Accardo v. LOUISIANA HEALTH SERV. & INDEM.

943 So. 2d 381, 2005 La.App. 1 Cir. 2377, 2006 La. App. LEXIS 1390, 2006 WL 1687479
CourtLouisiana Court of Appeal
DecidedJune 21, 2006
Docket2005 CW 2377
StatusPublished
Cited by28 cases

This text of 943 So. 2d 381 (Accardo v. LOUISIANA HEALTH SERV. & INDEM.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Accardo v. LOUISIANA HEALTH SERV. & INDEM., 943 So. 2d 381, 2005 La.App. 1 Cir. 2377, 2006 La. App. LEXIS 1390, 2006 WL 1687479 (La. Ct. App. 2006).

Opinion

943 So.2d 381 (2006)

Salena ACCARDO
v.
LOUISIANA HEALTH SERVICES & INDEMNITY COMPANY.

No. 2005 CW 2377.

Court of Appeal of Louisiana, First Circuit.

June 21, 2006.

*382 Earl A. Marcelle, III, Baton Rouge, for Plaintiff-Respondent Salena Accardo.

M. Lenore Feeney, Edwin W. Fleshman, Baton Rouge, for Defendant-Applicant Louisiana Health Service & Indemnity Company.

Before: WHIPPLE, McCLENDON, and WELCH, JJ.

PER CURIAM.

Louisiana Health Service & Indemnity Company[1] seeks review of the trial court's judgment denying its motion for summary judgment on Salena Accardo's claim of retaliation under La. R.S. 23:967 (Louisiana Whistleblower Statute).

Plaintiff, Salena Accardo, filed suit on December 6, 2002, against Louisiana Health Service & Indemnity Company ("Blue Cross") seeking damages arising from her employment and involuntary discharge from Blue Cross. Ms. Accardo sought damages under several theories of recovery including race, national origin and disability-based discrimination in violation of Louisiana Employment Discrimination Law ("LEDL"), La. R.S. 23:301, et seq., intentional infliction of emotional distress and a retaliation claim under the Louisiana Whistleblower Statute, La. R.S. 23:967.

*383 Blue Cross filed for summary judgment seeking dismissal of all of Ms. Accardo's claims. The trial court granted the motion on all claims except for the retaliation claim under the Louisiana Whistleblower Statute, La. R.S. 23:967. In open court, the trial court stated that it denied summary judgment on the Louisiana Whistleblower claim because,

She in good faith believed that there was a Title VII violation of the law. . . . She reported that. The facts are sufficient enough for to you (sic) survive summary judgment on this as to whether or not there were reprisals from it. . . .

The issue presented by this writ is whether the trial court correctly interpreted La. R.S. 23:967 as providing protection to a plaintiff who reports what she believes in good faith is a violation of law. Louisiana Revised Statute 23:967 provides the following, in pertinent part:

Employee protection from reprisal; prohibited practices; remedies
A. An employer shall not take reprisal against an employee who in good faith, and after advising the employer of the violation of law:
(1) Discloses or threatens to disclose a workplace act or practice that is in violation of state law.
(2) Provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of law.
(3) Objects to or refuses to participate in an employment act or practice that is in violation of law.
* * * *
D. If suit or complaint is brought in bad faith or if it should be determined by a court that the employer's act or practice was not in violation of the law, the employer may be entitled to reasonable attorney fees and court costs from the employee.

The Whistleblower Statute provides protection to employees against reprisal from employers for reporting or refusing to participate in illegal work practices. Hale v. Touro Infirmary, XXXX-XXXX (La.App. 4th Cir.11/3/04), 886 So.2d 1210, 1214, writ denied, XXXX-XXXX (La.3/24/05), 896 So.2d 1036. Blue Cross argues that it is clear from the wording of the statute that Ms. Accardo must establish a violation of state law in order to prevail on the merits of the case. The trial court, however, interpreted the "good faith" language in the statute to mean that Ms. Accardo only has to establish that she had a good faith or reasonable belief that Blue Cross violated the LEDL in order to be afforded protection under the Louisiana Whistleblower Statute.

The Louisiana Supreme Court has not addressed whether a plaintiff must prove an actual violation of state law to establish a Louisiana Whistleblower claim. Likewise, this court has not directly addressed this issue, although, in dictum, this court has stated that the statute prohibits an employer from taking reprisals "against an employee for reporting, or refusing to participate in, a violation of state law." Goldsby v. State, Dept. of Corrections, XXXX-XXXX (La.App. 1st Cir.11/7/03), 861 So.2d 236, 238, writs denied, XXXX-XXXX, XXXX-XXXX (La.4/8/04), 870 So.2d 271 (emphasis added). Thus, this issue is before this court, res nova.

The Louisiana Fourth and Fifth Circuit Courts of Appeal have addressed this issue and determined that a whistleblower plaintiff under La. R.S. 23:967 must prove an actual violation of state law. In Puig v. Greater New Orleans Expressway Comm'n, 2000-924 (La.App. 5th Cir.10/31/00), 772 So.2d 842, writ denied, *384 XXXX-XXXX (La.3/9/01), 786 So.2d 731, the Fifth Circuit compared two different Louisiana whistleblower statutes and concluded "R.S. 23:967 is clearly distinct [from the other whistleblower statute, La. R.S. 42:1169], in that it specifies that the employer must have committed a `violation of state law' for an employee to be protected from reprisal," while La. R.S. 42:1169 does not require a violation of state law, "merely an `alleged act of impropriety' under the Code of Government Ethics for the public employee to be protected from discipline or reprisal." Puig, 772 So.2d at 845. While the Fifth Circuit did not provide a detailed analysis for its ruling, it did note that the triggering mechanism for La. R.S. 23:967 is "conduct which does violate state law." Id. at 845 (emphasis added).

In a subsequent Fifth Circuit Louisiana Whistleblower case, that court cited Puig stating, "The Louisiana Whistleblower Statute targets serious employer conduct that violates the law." Fondren v. Greater New Orleans Expressway Comm'n, XXXX-XXXX (La.App. 5th Cir.4/27/04), 871 So.2d 688, 691.

Like the Fifth Circuit, the Fourth Circuit found that "the language of the statute leads us to the conclusion that a violation of law must be established by a plaintiff under the Whistleblower Statute in order to prevail on the merits of the case." Hale, 886 So.2d at 1215. The Hale court went further to hold, "We further agree that the violation of law in question must be that of a state statute." Id. at 1216 (emphasis added). In arriving at its decision, the Fourth Circuit analyzed the text of the statute and concluded that the "very specific language referring to a `violation of law' . . . in several places throughout the statute," the use of the disjunctive "or" instead of the conjunctive "and" in the damages clause, and the disclosure requirement that specifically references a disclosure or threatened disclosure of a violation of state law manifest a desire by the Louisiana legislature to only provide a remedy for actual violation of state law. Id. at 1215, 1216.

As stated above, in the instant matter, the trial court denied summary judgment on Ms. Accardo's retaliation claim because of its interpretation of the term "who in good faith" in Section A of the statute. To accept the trial court's interpretation requires a finding by this court that the legislative intent of the statute was to provide protection to an employee who possesses a good faith or reasonable belief that the employer violated a law.

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943 So. 2d 381, 2005 La.App. 1 Cir. 2377, 2006 La. App. LEXIS 1390, 2006 WL 1687479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/accardo-v-louisiana-health-serv-indem-lactapp-2006.