United States Court of Appeals,
Fifth Circuit.
No. 96-30138.
Norman M. POWERS, Plaintiff-Appellee, Cross-Appellant,
v.
VISTA CHEMICAL COMPANY, Defendant-Appellant, Cross-Appellee.
April 11, 1997.
Appeal from the United States District Court for the Western District of Louisiana.
Before POLITZ, Chief Judge, and WIENER and STEWART, Circuit Judges.
STEWART, Circuit Judge:
This case presents the question of whether Vista Chemical
Company violated Louisiana's environmental whistleblower statute
(La. R.S. 30:2027 (West Supp.1996)) by firing Norman M. Powers in
retaliation for Powers's disclosure of an environmental violation.
Powers was terminated after he stormed out of a meeting in which he
disclosed environmental violations to his supervisor at Vista. It
was uncontradicted that approximately two weeks prior to the
meeting with Powers, Vista had already reported the environmental
violation to the United States Environmental Protection Agency and
Louisiana's Department of Environmental Quality (DEQ); Vista had
already obtained identical information about the violation from
Powers's co-workers; Vista did not take any adverse action against
any of Powers's co-workers; Vista never advised Powers to withhold
information from the environmental authorities; and Vista did not
take any adverse action against Powers for anything he said to the
DEQ. At the same time, Powers admitted that abruptly leaving the
1 meeting with his supervisor (in which he cursed at the supervisor)
was grounds for discharge. Under these facts, Powers's case was
submitted to a jury, who returned a verdict in Powers's favor.
Pursuant to § 2027, the jury awarded Powers $504,000 (after damages
were trebled), which was remitted to $369,000.
Vista moved for judgment as a matter of law, arguing that §
2027 required Powers to prove that his disclosure must have
motivated Vista to terminate him, and that the evidence did not
support such a finding. The district court denied the motion,
reasoning that § 2027 did not require a showing of illicit
motivation and that, "unfortunately for Vista," Powers's disclosure
happened to concern the environment.
Finding that § 2027 does require a showing of motivation and
that therefore the district court erred in denying Vista's
post-trial motion for judgment as a matter of law, we REVERSE.
Because we also find that the evidence was insufficient to support
a finding of illicit motivation, we RENDER judgment for Vista.
BACKGROUND
The defendant, Vista Chemical Company (Vista), is a large
petrochemical plant, and Vista hired the plaintiff, Norman M.
Powers, in 1991. Vista's Rules of Conduct, which Powers signed,
provided that Vista employees may be fired at any time for, among
other things, insubordination.
In 1992, Powers worked in a "Quench Unit," which uses
oil-based liquids to manufacture Vista's products. The solid waste
generated from Vista's manufacturing process is dumped into
2 concrete-lined sand filters. Vista's permit from Louisiana's DEQ
allows Vista to dump the waste in the sand filters provided the
materials have a "low flashpoint" (i.e., the materials do not o ignite at a temperature below 140 F). The flashpoint level can
only be determined through laboratory testing, not by sight or
smell. Once the waste is dumped into the sand filters, Vista
further processes the waste. Whatever is left over is then taken
to a hazardous waste landfill (to Chem Waste Management), which
customarily tests the waste for flashpoint levels.
On October 13-14, 1992, one of Vista's operators pumped solid
waste into the sand filters. On October 15, 1992, Powers loaded
40,000 pounds of waste from the filters into a truck bound for Chem
Waste. Although Vista's shipments had never before tested positive
for a low flashpoint, the October 15 shipment did. Chem Waste
immediately notified Vista. Vista then conducted its own tests and
confirmed that the October 15 shipment did indeed test positive for
a low flashpoint. By early afternoon on October 15, 1992, Vista
realized that it had violated the terms of its DEQ permit. By
October 16, 1992, Vista had notified the various state and regional
divisions of the DEQ and the Environmental Protection Agency that
waste dumped into Vista's sand filters tested positive for a low
flashpoint. On October 16, Vista assembled a four-person team to
investigate the incident. Jim Lewing was a member of that team.
On October 19, DEQ inspectors made an unannounced visit to
Vista's plant. The purpose of the visit was to determine how
low-flashpoint material made its way into the sand filters and
3 what, if anything, Vista was doing to prevent that from happening
again. Lewing's subordinate instructed Powers to accompany the DEQ
inspectors because Powers was on duty when the lowflashpoint
material was shipped to Chem Waste. Powers was instructed to
truthfully answer questions posed by the DEQ. During DEQ's visit,
Powers did not complain about any environmental problems or
violations.
At the same time, on October 19, Lewing prepared eight
standard questions he would ask the operators who would be
questioned in connection with the investigation of the incident.
Question 4 stated the following: "When did you find the solvent on
the sand filters[?]" According to Vista, on October 19 and 20,
Lewing questioned various operators, including Powers, who had
worked in the sand filter area on or about October 15. In response
to Question 4, one operator told Lewing that the solvent had been
there "approximately three weeks"; another operator said that the
sand filters "always" contained solvent; and a third operator
allegedly told Lewing that the solvent problem existed for "several
weeks." None of these operators were ever told to change their
story with regard to the existence of low-flashpoint solvent on the
sand filters and none were fired as a result of their disclosures.
According to Vista, Powers told Lewing that he found low-flashpoint
solvent in the sand filters "last Thursday, October 15, 1992, or
last Wednesday." Lewing took notes during the meeting that
reflected the operators' responses to Question 4. At this point,
Lewing believed that operator error caused low-flashpoint material
4 to enter the sand filters.
At trial, Powers denied that an October 19 meeting with Lewing
ever took place and denied that he responded to Question 4 in the
manner that Lewing claimed. The parties also disagree about what
happened after the alleged October 19 meeting between Lewing and
Powers.
According to Vista, on October 27, Lewing began a customary
second round of interviews with the operators who had knowledge of
the October 15 incident. Lewing testified that all of the
operators provided Lewing with essentially the same responses, with
one exception—Powers. Vista claims that at the second interview,
conducted about one mile from Lewing's office (at the press
building), Powers changed his story and stated that solvent had
been on the sand filters several months earlier. Lewing then
became frustrated with Powers's changed story and went back to his
office. Lewing summoned Powers to his office. After further
questioning, Powers abruptly got up and walked out of the meeting,
saying "I don't have to put up with this crap...." Powers was
allegedly fired for his insubordinate conduct at the meeting.
Powers admitted that his conduct at the meeting was grounds
for discharge. Powers also admitted that neither Lewing nor anyone
else at Vista (1) told Powers to withhold information from the EPA
or DEQ, (2) took any action against Powers "for anything [he] said"
or any "report [he] gave" the DEQ, or (3) told Powers to cover up
the environmental violations. The DEQ concluded that Vista was
helpful and cooperative and that Vista was not attempting to cover
5 up the environmental violations.
Powers story is slightly different. He claims that the first
meeting he had with Lewing occurred on October 27, not October 19,
when Lewing approached him at the press building. When asked when
he first saw the solvent in the sand filters, Powers responded that
it had been there since Powers first began working in the sand
filter area (i.e., for months). Powers claims that at that point
Lewing "kind of exploded" and said that Powers was lying. Powers
denied the allegation and repeated his claim that the solvent had
been there for months. At that point, Powers testified that Lewing
threatened Powers by saying the following: "Look, ... you are just
a green hat out here, and ... you are going to say any damn thing
I want you to say, or I am going to run your ass out the gate."
Without any citation to the record, Powers claims that he "was
of the impression that Jim Lewing wished to intimidate him into
saying that the October 15th incident was just a three day [sic ]
problem." Powers claims that Lewing then abruptly left. After
being summoned to Lewing's office, Powers reiterated his claim that
the low-flashpoint solvent had been in the sand filters for months,
to which Lewing allegedly yelled, hit the desk, accused Powers's of
lying, and said that he would run his "ass out the gate."
According to Powers, Lewing sought to ensure that Lewing's version
of the cause of the accident—operator error—went unchallenged.
Powers sums up the evidence as follows:
[T]he "party line" on October 27, 1992, to which Jim Lewing was attempting to force adherence, was that it was operator error, in order that Lewing could assert that the violation had just been on the sand filter impoundments for just a day
6 or so, not two months or longer. This is certainly a credible interpretation of the evidence, which leads one to the conclusion that Jim Lewing's actions against plaintiff were to retaliate against him for disclosing the longer term problem.
PROCEDURAL HISTORY
Powers filed suit against Vista claiming that he was fired in
retaliation for disclosing that the low-flashpoint solvent was in
the sand filters for weeks to months, not just a few days. The
jury found that Vista violated Louisiana's whistleblower law and
awarded Powers $168,000, which, pursuant to the statute, was
trebled to $504,000. Powers was also awarded attorneys' fees.
At the close of Powers's case and after the jury returned its
verdict, Vista moved the district court for judgment as a matter of
law, arguing that the evidence was insufficient to support Powers's
claim that Vista terminated him in violation of the whistleblower
statute. In the alternative, Vista asked for a remittitur. The
district court, although it found that there was insufficient
evidence to show that Vista was motivated by "environmental
reasons," nonetheless denied Vista's motion, concluding that
"unfortunately for Vista," the disagreement between Lewing and
Powers happened to concern the environment. However, the district
court ordered Powers to accept a remittitur to $369,000 or face a
retrial on all issues. Powers accepted the remittitur. Vista
timely appealed and Powers cross-appealed.
STANDARD OF REVIEW
We must determine whether the district court erred when it
denied Vista's motion for judgment as a matter of law at the close
of the evidence and after the jury returned its verdict. "The
7 standard of review of a denial of a motion for judgment as a matter
of law depends on whether the defendant has properly preserved the
issue by moving for judgment as a matter of law at the conclusion
of all of the evidence." See Polanco v. City of Austin, 78 F.3d
968, 973-74 (5th Cir.1996) (citing Bunch v. Walter, 673 F.2d 127,
130 n. 4 (5th Cir.1982)). Here, Vista moved for judgment as a
matter of law at the close of the evidence.
Accordingly, we analyze the sufficiency of the evidence to
determine whether a reasonable jury could have come to the
conclusion that it did. Id. at 974. "We will reject a verdict in
those instances when, despite considering all the evidence in the
light and with all reasonable inference most favorable to the
verdict, we find no evidence of such quality and weight that
reasonable and fair-minded men in the exercise of impartial
discretion could arrive at the same conclusion." Thrash v. State
Farm Fire & Cas. Co., 992 F.2d 1354, 1356 (5th Cir.1993)
(quotations omitted). Of course, we review de novo the district
court's conclusions of law.
DISCUSSION
I. THE MEANING OF LOUISIANA'S ENVIRONMENTAL WHISTLEBLOWER STATUTE
This case presents an issue of first impression for the Fifth
Circuit and Louisiana attorneys. We must decide the meaning of
Louisiana's environmental whistleblower statute, codified at La.
R.S. 30:2027 (West Supp.1996). Because we sit in diversity, we are
mindful of our duty to interpret the law as would a Louisiana
court. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed.
8 1188 (1938). In making an Erie guess, we have said that "[w]e are
emphatically not permitted to do merely what we think best; we
must do that which we think the [Louisiana] Supreme Court would
deem best." Jackson v. Johns-Manville Sales Corp., 781 F.2d 394,
397 (5th Cir.) (en banc), cert. denied, 478 U.S. 1022, 106 S.Ct.
3339, 92 L.Ed.2d 743 (1986).
With that said, we begin with the statute. Louisiana's
environmental whistleblower statute provides in part:
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, acting in good faith, who does any of the following:
(1) Discloses, or threatens to disclose, to a supervisor or to a public body an activity, policy, practice of the employer, or another employer with whom there is a business relationship, that the employee reasonably believes is in violation of an environmental law, rule, or regulation.
* * * * * *
B. (1) Any employee against whom any action is taken as a result of acting under Subsection A of this Section may commence a civil action ... and shall recover from his employer triple damages resulting from the action taken against him....
La. R.S. 30:2027 (emphasis added).
The parties both argue that the term "discloses" in § 2027 is
unambiguous and supports their respective positions. Powers argues
that the language of § 2027 is plain—it covers "disclosures"
regardless of the economic or other consequences that may flow from
such a disclosure. He contends, and the district court agreed,
that any other reading of the statute would produce absurd
consequences. "Under defendant's reading of the statute," argues
9 Powers, "if twenty employees learned of an environmental violation
and disclosed it to their supervisor, only the first would be
protected and the other nineteen could be terminated with impunity,
as nothing new was being disclosed." Vista, on the other hand,
contends that the plain language of § 2027 supports its position.
Vista argues that the term "discloses" should be interpreted from
the perspective of the employer. "[I]t makes no sense," asserts
Vista, "to view the word "discloses' from the standpoint of the
employee ... because the plaintiff cannot free himself from secrecy
or ignorance by telling something."
We do not find, however, that this case turns on the meaning
of "discloses" in § 2027. We assume, without deciding, that
Powers's statements to his supervisor were disclosures protected by
§ 2027. Instead, we must decide what it means for an employer to
"act in a retaliatory manner" after an employee discloses or
threatens to disclose an environmental violation. The district
court concluded that Powers was not required to show that his
disclosure motivated Vista to terminate him. Stated differently,
the district court was of the view that under § 2027, an employer
can retaliate against an employee for disclosing an environmental
violation even though the employer is not motivated by the
disclosure to take the adverse employment action. We must
determine whether the district court was correct in so concluding.
We hold that to retaliate within the meaning of § 2027
requires a showing of illicit motivation. Section 2027 was enacted
10 in 1981 and amended in 1991,1 and we deal here with the amended §
2027. However, neither the Louisiana Supreme Court nor any
intermediate appellate courts within Louisiana have interpreted the
amended version of § 2027. Nor have we found any legislative
history that sheds light on the issues in this case. Louisiana
courts have, however, interpreted the predecessor to § 2027, and we
find these decisions helpful in our determination of the meaning of
the phrase "act in a retaliatory manner" in § 2027.
In Cheramie v. J. Wayne Plaisance, Inc., 595 So.2d 619
(La.1992), the Louisiana Supreme Court, interpreting the pre-1991
version of § 2027 (which contained the identical retaliation
language), held that an employee fired for refusing to do illegal
work that is damaging to the environment is entitled to damages
under § 2027. Id. at 624. The court reasoned that § 2027 provided
relief for the plaintiff because "he complained about his
employer's intention of violating state and federal law by
continuing operations in a protected area without a permit." Id.
Similarly, in Bartlett v. I.D. Reese, 569 So.2d 195
(La.Ct.App. 1st Cir.), writ denied, 572 So.2d 72 (La.1991), the
Louisiana Court of Appeals held that the precursor to § 2027,
which, as in Cheramie, contained the same "retaliation" language as
the current version of § 2027, is triggered because the employee
was fired because he reported an environmental violation. Id. at
200-02. In reaching this conclusion, the court of appeals noted
1 The relevant portions of the 1981 version of § 2027 protected "reports or complain[ts] about possible environmental violations." (Emphasis added.)
11 that the reported environmental violation had potentially adverse
economic consequences for the company (in the form of cancellation
of a contract). Id. at 201, 202.
The construction of § 2027 in Cheramie and Bartlett comports
with the common-sense meaning of the word "retaliate." The
dictionary defines "retaliate" as "to return like for like; ... to
return evil for evil; pay back injury for injury; ... to return
an injury, wrong ... for (an injury, wrong ... )...." WEBSTER'S NEW
WORLD DICTIONARY at 1145 (3d College ed.1994); see, e.g., Sumrall v.
Luhr Bros., 665 So.2d 796, 800 (La.Ct.App. 1st Cir.1995) (looking
to Black's Law Dictionary for common and approved usage), writ
denied, 669 So.2d 425 (La.1996). Plainly, for an employer to
retaliate against an employee, the employer must be motivated
(i.e., form a subjective intent) to take adverse employment action
in return for the perceived "wrongful" conduct of the employee.2
In both Cheramie and Bartlett, the employer fired the employee
because the employee committed the "wrong" of whistleblowing—by
refusing to do a job that would have been in violation of
environmental laws (Cheramie ) and by reporting an unreported
environmental violation (Bartlett ).
Although Cheramie and Bartlett involved interpretations of the
pre-1991 version of § 2027, we nonetheless conclude that the
Louisiana Supreme Court would hold that the meaning of the phrase
"act in a retaliatory manner" in § 2027 requires a showing that the
2 The dictionary defines "motive" as "some inner drive, impulse, intention, etc. that causes a person to do something or act in a certain way...." WEBSTER'S, at 886.
12 employer was motivated to fire an employee because of the
employee's disclosure of an environmental violation. Otherwise, §
2027 would be transformed into a wrongful-discharge statute which
covers adverse employment actions that have nothing to do with an
employee's disclosure of an environmental violation—a result
inconsistent with Louisiana's employment at-will doctrine. See La.
C.C. art. 2747 (West 1996); Stevenson v. Lavalco, Inc., 669 So.2d
608, 610 (La.Ct.App.2d Cir.1996). As such, we conclude that the
district court erred in finding that § 2027 does not require an
employee to prove that an employer's adverse employment action was
motivated by the employee's disclosure of an environmental
violation.
II. SUFFICIENCY OF THE EVIDENCE
Because we have concluded that § 2027 requires a showing of
illicit motivation, we now turn to the evidence to determine
whether it is sufficient to support the jury's conclusion that
Powers was terminated in violation of § 2027.3 We note at the
3 The parties spent a great deal of energy arguing over the propriety of the jury instructions. The jury was told that to recover under § 2027, Powers's disclosure had to be "a determinative factor" in Vista's decision to terminate him. Vista argued strenuously that the statute requires a showing that the disclosure was the "sole" or "the substantial determinative" factor in Vista's decision.
We decline to address this issue because it is unnecessary to the resolution of this case. As we discuss in the text, we have found that the record does not support a finding that Powers's environmental disclosure motivated Vista to fire him. Given the facts of this case, providing a precise definition of "motivation" (in the form of a § 2027 jury instruction) would not only be unwise, but is precisely the type of exercise we feel is best left to the Louisiana Supreme Court and intermediate courts of appeals.
13 outset that the district court, when ruling on Vista's post-trial
motion for judgment as a matter of law, concluded that the evidence
was insufficient to support the conclusion that Powers was fired
for "environmental reasons" and that the evidence relating to the
"retaliation factor" posed a "bothersome issue." The district
court nonetheless denied Vista's motion because the disagreement
between Lewing and Powers, "unfortunately for Vista," happened to
concern the environment.
Our independent review of the record persuades us that the
evidence was simply insufficient to support a finding that Vista
was motivated to terminate Powers because he disclosed to
supervisor Lewing that the low-flashpoint material was on the sand
filters for several months. At trial, Vista produced a wealth of
evidence to this effect. Powers admitted at trial that (1) Vista
did not tell him to withhold any information from the environmental
authorities investigating the Vista incident, (2) Vista did not
take any action against him "for anything [he] said" or any "report
[he] gave" the DEQ, (3) Vista took no adverse action against his
co-workers (who made similar disclosures to Lewing), and (4) his
abrupt exit from his meeting with Lewing and accompanying curse was
grounds for discharge. In addition, the information Powers claims
was the basis for his retaliatory discharge—that low-flashpoint
materials were on the sand filters for months—had already been
disclosed to Vista approximately two weeks before Powers's
disclosure and two weeks prior to Vista's report to the EPA and DEQ
that Vista had violated one of the terms of its environmental
14 permit.
We have carefully searched the record for evidence that Vista
fired Powers in retaliation for disclosing that low-flashpoint
materials were on the sand filters for more than two or three days.
We have found precious little that is directly relevant to the
issue of whether Powers's disclosure motivated Vista to fire him.
Indeed, the only relevant evidence presented by Powers on this
point was the alleged aggressive behavior of supervisor Lewing in
his meeting with Powers. But this evidence too cannot give rise to
an inference of § 2027 retaliation absent evidence suggesting that
Vista was motivated to terminate Powers on the basis of the
environmental disclosure. The record is devoid of any such
evidence.
Powers is simply mistaken when he asserts that his disclosure
to Lewing that the low-flashpoint material was on the sand filters
for a few months motivated Vista's decision to terminate him. From
the point of view of Vista, the length of time the flammable
material was on the sand filters was inconsequential because Vista
had already informed the DEQ that Vista did not know how long the
materials were on the sand filters. There was no, as Powers seems
to think, "party line" to which Vista was trying to force
adherence. Ron Cady, the DEQ inspector, was asked by Powers's
attorney on cross-examination whether "the solvent material had
been on the sand filters for a period of time in excess of just one
or two days?" Cady responded that Vista "said they didn't know."
In other words, Vista was not attempting to mislead the
15 environmental authorities about the length of time the flammable
materials remained on the sand filters. In fact, the
uncontradicted evidence showed that a representative of the DEQ
believed that Vista was not trying to cover anything up. Precisely
the opposite was true: Vista exhibited "total cooperation," was
"very helpful," and "at no time did [the DEQ representative] feel
like anybody involved in the investigation felt like Vista was
trying to conceal anything from us." In light of these facts as
well as Vista's knowledge (gleaned from other employees) about the
possibly lengthy presence of the material on the sand filters,
Powers failure to present any evidence suggesting that his
disclosure could have motivated Vista's decision to terminate
Powers is fatal to his claim that Vista violated § 2027.4
We conclude that the meager evidence presented by Powers on
the issue of whether Powers's disclosure motivated Vista to
terminate him is insufficient to support a finding of liability
under § 2027. Rather, the record is insufficient to support a jury
4 Powers contends that his disclosure that the low-flashpoint material was on the sand filters for a few months raised the specter of harsher penalties from the DEQ. Powers characterizes the testimony as follows: "If this is a one time [sic ] spill or upset event, DEQ approaches the penalty to be imposed differently than if it was a situation which had been going on for a long period of time, and one which someone should have recognized and addressed." We have reviewed the relevant portions of the record and conclude that Powers presented no evidence suggesting that Lewing was covering up the alleged two-month (or more) problem to avoid harsher DEQ penalties. We agree with the district court's interpretation of the evidence that "the probable reason for Mr. Lewing's displeasure with Mr. Powers" was that Powers's account tended to discredit Lewing's conclusions about what had occurred, "not because of any concern that [Lewing] or, for that matter, Vista, had for the environmental people."
16 verdict that Powers's disclosure of an environmental violation to
his supervisor was any kind of motivating factor, whether sole,
substantial, or simply one of several. In fact, the only jury
verdict that the evidence is sufficient to support is that Vista
fired Powers for his insubordinate conduct in the meeting with
supervisor Lewing.
CONCLUSION
Because we find error in the district court's conclusion that
Powers was not required to prove that Vista's decision to terminate
him was motivated by a desire or intention to retaliate against him
for his environmental disclosure, we REVERSE the district court's
denial of Vista's post-trial motion for judgment as a matter of
law. Because we further find that, even if there had been a jury
instruction on retaliatory motive, the evidence is in sufficient to
support a finding of illicit motivation, we RENDER judgment for
Vista.
REVERSED AND RENDERED.