IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-30306

JUSTIN SHANE RICHARDSON, 

 Plaintiff – Appellant, 

v.

AXION LOGISTICS, L.L.C., 

 Defendant – Appellee. 

Appeal from the United States District Court

for the Middle District of Louisiana

Before REAVLEY, JONES, and ELROD, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

Justin Shane Richardson appeals the district court’s dismissal of his first 

amended complaint, which alleged that Axion Logistics, L.L.C. terminated his 

employment in violation of Louisiana’s whistleblower statute, Louisiana 

Revised Statutes § 23:967. Because the complaint stated a plausible claim for 

relief, we reverse.

I.

For the purposes of this appeal, we do not express any view on the 

ultimate merits of Richardson’s case; rather, “we accept all well-pleaded facts 

as true and view those facts in the light most favorable to the plaintiff.” 

Montoya v. FedEx Ground Package Sys., Inc., 614 F.3d 145, 146 (5th Cir. 2010) 

United States Court of Appeals

Fifth Circuit

FILED

March 3, 2015

Lyle W. Cayce

Clerk

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No. 14-30306

(internal quotation and alteration marks omitted). The first amended

complaint alleges the following facts. Richardson was briefly employed by 

Axion from February 7, 2012, to May 21, 2012. On March 26, 2012, Axion 

promoted him to general manager of the company’s Louisiana operations. 

While serving as general manager, Richardson became aware that two Axion 

employees, Jimmy Hall and Don Ward, were fraudulently billing Dow 

Chemical, and Axion client, for mileage reimbursement. Richardson first 

learned of the fraudulent billing when Andy Wheat, whom Hall had told about 

these billing practices, showed Richardson the discrepant time sheets.

Richardson reported the timesheet manipulations up the chain of 

command. Along with Wheat, he called Axion’s former president, Steve 

Seymour, to report the over-billing. Seymour responded that “it is not like you 

are telling me something I don’t already know.” Seymour had previously tried 

to fire Hall, in part for his fraudulent billing, but Gary Grant, Axion’s CEO, 

would not allow it. Instead, Hall had been designated as special projects 

manager for the Dow job. Richardson also spoke to Elaine Young, Axion’s vice 

president of administration. Young discussed the issue with Seymour, who 

instructed her to bill Dow for the extra time and pay Ward for the extra hours. 

Next, Richardson reported the timesheet manipulations via telephone to 

Grant, who instructed Richardson “that he should not tell anyone about it” 

until Richardson and Grant could discuss the matter in person. Richardson 

then met with Axion’s CFO, Jim Konvelman, and informed him of the fraud. 

During the meeting, Richardson expressed that if Axion was unwilling to notify 

Dow of the over-billing, he would notify Dow himself. Konvelman told 

Richardson to keep quiet until Konvelman had spoken to Grant. The next day, 

Konvelman suggested that Richardson and Wheat gather evidence to support 

the allegations. 

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On May 2, 2012, Richardson and Wheat met with Grant. Grant 

instructed them to submit a written report of the information that they had on 

each employee who was working on the Dow account, which they did via e-mail 

later that same day. The following week, Richardson attended a dinner with 

Axion management, who spent much of the evening criticizing Richardson’s job 

performance and qualifications. About a week later, Seymour informed 

Richardson that he had not made a good impression with Grant and the rest 

of Axion’s management. During this conversation, Richardson inquired about 

the over-billing issue; “Seymour told him there was nothing to discuss, and to 

be quiet about it.”

Seymour terminated Richardson’s employment on May 21, 2012, on the 

stated ground that he “was not a good fit” for the company. Richardson then 

brought this diversity suit in federal court under the Louisiana whistleblower 

statute. Richardson alleged that Axion terminated his employment because 

he reported fraudulent billing practices to Axion’s executives and threatened 

to disclose the fraud to Axion’s client. Axion moved to dismiss under Rule 

12(b)(6) of the Federal Rules of Civil Procedure, and Richardson amended his 

complaint. Axion again moved to dismiss, and the district court granted the 

motion, entering a dismissal with prejudice. Richardson then initiated this 

appeal.

II.

We review a Rule 12(b)(6) dismissal de novo and apply the same standard 

that the district court did. Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 

2007). “To survive a motion to dismiss, a complaint must contain sufficient 

factual matter, accepted as true, to “state a claim to relief that is plausible on 

its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570 (2007)). A complaint is facially plausible “when 

the plaintiff pleads factual content that allows the court to draw the reasonable 

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inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 

U.S. at 678. We must “accept[] all well-pleaded facts as true and view[] those 

facts in the light most favorable to the plaintiff.” Bustos v. Martini Club, Inc., 

599 F.3d 458, 461 (5th Cir. 2010) (internal quotation marks omitted). 

However, while the complaint need not articulate “detailed factual 

allegations,” it must provide “more than labels and conclusions, and a 

formulaic recitation of the elements of a cause of action will not do.” Twombly, 

550 U.S. at 555.

To state a claim under Louisiana Revised Statutes § 23:967, Richardson 

must plead facts sufficient to show that “(1) [Axion] violated the law through a 

prohibited workplace act or practice; (2) [Richardson] advised [Axion] of the 

violation; (3) [Richardson] then refused to participate in the prohibited practice 

or threatened to disclose the practice; and (4) [Richardson] was fired as a result 

of [his] refusal to participate in the unlawful practice or threat to disclose the 

practice.” Hale v. Touro Infirmary, 2004-0003 (La. App. 4 Cir. 11/3/04, 10); 886 

So. 2d 1210, 1216 (La. Ct. App.2004), writ denied, 2005-0103 (La. 3/24/05); 896 

So. 2d 1036.

III.

To state a claim, Richardson first had to allege that Axion, rather than 

simply its employees, violated state law. See Fondren v. Greater New Orleans 

Expressway Comm’n, 03-1383 (La. App. 5 Cir. 4/27/04), 871 So. 2d 688, 691 (La. 

Ct. App. 2004) (“The Louisiana Whistleblower Statute targets serious employer 

conduct that violates the law.”) (emphasis added); cf. also Dillon v. Lakeview 

Regional Med. Ctr. Auxiliary, Inc., 2011-1878 (La. App. 1 Cir. 6/13/12), 2012 

WL 2154346, at *5 & n.8, writ denied, 2012-1618 (La. 10/26/12), 99 So. 3d 651

(observing that “it could be concluded that the employer must be the actor who 

violated the law, in order for there to be a cause of action under” § 23:967, and 

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that “there is no indication” that the statute “would encompass unauthorized 

acts of . . . employees”). 

The district court concluded that Richardson had failed to plead this 

element. In particular, the district court concluded that “Richardson merely 

alleged that some of his co-workers engaged in unethical billing practices, only 

devoting one conclusory paragraph to stating that such illegal activity was 

authorized by [Axion].” This was incorrect. While paragraph 5 of the 

complaint did include an undetailed allegation that Axion authorized the 

fraudulent billing practices, other portions of the complaint provided the facts 

necessary to support the allegation. Namely, paragraph 13 alleged that 

Axion’s president tried to fire one of the dishonest employees because of his 

fraud but the CEO refused to allow it, and paragraph 14 alleges that Axion’s 

president expressly admitted knowledge of the fraud. In addition, paragraph 

16 alleges that Axion’s president, after the vice president of administration 

informed him of fraudulent billing, directed that the client be billed (and the 

dishonest employee be paid) for the extra time. Finally, paragraphs 18 and 

18a allege that Richardson reported the fraudulent billing to the CEO and 

CFO, both of whom instructed him to keep quiet about the matter. 

Taken together, these facts make plausible the allegation that Axion 

authorized the fraudulent billing practices of which Richardson complained. 

Furthermore, Axion’s double-billing constituted a violation of state law. See

La. Rev. Stat. § 14:70 (defining the crime of false accounting as “the intentional 

rendering of a financial statement of account which is known by the offender 

to be false, by anyone who is obliged to render an accounting by the law 

pertaining to civil matters”). Thus, Richardson successfully pleaded that Axion 

violated state law through a prohibited workplace act or practice.

As alternative grounds for affirmance, Axion argues that Richardson 

failed to plead the three other elements of his claim. Axion’s arguments are 

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without merit, and the district court properly rejected them. As the district 

court noted, Richardson alleged that he reported the violation to Axion and

threatened to disclose it if Axion did not do so. Specifically, paragraph 18 

alleges that Richardson advised Axion’s CEO and CFO of the fraudulent bills, 

and paragraph 18a alleges that Richardson informed the CFO that if Axion did 

not tell the client about the fraud, he would notify the client himself. Axion 

argues that what Richardson reported and threatened to disclose was merely 

the unauthorized actions of his co-employees, rather than a violation of law by 

Axion. However, as explained above, the complaint plausibly alleged that 

Axion authorized the unlawful conduct that Richardson reported and 

threatened to disclose. Therefore, these allegations were sufficient to plead 

that Richardson advised Axion of—and threatened to disclose—fraudulent 

billing practices that it had authorized, rather than simply the indiscretions of 

a rogue co-worker.

Finally, Richardson plausibly alleged that his threat to disclose the 

fraudulent billing prompted the termination of his employment, painting a 

picture of whistleblower retaliation by circumstantial evidence. The complaint 

alleges that as Richardson reported the fraudulent billing of his co-employees 

up the chain of command, he encountered mounting resistance from Axion 

executives. Axion’s president directed that the client be billed for the extra 

time, and when Richardson approached the CFO and CEO, both instructed 

him to remain quiet about the matter. Richardson alleges that after he 

threatened to reveal the fraud to the client and he shared evidence of the fraud 

with the CEO, the CEO called him into a dinner meeting with other executives, 

during which meeting the executives criticized Richardson’s experience and 

qualifications. The complaint also alleges that Axion terminated Richardson’s 

employment on May 21, 2012—mere weeks after Richardson’s meetings with 

the CFO and CEO. These allegations permit the inference that Richardson’s 

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termination came as a result of his whistleblowing, and that the purpose of the 

dinner meeting was to construct a pretextual justification for the termination. 

Cf. Chivleatto v. Sportsman’s Cove, Inc., 05-136 (La. App. 5 Cir. 6/28/05, 4); 907 

So. 2d 815, 819 (La. Ct. App. 2005) (observing that in employment retaliation 

suits, most employers refuse to admit a retaliatory motive, and therefore “most 

plaintiffs rely on circumstantial evidence to prove” retaliatory discharge). 

IV.

Richardson’s first amended complaint stated a plausible claim for relief 

under Louisiana Revised Statutes § 23:967. Therefore, we REVERSE the 

judgment of the district court and REMAND for further proceedings.

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