1) who are complicit in the violation of law or regulation; and (2) those who report false information. Congress could have chosen to except other classes of employees from the protection of 12 U.S.C. § 1831j (such as employees whose duty it is to report wrongdoing), but it did not to do so. This Court will not imply an exception that Congress elected not to include. City of Chicago v. Envt'l Def. Fund , 511 U.S. 328, 338, 114 S.Ct. 1588, 128 L.Ed.2d 302 (1994) (citing Keene Corp. v. United States , 508 U.S. 200, 208, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993) ) ("It is generally assumed that Congress acts purposely when it includes particular language in one section of a statute but omits it in another.").
E. Rittenberry's Tennessee Public Protection Act Claim
The Tennessee Public Protection Act ("TPPA"), Tenn. Code Ann. § 50-1-304, prohibits the discharge of an employee "solely for refusing to participate in, or for refusing to remain silent about, illegal activities." § 50-1-304(b). An illegal activity is defined under the TPPA as an "activit[y] that [is] in violation of the criminal or civil code of this state or the United States or any regulation intended to protect the public health, safety or welfare." § 50-1-304(a)(3). Citizens argues that Rittenberry's claim under the TPPA should fail as a matter of law. Because, however, the Court finds that Rittenberry should be allowed to proceed with a cause of action under 12 U.S.C. § 1831j, it follows that she should also be permitted to pursue a TPPA claim with its more expansive coverage.
F. Rittenberry's Motion to Amend
Citizens also opposes Rittenberry's Motion to Amend [Doc. 18]. Rule 15 directs that, where an amendment is not made as a matter of course, "a party may amend its pleading only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)(2). "The court should freely give leave when justice so requires." Id. Factors relevant in determining whether leave should be denied include "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment." See Foman v. Davis , 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) ; see also Leary v. Daeschner , 349 F.3d 888, 905 (6th Cir. 2003). An amendment is futile "when the proposed amendment would not permit the complaint to survive a motion to dismiss." Miller v. Calhoun Cnty. , 408 F.3d 803, 817 (6th Cir. 2005).
Rittenberry's request for leave of court to amend is her first. The proposed amendment to the complaint includes additional details about Rittenberry's meeting with the president of the bank before he terminated her employment [Doc. 18 at PageID #: 94]. The purpose of this additional information is presumably to establish that Citizens knew about Rittenberry's protected activities before her termination. The Court finds that the amendment does not prejudice Citizens. It is information already known to them. And, to the extent it is inaccurate, Citizens will have an opportunity in the course of this litigation to set the record straight. Since leave shall be freely given under Rule 15, Rittenberry's Motion to Amend [Doc. 18] is GRANTED.
IV. Conclusion
For the foregoing reasons, it is hereby ORDERED that:
1. Defendant's Motion to Dismiss [Doc. 13] is DENIED.
2. Plaintiff's Motion to Amend [Doc. 18] is GRANTED.