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Gaspard v. Bechtel Oil, Gas & Chemicals Construction Services, Inc.

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

June 4, 2018


          KAY MAG. JUDGE



         Before the court is "Defendant Bechtel Oil, Gas & Chemicals Construction Services, Inc.'s Motion for Summary Judgment" (R. #29) wherein the mover seeks to dismiss Plaintiff, Juan Gaspard's claims pursuant to Federal Rule of Civil Procedure 56 and Local Rule 56.1. Bechtel Oil, Gas & Chemicals, Construction Services, Inc. ("Bechtel") maintains that Plaintiff cannot establish a prima facie case for three (3) reasons: (1) he did not identify any specific state law violation while employed by Bechtel; (2) there was no violation of any Louisiana law; and (3) Plaintiff cannot establish a causal connection between his alleged protected activity and his discharge. Bechtel also moves for dismissal because Plaintiff cannot show that Bechtel's decision to terminate his employment was pretext for unlawful retaliation.


         Mr. Gaspard was employed by Bechtel on two separate occasions: (1) from December 14, 2014 until March 16, 2015; and (2) from August 24, 2015 until he was terminated on October 12, 2015.[1] Bechtel Superintendent, Walter Wendler, terminated Plaintiff's employment documenting the following reasons:

Mr. Gaspard's termination is based on his accumulated misconduct, unpredictable behavior, and poor judgment since his hire on August 24, 2015. Some examples are reporting an injury several days after it occurred, using curse words and aggressive behavior toward a female coworker, being out of his work area for three hours, changing stories in the middle of incident investigations, being aggressive, loud and confrontational during incident investigations, and finally, his reckless behavior that could have potentially caused an injury to a coworker when Mr. Gaspard was rigging on a pipe that the coworker was trying to secure.[2]

         On September 12, 2015, Mr. Gaspard reported that he was injured on August 29, 2015 while being transported in a lift operated by a female co-worker.[3] Plaintiff admitted that on August 29, 2015, he cursed and yelled at a female co-worker shouting "[w]hat the f... are you doing, you stupid b....."[4] Superintendent Wendler investigated Plaintiff's conduct during an October 3, 2015 work assignment and concluded that Plaintiff disregarded instructions, acted recklessly and demonstrated poor judgment.[5] In that regard, Wendler made the following conclusions:

I believe Mr. Gaspard's behavior is unpredictable. I owe my other employees a safe and friendly work environment, and Mr. Gaspard is making that difficult. I hate to lose him as a skilled craftsman, but in my opinion the frustration he brings to the crew and the risk he poses to a safe work environment outweigh his ability as a Pipefitter.[6]

         As to Mr. Gaspard's concerns regarding safety issues, he testified that he complained to Bechtel through Walt Wendler of the following issues (1) workers were either unskilled, or had "shoddy craftsmanship", (2) there was a "language barrier" created by non-English speaking workers, (3) employees possessed and used cell phones at work, (4) people walking under suspended loads, and work being performed under suspended loads, (5) "open holes in decks" (6) "overstressed" chokers, (7) and "pipe hanging by lashing that wasn't on."[7] Mr. Gaspard also testified that after his termination, he reported these same concerns to the OSHA Area Office in Baton Rouge.[8]

         Bechtel challenges Mr. Gaspard's categorization of the above mentioned alleged violations as violations of "industry standards" as opposed to a violation of a specific code.[9]Bechtel informs the court that Mr. Gaspard attempted to cause OSHA to change a standard by filing suit against OSHA alleging that the existing OSHA standard as to "open holes" was defective.[10] That complaint was dismissed.

         After an investigation by OSHA, Mr. Gaspard's whistleblower complaint was dismissed; OSHA concluded that Mr. Gaspard was terminated for legitimate, non-retaliatory reasons:

The investigation demonstrated that Complainant was discharged for not reporting a work related injury for 14 days after the injury, a violation of Respondent's safety policies, and violation of the anti-harassment policy by yelling and cursing at a co-worker. In addition, as a crew was attempting to lash down a pipe, Complainant ignored their commands to stop work and persisted in trying to move the pipe. Because of Complainant's actions a coworker almost suffered a hand injury.[11]


         Summary 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.[12] A fact is "material" if its existence or nonexistence "might affect the outcome of the suit under governing law."[13] 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.[14] 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."[15] 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.[16] 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.[17] 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.[18] If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.[19] The court will construe all evidence in the light most favorable to the nonmoving party, but will not infer the existence of evidence not presented.[20]


         Louisiana Revised Statute 23:967, the Louisiana Whistleblower Statute ("LWS"), provides as follows:

A. An employer shall not take reprisal against an employee who in good faith, and after advising the employer of the violation of law:
(1) Discloses or threatens to disclose a workplace act or practice that is in violation of state law.
(2) Provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of law.
(3) Objects to or refuses to participate in an employment act or practice that is in violation of law.

         A violation of the statute occurs if: (1) the employer violated Louisiana law through a prohibited workplace practice; (2) the plaintiff advised the employer of the violation; (3) the plaintiff threatened to disclose or disclosed the prohibited practice; and (4) the plaintiff was terminated as a result of the threat to disclose or because of the disclosure of the prohibited practice.[21] Thus, Mr. Gaspard must prove that Bechtel "committed an actual violation of [Louisiana] law/'[22] not just a good faith belief that a law was broken.[23]

         In order for Mr. Gaspard to establish a prima facie case of retaliation under the LWS, he must show (1) that he engaged in activity protected by the statute; (2) he suffered an adverse employment action; and (3) a causal connection existed between the activity in which he engaged and the adverse action."[24] Claims under the LWS are analyzed under the framework espoused in McDonnell Doufilas Corp. v Green, [25] wherein once a plaintiff makes a prima facie showing that his termination was retaliatory, the burden shifts to the defendant "to state a legitimate, nondiscriminatory reason" for firing the plaintiff.[26] After the defendant states a legitimate, nondiscriminatory reason for the termination, the burden "shifts back" to the plaintiff "to show pretext; that is, to prove by a preponderance that the employer fired him, not for its stated reasons, but in retaliation for his stated intention to report illegal workplace practices."[27]

         Bechtel maintains that Mr. Gaspard's complaint must be dismissed because he failed to report to his employer and/or his supervisor(s) a specific violation of Louisiana's safety laws. Mr. Gaspard maintains otherwise. Mr. Gaspard asserts that during his two tenures with Bechtel, he complained of safety violations daily such as those mentioned hereinabove. Mr. Gaspard submits his own deposition testimony and the affidavit of Matthew Brewer who declares that Mr. Gaspard "Juan complained onsite to other Bechtel employees and supervisors of unsafe working conditions and violations of industry standards and state law many times.[28] Mr. Brewer also declared that he had "witnessed several unsafe working conditions ... ."[29]

         Mr. Gaspard maintains that Bechtel violated state laws; he relies on Louisiana Revised Statute 23:13 regarding an employer's duty as to safety. It provides as follows:

Every employer shall furnish employment which shall be reasonably safe for the employees therein. They shall furnish and use safety devices and safeguards, shall adopt and use methods and processes reasonably adequate to render such employment and the place of employment safe in accordance with the accepted and approved practice in such or similar industry or places of employment considering the normal hazard of such employment, and shall do ...

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