5th cir.In Wallace v. Tesoro Corp., the Fifth Circuit revived a SOX whistleblower complaint that was dismissed by the U.S. District Court for the Western District of Texas, finding that the plaintiff’s alleged belief that the company violated SEC rules was not objectively unreasonable (as plead in the complaint).  (Case No. 13-cv-51010, July 31, 2015).  The Fifth Circuit also affirmed the dismissal of claims not included in the OSHA complaint on the grounds that they were not administratively exhausted.

Background

Kevin Wallace (Plaintiff), formerly Vice President of Pricing and Commercial Analysis at Tesoro (Company), filed a complaint with OSHA alleging that the Company retaliated against him for engaging in protected activity in violation of Section 806 of SOX.  Among other alleged protected activity, Plaintiff claimed that the Company retaliated against him after he complained that the Company allegedly counted taxes as revenues on certain financial forms in violation of GAAP.

After OSHA dismissed the complaint, Plaintiff kicked his case out to federal district court, and subsequently filed amended complaints, alleging the same categories of protected activity as in his OSHA complaint but also alleging—for the first time—that he engaged in protected activity when he investigated and reported suspected wire fraud.  The Company successfully moved to dismiss:  the district court found that Plaintiff’s purported belief that booking taxes as revenue violated SEC rules was objectively unreasonable and that his other allegations did not reflect protected activity.  The court also dismissed Plaintiff’s claim relating to wire fraud because it alleged activity outside the scope of the OSHA complaint.

Fifth Circuit’s Ruling

The Fifth Circuit ruled that the district court erred in dismissing Plaintiff’s claim that he engaged in protected activity under Section 806 of SOX when he reported that the Company booked taxes as revenue.  In doing so, the court noted that there was an issue as to the level and role of Plaintiff’s accounting expertise.  However, the Fifth Circuit affirmed the dismissal of Plaintiff’s allegations that were not raised before OSHA, holding that the exhaustion requirement applicable to Title VII claims filed with the EEOC applies with equal force to SOX claims filed with OSHA.  Specifically, the court stated:

The OSHA investigation prompted by this complaint could not reasonably be expected to extend to Wallace’s belief that Tesoro was committing wire fraud through other practices … .  We have similarly held that an EEOC complaint alleging sex discrimination would not reasonably lead to an investigation that would encompass race discrimination as a motivation for the same adverse action.  By failing entirely to reference a distinct category of protected activity in his OSHA complaint, Wallace did not file a complaint whose investigation would reach that activity.

Implications

This case underscores the potentially broad reading courts may give to SOX’s reasonableness standard in the Rule 12(b)(6) motion to dismiss context (this is an issue on which the Company could still prevail at later stages in the case) but it is a welcome development for employers insofar as it underscores the fatal implications of failing to exhaust claims.

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Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular…

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular focus on defending companies against claims of employment discrimination, retaliation and harassment; whistleblower retaliation; restrictive covenant violations; theft of trade secrets; and wage-and-hour violations. He has successfully tried cases in multiple jurisdictions, and defended one of the largest Illinois-only class actions in the history of the U.S. District Court for the Northern District of Illinois. He also secured one of only a few ex parte seizures orders that have been issued under the Defend Trade Secrets Act, and obtained a world-wide injunction in federal litigation against a high-level executive who jumped ship to a competitor.

Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has testified in federal court. His investigations have involved complaints of sexual harassment involving C-suite officers; systemic violations of employment laws and company policies; and fraud, compliance failures and unethical conduct.

Steven was recognized as Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. He is a Fellow of the College of Labor and Employment Lawyers.  Chambers describes Steven as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field.” Steven was 1 of 12 individuals selected by Compliance Week as a “Top Mind.” Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a “Rising Star Under 40” in the area of employment law and 1 of “40 Illinois Attorneys Under Forty to Watch” selected by Law Bulletin Publishing Company. Steven is a Burton Award Winner (U.S. Library of Congress) for “Distinguished Legal Writing.”

Steven has served on Law360’s Employment Editorial Advisory Board and is a Contributor to Forbes.com. He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is regularly quoted in leading publications such as The Wall Street Journal.

The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts of appeal. He was appointed to serve as a Special Assistant Attorney General for the State of Illinois in employment litigation matters. He has presented with the Solicitor of the DOL, the Acting Chair of the EEOC, an EEOC Commissioner, Legal Counsel to the EEOC and heads of the SEC, CFTC and OSHA whistleblower programs. He is also a member of the Sedona Conference, focusing on trade secret matters.

Photo of Rachel Fischer Rachel Fischer

Rachel S. Fischer is a senior counsel in the Labor & Employment Law Department.

Rachel represents employers in all types of employment-related disputes, including defending clients against claims of discrimination, harassment, retaliation, wrongful discharge, whistleblowing, breach of contract, and in wage and hour…

Rachel S. Fischer is a senior counsel in the Labor & Employment Law Department.

Rachel represents employers in all types of employment-related disputes, including defending clients against claims of discrimination, harassment, retaliation, wrongful discharge, whistleblowing, breach of contract, and in wage and hour matters. She represents employers in federal and state courts, arbitration tribunals, and before administrative agencies, and has litigated both single plaintiff and class action lawsuits. As an experienced trial lawyer, Rachel has successfully litigated numerous cases from complaint through jury verdict or arbitral award.

Rachel represents employers across a wide variety of industries, including banking and finance, law firms, media and entertainment, sports, and higher education.

Rachel also counsels clients on a broad range of employment law matters, including investigations, employee terminations and discipline, and employment policies and procedures.