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Gaspard v. Bechtel Corp Inc.

United States District Court, W.D. Louisiana, Lake Charles Division

March 6, 2017

JUAN GASPARD
v.
BECHTEL CORP. INC.

          Kay Mag. Judge

          MEMORANDUM RULING AND ORDER

          JAMESS T. TRIMBLE, JR. UNITED STATES DISTRICT JUDGE

         Before the court is "Defendant Bechtel Corporation's Rule 12 (b)(6) Motion to Dismiss" (R. #5) wherein defendant, Bechtel Corporation Inc. ("Bechtel") moves the court to dismiss the instant complaint. Bechtel maintains that Plaintiff, Juan Gaspard's claims fail as a matter of law because the Complaint fails to identify the necessary predicate of an actual violation of a specific state law. Bechtel complains that the Complaint hinges on unspecified violations of "health and safety laws, rules and regulations" that stem from the Occupational Safety & Health Act ("OSHA"), 29 U.S.C. § 651 et seq. Bechtel maintains that Mr. Gaspard's allegations that the employer violated federal law are insufficient to support the Louisiana Whistleblower Statute ("LWS") claims; consequently, the complaint fails to state a cause of action upon which relief can be granted.

         FACTUAL ALLEGATIONS

         In his complaint, [1] Mr. Gaspard makes the following allegations: Plaintiff was employed by Bechtel Oil, Gas and Chemicals, Inc. ("BCOGC")[2] at the site of its project at the Cheniere Sabine Pass Liquefied Natural Gas Facility in Cameron Parish, Louisiana. Mr. Gaspard alleges that he advised BCOGC of certain violations of both state and federal laws during his term of employment in a good faith effort to remedy those problems. After reporting the alleged violations, Mr. Gaspard disclosed the violations to the Department of Labor and/or OSHA and filed a formal complaint with the Secretary of Labor alleging various violations of the Occupational Safety & Health Act ("OSHA").[3] The complaint was dismissed by letter dated March 7, 2016. Mr. Gaspard alleges that he not only refused to participate in BCOGC's unlawful practices, but he disclosed those practices he believed were in violation of state and federal laws, rules and regulations to his employer.

         Mr. Gaspard's state law claims are based on Louisiana Revised Statute 23:967[4]; he asserts protection from reprisal and prohibited practices.

         RULE 12(b)(6) STANDARD

         Fed. R. Civ. P. 8(a)(2) requires that pleadings which state one or more claims for relief must contain "...a short and plain statement of the claim showing that the pleader is entitled to relief..." This "notice pleading" requirement is balanced against Fed.R.Civ.P. 12(b)(6), which provides that a court may dismiss one or more claims when the pleader fails to state a claim upon which relief may be granted.

         For the purpose of considering a motion to dismiss pursuant to Rule 12(b)(6), the court must take all well-pled factual allegations as true and must view them in the light most favorable to the plaintiff.[5] The pleading must allege facts which, when taken as true, raise the pleader's claim. A motion to dismiss for failure to state a claim should be denied unless "it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts" alleged in the petition.[6]

         Only those facts which are well-pleaded and state a "plausible claim for relief" must be accepted.[7] A claim is plausible when the court can reasonably infer from the facts that the defendant is liable to the plaintiff; a claim is not plausible when it only states conclusions of a "formulaic recitation of the elements of a cause of action."[8] However, even those facts which are extremely doubtful are to be assumed correct.[9]

         LAW AND ANALYSIS

         To properly state a claim under the Louisiana Whistleblower Statute ("LWS"), Plaintiff must prove: (1) Bechtel violated a state law through a prohibited workplace practice: (2) Plaintiff advised Bechtel of the violation; (3) Plaintiff then refused to participate in the prohibited practice or threatened to disclose the practice; and (4) Plaintiff was fired as a result of his refusal to participate in the unlawful practice.[10] The LWS requires that the plaintiff prove his/her employer "actually violated a state law;" a good faith belief is not enough.[11] Only violations of state law, not federal law, can support a cause of action under the LWS.[12] Louisiana state and federal courts have consistently dismissed LWS claims based on federal law.[13] Our Fifth Circuit Court of Appeals has found that a plaintiff must point to a specific provision of state law which the employer violated.[14]

         BCOGC maintains that the instant complaint must be dismissed because it fails to state a cause of action under state law. Plaintiff maintains that the complaint alleges various violations of regulations, law and the company's own policy including (1) Various OSHA violations, (2) fraudulent allegations as a pretext for firing, (3) failing to correct safety violations caused by ignoring established safety rules and/or caused by a language barrier.

         Plaintiff maintains that BCOCG violated Louisiana 23:13[15] multiple times. Specifically, he alleges that (1) at a training meeting on or about September 2, 2015, he complained of witnessing numerous violations of state and federal laws including miscommunications between non-English speaking employees operating heavy equipment in violation of safety laws.[16] On September 10th and 11th, Plaintiff refused to work after complaining of federal and state health and safety violations.[17] Plaintiff further asserts that Defendant violated Louisiana Revised Statute 23:14[18]; Plaintiff ...


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