Menard v. Targa Resources LLC

Opinion

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

KIRK MENARD CIVIL ACTION VERSUS TARGA RESOURCES LLC NO. 19-00050-BAJ-SDJ

RULING AND ORDER Before the Court is Defendant's Motion In Limine (Doc. 77) and Plaintiffs Motion In Limine To Exclude Introduction Of Photograph (Doc. 78). Both motions are opposed. (Doc. 82; Doc. 83). For the reasons stated herein, Defendant's Motion (Doc. 77) is GRANTED IN PART and DENIED IN PART, and Plaintiff's Motion (Doc. 78) is DENIED. I, FACTS This is an employment retaliation case. (Doc. 14; Doc. 74). Plaintiff alleges that he was retaliated agamst when Defendant terminated his employment on October 11, 2018, in violation of the Louisiana Environmental Whistleblower Statute, La. Rev. Stat. § 80:2027. (Doc. 14, p. 2, 9-10; Doc. 74, p. 1). Defendant asserts that it terminated Plaintiffs employment for non-retaliatory reasons, including Plaintiffs alleged inappropriate conduct. (Doe. 42, p. 3-5; Doc. 74, 6~7). This matter is set for a bench trial. (Doc. 111).

II. LEGAL STANDARD The party objecting to the admissibility of evidence bears the burden of showing that the evidence is inadmissible. Lyondell Chem. Co. v. Occidental Chem. Corp., 608 F.3d 284, 295 (5th Cir. 2010). a. Relevance and Prejudice Federal Rule of Evidence 401 provides that evidence is relevant if: “(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Under Federal Rule of Evidence 402, relevant evidence is admissible unless the United States Constitution, a federal statute, the Federal Rules of Evidence or other rules prescribed by the Supreme Court provide otherwise. Pursuant to Federal Rule of Evidence 408, “the court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the folowing: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” The United States Court of Appeals for the Fifth Circuit has explained, however, that while “excluding relevant evidence in a bench trial because it is cumulative or a waste of time is clearly a proper exercise of the judge's power, |] excluding relevant evidence on the basis of ‘unfair prejudice’ is a useless procedure.” Gulf States Utilities Co. v. Ecodyne Corp., 635 F.2d 517, 519 (5th Cir. 1981).

b. Hearsay Under the Federal Rules of Evidence, hearsay is defined as “a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” Fed. R. Evid. 801(c)(1)-(2). Hearsay is not admissible unless a federal statute, the Federal Rules of Evidence, or “other rules prescribed by the supreme Court” provide otherwise. Fed. R. Evid. 802. After a party properly objects to the admission of evidence as hearsay, the proponent of the evidence bears the burden to show that the statement is not offered as hearsay or falls within an exception to the hearsay rule. Dempster v. Lamorak Ins. Co., No. CV 20-95, 2020 WL 5552681, at *3 (.D. La. Sept. 16, 2020) (citations omitted). IH. DISCUSSION a. Defendant’s Motion in Limine Defendant seeks to exclude the following evidence: (1) Defendant's response to Plaintiffs Louisiana Workforce Commission unemployment claim and _ the Louisiana Workforce Commission’s decision on Plaintiffs unemployment claim 77-2); (2) Louisiana Department of Environmental Quality’s “Notices of Deficiency, Deficiency Clear Letter, Warning Letter, Expedited Penalty Agreement, violations, or penalties issued against [Defendant]” (Doc. 77-6-Doc. 77-8); (8) Plaintiffs recorded telephone call with Brogan Smith (Doc. 77-3); (4) Plaintiffs recorded telephone call with Matthew Fitzgerald (Doc. 77-4); and (5) information regarding Perry Berthelot’s character or reputation (Doc. 77-4). (Doc. 77, p. 2).

For the reasons stated below, the Court finds that the Louisiana Workforce Commission and Louisiana Department of Environmental Quality documents are admissible. (Doc. 77-2; Doc. 77-6—Doc. 77-8). Additionally, the Court finds that the transcripts of Plaintiffs telephone calls with Smith and Fitzgerald are inadmissible. (Doc. 77-3—Doc. 77-4). i. Louisiana Workforce Commission Documents Defendant seeks to exclude “unemployment forms” from _ the Louisiana Workforce Commission. (Doc. 77-2). Defendant argues that the unemployment forms are “inadmissible hearsay, irrelevant, highly prejudicial, and should be excluded at trial of this matter.” (Doc. 77-1, p. 1). 1. Relevance First, Defendant argues that information regarding Defendant’s decision not to respond to Plaintiffs unemployment claim should be excluded because it is irrelevant. (Doc. 77-1, p. 2). Defendant explains that the issue in this case is whether Plaintiff was terminated for legitimate, non-retaliatory reasons or whether he was terminated in violation of the Louisiana Whistleblower statute. Ud.). Defendant contends that its decision not to respond to Plaintiffs unemployment claim has no tendency to make Plaintiffs allegation that he “would not have been terminated but- for his protected conduct under [the Louisiana Whistleblower Statute] more or less

' The evidence at issue is a seven-page document from the Louisiana Workforce Commission addressing “important information about [Plaintiff's] unemployment claim deductible income,” “instructions and options for filing an appeallf],” “important information about [Plaintiffs] unemployment claim qualifying separation determination,” and “notice of unemployment claim filed[].” (Dee. 77-2).

true.” (Ud.). Contrarily, Plaintiff argues that evidence regarding Defendant’s failure to respond to Plaintiffs unemployment claim is relevant because it rebuts Defendant’s asserted legitimate, non-retaliatory reasons for Plaintiffs termination.? (Doc. 88, p. 1). Plaintiff seeks to intreduce the documents to establish a single fact— that Defendant did not contest Plaintiffs eligibility for unemployment. (/d. at p. 2). Plaintiff explains that had Defendant responded to the Louisiana Workforce Commission with non-retaliatory reasons for terminating Plaintiff, 1t would have been relieved from any lability for Plaintiffs unemployment benefits. dd. at p. 2-3). Accordingly, Plaintiff argues that the evidence is relevant “because it calls into question Defendant’s later claims that it had a non-retaliatory basis for [Plaintiffs] termination.” Ud. at p. 3). Rule 401 defines relevant evidence as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Fed. R. Evid. 401. Evidence which is not relevant is not admissible. Fed. R. Evid. 402. Implicit in the above definition are two distinct requirements: (1) the evidence must be probative of the proposition it is offered to prove; and (2) the proposition to be proved must be one that is of consequence to the determination of the action. Nale v. Finley, No, 3:19-CV-00473, 2020 WL 7213000, at *2 (W.D. La. Dec. 7, 2020) (citing

2 Plaintiff states that Defendant's “primary defense in this case is that it terminated [Plaintiff] not because of his pretected acts in refusing to dilute a water sample and reporting that illegal request to his supervisor, but rather because of his alleged inadequate work performance and inappropriate workplace conduct. . .” (Doc. 838, p. 3).

United States v. Hall, 653 F.2d 1002, 1005 (5th Cir. 1981)). Here, the Louisiana Workforce Commission documents have a tendency to make a fact— whether Defendant responded to Plaintiffs unemployment claim—more or less probable than it would be without the evidence. See Fed. R. Evid. 401. Defendant's lack of response to Plaintiffs unemployment claim is a fact of consequence because it bears on whether and when Defendant had legitimate, non-retaliatory reasons for terminating Plaintiff, a central issue in this employment retaliation case. See id. Accordingly, the Court finds that the Louisiana Workforce Commission documents are relevant. 2. Hearsay Second, Defendant argues that the Louisiana Workforce Commission documents are inadmissible hearsay. (Doc. 77-1, p. 1). Plaintiff responds that the documents are not hearsay because they fall within the public records exception to the general prohibition against hearsay. Fed. R. Evid. 803(8). (Doc. 88, p. 1). Federal Rule of Evidence 803(8) excepts the following from the rule against hearsay: A record or statement of a public office if: (A) it sets out: (i) the office's activities; (ii) matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or G1) ina civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness. Fed. R. Evid. 8038(8). Under this rule, a proponent of a document must show that the document (1) was “prepared by a public office;” and (2) “set[ ] out information as specified in the Rule.” Advisory Committee Note to Fed. R. Evid. 803(8). When the proponent satisfies these requirements, “the burden is on the opponent to show that the source of information. or other circumstances indicate a lack of trustworthiness.” Id.; see also Cooper v. Meritor, Inc., 363 F. Supp. 3d 695, 698 (N.D. Miss. 2019). Here, Plaintiff asserts that the documents were prepared by the Louisiana Workforce Commission pursuant to the agency’s official duties under Louisiana law. (Doc. 88, p. 1). Plaintiff also explains that the documents set out factual statements regarding the agency’s investigation into Plaintiffs entitlement to unemployment benefits. Ud.). Plaintiff has satisfied the requirements of Federal Rule of Evidence 808(8){A). Accordingly, the burden shifts to Defendant to show that the source of the information or other circumstances indicate a lack of trustworthiness. See Advisory Committee Note to Fed. R. Evid. 803(8); see also Fed. R. Evid. 803(8)(B). Defendant has made no argument regarding the trustworthiness of the documents, but merely vaguely contends that the documents are “hearsay.” (Doc. 77-1, p. 1, 3). Defendant has not satisfied its burden of showing a lack of trustworthiness. See Fed. R. Evid. 803(8)(B). The Court therefore finds that the Louisiana Workforce Commission documents fall squarely into the public records exception to the general rule against hearsay provided in Federal Rule of Evidence 8038(8).

3. Louisiana Law Third, Defendant relies on Louisiana Revised Statutes § 23:1636 to seek exclusion of the Louisiana Workforce Commission documents. Section 1686 provides the following: [N]o findings of fact or law, judgment, opinion, conclusion, or final order made by an unemployment compensation hearing officer, administrative law judge, or any person with the authority to make findings of fact or law in any action or proceeding pursuant to the administration of this Chapter shall be conclusive or binding in any separate or subsequent action or proceeding.? Defendant contends that any findings of fact, opinions, conclusions, or final orders from the Louisiana Workforce Commission concerning Plaintiffs unemployment claim should be excluded. (Doc. 77-1, p. 2). Plaintiff responds that Section 1636 does not act as an absolute prohibition on the introduction of otherwise relevant and admissible evidence related to an unemployment claim. (Doc. 838, p. 2). Specifically, Plaintiff argues that he does not seek to intreduce the documents as conclusive evidence of any fact at issue or to establish the Louisiana Workforce Commission’s findings as “preclusive” in this

3 La. Rev. Stat. § 23:1636 states in full: Notwithstanding any provision in this Chapter relative to conclusiveness and finality of administrative determinations, no findings of fact or law, judgment, opinion, conclusion, or final order made by an unemployment compensation hearing officer, administrative law judge, or any person with the authority to make findings of fact or law in any action or proceeding pursuant to the administration of this Chapter shall be conclusive or binding in any separate or subsequent action or proceeding. Said determinations shall not be used as conclusive evidence in any separate or subsequent action or proceeding between an individual and his or her present or prior employer brought before an arbitrator, court, or judge of the state of Louisiana or the United States, regardless of whether the prior action was between the same or related parties or involved the same facts.

matter. Ud.). Just because the documents are not to be given conclusive effect, Plaintiff argues, does not mean that the documents are not relevant. (id.). The Court agrees. This matter is set for a bench trial. The Court will properly weigh the evidence at the time of trial, recognizing that the Louisiana Workforce Commission documents are not “conclusive evidence.” See La. Rev. Stat. § 23:16386. 4, Prejudice Fourth, Defendant argues that if the documents are not hearsay and are found to be relevant, the probative value of such information is substantially outweighed by the danger of unfair prejudice and confusion pursuant to Federal Rule of Evidence 403. (Doc. 77-1, p. 1, 3). Plaintiff responds that considerations of unfair prejudice and confusion are not applicable when the evidence will be considered by the Court and not by ajury. (Doc. 83, p. 4). Again, the Court agrees. The Fifth Circuit has noted that for bench trials, as here, “excluding relevant evidence on the basis of ‘unfair prejudice’ is a useless procedure.” Gulf States Utilities Co. v. Ecodyne Corp., 635 F.2d 517, 519 (5th Cir. Unit A, 1981). When ruling on admissibility under Rule 403 in a jury trial, a Judge is expected to discern and weigh improper inferences that a jury might draw from certain evidence. Id. In a bench trial “the same judge can also exclude those improper inferences from his mind in reaching a decision.” Id. Accordingly, the Court will not exclude the Louisiana Workforce Commission documents based on undue prejudice or confusion. The Court finds that the Louisiana Workforce Commission documents are admissible. (Doc. 77-2).

ii. Louisiana Department of Environmental Quality Documents Defendant also seeks to exclude any testimony or evidence concerning Louisiana Department of Environmental Quality documents because they are inadmissible hearsay and irrelevant. (Doc. 77-1, p. 7; Doc. 77-6—-Doc. 77-8). Alternatively, Defendant argues that the probative value of the LDEQ documents is substantially outweighed by the risk of unfair prejudice and confusion. (Doc. 77-1, p. 7). Plaintiff responds that these documents fall into the public records exception to the hearsay rule provided in Federal Rule of Evidence 8038(8). (Doc. 88, p. 10). Additionally, Plaintiff asserts that the documents are relevant because the documents tend to show that Defendant had a motive for asking Plaintiff to dilute water samples, since further violations could result in additional enforcement action by LDEQ. CUd.). Plaintiff contends that the evidence is therefore probative of Defendant's true, retaliatory reasons for terminating Plaintiff. (d.). As with the Louisiana Workforce Commission documents, the documents are created by a public office and describe information related to factual findings from a legally authorized investigation. See Fed. R. Evid. 803(8); see also Advisory Committee Note to Fed. R. Evid. 803(8). Defendant does not argue that the documents contain a lack of trustworthiness. /d.; see also Cooper vu. Meritor, Inc., 363 F. Supp. 3d 695, 698 (N.D. Miss. 2019). Therefore, the records fall into the public records exception to the general rule against hearsay. Fed. R. Evid. 803(8). The LDEQ documents are relevant because they have a tendency to make a

fact of consequence—Defendant’s motive—more or less probable than it would be without the evidence. Fed. R. Evid. 401. As previously noted, excluding the LDEQ documents based on unfair prejudice or confusion would be a “useless procedure” for a bench trial. See Gulf States Utilities Co. v. Ecodyne Corp., 635 F.2d 517, 619 (5th Cir. Unit A, 1981). Accordingly, the Court finds that the LDEQ documents are admissible. (Doc. 77-6—Doc. 77-8). iii, Plaintiffs Telephone Calls with Brogan Smith and Matthew Fitzgerald Finally, Defendant seeks to exclude Plaintiffs telephone calls with Brogan Smith and Matthew Fitzgerald, including the purported transcripts of the telephone calls and any statements or information contained therein. (Doc. 77-8—Doc. 77-4). Because the parties present similar arguments regarding both telephone calls, the Court will address them together. Defendant argues, and Plaintiff concedes, that the transcripts are hearsay, but Plaintiff seeks to “reserve his rights” to introduce the transcript for “any other purposes that may be allowed under the law, including to the extent it might be admissible for impeachment.” (Doc. 77-1, p. 4-7; Doc. 88, p. 5, 7). Because the parties agree that the transcripts are hearsay, the Court will exclude the purported transcripts of Plaintiffs telephone calls with Smith and_ Fitzgerald. (Doc. 77-3—Doc. 77-4). To the extent that Plaintiff seeks to introduce specific information or statements from the telephone calls through Plaintiffs testimony, the Court will address the hearsay exceptions raised by Plaintiff, as well as Defendant’s arguments 11

regarding inadmissibility, at that time. Additionally, the Court will consider whether certain information or statements may be admissible for impeachment. purposes at the time of trial. With nearly two hundred pages of transcripts of Plaintiffs telephone calls, it is impractical for the Court to determine the admissibility of each statement at this time without clarity as to which statements Plaintiff seeks to intreduce or whether the reasons for seeking admission are permissible under the Rules of Evidence. (See Doc. 77-8—Doc. 77-4). b. Plaintiff's Motion in Limine Plaintiff seeks to exclude a photograph showing his fiancé’s hemorrhoids.® (Doc. 78-1, p. 2; Doc. 74-2). Plaintiff asserts that his fiancé was pregnant at that time and “sent the picture to [Plaintiff] to get his opmion on whether she should seek medical treatment for her pregnancy-related condition.” (Doc. 78-1, p. 2). Defendant asserts that Plaintiff showed this photograph to a co-worker. (Doc. 82-1, p. 1). Defendant points to Plaintiffs alleged action of showing the photograph to the co-worker as an instance of inappropriate conduct and one of its reasons for terminating Plaintiffs employment. (Id.).

4 Plaintiff argues that he could properly admit information contained in the transcripts by testifying about what he was told. (Doc. 83, p. 5). Plaintiff asserts that information contained in the transcripts, if properly admitted, falls within the following hearsay exceptions: (1) an opposing party’s statement pursuant to Rule 801(d)(2)(D); (2) a statement against interest pursuant to Rule 804(b)(3); and (8) evidence of habit pursuant to Rule 404. (Dac. 83, p. 5-10}. Defendant contends that any evidence concerning the recorded telephone calls should be excluded as inadmissible hearsay. (Doc. 77-1, p. 4-7). Additionally, Defendant argues that, pursuant to Rule 404, Plaintiff should not be permitted to introduce character or reputation evidence contained in the transcript of the Fitzgerald telephone call regarding Perry Berthelot, the individual Plaintiff contends retaliated against him. (Ud. at p. 5). 5 The photograph is identified as Exhibit 53 on Defendant’s Trial Exhibit List. 12

Plaintiff argues that there is no dispute as to what the photograph depicts because the parties have stipulated that the photograph contains the very type of images Defendant claims would have been a basis for termination. (Doc. 78-1, p. 2-4). The disputed fact here is whether Plaintiff showed the photograph to a co-worker, not the image depicted in the photograph. (/d. at p. 2). Accordingly, Plaintiff argues that the photograph need not be introduced. (/d. at p. 4). Defendant argues that the photograph is relevant because it has a tendency to make “the only fact of consequence in determining this action—i.e. one of [Defendant's] reasons for terminating Plaintiffs employment because he engaged in inappropriate conduct by showing the [p]hotograph to a co[-|worker,[] more probable than it would be without the [p]hotograph. ..” (Doc. 82-1, p. 1). Defendant also asserts that the photograph is relevant to Plaintiffs credibility because Plaintiff maintains that he did not show the photograph to his co-worker. (Id.). Finally, Defendant argues that introducing the photograph at trial does not present any danger of wasting time or presenting cumulative evidence, but even if such dangers were present, they do not substantially outweigh the photograph’s probative value in establishing that Defendant’s reasons for terminating Plaintiff were not a pretext for retaliation. (Id.). The Court finds that the photo is relevant because it has a tendency to make a fact-—here, Defendant’s reasons for terminating Plaintiffs employment—more or less probable than it would be without the evidence. Fed. R. Evid. 401. This fact is of consequence. See id. Accordingly, the Court finds that the photograph is admissible. The Court is aware of Plaintiffs concerns regarding the personal nature of the

photograph. However, the Court will allow Plaintiff to move for introduction of the photograph under seal and for review in camera. IV. CONCLUSION Accordingly, IT IS ORDERED that Defendant's Motion In Limine (Doe. 77) is GRANTED IN PART and DENIED IN PART. IT IS FURTHER ORDERED that the Louisiana Workforce Commission documents (Doc. 77-2) and the Louisiana Department of Environmental Quality documents (Doc. 77-6; Doc. 77-7; Doc. 77-8) are deemed ADMISSIBLE. IT IS FURTHER ORDERED that the transcripts of Plaintiffs telephone calls with Brogan Smith (Doc. 77-3) and Matthew Fitzgerald (Doc. 77-4) are deemed INADMISSIBLE. IT IS FURTHER ORDERED that Plaintiffs Motion In Limine To Exclude Introduction Of Photograph (Doc. 78) is DENIED. IT IS FURTHER ORDERED that the photograph identified as Exhibit 53 on Defendant’s Trial Exhibit List is deemed ADMISSIBLE.

Baton Rouge, Louisiana, this oe, of March, 2021 bea JUDGE BRIA ACKSON UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA