United States District Court, M.D. Louisiana
RULING AND ORDER
A. JCKSON, UNITED STATES DISTRICT COURT JUDGE
the Court is Defendant Targa Resources LLC's Rule
12(b)(6) Motion to Dismiss the Petition for Damages. (Doc.
10). In response, Plaintiff Kirk Menard filed a
First Amending and Superseding Complaint for Damages (Doc.
14), in addition to an opposition to Defendant's Motion
to Dismiss (Doc. 15). Also before the Court is
Defendant's Motion to Dismiss Plaintiffs Amended
Complaint. (Doc. 19). Plaintiff filed an opposition
to this motion. (Doc. 20). For the reasons stated below,
Defendant's motions are DENIED.
matter arises from allegations that Plaintiff was wrongfully
terminated in retaliation for alerting his immediate
supervisor of Targa's alleged attempts to deceive the
Louisiana Department of Environmental Quality
("LDEQ"). Plaintiff was employed by Targa as an
environmental Safety & Health Specialist. (Doc. 1 at ¶
4). Plaintiff alleges that on October 5, 2108, he
participated in a conference call with the Targa operations
team, during which he informed company officials that the
levels of total suspended solids ("TSS") in
Targa's septic tanks exceeded regulatory limits. (Doc. 1
at ¶ 5). Plaintiff asserts that near the end of the
call, Targa's district manager, Perry Berthelot, asked
Plaintiff to call him to discuss possible solutions to the
high TSS levels. (Id. at ¶ 6). Plaintiff claims
that despite being warned to be wary of Berthelot by other
employees, Plaintiff felt compelled to call him.
(Id. at ¶ 7). Plaintiff avers that during the
conversation, Berthelot encouraged him to dilute the septic
system water samples with tap water to deceive the LDEQ.
(Id. at ¶ 10). Plaintiff claims that he found
Berthelot's suggestions to be inappropriate and possibly
unlawful, and reported the conversation to his immediate
supervisor, David Smith. (Id. at ¶¶
11-13). Plaintiff claims that he did not dilute any of the
water samples. (Id. at ¶ 14). Plaintiff avers
that on October 10, 2018, he received a phone call from
Harrod Gregg, a safety supervisor, alleging that he had
received a complaint of "inappropriate comments"
and that on the next day, Plaintiff was fired. (Id.
at ¶¶ 14-15). Plaintiff brought claims against
Defendant for violations of the Louisiana Environmental
Whistleblower Statute ("LEWS") and the Louisiana
Employee Whistleblower Statute.
moved to dismiss Plaintiffs petition for damages on the
grounds that Plaintiffs LWS claim was superseded by the more
specific LEWS claim, and that the petition failed to alleged
sufficient facts to show that Plaintiff believed that
Targa's actions constituted a violation of an
environmental law. (Doc. 10-1 at pp. 1-2). In response to
Defendant's motion to dismiss, Plaintiff filed a
"First Amending and Superseding Complaint for
Damages" which abandoned the LWS claim. (Doc. 14).
Defendant also moved to dismiss the first amending complaint.
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of the complaint against the legal standard set forth in Rule
8, which requires "a short and plain statement of the
claim showing that the pleader is entitled to relief."
Fed.R.Civ.P. 8(a)(2). "To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to 'state a claim to relief that is plausible on
its face.'" Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Ail. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). "Determining whether a
complaint states a plausible claim for relief [is] ... a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense."
Ashcroft, 556 U.S. at 679.
plausibility" exists "when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Id. at 678 (citing Twombly,
550 U.S. at 556). Hence, the complaint need not set out
"detailed factual allegations," but something
"more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action" is
required. Twombly, 550 U.S. at 555. When conducting
its inquiry, the Court "accepts all well-pleaded facts
as true and views those facts in the light most favorable to
the plaintiff." Bustos v. Martini Club Inc.,
599 F.3d 458, 461 (5th Cir. 2010) (quotation marks omitted).
argues that the LEWS claim supersedes the LWS claim, as the
LEWS statute is a more specific version of the LWS statute,
and therefore should apply to this lawsuit. Collins v.
State ex rel. Dept of Natural Resources, 2012-1031
(La.App., 1 Cir. 5/30/2013) (holding that where both a
general statute and a specific statute covers the same
subject matter, the more specific statute should govern). The
Court need not reach the merits of this claim, as Plaintiffs
First Amending Superseding Complaint for Damages abandons any
claims made under LWS.
remains are Plaintiffs 12(b)(6) motions to dismiss both the
original petition for damages and the amended complaint.
Petition for Damages
argues that Plaintiff fails to allege facts showing that
Plaintiff believed that an activity, policy, or practice of
Targa constituted a violation of constitutional law, rule, or
regulation. (Doc. 10-1 at p. 5). Defendant further argues
that Plaintiff hasn't established any causal connection
between his firing and the conversation Plaintiff had with
Berthelot. Specifically, Defendant claims that at the time
Plaintiff alerted Smith of the conversation with Berthelot,
no illegal activity had occurred. (Doc. 10-1).
Court disagrees. "To make a claim for retaliation under
LEWS, there must be a showing of illicit motivation."
Powers v. Vista Ghent. Co.,109 F.3d 1089, 1094 (5th
Cir. 1997). Further, an employee must allege that he
reasonably believed the complained of action violated an
environmental law, rule or ...