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Borcik v. Crosby Tugs, LLC

United States District Court, E.D. Louisiana

November 7, 2017


         SECTION “L” (2)

          ORDER & REASONS


         Before the Court are Plaintiff's Motion for Reconsideration, R. Doc. 130, and Defendant's Motion for Judgment as a Matter of Law or Alternatively, Motion for Summary Judgment, R. Doc. 135. Having considered the parties' arguments and the applicable law, the Court now issues this order and reasons.

         I. BACKGROUND

         In 2013, Eric Borcik brought suit against his employer, Crosby Tugs LLC, under the Louisiana Environmental Quality Act (“LEQA”) and the Louisiana Environmental Whistleblower Act (“LEWA”), claiming that he had been terminated in retaliation for reporting that his captain aboard the M/V Nelda Faye instructed him on multiple occasions to illegally dump waste oil into navigable waters. Borcik v. Crosby Tugs, LLC, No. 13-06212, 2015 WL 1525141, at *1 (E.D. La. April 2, 2015).

         Mr. Borcik began his employment with Crosby Tugs in 2008 aboard the M/V Carl Joseph but was soon transferred to the M/V Mr. Farrell. In 2010, while aboard the M/V Mr. Farrell, Mr. Borick complained to the company's safety department about various concerns of safety violations occurring aboard the M/V Mr. Farrell. Mr. Borcik was then transferred to the M/V Nelda Faye. Mr. Borcik alleged that during his three years aboard the M/V Nelda Faye, his captain instructed him to dump waste oil overboard, and that he addressed these instances on three occasions in letters to the company's safety department and human resources department. Mr. Borcik additionally alleged that in response to his complaints, his captain increased the length of his shifts and gave him more strenuous tasks than other employees. Further, Mr. Borcik contends that after speaking to a human resources manager about his concerns, he was transferred twice and then terminated, allegedly in retaliation for reporting the illegal dumping. Crosby Tugs maintains that the termination was non-retaliatory, but rather resulted from Mr. Borcik's insubordinate attitude. Borcik brought suit seeking damages for lost wages, mental pain, humiliation, embarrassment, medical expenses, loss of enjoyment of life, and costs.

         Mr. Borcik brought his claim under the LEWA, which provides protection for an employee who discloses or reports a practice or activity of his/her employer that the employee believes to be a violation of an environmental law. In particular, the act prohibits an employer from acting in a retaliatory manner towards an employee who, in good faith, “discloses or threatens to disclose, to a supervisor or public body an activity, policy, [or] practice of the employer… that the employee reasonably believes is in violation of an environmental law, rule, or regulation.” La. Rev. Stat. § 30:2027. At trial, the jury was instructed that to succeed in a LEWA claim, a plaintiff must demonstrate that he (1) acted in good faith; (2) reported or threatened to report an environmental violation to a supervisor; (3) reasonably believed the activity, policy, or practice to be a violation of an environmental law; and (4) were retaliated against by his employer because of the report. Borcik v. Crosby Tugs, L.L.C., 656 Fed. App'x 681, 682-83 (5th Cir. 2016). Because Louisiana law allows recovery only if a plaintiff demonstrates that the report of violations were made in good faith, the outcome of this case hinges on the definition of that term.

         The definition of good faith as it applies to the LEWA and LEQA was an issue of first impression when the case came before the district court. Mr. Borcik and Crosby Tugs proposed two different definitions of the term for the jury instruction. Id. at 683. Mr. Borcik proposed that “a finding of good faith means that the plaintiff had an honest belief that an environmental violation occurred.” In contrast, Crosby Tugs urged the district court to interpret good faith to mean that an employee “had no intent to seek an unfair advantage or harm another party in making his report. . . .” The district court ultimately delivered a jury instruction that combined elements of both propositions, defining good faith as “an honest belief that an environmental violation occurred and that [the plaintiff] did not report it either to seek an unfair advantage or to try to harm his employer or another employee.” During closing argument, Crosby Tugs emphasized the malice element by stressing that Mr. Borcik intended to harm his supervisor and told the jury that “if you conclude that's why he made this complaint, to get an unfair advantage, or to harm Captain LeBlanc or anyone else, then you've got to dismiss this case.” The jury ultimately decided that while Mr. Borcik reasonably believed the illegal dumping to be a violation of an environmental law, he did not make the report in good faith. Consequently, the district court entered a judgment for Crosby Tugs. Mr. Borcik appealed the district court's decision, arguing that the court erred by ill-defining good faith in the jury instruction.


         Considering the case on appeal, the Fifth Circuit determined that it could not deduce the meaning of good faith due to a lack of guidance from the Louisiana Supreme Court and other Louisiana courts. The court briefly discussed Overton v. Shell Oil Co., where they considered two alternative definitions of good faith in an environmental whistleblower case. However in that case, the court did not adhere to either definition and merely held that they could not find that the trial court had erred in determining that good faith existed. Id. at 684 (citing Overton v. Shell Oil Co., 937 So.2d 404 (La.App. 4 Cir. 7/18/06). The court further noted that the definition of good faith varies from state to state. Id. In Texas, for example, it “encompasses any situation in which an employee has a reasonable belief that a law has been broken, ” but other states apply a narrow definition that “excludes reports made at least partially with the ulterior motive of harming their employer or fellow employees.” Id. at 684. Due to the ambiguity, the court noted that it was not prepared to define good faith without further guidance, and certified the following question to the Louisiana Supreme Court: “What is the meaning of ‘good faith' as that term is used in the Louisiana Environmental Quality Act, Louisiana Revised Statutes 30:2027?”


         A. Louisiana Supreme Court Analysis

         Answering the certified question from the Fifth Circuit, the Louisiana Supreme Court held that for the purposes of the LEQA and LEWA, good faith “means an employee is acting with an honest belief that a violation of an environmental law, rule, or regulation occurred.” Borcik v. Crosby Tugs, L.L.C., No. 2016-CQ-1372, 2017 WL 1716226, at *1 (La. May 3, 2017). The Louisiana Supreme Court began by noting that it is imperative to search for the legislative intent when discussing a law's interpretation. Id. at *3. Consequently, the court first analyzed the plain text of the statute and concluded that the language of the LEQA did not define “good faith” for the purposes of the statute. The ambiguity of the term, the court noted, was evidenced by the objection of both parties to the proposed definitions and the Fifth Circuit's hesitancy to define the term itself. Id. at *3.

         Next, the court turned to the secondary rules of statutory interpretation, attempting to discover the legislative purpose of the acts. The court began by discussing Article IX ...

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