Annan v. Capital One Bank
MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 9/9/2020. (ybs, Deputy Clerk)
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UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
Civil Action No. TDC-19-1329
CAPITAL ONE BANK,
Plaintiff Roland Annan, a former branch manager for Capital One Bank ("Capital One"),
has filed suit against Capital One alleging four state law causes of action: breach of contract,
wrongful discharge,retaliatory wrongful discharge, and intentional infliction ofemotional distress.
Capital One has moved for summary judgment on all of Annan's claims. Annan opposes the
Motion. Having reviewed the briefs and submitted materials, the Court finds no hearing necessary.
See D. Md. Local R. 105.6. For the reasons set forth below, Capital One's Motion for Summary
Judgment will be GRANTED.
Arman began working for Capital One in July 2003, and by approximately 2008, was the
manager of the Capital One branch on Georgia Avenue in Silver Spring, Maryland. Annan's
employment was at-will. In his role as branch manager, Annan was responsible for reporting any
suspected fraud by a customer or bank employee. In addition, Capital One's Code of Business
Conduct and Ethics ("the Code")required employees to report illegal or unethical behavior and to
report any suspected or potential violation of the Code. Included in violations of the Code was
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money laundering. The Code also required that employees not "search for, access or modify
accounts held by themselves, ftiends, or relatives." Joint Record ("J.R.") 111, EOF No. 30. The
Code specified that noncompliance with its terms could result in disciplinary action, including
termination. The Code expressly provided that it was "not intended to be an employment contract
and does not alter the terms and conditions of... employment, which is at-will." J.R. 104.
Complaints of Unlawful Activity
In 2018, Annan verbally complained to his supervisor, Ahmed Akbari, and to Akbari's
assistant, Marva Bobo, about what he believed to be fraudulent practices at other Capital One
branches. Specifically, Annan asserted that bank employees were creating bogus client accounts
to meet monthly quotas for new accounts by opting customers into certain agreements without
their consent. Annan also made an anonymous complaint about these alleged practices to Capital
One's ethics hotline, which was operated by an external company,not by Capital One. Akbari and
Bobo deny that Akbari ever made any such complaints to them, and there are no emails or other
documentary evidence memorializing these complaints.
Annan also complained to management about the fact that employees from his branch
generally were not paid to attend a quarterly district event held on a Saturday to reward a branch
employee as the "MVP"for the quarter, despite the fact that employees from other branches were
paid to attend. J.R. 42. Arman asserted that Akbari instructed him not to nominate anyone for the
award who did not intend to show up for the event. Annan has identified no emails or other
documentary evidence memorializing these complaints.
Money Laundering Investigation
Annan, a naturalized United States citizen, emigrated to the United States from Ghana in
1998, and he and his wife both continue to have extensive family connections to Ghana. In 2017
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and 2018, Mabel Asafu-Adjaye, Annan's wife's cousin, owned a small store in Accra, Ghana that
sold largely non-perishable goods. Asafu-Adjaye's business partner, Shirley Addo, ran a similar
store in Accra. Between 2017 to 2018,Annan repeatedly made purchases ofover $10,000 at Sam's
Club for Asafu-Adjaye and Addo, which he paid for with his Capital One credit card. These
purchases consisted of nonperishable items such as diapers and tissues. Typically, Asafu-Adjaye
selected the items to be loaded into a shipping container, and Annan arrived at the end to provide
his credit card for the transaction. Annan was unsure how the goods were then transported away
from Sam's Club and ultimately to Ghana. From July 2017 through June 2018, Annan made 13
purchases at Sam's Club, totaling $285,860.73. Asafu-Adjaye and Addo reimbursed Annan for
the purchases by personal check, cashier's check, or cash. Asafu-Adjaye made one payment to
Annan's credit card account in the amount of$26,663 with a cashier's check that had been funded
with a cash deposit. Addo made a total of$70,511 in cashier's check payments to Annan's credit
card account, with those cashier's checks also funded with cash. Addo also made a $10,000
payment to Annan's credit card account from a Bank of America account. Annan himself made
cash payments on his credit card account totaling $57,653. Federal law requires banks to report
any cash transaction over $10,000, a rule of which Annan was aware. Annan never asked Asafu-
Adjaye or Addo about the source of the funds used to reimburse him, because he assumed the
money came from their stores in Ghana.
On June 12, 2018, a $30,000 cashier's check paid for with funds from a Capital One
account held by Addo was issued at the Silver Spring branch. According to Annan, Addo came to
the branch to obtain the check, but Annan had another bank employee process the transaction
because, according to the Code, he could not be involved in transactions for friends or family.
However,video surveillance from that day did not show Addo entering or exiting the branch before
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or after the transaction, and the signature on the withdrawal slip did not match the record signature
on Addo's account.
Meanwhile, on June 6, 2018, Capital One's Ethics and Investigation Team received a
referral from the Anti-Money Laundering Financial Intelligence Team about the activity on
Annan's Capital One credit card. Matthew Caballero, a Capital One Anti-Money Laundering
Senior Investigator, interviewed Annan multiple times about the activity on his account. In one of
those interviews, Caballero asked Annan if he could provide documentation of the arrangement
with Asafu-Adjaye and Addo, such as receipts from Sam's Club and shipping records. In a July
16, 2018 interview, Annan provided one receipt from Sam's Club, one bill of lading from Sam's
Club, and one shipping document from Ghana.
Any individual who transports, mails, or ships over $10,000 in currency into the United
States, and any person receiving over $10,000 in currency that may have been transported, mailed,
or shipped into the United States, must file a Report of International Transportation of Currency
or Monetary Instruments("FinCENForm 105"). Travelers transporting cash into the United States
must declare it at the time of entry; recipients of such transported funds must declare it within 15
days after receipt. Accordingly, in one ofthe interviews Caballero asked Annan to provide copies
ofthe FinCEN Forms 105 relating to the various cash payments from Asafu-Adjaye and Addo to
him. Annan has acknowledged that Asafu-Adjaye and Addo never gave him any documentation
reflecting that they had reported the transporting of cash into the United States, and Annan never
asked them if they had declared the funds. Annan thus was unable to provide any documentation
ofthe source ofthe funds or that any ofthe cash involved in the payments to his credit card account
had been declared to any federal agency.
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Based on this investigation, Capital One made the decision to terminate Annan. On July
26,2018,Annan was terminated by Akbari, with Carrie Zambrana,a district operations consultant,
as a witness. According to Annan, at that time, Akbari stated that Annan was being terminated
but that "we can't give you any reason." J.R. 31. As part of the termination process, Annan was
asked a series of standard questions, including whether he had ever expressed a concern that any
Capital One process, product, or practice harms customers, fails to benefit customers, creates a
negative customer experience, or violates the law or regulator guidance. He answered "no" to all
such questions. There is no evidence that any member of the Ethics and Investigation Team was
aware of any of Annan's verbal complaints about either fraudulent practices or unpaid attendance
at district events prior to the initiation of the money laundering investigation or Annan's
After this termination, Capital One canceled two of Annan's credit cards, which had a
combined credit limit of$70,000. According to Annan, this action had an adverse impact on his
credit score. Because Annan was terminated on a Thursday, he was not paid for the following
Friday, nor did he receive payment for his vacation days. Annan reports that the stress of the
termination from ajob he had for 15 years made him contemplate suicide. However, Annan never
consulted a psychiatrist, psychologist, therapist, or doctor about his emotional distress.
After his termination, Annan filed a charge of discrimination with the United States Equal
Employment Opportunity Commission ("EEOC"), alleging a retaliatory discharge. Annan
withdrew that charge prior to the EEOC's investigation.
On February 7, 2019, Annan filed suit against Capital One in the Circuit Court for Prince
George's County, Maryland asserting four counts: (I) breach of contract; (II) common law
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wrongful discharge in violation ofpublic policy;(III)common law retaliation in violation ofpublic
policy; and (IV)intentional infliction of emotional distress. Capital One removed the case to this
Court on the basis ofdiversity jurisdiction,
28 U.S.C. § 1332(2018). Capital One now moves
for summary judgment on all of Annan's claims.
In its Motion, Capital One asserts that Annan's breach of contract claim fails as a matter
of law because he was an at-will employee, such that his termination was not a breach of any
contract. As to Annan's wrongful discharge claim, Capital One asserts that the record fails to
establish any plausible.causal connection between Annan's termination and any purportedly
protected conduct in which he engaged. Capital One contends that Annan's claim for retaliation
fails because Maryland recognizes no such cause of action. Lastly, Capital One asserts that the
facts in the record are insufficient to support an intentional infliction ofemotional distress claim.
In opposing the Motion, Annan asserts that there are material disputes of fact whether his
discharge was in retaliation for his complaints about alleged illegal conduct by other bank
employees and whether that termination amounted to the intentional infliction of emotional
distress. Annan does not oppose Capital One's arguments as to breach ofcontract and thus appears
to have abandoned that claim.
Under Federal Rule of Civil Procedure 56, the Court grants summary judgment if the
moving party demonstrates that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). In assessing the Motion, the Court views the facts in the light most
favorable to the nonmoving party, with all justifiable inferences drawn in its favor. Anderson v.
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Liberty Lobby, Inc., 477 U.S. 242,255 (1986). The Court may rely only on facts supported in the
record, not simply assertions in the pleadings. Bouchat v. Bait. Ravens Football Club, Inc., 346
F.3d 514,522(4th Cir. 2003). A fact is "material" if it "might affect the outcome of the suit under
the governing law." Anderson, All U.S. at 248. A dispute of material fact is "genuine" only if
sufficient evidence favoring the nonmoving party exists for the trier of fact to return a verdict for
that party. Id. at 248-49.
Breach of Contract
Aiman has failed to oppose Capital One's Motion as to his breach of contract claim and so
must be construed as abandoning it. SeeSatcherv. Univ. ofArk. at Pine BluffBd. ofTrustees, 55%
F.3d 731, 735 (8th Cir. 2009)(holding that a "failure to oppose a basis for summary judgment
constitutes waiver ofthat argument"); Mentch v. Eastern Sav. Bank, FSB,949 F. Supp. 1236,1247
(D. Md. 1997)(finding that the plaintiff had abandoned a claim "by failing to address that claim
in her opposition to [the defendant's] motion for summary judgment, or to offer clarification in
response to [the defendant's] reply brief).
Even if Annan had not abandoned the claim, it would fail as a matter of law. Annan
concedes that he was an at-will employee,and in Maryland, an employer may terminate an at-will
employment relationship for any reason, even one "that is arbitrary, capricious, or fundamentally
unfair." Towson Univ. v. Conte, 862 A.2d 941, 949(Md. 2004). One exception to this rule is
where the reason for the termination contravenes public policy, id, in which case the cause of
action is not for breach of contract, but for wrongful discharge, which Annan alleges in Count II
of his Complaint. See Wholey v. Sears Roebuck, 803 A.2d 482, 488 (Md. 2002)("The tort of
wrongful discharge is one exception to the well-established principle that an at-will employee may
Case 8:19-cv-01329-TDC Document 39 Filed 09/09/20 Page 8 of 12
be discharged by his employer for any reason, or no reason at all"). Capital One's Motion will
therefore be granted as to Count I.
Annan asserts that he was wrongfully terminated in contravention of public policy based
on his reporting that certain bank employees were engaged in illegal transactions. On such a
wrongful discharge claim, a plaintiff must establish that(1)the employee was discharged;(2) the
alleged basis for discharge violated some clear mandate of public policy; and (3)there is a nexus
between the employee's conduct and the decision to fire the employee. Wholey, 803 A.2d at 489.
There is no dispute that Annan was discharged and thus that the first element is satisfied.
Annan's claim, however, fails at the second element While Maryland courts recognize a claim
for wrongful discharge for whistleblowers terminated for reporting illegal conduct occurring
within their company, in Wholey, the Court of Appeals of Maryland held that "to qualify for the
public policy exception ... the employee must report the suspected criminal activity to the
appropriate law enforcement orjudicial official, not merely investigate suspected wrong-doing and
discuss that investigation with co-employees or supervisors." Id. at 496,499.
Here, Annan's own deposition testimony establishes that any complaints he made about
alleged illegal conduct were made at most only to his supervisor, his supervisor's assistant, and to
the Capital One anonymous ethics hotline which, although it was not internal to Capital One, was
run by another company, not by any law enforcement agency. Annan's own evidence thus
establishes that he failed to report the suspected criminal activity to law enforcement or a judicial
official. See id. at 496. Notably, there is no evidence that the money laundering investigation
leading to Annan's termination was launched because of his complaints, or that the investigator
conducting that inquiry was even aware of Annan's complaints.
Case 8:19-cv-01329-TDC Document 39 Filed 09/09/20 Page 9 of 12
As for Annan's complaint about the failure to pay Silver Spring branch employees for
attending the awards ceremony, Arman has not identified a recognized public policy thwarted by
any termination based on such a complaint about non-criminal activity. See id. at 489-90, 493
(finding thata public policy exception applies only when there is a"clear mandate ofpublic policy"
embodied in "constitutional or statutory provisions" and thus finding a public policy exception for
whistleblowers only as to the reporting of criminal activity, where Maryland has a statute barring
retaliation for reporting criminal activity but otherwise lacks a statutory remedy for private sector
whistleblowers). His wrongful discharge claim therefore fails as a matter of law. Capital One's
Motion will be granted as to Count II.
Based on the allegations in the Complaint, Annan's third count replicates his second count
in that it alleges wrongful discharge based on retaliation for whistleblowing activity and thus fails
for the same reasons. To the extent that Annan believes that he has alleged a conceptually distinct
common law cause of action for retaliation, the Court finds no basis to recognize such a claim.
See Holley v. DTMCorp., No. AW-09-1160, 2010 WL 3221841, at *5 (D. Md. Aug. 13, 2010)
("[T]he Court observes that it is unaware of any cause of action for 'retaliation' under Maryland
common law."). In his memorandum in opposition to Capital One's Motion, Annan cites Manikhi
V. Mass Transit Administration, 758 A.2d 95(Md. 2000),for the elements of his claim. Manikhi,
however, involved a claim of retaliation under Title VII of the Civil Rights Act of 1964 ("Title
VII"), 42 U.S.C. §§ 2000e-2000e-17(2018). Manikhi, 758 A.2d at 103-04. See, e.g. DavidsonNadwodny v. Wal-Mart Assocs., /«c.. No. CCB-07-2595, 2008 WL 2415035, at *3(D. Md. June
3,2008)(construing a plaintiffs claims as based on Title VII "[b]ecause there do not appear to be
viable Maryland common law claims for sexual harassment and retaliation"). Where Annan's
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Complaint made no mention of Title VII, the Court cannot consider this new theory of liability.
"It is well-established that parties cannot amend their complaints through briefing or oral
advocacy." Southern Walk at Broadlands Homeowner's Ass'n, Inc. v. OpenBand at Broadlands,
LLC,713 F.3d 175,184 (4th Cir. 2013).
Even if the Court were to consider it, the claim would fail because, as Annan's testimony
establishes, he withdrew his EEOC charge of discrimination and has not exhausted administrative
remedies. See Fort Bend Cty. v. Davis,
, 139 S. Ct. 1843, 1851 (2019)(noting that
Title VII requires "complainants to submit information to the EEOC and to wait a specified period
before commencing a civil action"). Moreover, he has not demonstrated how complaining about
illegal conduct by co-workers constituted protected activity under Title VII, which consists of
opposing discrimination based on membership in a specific protected class. 42 U.S.C. §§ 2000e3(a). Capital One's Motion will therefore be granted as to Count III.
Intentional Inflection of Emotional Distress
In Count IV, Annan asserts that his termination from Capital One amounted to intentional
infliction of emotional distress ('TIED"). In Maryland, anIIED claim has four elements: "(1)
[t]he conduct must be intentional or reckless;(2)the conduct must be extreme and outrageous;(3)
there must be a causal connection between the wrongful conduct and the emotional distress;[and]
(4) the emotional distress must be severe." Manikhi, 758 A.2d at 113 (quoting Harris v. Jones,
380 A.2d 611, 614(Md. 1977)). The second element is especially onerous. "For conduct to be
'extreme and outrageous,' it must 'go beyond all possible bounds of decency and ... be regarded
as atrocious, and utterly intolerable in a civilized community.'" Kohler v. Shenashy, 914 F. Supp.
1206, 1212(D. Md. 1995)(quoting Harris, 380 A.2d at 611).
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Here, the record establishes that Capital One terminated Annan after an internal
investigation into his financial dealings based on multiple transactions involving significant
quantities ofcash transported internationally. Although the evidence does not establish that Annan
was actually engaged in illegal money laundering, Capital One's initiation ofthe investigation was
reasonable in light ofthe high-dollar cash transactions. The investigation then revealed that Annan
could not provide certain documentation relating to some ofthose financial transactions, and there
was at least some evidence suggesting that he violated the Code by assisting with a cash transaction
for a relative or friend. On such a record, the Court concludes that no reasonable jury could find
that Capital One's conduct and decision to terminate Annan was extreme and outrageous such that
it amounted to the intentional infliction of emotional distress. See, e.g. Continental Casualty Co.
V. Mirabile, 449 A.2d 1176, 1185 (Md. Ct. Spec. App. 1982) (holding that allegations that
supervisors made "negligent, false, and malicious statements" in the plaintiffs performance
review were inadequate to support an IIED claim); Beye v. Bureau ofNat'l Affairs, All A.2d 1197,
1204-05 (Md. Ct. Spec. App. 1984)(holding that allegations that the plaintiffs supervisors gave
him poor performance ratings, threatened to fire him, harassed him, physically assaulted him,
passed him over for promotion, and deceived him into resigning were not sufficient to state
an IIED claim). Further, the record establishes that, although Annan certainly was emotionally
impacted in the wake of what he considered to be an unjust termination, his suffering was not so
extreme as to merit any consultation with a medical professional. There is thus no basis for ajury
to conclude that Annan's emotional distress was "so severe that no reasonable [person] could be
expected to endure it." Harris v. Jones, 380 A.2d 611, 616 (Md. 1977). Capital One's Motion
will be granted as to Count IV.
Case 8:19-cv-01329-TDC Document 39 Filed 09/09/20 Page 12 of 12
For the foregoing reasons, Capital One's Motion for Summary Judgment will be
GRANTED as to all counts. A separate Order shall issue.
Date: September 9, 2020
United States Dis
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