UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-20256
Summary Calendar
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BEN P. KNIPE,
Plaintiff-Appellant
versus
BANK UNITED OF TEXAS, doing business as Commonwealth United
Mortgage; JOANN CAMPBELL; MIKE GALE,
Defendants-Appellees
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Appeal from the United States District Court for the
Southern District of Texas
(H-94-CV-4219)
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September 6, 1996
Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:*
Appellant Ben P. Knipe appeals the dismissal of his
retaliation claim against appellees under 12 U.S.C. § 1831j, the
whistle-blower protection provision of the Financial Institutions
Reform, Recovery, and Enforcement Act (FIRREA). Knipe also appeals
*
Pursuant to Local Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in Local Rule 47.5.4.
the dismissal of his pendent breach of contract claim. Both claims
were dismissed on motion for summary judgment by order of the
district court (Atlas, J.), entered February 13, 1996. We affirm
for the following reasons.
Under Section 1831j, an insured bank may not discharge or
discriminate against an employee because he or she has provided
federal banking regulators with information about possible
violations of banking laws or regulations. The district court,
applying the correct standard on summary judgment, found that
appellant could not establish a claim under Section 1831j.
First, the court found that Knipe did not complain to federal
regulators of the bank’s alleged illegal conduct until after he was
removed from the bank’s roster of appraisers. The court concluded
that the bank’s removal of Knipe from its rotation of appraisers
thus could not have been retaliatory. The record fully supports
the district court’s determination as to the sequence of events.
In deposition testimony, Knipe stated that he learned in late
December 1992 that he had been removed from the bank’s rotation of
appraisers on November 20, 1992. (Dep. of Ben P. Knipe, Record
Excerpts, Ex. A at 89) He testified that he did not contact the
Office of Thrift Supervision (OTS) to complain of alleged
misconduct by the bank until January or February of 1993. (Knipe
Dep. at 34) By his own testimony, therefore, Knipe could not have
been “discharge[d] or otherwise discriminate[d] against . . .
because [he] . . . provided information to any Federal Banking
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agency.” 12 U.S.C. § 1831j. Although Knipe subsequently altered
his narrative, stating that he had first contacted the OTS in
December 1992, that date will not support a claim of retaliation
based on his allegation that the bank removed him from its list of
appraisers on November 20, 1992. (Aff. of Ben P. Knipe, Record
Excerpts, Ex. D, ¶ 6)
We affirm the dismissal of appellant’s federal claim because
there is no genuine issue of material fact regarding Knipe’s claim
that the bank’s action was retaliatory. We need not address, and
express no opinion regarding, the district court’s alternative
holding that Knipe was an independent contractor rather than an
employee of the bank, and therefore was unprotected by the whistle-
blower statute.
Finally, we affirm the dismissal of Knipe’s pendent contract
claim for the reasons set out in the district court’s opinion. A
thorough review of Knipe’s contract with the bank indicates that
Knipe was required to meet certain professional standards in
performing any appraisal work that the bank might ask him to do.
He was not guaranteed any particular volume of work, or indeed, any
work at all. There is no genuine issue as to whether the bank
breached its contract with Knipe by ceasing to ask him to perform
appraisal work.
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