The U.S. District Court for the District of Maryland recently denied a motion for summary judgment in a whistleblower retaliation claim under the Consumer Financial Protection Act of 2010 (CFPA), Section 1057 of Dodd-Frank, which was brought by an ex-foreclosure attorney, finding there were issues of material fact as to, among other things, the basis for the termination of the Plaintiff’s employment and whether he engaged in protected activity. Yoder v. The O’Neil Group, LLC, No. 16-cv-0900 (D. Md. Dec. 8, 2017).
Background. Plaintiff was hired to lead the foreclosure practice at an entity that handled foreclosure referrals from a mortgage loan servicer. He alleged that the Company was overbilling clients for title reports and title updates in violation of the Fair Debt Collection Practices Act (FDCPA). After he had a confrontation with the founders of the Company regarding these alleged billing practices and other issues, the founders allegedly told Plaintiff he could either sign a resignation letter or “[i]f you do not want to resign, then I will accommodate your insistence that you be fired.” Plaintiff refused to sign the letter, prompting the Company to conclude that he quit. Plaintiff then filed suit in the District of Maryland, alleging that his employment was terminated in violation of the whistleblower protection provisions of the CFPA.
Rulings. The Company moved for summary judgment, arguing that Plaintiff could not prove that he engaged in protected activity, suffered an adverse employment action, or that his alleged protected activity contributed to an adverse employment action. The court rejected the Company’s argument that summary judgment as warranted on the issue of protected activity, concluding that there was a dispute of fact as to whether it was objectionably reasonable for Plaintiff to believe that the alleged overbilling violated the FDCPA. The court also determined that there were genuine disputes of material fact as to whether Plaintiff voluntarily quit and whether the Company asking Plaintiff to resign or be fired was based on economic circumstances.
Implications. This is one of a fairly limited number of cases filed under the CFPA and it illustrates the degree to which some courts will scrutinize factual submissions on issues of protected activity and causation in the summary judgment context.