Wallace v. Tesoro Corporation

796 F.3d 468 (5th Cir. 2015)

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Nature of the Case

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Facts

P was the Vice President of Pricing and Commercial Analysis at D. P contends that before he was fired in March 2010, he engaged in protected activity relating to four categories of suspected unlawful activity at D. In part, P claimed that D engaged in two practices that P believed to be fraudulent. The 'price signaling' was a practice by which D would represent to customers that they would all receive information regarding price changes at the same time; D would actually give some customers advance notice of pricing changes, giving them an advantage over competitors in buying fuel. P was fired on March 12, 2010. P contends that his activities relating to the suspected wrongful activities of D motivated the termination. P filed a complaint against D with OSHA for retaliation. OSHA dismissed the complaint when it determined that P's protected activity did not contribute to his termination. The Administrative Review Board had not issued a final decision on P's case within 180 days of his filing it, so he sued in February 2011. D moved to dismiss, and the magistrate judge recommended granting the motion as to the first three categories of protected activity and allowing amendment to cure deficiencies related to the wire-fraud-based claim. The judge initially recommended that P had to plead that claim with particularity in accordance with Federal Rule of Civil Procedure Rule 9(b). Eventually, P appealed the dismissal of his claims. The parties dispute whether P in a SOX retaliation suit must plead fraud with particularity in accordance with Rule 9(b).