On November 6, 2015, the DOL’s Administrative Review Board affirmed the dismissal of Consumer Financial Protection Act (“CFPA”) whistleblower claims of a terminated mortgage broker, concluding that the complainant did not engage in protected activity. Childs v Sente Mortgage, ARB Case No. 14-043. This is one of a growing number of claims being filed under the CFPA.
Background
Complainant Thomas Childs worked as a mortgage broker for Sente Mortgage (“Company”). During his employment, he allegedly made internal inquiries concerning his mortgage broker license, the payment of commissions and referral fees, and telemarketing cold calls. On September 25, 2012, the Company terminated his employment, asserting that he failed to meet the production requirements of his performance improvement plan. He proceeded to pursue a whistleblower retaliation claim under the CFPA. After OSHA and an ALJ dismissed his claim, Childs appealed to the ARB.
The ARB limited its review to whether Childs met his burden to prove that he engaged in protected activity. Childs argued that he engaged in protected activity under three different statutes. First, he alleged that “he refused to act as a mortgage banker before his license was activated as it would violate the Secure and Fair Enforcement for Mortgage Lending Act (SAFE).” However, the ARB found that Childs failed to present any evidence of a violation of SAFE or any actions which could be reasonably perceived as a violation of SAFE. In fact, the parties stipulated that the Company had provided Childs with its policy governing job duties and restrictions prior to the activation of an employee’s license, and the Company told Childs that his employment would be terminated if he violated the policy.
Second, Childs alleged that he “raised concerns regarding violations of the Real Estate Settlement Procedures Act (RESPA), which proscribes the payment of commissions or profit distribution to unlicensed employees.” Although the ARB noted that he may have made inquiries about these topics, it concluded that there was no evidence that he objected to a policy he reasonably believed to be unlawful.
Third, Childs alleged that he “reported concerns regarding violations of the Telemarketing and Consumer Fraud and Abuse Prevention Act” and its rules, which prohibit telemarketers from placing cold calls to individuals who are on the national “do not call” registry. The ARB recognized that he raised questions about the legality of cold calls, but that he was told it was his responsibility to access the registry and ensure his compliance. Moreover, the ARB found that although he maintained an internal database to record customers that did not wish to be contacted, he chose not to access either the national registry or the internal registry to ensure compliance. Thus, Childs did not establish that he refused to participate in an assigned task that would violate the law.
Implications
Childs is one of the few ARB cases that has been decided under the CFPA since the enactment of the Dodd-Frank Act in 2010. As we noted in a prior blog post, the number of CFPA whistleblower complaints to OSHA has increased markedly over the last two years, and the number of complaints are expected to rise.
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