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Barrick v. PNGI Charles Town Gaming, LLC

United States District Court, N.D. West Virginia, Martinsburg

February 8, 2019

PNGI CHARLES TOWN GAMING, LLC d/b/a Hollywood Casino at Charles Town Races, and WILLIAM FLORENCE, Defendants.



         Currently pending before the Court is the Defendants' Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. ECF No. 73. On December 21, 2018, the Plaintiff filed his response in opposition to the Defendants' motion. ECF No. 76. The Defendants filed a reply on January 4, 2019. ECF No. 93. While the Plaintiff requested oral argument in his response, the Court finds that no additional information will assist the Court in making its decision. Accordingly, upon review of the filings, this matter is now ripe for the Court's consideration. As more fully explained herein, the Defendants' motion is granted.

         I. Background

         This civil action commenced on August 2, 2017, when Michael Barrick ("Plaintiff") filed a three-count Complaint alleging wrongful termination and retaliation in violation of West Virginia common law, the Dodd-Frank Act and the Bank Secrecy Act ("BSA"). See ECF No 1. On October 6, 2017, the Defendants filed a motion to dismiss the Plaintiffs complaint for failure to state a claim upon which relief can be granted. ECF No. 11. On January 29, 2018, this Court granted in part the Defendants' motion, dismissing the Plaintiffs West Virginia common law claim. ECF No. 18. On March 6, 2018, the Plaintiff filed a stipulation of dismissal as to his Dodd-Frank Act claim. ECF No. 21. Several months later, the Plaintiff filed a motion to amend his complaint, which this Court granted. ECF Nos. 32, 33, 36, 39, 40. The Plaintiffs amended complaint, filed on August 9, 2018, alleges two counts, retaliation in violation of the BSA and the Sarbanes-Oxley Act ("SOX"). See ECF No. 41.

         Viewing the material facts in the light most favorable to the Plaintiff, the facts are as follows.[1] The Plaintiff avers that he, along with his father and the rest of the group[2], uncovered and reported an illegal sports gambling operation taking place at Defendant PNGI's casino in Charles Town, West Virginia. Prior to reporting to Bill Florence ("Florence"), the Vice President of Table Games[3], the group hired a private investigator, Tim May, who was assisting with the matter. During the course of this investigation, Tim May involved Bob Lind who worked as an investigator for the West Virginia Lottery Commission. Bob Lind assisted Tim May in the investigation and attended meetings Tim May had with the group. The group also discussed contacting the Federal Bureau of Investigation ("FBI") and the Plaintiff believes that Herman Barhck and Bob Lind made the decision to contact the FBI. The Plaintiff alleges that Tim May Investigations told Herman Barrick that the FBI was contacted.

         On January 22, 2017, the Plaintiff met with Florence and Repetto, the Plaintiffs shift manager, about his final written warning. Either during this meeting or the next day, the Plaintiff reported his allegations of the illegal sports gambling operation which was being run by Immordino, the Plaintiffs assistant shift manager.[4] The Plaintiff also reported that Champa, another employee, was involved in a sports betting operation and using the money from the sports books to buy a karaoke bar in Laos. The Plaintiff notified Florence that Herman Barrick had contacted the West Virginia Lottery Commission and he was "pretty sure" the FBI was also contacted. Pl.'s Ex. 2, Plaintiff Dep. at 337:9-22. After reporting to Florence, the Plaintiff requested a month off so that the company could perform an investigation into the illegal sports gambling that was taking place at the Hollywood Casino property.

         Florence confronted Immordino about the allegations. Sometime after this discussion, Immordino or Repetto told Florence that the Plaintiff had borrowed large sums of money from other employees. Florence reported the Plaintiffs allegations of illegal sports gambling and the allegations that the Plaintiff had borrowed money from other employees to Hollywood Casino. He also reported the sports gambling allegations to the Deputy Director of Security at the West Virginia Lottery, Hollywood Casino's Vice President of Human Resources, Hollywood Casino's General Manager, and the lead West Virginia Lottery Investigator at the Hollywood Casino Property. As a result of the investigation, it was discovered that Immordino was running sports pools at Hollywood Casino. Following this discovery, Immordino was terminated from his employment with the casino. Pl.'s Ex. 8, Bak-Boychuk Dep. at 16:15-19; Defs.' Ex. E at 11, n.6; Defs.' Ex. M, Bak-Boychuk Dep. at 60:3-22. Champa was not terminated because there was not a conclusive finding that he was involved in running an illegal sports gambling operation.

         Alex Bak-Boychuk, Vice President of Employment and Business Affairs, and Kathy Greene, Vice President of Talent Management at PNGI, conducted an investigation into the allegations against the Plaintiff. This investigation revealed that the Plaintiff had borrowed money from other employees over whom he had a supervisory role. After this investigation, the Plaintiff was presented with a termination notice due to his prior disciplinary record, the amount of money he had borrowed from other employees and his failure to disclose these loans to management. When presented with the notice, the Plaintiff alleged that he had previously disclosed these loans to Morrison, who was his supervisor at the time. The Plaintiffs allegation that he reported to a supervisor was investigated prior to the Plaintiffs termination.[5] Morrison confirmed she knew about the money the Plaintiff had borrowed from one of the employees, Travis Voit. Ultimately, the Plaintiffs employment was terminated and his father and mother were offered separation packages[6].

         II. Standard of Review

         Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, the Court must conduct "the threshold inquiry of determining whether there is the need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id., at 250.

         The party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., 475 U.S. at 586. That is, once the movant has met its burden to show an absence of material fact, the party opposing summary judgment must then come forward with affidavits or other evidence establishing there is indeed a genuine issue for trial. Fed.R.Civ.P. 56; Celotex Corp., 477 U.S. at 323-25; Anderson, 477 U.S. at 248. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249 (citations omitted). A motion for summary judgment should be denied "if the evidence is such that conflicting inferences may be drawn therefrom, or if reasonable men might reach different conclusions." Phoenix Savs. & Loan, Inc. v. Aetna Cas. & Sur. Co.. 381 F.2d 245, 249 (4th Cir. 1967); see also Id. at 253 (noting that "[credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge").

         III. Discussion

         A. The Bank Secrecy Act ("BSA"), 31 U.S.C. § 5328

         1. Applicable Legal Standards

         In his amended complaint, the Plaintiff claims whistleblower protection under a provision of the BSA against Defendant PNGI. This provision provides:

No financial 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 the Secretary of the Treasury, the Attorney General, or any Federal supervisory agency regarding a possible violation of any provision of this subchapter or section 1956, 1957, or 1960 of title 18, or any regulation under any such provision, by the financial institution ... or any director, officer, or employee of the financial institution.

31 U.S.C. § 5328(a).

         In order to prevail on this claim, the Plaintiff must have been (1) an employee of a financial institution who (2) provided information regarding a possible violation of specified laws and regulations by the financial institution, its directors, officers, or employees, to (3) the Treasury Secretary, Attorney General, or "any Federal supervisory agency," (4) and was subjected to employment-related discrimination because he made such a report. Taft v. Agric. Bank of China Ltd., 156 F.Supp.3d 407, 413 (S.D.N.Y. 2016).

         2. ...

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