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Borcik v. Crosby Tugs, LLC

United States District Court, E.D. Louisiana

April 2, 2015

ERIC BORCIK,
v.
CROSBY TUGS, LLC, Section

ORDER AND REASONS

ELDON E. FALLON, District Judge.

Before the Court are cross motions for summary judgment from Plaintiff Erik Borcik ("Plaintiff" or "Mr. Borcik") and Defendant Crosby Tugs, LLC ("Crosby" or "Defendant"), (Rec. Docs. 55, 56). Having considered the parties' memoranda and the applicable law, the Court now issues this order.

I. BACKGROUND

On September 18, 2013, Mr. Borcik was terminated by Crosby Tugs, which had employed him since 2008. Plaintiff claims that Crosby's actions constitute retaliation against him after he reported illegal dumping. Initially, Mr. Borcik had been assigned to the M/V CARL JOSEPH, then was granted a transfer to the M/V MR. FARRELL. According to Plaintiff, he sent a letter to Crosby's safety department in the summer of 2010 concerning an alleged safety violation of the captain of the M/V MR. FARRELL. Plaintiff was transferred to the M/V NELDA FAYE, where he worked from approximately June 2010 until June 2013 and worked under the supervision of the vessel's captain, Ronnie Leblanc. According to Mr. Borcik, Mr. Leblanc instructed him to illegally dump used oil on numerous occasions into federal waters between Pascagoula, Mississippi, and Port Arthur, Texas. Allegedly, Mr. Leblanc threatened Mr. Borcik with termination if he did not comply with the unlawful instruction. Mr. Borcik alleges that he sent three written complaints to the safety department, including letters in November 2010 and April 2011 that specifically referenced the illegal dumping. No copies of the letters have been located.

After Mr. Borcik complained to Crosby Tugs' safety department, Mr. Leblanc allegedly retaliated against him by changing his shifts from 12 to 20 hours and requiring him to perform work beyond that which was expected of others in his position. Mr. Borcik then allegedly complained to Crosby Tugs' human resources manager, Tara Cheramie. Mr. Borcik met with Ms. Cheramie in May 2013. As a result, he was transferred to the HUD JOSEPH and then the CROSBY TIDE. He was then terminated. Crosby alleges that Mr. Borcik was terminated for a nonretaliatory reason: rude and insubordinate behavior on the HUD JOSEPH. In contrast, Mr. Borcik alleges that he was terminated as retaliation. Mr. Borcik states that Crosby Tugs did not adhere to its discipline policy, which required that it issue a combination of oral and written warnings prior to termination. Mr. Borcik now brings this action asserting claims under the Louisiana Environmental Whistleblower Act ("LEWA").

II. PRESENT MOTION

A. Defendant's motion for summary judgment

Defendant moves for summary judgment on all of Plaintiff's claims. (Rec. Doc. 56). First, Defendant argues that some of Louisiana Whistleblower Act claims have prescribed under the one-year prescriptive period. Plaintiff filed the instant suit on October 21, 2013, thus Defendant argues that any claim of retaliatory conduct prior to October 21, 2012 has prescribed. Plaintiff, for example, filed two written complaints in 2010 and 2011. Second, Defendant argues that Plaintiff cannot demonstrate facts sufficient to establish the elements of his retaliation claim under LEWA.

Plaintiff opposes summary judgment, (Rec. Doc. 62), emphasizing the fact-intensive nature of his claims and that he has substantial evidence of all the required elements. Plaintiff also notes that credibility is a key question here, making summary judgment for Defendant inappropriate. Plaintiff does not mention Defendant's prescription argument.

By leave of Court, Defendant replies. (Rec. Doc. 64).

B. Plaintiff's motion for partial summary judgment

Plaintiff moves for partial summary judgment. (Rec. Doc. 55). Specifically, Plaintiff seeks dismissal of some of Defendant's affirmative defenses. Plaintiff alleges that these alleged affirmative defenses are merely boilerplate and have no support.

Defendant acknowledges that some affirmative defenses have not been pursued, but asserts that several of its affirmative defenses have been sufficiently developed such that summary ...


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