Pierre v. Capital One Fin. Corp.

• Docket Number: 21-CV-30 (PKC) (JRC)
• Decision Date: 16 March 2022
• Parties: CYNTHIA PIERRE, Plaintiff, v. CAPITAL ONE FINANCIAL CORPORATION and RICHARD D. FAIRBANK, Chairman and Chief Executive Officer, Defendants.
• Court: U.S. District Court — Eastern District of New York

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CYNTHIA PIERRE, Plaintiff, v. CAPITAL ONE FINANCIAL CORPORATION and RICHARD D. FAIRBANK, Chairman and Chief Executive Officer, Defendants.

No. 21-CV-30 (PKC) (JRC)

United States District Court, E.D. New York

March 16, 2022

MEMORANDUM & ORDER

PAMELA K. CHEN, UNITED STATES DISTRICT JUDGE:

Plaintiff Cynthia Pierre brings this action against Defendants Capital One Financial Corporation (“Capital One”) and Richard D. Fairbank, Chairman and Chief Executive Officer of Capital One. Plaintiff is a former employee of Capital One who believes she was wrongfully terminated. Currently before the Court is Defendants' motion to dismiss Plaintiff's Third Amended Complaint (“TAC”^[1]) pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6), as well as Plaintiff's request for leave to amend. For the reasons explained below, Defendants' motion to dismiss is granted, Plaintiff's request for leave to amend is denied, and this case is dismissed in its entirety.

BACKGROUND

I. Factual Allegations^[2]

Plaintiff was employed with Defendant Capital One for seven years-first part-time, then full-time, and eventually as a lead teller and branch ambassador. (See TAC, Dkt. 1-1, ¶ 33.) On September 19, 2016, Plaintiff's cashbox showed an overage of $15, 125.53.^[3] (Id. ¶¶ 19-20.) Months later, Plaintiff was told by her bank manager, Ogbonna Obi, that the overage was caused by a systems error. (Id. ¶ 21.) On December 28, 2018 Plaintiff's cashbox again showed an overage, this time in the sum of $2, 021.05. (Id. ¶ 5.) Plaintiff asked Obi whether “he [had] heard anything regarding [the] difference, ” whether “the error [was] found, ” and whether “there [were] any updates on the error.” (Id. ¶¶ 24-26.) Obi “reassure[d] [her] that everything w[ould] be fine.” (Id. ¶ 27.) On March 12, 2019 however, Obi called Plaintiff into his office and terminated her employment because the $2, 021.05 overage “was never located nor figured out, ” and the error was attributed to Plaintiff. (Id. ¶ 32.) Plaintiff alleges that other employees and former employees have similarly had overages (as well as shortages) in their cashboxes, but were not terminated. (Id. ¶¶ 34-45.)

II. Procedural History

Plaintiff initially filed this case in New York state court on March 12, 2020, against Obi, Defendant Fairbank, and Sharon Andrews. (Complaint, Dkt. 10-1.) Plaintiff subsequently filed an Amended Complaint in the state court action, naming only Obi and Andrews as defendants, and listing a single cause of action for wrongful termination. (First Amended Complaint (“FAC”), Dkt. 10-2.) On July 13, 2020, Obi and Andrews moved to dismiss, arguing that Plaintiff was an at-will employee, and that New York does not recognize a wrongful termination cause of action for at-will employees. (Motion to Dismiss, Dkt. 10-4.) After holding oral argument, the state court granted the motion to dismiss-with leave to replead-in a brief, handwritten order that instructed Plaintiff to name Capital One Bank as the defendant, and to “specify which laws [the Complaint] is based on: city, state[, ] or federal, or all, and [to] cite which sentence(s) of the laws she claims were violated.” (Affidavit of Kelly Cardin (“Cardin Aff.”), Dkt. 10, at ¶ 6; State Court Order, Dkt. 10-5.) On December 8, 2020, Plaintiff filed the TAC, which contains substantially similar factual allegations as the FAC (compare FAC, Dkt. 10-2, with TAC, Dkt. 1-1), but names as defendants Fairbank and, for the first time, Capital One, and lists as the “Cause of Action, ” “Capital One Bank Code of Business Conduct and Ethics Policy Sections 1.1, 1.2, 1.3, [and] 2.1, ” as well as “CPLR Sections 1001(a), [and] 1501” (TAC, Dkt. 1-1, ¶ 58).^[4] Plaintiff attached to the TAC Capital One's “Code of Conduct.” (Dkt. 1-1, at ECF^[5] 24-57.) Section 1.1 of that document is titled “Our Code of Conduct” and states:

At Capital One, we share a proud commitment to upholding the highest standards of professional ethics. Our Code of Conduct (Code) reflects our core values of Excellence and Do the Right Thing. Our Code memorializes Capital One's commitment to comply with applicable laws and regulations governing our operations, and to earn our reputation for honesty, fair dealing, and integrity every day. We owe it to one another, our customers, and the communities we serve.

(Id. at ECF 29.)

Section 1.2, titled “Our People, ” states:

Our Code applies to all Capital One associates and members of the Company's Board of Directors, and extends to all Capital One subsidiaries. References to “Capital One associates” in this Code cover Board members and associates, including those in our international locations. The conduct of our vendors, suppliers, service providers, and affiliates (Third Parties) is governed by the Third Party Code of Business Conduct and Ethics.

(Id.)

Section 1.3, titled “Our Responsibilities, ” states:

We expect all associates to live our Company's values by doing the right thing. Knowing, understanding, and following applicable laws and regulations are critical to living our values, safeguarding Capital One's reputation, and maintaining our customers' trust. Our Code should be read and understood in conjunction with relevant Capital One policies, standards, and procedures. References in this document to “the Code” and “Company policy” are intended to include all relevant policies, standards, and procedures.

Where applicable laws or regulations differ from our Code, policies, standards, or procedures, or where a line of business, department, office, group or team has specific requirements, we are expected to follow the most restrictive applicable requirement. We must comply with the letter and spirit of the law and our Code, use fact-based and sound judgment, and seek guidance whenever needed. Associates who violate the Code will be subject to legal action and discipline up to and including termination of employment.

(Id. at ECF 30.)

Section 2.1, titled “Fairness, Dignity, and Respect, ” includes sections on diversity and inclusion, harassment and discrimination, and equal employment opportunities. (Id. at 35-36.)

In her TAC, Plaintiff alleges that § 1.3's requirement to “comply with the letter and spirit of the law and our Code, use fact-based and sound judgment, and seek guidance whenever needed, ” was “never utilized to ascertain the facts during the investigation of the $2, 021.05” overage, which led to her termination. (Compl., Dkt. 1-1, ¶¶ 50-51.^[6]) Plaintiff also alleges that Capital One's “Employees Manual”^[7] authorizes termination of employees for unexplained overages and shortages, which Plaintiff asserts is an “unfair-dealing practice.” (Id. ¶ 54.) Also attached to the TAC is a letter sent to Defendant Fairbank before this case was filed, demanding $500, 000 for lost wages and “mental anguish from the wrongful termination AND discrimination.” (Dkt. 1-1, at ECF 21.)

After Plaintiff filed the TAC, Capital One removed the case to this Court based on diversity jurisdiction (Dkt. 1), and Plaintiff filed a motion to remand (Dkt. 7), which this Court denied (Dkt. 14).^[8] In February 2021, Defendants requested a pre-motion conference to discuss filing a motion to dismiss pursuant to Rule 12(b)(6). (Dkt. 12.^[9]) In their request, Defendants noted that Plaintiff was an at-will employee, and that New York does not recognize wrongful termination claims for at-will employees-substantially the same arguments made by Obi and Andrews in their motion to dismiss the First Amended Complaint in state court. (Id.; Dkt. 10-4.)

The Court held the requested conference on March 23, 2021. At the conference, the Court explained to Plaintiff that her TAC appeared to allege that Defendants had failed to follow their Code of Conduct, but that violation of Capital One's internal policy alone does not give rise to a cause of action. The Court also informed Plaintiff that if she was an at-will employee, she did not have a cause of action for wrongful termination, but that if she had a written employment contract, or even an informal assurance that she could be fired only for just cause, she might. Plaintiff, however, confirmed that she was an at-will employee, and stated that she did not have a written employment contract and had never been told or received anything indicating that she could be fired only for cause. Plaintiff reiterated that she believed that the sole reason that she was fired was due to the overage, and that she believed that her termination violated Capital One's Code of Conduct. She also explained that she had named Fairbank as a Defendant only because of her belief that he had created Capital One's policies. Explaining to Plaintiff that the Court was attempting to determine if there was any reason to allow Plaintiff to amend her complaint before deciding the motion to dismiss, the Court asked Plaintiff again if she felt that she had alleged all of the facts relevant to her termination, and Plaintiff replied that she had.

At the close of the conference, the Court informed the parties that it would construe Defendants' pre-motion letters as their motion to dismiss, allow Defendants to file an additional letter supplementing their arguments, and then allow Plaintiff to respond. (03/23/2021 Docket Order.) In Defendants' supplemental letter, they argue that New York does not recognize wrongful termination claims, and that a claim based on an alleged violation of Capital One's internal policy is not actionable. (Dkt. 18. at 3-4.) In her response, Plaintiff reasserted her claims under Capital One's Code of Conduct, and also, for the first time asserted claims under the Fourteenth Amendment of the United States Constitution, arguing that her termination violated both substantive and procedural due process, under a “job as...