Kan.: Employee Allowed to Add Retaliation and Conspiracy Claims

By SHRM Online staff Dec 31, 2014
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A trial court granted an employee’s request to amend his discrimination complaint against his former employer to add retaliation and conspiracy claims but denied his claims related to the Racketeer Influenced and Corrupt Organization (RICO) Act.

Arshad Azim worked as a vice president for business development at Tortoise Capital Advisors LLC, an investment management firm, from September 2011 until April 30, 2012. He alleged that he learned that his employer made misrepresentations to become certified as a minority business enterprise, made fraudulent representations to gain potential investments and investors, and made false filings with the Securities and Exchange Commission (SEC). He also claimed that he was subject to harassment and discrimination based on his national origin and religion throughout his employment. Plaintiff reported his concerns of harassment and securities law violations to Tortoises manager of human resources, Tabitha Boissonneau, on April 16, 2012. On April 30, 2012, Boissonneau and Tortoise’s chief executive officer, Kevin Birzer, met with Azim, terminated him, and coerced and intimidated him into signing a release agreement waiving his right to bring future legal or administrative claims against defendants.

Azim filed a claim against Tortoise asserting religious and national-origin discrimination pursuant to Title VII of the Civil Rights Act of 1964, and claims against two individuals affiliated with Tortoise, pursuant to 42 U.S.C. Section 1981. He then filed a motion to amend his complaint to add four claims: (1) a claim under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010; (2) a conspiracy claim under 42 U.S.C. Section 1985(3); (3) a claim under RICO; and (4) a RICO conspiracy claim. Tortoise opposed the motion, arguing that Azim’s proposed amendments were futile.

Dodd-Frank Act

Azim’s proposed amended complaint alleged that Tortoise violated the Dodd-Frank Act by retaliating against him after he reported their violations of securities laws. The court acknowledged that the Dodd-Frank Act attempts to encourage individuals to report violations of U.S. securities laws by creating a private cause of action for individuals against employers who retaliate against them for taking specified protected actions. The act prohibits an employer from discharging, demoting, suspending, threatening, harassing, directly or indirectly, or in any other manner discriminating against a whistleblower. Relying on a case from the U.S. Court of Appeals for the 5th Circuit, Asadi v. G.E. Energy (USA), LLC, 720 F.3d 620 (5th Cir. 2013), Tortoise argued that Azim did not qualify as a whistleblower because he did not report information to the SEC. In contrast, Azim relied on a case in the U.S. District Court, Genberg v. Porter, 935 F. Supp. 2d 1094 (D. Colo. 2013), for the District of Colorado to argue he was a whistleblower because he complained to Tortoise’s HR department about Tortoise’s securities violations. Because there is some authority to support Azim’s position, the court refused to find Azim’s proposed amendment was futile.

42 U.S.C. Section 1985

Azim brought a claim under 42 U.S.C. Section 1985(3) for conspiracy to interfere with his civil rights. To state a claim under Section 1985(3), Azim had to show: (1) a conspiracy, motivated by racially discriminatory animus; (2) to deprive him of equal protection of the laws; (3) an act in furtherance of the conspiracy; and (4) a resulting deprivation of rights, the court explained. The court allowed Azim’s claims to go forward, stating that courts in this circuit have permitted Section 1985(3) claims to be brought based on the same alleged violations supporting Section 1981 claims.

RICO and RICO Conspiracy Claims

The court found Azim could not assert any viable basis supporting his standing to bring a civil RICO claim, so it refused to allow him to amend his complaint to assert such a claim because it would be futile. Because Azim did not have standing to bring a substantive RICO claim, the court determined his proposed conspiracy claim would fail as a matter of law. It, therefore, denied his request to amend his complaint to add such as claim.

Azim v. Tortoise Capital Advisors, LLC, D. Kan. No. 13-2267-KHV (Nov. 5, 2014).

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