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Borcik v. Crosby Tugs, L.L.C.

Supreme Court of Louisiana

May 3, 2017

ERIC BORCIK
v.
CROSBY TUGS, L.L.C.

         ON CERTIFIED QUESTION FROM THE UNITED STATES FIFTH CIRCUIT COURT OF APPEALS.

          CRICHTON, J.

         Invoking Louisiana Supreme Court Rule XII, [1] the United States Court of Appeals for the Fifth Circuit certified to this Court the following question of law: "What is the meaning of 'good faith' as that term is used in the Louisiana Environmental Quality Act, Louisiana Revised Statutes 30:2027?" Borcik v. Crosby Tugs, L.L.C., 656 F.App'x 681, 685 (5th Cir. 2016). We accepted certification[2] and, for the reasons set forth below, answer the question as follows: The term "good faith, " as used in R.S. 30:2027, means an employee is acting with an honest belief that a violation of an environmental law, rule, or regulation occurred.

         FACTS AND PROCEDURAL HISTORY

         We decide certified questions on the facts as presented to us by the Court of Appeals. See, e.g., MCI Commc'ns Servs., Inc. v. Hagan, 2011-1039, p.2 (La. 10/25/11), 74 So.3d 1148, 1149. Beginning in 2008, Eric Borcik was employed by Crosby Tugs, L.L.C. (Crosby) as a deckhand. In July 2010, he was transferred to the M/V NELDA FAYE. Borcik claims that the lead captain of the NELDA FAYE ordered him to dump waste oil into navigable waters and otherwise violate environmental laws over a period of three years. He further claims that he followed these orders.

         In May 2013, Borcik emailed Crosby's Chief Administrative Officer (CAO). His email communicated that he had "concerns" that he stated "have all fallen on deaf ears" and expressed "fear [of] some form of retaliation." He later met with the CAO in person. According to the Court of Appeals, the parties and witnesses dispute what took place at this meeting-specifically, whether Borcik discussed his safety and environmental concerns with the CAO or whether he was "just complaining" while "vaguely mention[ing]" his concerns. After this meeting, Borcik was transferred to another boat and later fired. As noted by the Court of Appeals, "Borcik contends he was fired in retaliation for his complaints; Crosby contends that Borcik was fired for insubordination." 656 F.App'x at 682.

         Borcik sued Crosby in October 2013, alleging retaliatory termination in violation of Louisiana Environmental Quality Act ("LEQA"), R.S. 30:2001, et seq. He specifically claimed that Crosby violated the Louisiana Environmental Whistleblower Act, R.S. 30:2027, which provides, in pertinent part:

A. No . . . business . . . 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 . . . that the employee reasonably believes is in violation of an environmental law, rule, or regulation.

Id. (emphasis added). Borcik sought triple damages, including three years of lost wages, as well as damages for mental anguish and depression, humiliation and embarrassment, loss of enjoyment of life, medical expenses, and attorney's fees and costs.

         At trial in the federal district court, upon agreement of the parties and based on the elements of the whistleblower statute, the judge instructed the jury that, among the requirements of R.S. 30:2027, the statute requires that the "employee acts in good faith" and "reasonably believes this activity, policy, or practice of the boat captain is in violation of an environmental law." 656 F.App'x at 682-83 (emphasis by Court of Appeals). The dispute presented to this Court centers around the parties' disagreement about how "good faith" was defined by the federal district court in the jury instructions, and how "good faith" should be interpreted under R.S. 30:2027. Crosby proposed the definition: "Good faith means that Plaintiff had no intent to seek an unfair advantage or harm another party in making his report of an environmental violation." Borcik objected and proposed his own definition: "A finding of good faith means that the Plaintiff had an honest belief that an environmental violation occurred."

         The federal district court adopted a jury instruction that incorporated language from both proposed definitions, instructing the jury: "'[G]ood faith' means that the plaintiff had an honest belief that an environmental violation occurred and that he did not report it either to seek an unfair advantage or to try to harm his employer or another employee." Borcik objected, arguing that this misstated Louisiana law by incorporating language regarding "unfair advantage" or "harm." The district court overruled Borcik's objection. In its closing argument, Crosby emphasized this definition of "good faith, " arguing that Borcik "wanted to get [the Captain] in trouble" and that "if you conclude that's why he made this complaint, to get an unfair advantage, or to harm [the Captain] or anyone else, then you've got to dismiss this case." In rendering its verdict, the jury first found that Borcik "reasonably believed the activity which he reported was in violation of an environmental law." The jury then found that Borcik did not "make his report in good faith." These findings resulted in a defense verdict, and the federal district court entered a judgment for Crosby.

         Borcik appealed to the United States Court of Appeals for the Fifth Circuit. In a per curiam opinion, the Court of Appeals reviewed the existing law and jurisprudence, observing that the LEQA does not define "good faith" and finding only "limited guidance" elsewhere in the law. 656 F.App'x at 684. The Court of Appeals cited to the case Overton v. Shell Oil Co., 05-1001 (La.App. 4 Cir. 7/19/06), 937 So.2d 404, writ denied, 06-2093 (La. 11/3/06), 940 So.2d 674, as the only Louisiana case addressing the "good faith" element, but noted that Overton did not actually adopt any specific definition of "good faith." 656 F.App'x at 683-84. In invoking the certification privilege granted by Louisiana Supreme Court Rule XII, the Court of Appeals stated that it was "not prepared to speculate about how the Louisiana Supreme Court would define 'good faith' as used in the whistleblower statute." Id.

         LAW ...


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