United States District Court, W.D. Louisiana, Alexandria Division
DAVID G. SWIFT
AFCO INDUSTRIES, INC.
HORNSBY MAG. JUDGE.
T. TRIMBLE, JR. UNITED STATES DISTRICT JUDGE.
the court is "Defendant's Motion for Summary
Judgment" (R. #15) wherein defendant, AFCO Industries,
Inc. ("AFCO"), seeks summary judgment in its favor,
dismissing with prejudice Plaintiff's claims at
Plaintiff's cost. As of the date of this ruling,
Plaintiff has not opposed the motion and the time for doing
so has lapsed.
complaint, Plaintiff, David Swift, alleges that he was
terminated without cause in violation of Louisiana Employment
discrimination law because of his disability, because he
applied for short term disability benefits, because he filed
a claim against Defendant with OSHA, and because he filed a
worker's compensation claim.
Swift was employed at AFCO as a Finishing Manager from June
29, 2015 until February 12, 2016. Mr. Swift was ultimately
responsible for the performance of the entire Finishing
Department.During his tenure with AFCO, AFCO clients
rejected products that were Mr. Swift's responsibility as
Finishing Manager. Mr. Swift also had problems timely
completing finishing assignments. Mr. Swift was aware that
poor work performance could result in
Swift was counseled by AFCO General Manager, Willie
Summerville, at least twice prior to February 2016 for poor
work productivity. Mr. Swift admitted that Mr. Summerville
was dissatisfied with the Finishing Department's quality
of work while Mr. Swift was Finishing Manager. Mr. Summerville
sent Mr. Swift an email on November 16, 2015 expressing
dissatisfaction with Mr. Swift's performance regarding
product sent to Howard Medical. Mr. Summerville sent an email to
Brent Fontenot on January 17, 2016 about replacing Mr. Swift
due to a lack of confidence.
February 10, 2016, Mr. Swift appeared at work with a boot on
his foot from a non-work-related injury. Consequently,
Julie Bonial offered Mr. Swift to go out on short-term
disability; because he had not worked for AFCO for one year
or logged 1250 hours, Mr. Swift was not eligible for leave
under the Family Medical Leave Act. Mr. Swift declined the
offer of short term disability leave. On that same day, Mr.
Swift fell and alleged he was injured on the
February 12, 2016, Mr. Swift was terminated due to
performance issues. After he was terminated, Mr. Swift filed
for workers' compensation. After he was terminated, AFCO
found out that Mr. Swift had filed a complaint with OSHA on
February 7, 2016. After an investigation, OSHA concluded
there was no basis to Mr. Swift's allegation of
Whistleblower retaliation. AFCO was not aware that Mr.
Swift had filed a workers' compensation claim.
judgment is appropriate "if the pleadings, depositions,
answers to interrogatories and admissions on file, together
with the affidavits, if any, when viewed in the light most
favorable to the non-moving party, indicate that there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of
law. A fact is "material" if its
existence or nonexistence "might affect the outcome of
the suit under governing law." A dispute about a
material fact is "genuine" if the evidence is such
that a reasonable jury could return a verdict for the
non-moving party. As to issues which the non-moving party
has the burden of proof at trial, the moving party may
satisfy this burden by demonstrating the absence of evidence
supporting the non-moving party's
claim." Once the movant makes this showing, the
burden shifts to the non-moving party to set forth specific
facts showing that there is a genuine issue for
trial. The burden requires more than mere
allegations or denials of the adverse party's pleadings.
The non-moving party must demonstrate by way of affidavit or
other admissible evidence that there are genuine issues of
material fact or law. There is no genuine issue of material
fact if, viewing the evidence in the light more favorable to
the non-moving party, no reasonable trier of fact could find
for the non-moving party. If the evidence is merely
colorable, or is not significantly probative, summary
judgment may be granted. The court will construe all evidence
in the light most favorable to the nonmoving party, but will
not infer the existence of evidence not
lawsuit, Plaintiff alleges that AFCO retaliated against him
by discharging him because he filed a complaint with OSHA and
also because he filed for worker's compensation.
Defendant, AFCO, maintains that it had legitimate
non-retaliatory reasons for discharging Mr. Swift. Moreover,
AFCO was not aware that Mr. Swift had filed the complaint
with OSHA or filed for worker's compensation until after
they made the decision and in fact had terminated Mr. Swift.
AFCO also remarks that Mr. Swift was hired as an at-will
employee and that because of poor performance issues, his
probationary period was extended beyond the initial 90-day
maintains that there is no private right of action for
retaliatory discharge under OSHA. In Sosa v. Konecranes,
Inc.,  the court dismissed plaintiff's
claim of retaliatory discharge under OSHA finding that a
person who believes he/she has been discharged in violation
of OSHA must file a complaint with the Secretary of Labor. If
the Secretary finds that a violation has occurred, the
Secretary will file the appropriate action in the appropriate
United States District Court. In the instant case, the
Secretary denied Mr. Swift's complaint of retaliatory
discharge; specifically, the Secretary found that there was
no evidence to suggest that AFCO had knowledge or reason to
suspect or believe that Mr. Swift was the person who filed
the OSHA complaint. Hence, the court agrees that this claim
should be dismissed with prejudice.
moves to dismiss Mr. Swift's retaliation claim as
baseless. Louisiana Revised Statute 23:1361(B) provides that
an employee cannot be discharged for asserting a claims for
workers' compensation benefits. In order to recover, Mr.
Swift must establish by a preponderance of the evidence that
AFCO discharged him because he asserted a workers'
compensation claim, and if proven, the burden would then
shift to AFCO to demonstrate that it discharged Mr. Swift for
legitimate, non-discriminatory reasons. If AFCO offers a
legitimate, non-discriminatory reason for discharging Mr.
Swift, the court would then determine whether the proffered
reason is merely a guise or pretext for retaliatory
Swift has failed to establish that he was discharged in
retaliation for filing a workers' compensation claim
and/or for reporting a complaint to OSHA. There is no
evidence in the record that AFCO was aware of either of these
events. Even if Mr. Swift could establish that he had been
discharged for filing a workers' compensation claim
and/or for reporting a complaint to OSHA, AFCO has submitted