Gonzales v. J E Merit Const Inc

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 11, 2001
• Docket: 00-30584
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 00-30584 _______________________

Donald Gonzales,

Plaintiff-Appellant,

versus

J.E. Merit Constructors, Inc.,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the Middle District of Louisiana (98-CV-380) _________________________________________________________________

June 8, 2001

Before REYNALDO G. GARZA, DAVIS, and JONES, Circuit Judges.

Edith H. Jones, Circuit Judge:*

This diversity case concerns Plaintiff-Appellant Donald

Gonzales’s (“Gonzales”) claim that he was terminated in retaliation

for reporting a dangerous mercury spill to his employer, Defendant-

Appellee J.E. Merit Constructors, Inc. (“Merit”). Holding that

Gonzales failed to create a genuine issue of material fact on all

elements of his prima facie case of retaliation, the district court

* Pursuant to 5th Cir. Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. Rule 47.5.4. granted Merit’s motion for summary judgment. Because we agree with

the district court that Gonzales has produced insufficient evidence

to allow a reasonable jury to infer a causal connection between his

report of the mercury spill and his subsequent termination, we now

affirm.

Gonzales was employed as a “cherry picker” operator and

“class B” mechanic by Merit for nearly eleven years before his

termination on March 31, 1997. For approximately the last two

years of his employment with Merit, Gonzales was assigned to work

at the Pioneer Alkali Plant in St. Gabriel, Louisiana. This plant

was owned by Pioneer Chlor Akali Co. (“Pioneer”), but pursuant to

a contractual relationship, plant maintenance was performed by

Merit. Aside from this maintenance contract, there was no

corporate relationship between Merit and Pioneer.

The primary function of this Pioneer plant is to produce

chlorine gas, caustic soda and hydrogen from salt water. Mercury

is used in these processes. It is not uncommon for the employees to

encounter mercury while servicing equipment at the Pioneer plant.

The procedure to be followed by a Merit employee encountering

mercury at the Pioneer plant is simple: the employee is to notify

either of two Pioneer employees, Dana Oliver or Bob Winterton.

Oliver is Pioneer’s manager for environmental matters at the plant,

while Winterton is charged with the handling and disposal of

mercury spills. The reporting employee is also required to fill

2 out an internal spill report form. Merit asserts, without

contradiction in the record, that no employee has ever suffered

adverse employment consequences as a result of reporting a mercury

spill.

Gonzales discovered a large mercury spill in the

hazardous waste storage area of the Pioneer plant on March 6, 1997.

Gonzales notified his foreman Freddie Hebert, Merit’s chief

mechanic, who instructed Gonzales to inform Pioneer’s Oliver, as

per Merit’s standard procedure. Gonzales reported the spill to

Oliver on March 7. According to Gonzales, Oliver initially told

Gonzales to clean up the mercury spill himself, but Gonzales

replied that he was not qualified to do so. Oliver then paged

Winterton, Pioneer’s mercury spill clean-up expert, and assured

Gonzales that the spill would be taken care of.

It was after this conversation with Oliver that Gonzales

asserts that Merit’s treatment of him began to change. Gonzales

alleges that he was given unusual and dangerous tasks, that he was

denied the opportunity to work overtime, and that he was not

allowed to attend a scheduled meeting of the Plant Safety Committee

on March 12, 1997. Finally, on March 31, 1997, Gonzales was

fired.

The decision to terminate Gonzales was made by Merit’s

two managers at the Pioneer plant, Ronnie Little and Robert Wascom.

They claim that the termination decision was based on Gonzales’

3 poor job performance and the need to have his tasks performed by a

more skilled “class A” mechanic. Wascom and Little assert that at

the time they fired Gonzales they had no knowledge of his March 6-

7, 1997 report of a mercury spill.

Suspecting that his termination was in retaliation for

his spill report, Gonzales filed suit against Merit in Louisiana

state court for a violation of the Louisiana Environmental

Whistleblower Act, La. Rev. Stat. Ann. § 30:2027. The suit was

removed to federal district court on diversity grounds. Merit

moved for summary judgment, claiming that its decision makers were

unaware of the mercury spill incident at the time of Gonzales’

termination and therefore could not be retaliating for it. The

district court granted judgment, as it agreed that Gonzales had not

produced sufficient evidence to create a genuine issue of material

fact regarding the connection between the spill report and his

termination. This appeal followed.

Standard of Review

This court reviews the grant of summary judgment de novo,

applying the same standard as the district court. Lechuga v.

Southern Pacific Transportation Co., 949 F.2d 790 (5th Cir. 1992).

The record and inferences are viewed in the light most favorable to

the nonmovant. Walters v. City of Ocean Springs, 626 F.2d 1317

(5th Cir. 1980). The party moving for summary judgment must

“demonstrate the absence of a genuine issue of material fact, but

4 need not negate the elements of the nonmovant’s case.” Little v.

Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (internal

quotations and citations omitted). If the movant meets this

burden, the nonmovant must go beyond the pleadings to designate

specific facts, as opposed to general allegations, to show a

genuine issue of material fact worthy of trial. See id.; Lujan v.

Defenders of Wildlife, 504 U.S. 555 (1992); Celotex Corp. v.

Catrett, 477 U.S. 317, 321-23 (1986).

Discussion

Gonzales argues that he established the elements of a

prima facie retaliation claim. The district court found, however,

that Gonzales had failed to designate specific facts creating a

genuine issue for trial on all elements of his prima facie case of

retaliation.

A prima facie case under the Louisiana Environmental

Whistleblower Act includes three elements: (1) that the employee

engaged in a protected activity; (2) that an adverse employment

decision followed; and (3) that a causal connection between the two

existed. See Powers v. Vista Chemical Company, 109 F.3d 1089, 1095

(5th Cir. 1997). See also Grizzle v. Travelers Health Network,

Inc. 14 F.3d 261 (5th Cir. 1994) (outlining the three-part prima

facie case for retaliation in the ADEA context); Jones v. Flagship

Int’l, 793 F.2d 714, 724 (5th Cir. 1986) (describing a similar

prima facie case under the retaliation provision of Title VII).

5 Gonzales satisfied the first two prongs of the

retaliation test: he engaged in a protected activity by reporting

the mercury spill and was subsequently fired. Both sides agree

that Gonzales reported the mercury spill to his immediate

supervisor, chief mechanic Freddie Hebert, and both parties

acknowledge that Gonzales was terminated on March 31, 1997.

In question is whether Gonzales has presented sufficient

evidence to survive summary judgment on the third prong of his

prima facie case, the existence of any causal connection between

his report of the spill and his termination. Under the Louisiana

Environmental Whistleblower Act, an employee’s failure to show that

his protected actions motivated the employer’s termination decision

is fatal to his claim. See Powers, 109 F.3d at 1096. Obviously,

an employer cannot retaliate against an employee for engaging in a

protected activity that it did not know about at the time of the

challenged action. Watts v. The Kroger Company, 170 F.3d 505, 512

(5th Cir. 1999); Robertson v. Bell Helicopter, 32 F.3d 948, 952

(5th Cir. 1994); Grizzle v. Travelers Health Networks, Inc., 14

F.3d 261, 267 (5th Cir. 1994). The knowledge of the primary

employment decision makers within the company is relevant for this

analysis. Grizzle, 14 F.3d at 267-68.

Gonzales had to offer evidence creating a genuine issue

of material fact that Wascom and/or Little, Merit’s employment

decision makers at the Pioneer plant, were aware of his mercury

6 spill report at the time that they terminated him. As Gonzales

concedes, there is no such direct evidence. Gonzales himself did

not inform Wascom or Little. The only Merit employee that Gonzales

did inform about the spill was Frank Hebert, a non-management

worker with no input into employment decisions. Hebert, in turn,

did not talk to Little or Wascom about the mercury spill. The only

other person to whom Gonzales reported the spill was Dana Oliver,

Pioneer’s environmental compliance director. Oliver asserts that

she has no recollection of Gonzales’ spill report and that she did

not talk to Wascom or Little about it. Nor would it have been

standard practice for Oliver to report a mercury spill to Merit’s

managers: mercury spills at the Pioneer plant are Pioneer’s

responsibility, and Merit employees are responsible only for

reporting the spills they encounter. Gonzales also failed to

produce any document, such as an entry in Dana Oliver’s spill log

or any sort of spill report, evidencing that Wascom or Little were

aware of this spill.

Lacking any semblance of direct evidence that Wascom or

Little was aware of his protected activity, the mercury spill

report, Gonzales instead presented four pieces of circumstantial

evidence. However, even taken together, Gonzales’ circumstantial

evidence would not permit a reasonable jury to draw the required

connection between his termination and Merit’s decisionmakers’

knowledge of the spill report.

7 DRAFT April 29, 2004 (10:35am)

Gonzales asserts that he was “treated differently” and

given “onerous and unusual” tasks by the Merit managers after his

spill report. Two incidents illustrate this different treatment.

First, Gonzales was asked to participate in the removal of a heavy

fiberglass cover. But this assignment was self-evidently not

punitive, as supervisor Little, a foreman and two other Merit

employees also participated in moving the bulky object.

In the second incident of “different” treatment,

Gonzales, a member of the plant’s safety committee, was required to

miss a committee meeting on March 12, 1997. However, a reasonable

and uncontradicted explanation exists for requiring Gonzales to

miss the meeting. Both “clarifier units” at the Pioneer Plant were

inoperable on the day in question, and a cherry picker crane was

required to repair these units. Merit considered the rapid

completion of these repairs essential and classified the event as

a “hot job” requiring workers, including Gonzales, to remain on the

job. Id. Company policy required workers to remain on site at

“hot jobs” until complete. Gonzales contests neither the existence

of this policy nor the fact that he operated a cherry picker for

this particular “hot job.” Additionally, the record indicates that

only eight of seventeen committee members were present for this

meeting, so Gonzales was not singled out for exclusion.

8 DRAFT April 29, 2004 (10:35am)

Since the foregoing examples simply do not prove his

point about mistreatment, Gonzales’ statement is merely self-

serving, and it is well-established that a self-serving statement

from a party, even if sworn, is not sufficient summary judgment

evidence. See Southern Concrete Co. v. U.S. Steel Corp., 535 F.2d

313 (5th Cir. 1976); Curl v. IBM, 517 F.2d 212 (5th Cir. 1975).

Gonzales next alleges that he was assigned little

overtime after his spill report. Gonzales was only asked to work

one night of overtime between his spill report and his termination,

and he claims that this was an abnormally low amount. But the

record does not indicate whether other employees received overtime

during this three week period, nor does the record show how much

overtime Gonzales usually worked in a given week or month. In the

absence of comparative information, Gonzales’ contention that he

was singled out for reduced overtime has no probative value and

does not help him to withstand summary judgment.

Gonzales also emphasizes the close temporal proximity

between his spill report and subsequent termination. He invokes

cases from various jurisdictions, all standing for the proposition

that “discharge soon after protected activity is indirect proof of

causal connection” in a retaliation claim. See, e.g. Rath v.

Selection Research, Inc., 978 F.2d 1087, 1090 (8th Cir. 1992).

This Circuit has also held that temporal proximity of termination

9 DRAFT April 29, 2004 (10:35am)

can support an inference of causal nexus. See Armstrong v. City of

Dallas, 997 F.2d 62, 67 (5th Cir. 1993). Unfortunately for

Gonzales, all of these cases are inapplicable to the present

situation because in each of them it was undisputed that the

decision makers were aware of the employee’s protected activity.

Gonzales has cited no temporal proximity cases in which the

decision maker did not know about the employee’s protected

activity.

Moreover, this court has cautioned that a short interval

between the protected activity and the alleged retaliation is “not

necessarily a determinative factor” in a retaliation claim. See

Mayberry v. Vought Aircraft Co., 5 F.3d 1086, 1092 (5th Cir. 1995).

It is therefore important not to assign excessive weight to

temporal proximity. Allowing an inference of retaliation from

temporal proximity where the employer clearly knows of the

protected activity is reasonable, but permitting the jury to infer

both knowledge of the activity and retaliation for it creates too

attenuated an inferential chain.

The final pieces of circumstantial evidence relied upon

by Gonzales in his effort to show that Little and/or Wascom knew

about his mercury spill report are the inconsistencies in Merit’s

explanation as to why he was terminated. Gonzales claims that

Merit’s first stated reason for dismissing him, referring to a

10 DRAFT April 29, 2004 (10:35am)

“reduction in force,” was pretextual, since a replacement mechanic,

albeit one with an “class A” rating rather than Gonzales’ “class

B,” was almost immediately hired. Merit’s verbal explanation of

the termination differs from the written separation notice,

however, asserting that Gonzales was fired because of his poor job

performance and the need to upgrade to a more skilled “class A”

mechanic in his position. Merit attributes the separation notice’s

“reduction in force” explanation to the supervisors’ desire to

allow him to find work quickly at another Merit job site.1

Whatever one might think of the consistency or inconsistency of

these explanations, there is no evidence nor can one infer that

these minor inconsistencies mask an intent to retaliate against

Gonzales or acknowledge the decision-makers’ knowledge of his spill

report.

Gonzales invokes Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000), for the proposition that

a plaintiff’s prima facie case, combined with sufficient evidence

for a reasonable factfinder to reject the defendant employer’s

nondiscriminatory explanation for its decision, may be adequate to

sustain a finding of intentional discrimination, or in this

1 An in-house policy at Merit allows an employee terminated in a reduction of force to apply for work immediately on another Merit job site. Employees terminated for other reasons must wait at least 30 days to be rehired.

11 DRAFT April 29, 2004 (10:35am)

instance retaliation. However, Gonzales misapprehends the

applicability of Reeves to his situation. Reeves is premised on

the plaintiff’s first establishing his prima facie case. Reeves,

120 S.Ct. at 2109. Citing earlier discriminatory treatment cases,

Reeves reiterates that “[f]irst, the plaintiff must establish a

prima facie case of discrimination.” Id. at 2106. Reeves is not

relevant until all elements of the prima facie case have been

established.

Gonzales has been unable to produce any direct or

circumstantial evidence which would allow a reasonable jury to

infer that the Merit decision makers even knew about his report of

the mercury spill. Lacking any evidence of a causal connection

between his spill report and termination, Gonzales has failed to

make out a prima facie case of retaliation. The district court’s

grant of summary judgment is therefore AFFIRMED.