Bartlett v. Reese

569 So. 2d 195, 1990 La. App. LEXIS 2281, 1990 WL 157582
CourtLouisiana Court of Appeal
DecidedOctober 16, 1990
DocketNo. CA 89 1135
StatusPublished
Cited by4 cases

This text of 569 So. 2d 195 (Bartlett v. Reese) 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
Bartlett v. Reese, 569 So. 2d 195, 1990 La. App. LEXIS 2281, 1990 WL 157582 (La. Ct. App. 1990).

Opinions

LOTTINGER, Judge.

This is an appeal by the plaintiff1 from a judgment rendered after a trial on the merits dismissing his retaliatory discharge action against his employer. The plaintiffs alleged in their petition that Mr. Bartlett was discharged from his employment with I.D. Reese Company as a truck driver for reporting what he thought to be a violation of environmental laws on the part of a chemical company to the Environmental Protection Agency.2

The plaintiffs based their action on former La.R.S. 30:1074.13 which provided:

“A. No firm, business, private or public corporation, partnership, individual employer, or federal, state, or local governmental agency shall act in a retaliatory manner against an employee, act[197]*197ing in good faith, who reports or complains about possible environmental violations.
“B. Any employee against whom any action is taken as a result of reporting or complaining of a violation of any state, federal, or local environmental statute, ordinance, or regulation may commence a civil action in a district court of the employee’s parish of domicile, and shall recover from his employer triple damages resulting from the action taken against him and all costs of preparing, filing, prosecuting, appealing, or otherwise conducting a law suit, including attorney’s fees, if the court finds that Subsection A of this Section has been violated. In addition, the employee shall be entitled to all other civil and criminal remedies available under any other state, federal, or local law.
“(1) The term ‘action is taken’ shall include firing, layoff, lockout, loss of promotion, loss of raise, loss of present position, loss of job duties or responsibilities, imposition of onerous duties or responsibilities, or any other action or inaction the court finds was taken as a result of a report of an environmental violation.
“(2) ‘Damages’ for the purposes of this Section shall include, but not be limited to, lost wages, lost anticipated wage due to wage increase, or loss of anticipated wages which would have resulted from a lost promotion, any property lost as a result of lost wages, lost benefits, and any physical or emotional damages resulting therefrom.
“C. This Section shall have no application to any employee who, acting without direction from his employer or his agent, deliberately violates any provision of this Chapter or of the regulations, or permit or license terms and conditions in pursuance thereof.”

The defendant, Mr. I.D. Reese, d/b/a I.D. Reese Company, raised the peremptory exception of no cause of action, alleging that the statute only gives a cause of action to a discharged employee who has reported an environmental violation by his employer, not by a third party. The trial court referred the exception to the merits and plaintiffs proceeded with their case.

After the plaintiffs rested, the defendant renewed his exception of no cause of action and also moved for an involuntary dismissal pursuant to La.Code Civ.P. art. 1672. In support of his motion for involuntary dismissal the defendant asserted that the plaintiffs had not proven by a preponderance of the evidence that he was an employee rather than an independent contractor, nor that he had been discharged by the defendant.

The trial court granted only the exception of no cause of action,4 and plaintiffs appealed devolutively. We reversed the granting of this exception, holding that the statute does indeed provide a cause of action to an employee discharged for reporting a suspected environmental violation on the part of a third party. Bartlett v. [198]*198Reese, 526 So.2d 475 (La.App. 1st Cir.), writ denied, 532 So.2d 177 (La. 1988).

In our initial opinion we overlooked the fact that the defendant had not yet presented his defense and went on to decide the case based on the record before us. We held in favor of the plaintiffs and awarded damages. However, upon realizing that the defendant had not yet been afforded an opportunity to present his defense, we granted defendant’s application for rehearing and vacated our opinion except as to the reversal of the trial court’s granting of the exception of no cause of action and remanded the case to the trial court to allow the defendant to present his defense. Bartlett, 526 So.2d at 479.

After the defendant presented his case and rested, the trial court again dismissed the plaintiffs’ suit. The trial judge, in his oral reasons for judgment, characterized his decision as a credibility determination: the plaintiffs’ version of what happened against the defendant’s version. The trial judge believed the defendant and accepted his version of the facts.

It is well settled that credibility determinations and findings of fact by the trial judge are given great deference and will not be reversed on appeal absent manifest error. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). This is so because only the finder of fact has the opportunity to observe the demeanor of the witness and listen to the variations in the pitch and tone of his voice that bear so heavily on determinations of credibility. Rosell; Arceneaux. However, where documents or other objective evidence contradict the testimony of the witness(es) believed by the finder of fact, or if that testimony itself is so implausible or internally inconsistent to such an extent that a reasonable finder of fact would not believe the witness’ testimony, then such deference is not warranted and the appellate court may, in such circumstances, find manifest error even in a finding purportedly based upon a credibility determination. Rosell v. ESCO, 549 So.2d at 844-45; Reilly v. Dynamic Exploration, Inc., 558 So.2d 1249, 1253 (La.App. 1st Cir.), writ granted, 561 So.2d 108 (La. 1990).

FACTS

The plaintiff, Leslie M. Bartlett, was working as a truck driver for the I.D. Reese Company in Baton Rouge, Louisiana, on June 30, 1983. The I.D. Reese Company is a trucking company that leases trucks and provides drivers exclusively to Agway Systems, Inc. and Blue Flash Express, transport companies which are both owned by Mr. Leonard Aguillard. Agway and Blue Flash have contracts with local chemical plants for the transportation of various chemicals, compounds, and equipment.

On June 30, 1983, Mr. Bartlett delivered a load of sulfuric acid to the Formosa Plastics plant. Upon arriving at the sulfuric acid unloading area and exiting his truck, he noticed a strong odor of chlorine and that some type of gas was bubbling up through the few inches of standing water which was present in the area. The chlorine fumes irritated his eyes and lungs and made working in the area very uncomfortable.

After taking a sample of the sulfuric acid from his truck so that it could be analyzed by Formosa personnel prior to unloading, Mr. Bartlett entered the control room and complained about the strong fumes outside. He was told that there was chlorine in the sewer and that nothing could be done about it. He was then ordered out of the control room, and after a brief and less than amicable exchange of words with the control room personnel, returned to his truck, and once the sample had been analyzed, unloaded the acid. Mr.

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Bear v. Pellerin Const., Inc.
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Bartlett v. I.D. Reese
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Cite This Page — Counsel Stack

Bluebook (online)
569 So. 2d 195, 1990 La. App. LEXIS 2281, 1990 WL 157582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bartlett-v-reese-lactapp-1990.