United States Court of Appeals
for the Fifth Circuit
No. 20-40462
Summary Calendar
Robert L. Moody, Jr.,
Plaintiff—Appellant,
versus
American National Insurance Company,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:19-CV-206
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Plaintiff-Appellant Robert Moody, Jr. appeals the district court’s
order dismissing his case under Federal Rule of Civil Procedure 12(b)(6).
The district court determined that Moody pled insufficient facts to establish
that he was an employee of Defendant-Appellee American National
*
Pursuant to 5th Circuit 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opinion should not be published and is not precedent except under the limited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 5th Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
January 29, 2021
Lyle W. Cayce
Clerk
Case: 20-40462 Document: 00515725433 Page: 1 Date Filed: 01/29/2021
No. 20-40462
2
Insurance Company (“ANICO”). We agree with the district court that the
Sarbanes-Oxley Act (“the Act”) only protects an employee against
retaliation by his employer. Because Moody was not an employee of ANICO,
the district court correctly concluded that Moody failed to state a claim for
whistleblower retaliation. We AFFIRM.
I. BACKGROUND
Moody is the owner and president of Moody Insurance Group
(“MIG”), an insurance agency, which had a contract with ANICO to sell its
insurance products. Under the agreement, MIG or its officers or employees
“serve[d] as agent or producer offering insurance products of [ANICO] or
its subsidiaries for sale.” Moody individually was not a party to the contract.
Under the terms of the agreement, either MIG or ANICO could terminate
the agreement at any time, with or without cause.
In December 2018, Moody filed a whistleblower complaint with the
Occupational Safety and Health Administration (“OSHA”) under the Act.
Moody asserted that ANICO had retaliated against him by terminating
MIG’s contract. After the OSHA failed to render a decision on his complaint
within 180 days, he filed suit in district court, as permitted by 18 U.S.C.
§ 1514A(b)(1)(B). In his complaint, Moody again asserted that MIG’s
contract with ANICO was wrongfully terminated after Moody charged
ANICO’s officers and board members with violating SEC regulations.
Moody asserts that ANICO’s cancellation of MIG’s contract in retaliation
for these charges violated the Sarbanes-Oxley whistleblower-protection
provision.
ANICO filed a motion to dismiss in response to Moody’s complaint,
arguing that Moody was not a covered employee under § 1514A. ANICO
asserts that the Act only prohibits a publicly traded company, “or any officer,
employee, contractor, subcontractor, or agent of such company” from
Case: 20-40462 Document: 00515725433 Page: 2 Date Filed: 01/29/2021
No. 20-40462
3
retaliating against their own employees for whistleblowing. ANICO
highlights the fact that throughout his complaint and briefs, Moody pled that
he acted as an “insurance agent selling insurance for and on behalf of ANICO
as a contractor” and that his employer was MIG, not ANICO. Therefore,
ANICO argues, Moody is not a covered employee under § 1514A because he
was not retaliated against by his employer.
After considering the briefs and oral hearing on the Rule 12(b)(6)
motion to dismiss, the district court issued a written order dismissing
Moody’s claim. The district court concluded that Moody had pled
insufficient facts to establish that he is a covered employee under § 1514A.
Moody timely appealed.
II. DISCUSSION
A. Legal Standard
This Court reviews a district court’s ruling on a motion to dismiss de
novo.
1
Federal Rule of Civil Procedure 8(a)(2) requires that a plaintiff provide
“a short and plain statement of the claim showing that the pleader is entitled
to relief . . . in order to give the defendant fair notice of what the . . . claim is
and the grounds upon which it rests.”
2
To survive a motion to dismiss for
failure to state a claim under Rule 12(b)(6), a plaintiff must provide “more
than labels and conclusions” and “[f]actual allegations must be enough to
raise a right to relief above the speculative level.”
3
Ultimately, a plaintiff need
1
Wampler v. Sw. Bell Tel. Co., 597 F.3d 741, 744 (5th Cir. 2010).
2
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
3
Id.
Case: 20-40462 Document: 00515725433 Page: 3 Date Filed: 01/29/2021
No. 20-40462
4
only plead “enough facts to state a claim to relief that is plausible on its
face.”
4
B. Sarbanes-Oxley Act
Under § 1514A of the Act,
No [publicly traded] company . . . or any officer,
employee, contractor, subcontractor, or agent of such
company . . . may discharge, demote, suspend, threaten,
harass, or in any other manner discriminate against an
employee in the terms and conditions of employment
because of any lawful act done by the employee.
18 U.S.C. § 1514A(a).
At issue in this case is whether Moody qualifies as an employee of
ANICO and is therefore protected from retaliatory measures under
§ 1514A(a). The Supreme Court has interpreted this provision to mean that
even if an employer is a private contractor or subcontractor for a publicly
traded company, such a contractor may not retaliate against its own
employees for engaging in protected whistleblowing activity.
5
In Lawson v.
FMR LLC, Plaintiffs were former employees of private companies that
contracted to advise or manage mutual funds who blew the whistle on the
mutual funds for committing fraud.
6
The contractors who were Plaintiffs’
employers then retaliated against them.
7
The Supreme Court explained that
the prohibited retaliatory measures enumerated in § 1514A(a) are actions an
4
Id. at 570.
5
Lawson v. FMR LLC, 571 U.S. 429, 441, 459 (2014).
6
Id. at 433.
7
Id.
Case: 20-40462 Document: 00515725433 Page: 4 Date Filed: 01/29/2021
No. 20-40462
5
employer takes against its own employees.
8
The Court explained that the
section’s enforcement procedures and remedies make it clear that the
whistleblower entitled to protection must be an employee of the retaliator.
9
Lawson is thus distinguishable from the case at hand, as Moody is
employed by MIG—not ANICO—and therefore, the alleged retaliatory act
he complained of—cancelling MIG’s contract—was not done by Moody’s
employer. Moody’s complaint makes it clear that he was an employee of
MIG, which was an ANICO contractor.
10
For these reasons and those stated by the district court in its careful
Memorandum Opinion and Order of June 12, 2020, we agree with the district
court that Moody has not pled sufficient facts to show that he is a covered
employee protected by the Act. Accordingly, we AFFIRM the judgment of
the district court.
8
Id. at 441 (emphasis in original).
9
Id. at 443.
10
Moody also attempts to use the Department of Labor Administrative Review
Board (“ARB”) decision in Spinner v. David Landau & Assoc., LLC to support his
argument that he is a covered employee under the Sarbanes-Oxley Act. 2012 WL 1999677.
However, the whistleblower in Spinner—like Lawson—was an employee of a private
contractor to a public company who was terminated by his own employer after he alleged
misconduct by the public company. Id., at *1. Therefore, we disagree that the plaintiff in
Spinner, who was terminated by his own employer, is similar to Moody, who was not
terminated by his employer.
Case: 20-40462 Document: 00515725433 Page: 5 Date Filed: 01/29/2021
