1 United States Court of Appeals,

Fifth Circuit.

No. 96-30138.

Norman M. POWERS, Plaintiff-Appellee, Cross-Appellant,

v.

VISTA CHEMICAL COMPANY, Defendant-Appellant, Cross-Appellee.

April 11, 1997.

Appeal from t he United States District Court for the Western

District of Louisiana.

Before POLITZ, Chief Judge, and WIENER and STEWART, Circuit Judges.

STEWART, Circuit Judge:

This case presents the questio n of whether Vista Chemical

Company violated Louisiana's environmental whistleblower statute

(La. R.S. 30:2027 (West Supp.1996)) by firing Norman M. Powers in

retaliation for Powers's disclosure of an environmental violation.

Powers was terminated after he stormed out of a meeting in which he

disclosed environmental violations to his supervisor at Vista. It

was uncontradicted that approximately two weeks prior to the

meeting with Powers, Vista had already reported the environmental

violation to the United States Environmental Protection Agency and

Louisiana's Department of Environmental Quality (DEQ); Vista had

already obtained identical informatio n about the violation from

Powers's co-workers; Vista did not take any adverse action against

any of Powers's co-workers; Vista never advised Powers to withhold

information from the environmental authorities; and Vista did not

take any adverse action against Powers for anything he said to the

DEQ. At the same time, Powers admitted that abruptly leaving the2

meeting with his supervisor (in which he cursed at the supervisor)

was grounds for discharge. Under these facts, Powers's case was

submitted to a jury, who returned a verdict in Powers's favor.

Pursuant to § 2027, the jury awarded Powers $504,000 (after damages

were trebled), which was remitted to $369,000.

Vista moved for judgment as a matter of law, arguing that §

2027 required Powers to prove that his disclosure must have

motivated Vista to terminate him, and that the evidence did not

support such a finding. The district court denied the motion,

reasoning that § 2027 did not require a showing of illicit

motivation and that, "unfortunately for Vista," Powers's disclosure

happened to concern the environment.

Finding that § 2027 does require a showing of motivation and

that therefore the district court erred in denying Vista's

post-trial motion for judgment as a matter of law, we REVERSE.

Because we also find that the evidence was insufficient to support

a finding of illicit motivation, we RENDER judgment for Vista.

BACKGROUND

The defendant, Vista Chemical Company ( Vista), is a large

petrochemical plant, and Vista hired the plaintiff, Norman M.

Powers, in 1991. Vista's Rules of Conduct, which Powers signed,

provided that Vista employees may be fired at any time for, among

other things, insubordination.

In 1992, Powers wo rked in a "Quench Unit," which uses

oil-based liquids to manufacture Vista's products. The solid waste

genera ted from Vista's manufacturing process is dumped into3

concrete-lined sand filters. Vista's permit from Louisiana's DEQ

allows Vista to dump the waste in the sa nd filters provided the

materials have a "low flashpoint" (i.e., the materials do not

ignite at a temperature below 140 o F) . The flashpoint level can

only be determined through laboratory testing, not by sight or

smell. Once the waste is dumped into the sand filters, Vista

further processes the waste. Whatever is left over is then taken

to a hazar dous waste landfill (to Chem Waste Management), which

customarily tests the waste for flashpoint levels.

On October 13-14, 1992, one of Vista's operators pumped solid

waste into the sand filters. On October 15, 1992, Powers loaded

40,000 pounds of waste from the filters into a truck bound for Chem

Waste. Although Vista's shipments had never before tested positive

for a low f lashpoint, the October 15 shipment did. Chem Waste

immediately notified Vista. Vista then conducted its own tests and

confirmed that the October 15 shipment did indeed test positive for

a low flashpoint. By early afternoon on October 15, 1992, Vista

realized that it had violated the terms of its DEQ permit. By

October 16, 1992, Vista had notified the various state and regional

divisions of the DEQ and the Environmental Protection Agency that

waste dumped into Vista's sand filters tested positive for a low

flashpoint. On October 16, Vista assembled a four-person team to

investigate the incident. Jim Lewing was a member of that team.

On October 19, DEQ inspectors mad e an unannounced visit to

Vista's plant. The purpose of the visit was to determine how

low-flashpoint material made its way into the sand filters and4

what, if anything, Vista was doing to prevent that from happening

again. Lewing's subordinate instructed Powers to accompany the DEQ

inspectors because Powers was on duty when the lowfla shpoint

material was shipped to Chem Waste. Powers was instructed to

truthfully answer questions posed by the DEQ. During DEQ's visit,

Powers did n ot complain about any environmental problems or

violations.

At the same time, on October 19, Lewing prepared eight

standard questions he would ask the opera tors who would be

questioned in connection with the investigation of the incident.

Question 4 stated the following: "When did you find the solvent on

the sand filters[?]" According to Vista, on October 19 and 20,

Lewing questioned various operators , including Powers, who had

worked in the sand filter area on or about October 15. In response

to Question 4, one operator told Lewing that the solvent had been

there "approximately three weeks"; another operator said that the

sand filters "always" contained solvent; and a third operator

allegedly told Lewing that the solvent problem existed for "several

weeks." None of these operators were ever told to change their

story with regard to the existence of low-flashpoint solvent on the

sand filters and none were fired as a result of their disclosures.

According to Vista, Powers told Lewing that he found low-flashpoint

solvent in the sand filters "last Thursday, October 15, 1992, or

last Wednesday." Lewing took notes during the meeting that

reflected the operators' responses to Question 4. At this point,

Lewing believed that operator error caused low-flashpoint material5

to enter the sand filters.

At trial, Powers denied that an October 19 meeting with Lewing

ever took place and denied that he responded to Question 4 in the

manner that Lewing claimed. The parties also disagree about what

happened after the alleged October 19 meeting between Lewing and

Powers.

According to Vista, on October 27, Lewing began a cus tomary

second round of interviews with the operators who had knowledge of

the October 15 incident. Lewing testified that all of the

operators provided Lewing with essentially the same responses, with

one exception—Powers. Vista claims that at the second interview,

conducted about one mile from Lewing's office (at the press

buildi ng), Powers changed his story and stated that solvent had

been on the sand filters several months earlier. Lewing then

became frustrated with Powers's changed story and went back to his

office. Lewing summoned Powers to his office. After further

questioning, Powers abruptly got up and walked out of the meeting,

saying "I don't have to put up with thi s crap...." Powers was

allegedly fired for his insubordinate conduct at the meeting.

Powers admitted that his conduct at the meeting was gro unds

for discharge. Powers also admitted that neither Lewing nor anyone

else at Vista (1) told Powers to withhold information from the EPA

or DEQ, (2) took any action against Powers "for anything [he] said"

or any "report [he] gave" the DEQ, or (3) told Powers to cover up

the envir onmental violations. The DEQ concluded that Vista was

helpful and cooperative and that Vista was not attempting to cover6

up the environmental violations.

Powers story is slightly different. He claims that the first

meeting he had with Lewing occurred on October 27, not October 19,

when Lewing approached him at the press building. When asked when

he first saw the solvent in the sand filters, Powers responded that

it had been there since Powers first began working in the sand

filter area (i.e., for months). Powers claims that at that point

Lewing "kind of exploded" and said that Powers was lying. Powers

denied the allegation and repeated his claim that the solvent had

been there for months. At that point, Powers testified that Lewing

threatened Powers by saying the following: "Look, ... you are just

a green hat out here, and ... you are going to say any damn thing

I want you to say, or I am going to run your ass out the gate."

Without any citation to the record, Powers claims that he "was

of the impression that Jim Lewing wished to intimidate him into

saying that the October 15th incident was just a three day [ sic ]

problem." Powers claims that Lewing then abruptly left. After

being summoned to Lewing's office, Powers reiterated his claim that

the low-flashpoint solvent had been in the sand filters for months,

to which Lewing allegedly yelled, hit the desk, accused Powers's of

lying, and said that he would run his "ass out the gate."

According to Powers, Lewing sought to ensure that Lewing's version

of the cause of the accident—operator error —went unchallenged.

Powers sums up the evidence as follows:

[T]he "party line" on October 27, 1992, to which Jim Lewing

was attempting to force adherence, was that it was operator

error, in order that Lewing could asse rt that the violation

had just been on the sand filter impoundments for just a day7

or so, not two months or longer. This is certainly a credible

interpretation of the e vidence, which leads one to the

conclusion that Jim Lewing's actions against plaintiff were to

retaliate against him for disclosing the longer term problem.

PROCEDURAL HISTORY

Powers filed suit against Vista claiming that he was fired in

retaliation for disclosing that the low-flashpoint solvent was in

the sand filters for weeks to months, not just a few days. The

jur y found that Vista violated Louisiana's whistleblower law and

awa rded Powers $168,000, which, pursuant to the statute, was

trebled to $504,000. Powers was also awarded attorneys' fees.

At the close of Powers's case and after the jury returned its

verdict, Vista moved the district court for judgment as a matter of

law, arguing that the evidence was insufficient to support Powers's

claim that Vista terminated him in violation of the whistleblower

statute. In the alternative, Vista asked for a remittitur. The

district court, although it found that there was insufficient

evidence to show that Vista was motivated by "environmental

reasons," nonetheless denied Vista's motion, concluding that

"unfortunately for Vista," the disagreement between Lewing and

Powers happened to concern the environment. However, the district

court ordered Powers to accept a remittitur to $369,000 or face a

retrial on all issues. Powers accepted the remittitur. Vista

timely appealed and Powers cross-appealed.

STANDARD OF REVIEW

We must determine whether the district court erred when it

denied Vista's motion for judgment as a matter of law at the close

of the evidence and a fter the jury returned its verdict. "The8

standard of review of a denial of a motion for judgment as a matter

of law depends on whether the defendant has properly preserved the

issue by moving for judgment as a matter of law at the conclusion

of all of the evidence." S ee Polanco v. City of Austin, 78 F.3d

968, 973-74 (5th Cir.1996) (citing Bunch v. Walter, 673 F.2d 127,

130 n. 4 (5th Cir .1982)). Here, Vista moved for judgment as a

matter of law at the close of the evidence.

Accordingly, we analyze the sufficiency of the evidence to

determine whether a reasonable jury could have come to the

conclusion that it did. I d. at 974. "We will reject a verdict in

those instances when, despite considering all the evidence in the

light and with all reason able inference most favorable to the

verdict, we find no evidence of such quality and weight that

reasonable and fair-minded men in the exercis e of impartial

discretion could arrive at the same conclusion." Thrash v. State

Farm Fire & Cas. Co., 992 F.2d 1354, 1356 (5th Cir.1993)

(quotations omitted). Of course, we review d e novo the district

court's conclusions of law.

DISCUSSION

I. T HE M EANING OF L OUISIANA ' S E NVIRONMENTAL W HISTLEBLOWER S TATUTE

This case presents an issue of first impression for the Fifth

Circuit and Louisiana attorneys. We must decide the meaning of

Louisiana's environmental whistleblower statute, codified at La.

R.S. 30:2027 (West Supp.1996). Because we sit in diversity, we are

mindful of our duty to interpret the law as would a Louisiana

court. E rie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed.9

1188 (1938). In making an E rie guess, we have said that "[w]e are

emphatically not permitted to do merely what we think best; we

must do that which we think the [Louisiana] Supreme Court would

deem best." Jackson v. Johns-Manville Sales Corp., 781 F.2d 394,

397 (5th Cir.) (en banc), c ert. denied, 478 U.S. 1022, 106 S.Ct.

3339, 92 L.Ed.2d 743 (1986).

With that said, we begi n with the statute. Louisiana's

environmental whistleblower statute provides in part:

A. No firm, business, private or public corporation,

partnership, individual employer, or federal, state, or local

governmental agency 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,

or another employer wit h whom there is a business

relationship, that the employee reason ably believes is in

violation of an environmental law, rule, or regulation.

* * * * * *

B. (1) Any employee agai nst whom any action is taken as a

result of acting under Subsection A of this Section may

commence a civil action

... and shall recover from his

employer trip le damages resulting from the action taken

against him....

La. R.S. 30:2027 (emphasis added).

The parties both argue that the term "discloses" in § 2027 is

unambiguous and supports their respective positions. Powers argues

that the language of § 2027 is pl ain—it covers "disclosures"

regardless of the economic or other consequences that may flow from

such a disclosure. He contends, and the district court agreed,

that any other re ading of the statute would produce absurd

consequences. "Under defendant's reading of the statute," argues10

Powers, "if twenty employees learned of an environmental violation

and disclosed it to their supervisor, only the first would be

protected and the other nineteen could be terminated with impunity,

as nothing new was being disclosed." Vista, on the other hand,

contends that the plain language of § 2027 supports its position.

Vista argues that the term "discloses" should be interpreted from

the perspective of the employer. "[I]t makes no sense," asserts

Vista, "to view the word "discloses' from the standpoint of the

employee

... because the plaintiff cannot free himself from secrecy

or ignorance by telling something."

We do not find, however, that this case turns on the meaning

of "discloses" in § 2027. We assume, without deciding, that

Powers's statements to his supervisor were disclosures protected by

§ 2027. Instead, we must decide what it means for an employer to

"act in a retaliatory manner" after an employee discl oses or

threatens to disclose an environmental violation. The district

court concluded that Powers was not required to show that his

disclosure motivated Vista to terminate him. Stated differently,

the district court was of the view that under § 2027, an employer

can retaliate against an employee for disclosing an environmental

violation even though t he employer is not motivated by the

disclos ure to take the adverse employment action. We must

determine whether the district court was correct in so concluding.

We hold that to r etaliate within the meaning of § 2027

requires a showing of illicit motivation. Section 2027 was enacted1 The relevant portions of the 1981 version of § 2027 protected

" reports or complain[ts] about possible environmental violations."

(Emphasis added.)

11 in 1981 and amended in 1991, 1 and we deal here with the amended §

2027. However, neither the Louisiana Supreme Court nor any

intermediate appellate courts within Louisiana have interpreted the

amended version of § 2027. Nor have we found any legislative

history that sheds light on the issues in this case. Louisiana

courts have, however, interpreted the predecessor to § 2027, and we

find these decisions helpful in our determination of the meaning of

the phrase "act in a retaliatory manner" in § 2027.

In Cheramie v. J. Wayne Plaisance, Inc., 595 So.2d 619

(La.1992), the Louisiana Supreme Court, interpreting the pre-1991

version of § 2027 (which contained the identical retaliation

language), held that an employee fired for refusing to do illegal

work that is damaging to the environment is entitled to damages

under § 2027. I d. at 624. The court reasoned that § 2027 provided

relief for the plaintiff because "he complained about his

employer's intention of violating state and f ederal law by

continuing operations in a protected area without a permit." Id.

Similarly, in Bartlett v. I.D. Reese, 569 So.2d 195

(La.Ct.App. 1st Cir.), writ denied, 572 So.2d 72 (La.1991), the

Louisiana Court of Appeals held that the precursor to § 2027,

which, as in Cheramie, contained the same "retaliation" language as

the current version of § 2027, is triggered because the employee

was fired because he reported an environmental violation. Id. at

200-02. In reaching this conclusion, the court of appeals noted2 The dictionary defines "motive" as "some inner drive,

impulse, intention, etc. that causes a person to do something or act in a certain way...." W EBSTER ' S , at 886.

12 that the reported environmental violation had potentially adverse

economic consequences for the company (in the form of cancellation

of a contract). Id. at 201, 202.

The construction of § 2027 in Cheramie and Bartlett comports

with the common-sense meaning of the word "retaliate." The

dictionary defines "retaliate" as "to return like for like; ... to

return evil for evil; pay back injury for injury; ... to return

an injury, wrong

... for (an injury, wrong

... )...." W E BSTER ' S N EW

W ORLD D ICTIONARY at 1145 (3d College ed.1994); s ee, e.g., Sumrall v.

Luhr Bros., 665 So.2d 796, 800 (La.Ct.App. 1st Cir.1995) (looking

to Black's Law Dictionary for common and approved usage), writ

denied, 669 So.2d 425 (La.1996). Plainly, for an employer to

retaliate against an employee, the employer must be motivated

(i.e., form a subjective intent) to take adverse employment action

in return for the perceived "wrongful" conduct of the employee. 2

In both Cheramie and Bartlett, the employer fired the employee

because the employee committ ed the "wrong" of whistleblowing—by

refusing to do a job that would have been in violation of

environmental laws ( Cheramie ) and by reporting an unreported

environmental violation ( Bartlett ).

Although Cheramie and Bartlett involved interpretations of the

pre-1991 version of § 2027, we no netheless conclude that the

Louisiana Supreme Court would hold that the meaning of the phrase

"act in a retaliatory manner" in § 2027 requires a showing that the3 The parties spent a great deal of energy argui ng over the

propriety of th e jury instructions. The jury was told that to

recover under § 2027, Powers's disclosure had to be "a

determinative factor" in Vista's decision to terminate him. Vista

argued strenuously that the statute requires a showing that the

disclosure was the "sole" or "the substantial determinative" factor

in Vista's decision.

We decline to address t his issue because it is

unnecessary to the resolution of this case. As we discuss in

the text, we have found that the record does not support a

finding that Powers's environmental disclosure motivated Vista

to fire him. Given the facts of this case, providing a

precise definition of "motivation" (in the form of a § 2027

jury instruction) would not only be unwise, but is precisely

the type of exercise we feel is bes t left to the Louisiana

Supreme Court and intermediate courts of appeals.

13 employ er was motivated to fire an employee because of the

employee's disclosure of an environmental violation. Otherwise, §

2027 would be transformed into a wrongful-discharge statute which

covers adverse employment actions that have nothing to do with an

employee's disclosure of an environmental violation—a result

inconsistent with Louisiana's employment at-will doctrine. S ee La.

C.C. art. 2747 (West 1996); S tevenson v. Lavalco, Inc., 669 So.2d

608, 610 (La.Ct.App.2d Cir.1996). As such, we conclude that the

district court erred in finding that § 2027 doe s not require an

employee to prove that an employer's adverse employment action was

motivated by the employee's disclosure of an environmental

violation.

II. S UFFICIENCY OF THE E VIDENCE

Because we have concluded that § 2027 requires a showing of

illicit motivation, we now turn to the evidence to de termine

whether it is sufficient to support the jury's conclusion that

P owers was terminated in violation of § 2027. 3 We note at the14

outset that the district court, when ruling on Vista's post-trial

motion for judgment as a matter of law, concluded that the evidence

w as insufficient to support the conclusion that Powers was fired

for "environmental reasons" and that the evidence relating to the

"retaliation factor" posed a "bothersome issue." The district

court nonetheless denied Vista's motion becau se the disagreement

between Lewing and Powers, "unfortunately for Vista," happened to

concern the environment.

Our independent review of the record persuades us that the

e vidence was simply insufficient to support a finding that Vi sta

was motivated to terminate Powers because he disclosed to

supervisor Lewing that the low-flashpoint material was on the sand

filters for several months. At trial, Vista produced a wealth of

evidence to this effect. Powers admitted at trial that (1) Vista

did not tell him to withhold any information from the environmental

authorities investigating the Vista incident, (2) Vist a did not

take any action against him "for anything [he] said" or any "report

[he] gave" the DEQ, (3) Vista took no adverse action against his

c o-workers (who made similar disclosures to Lewing), and (4) his

abrupt exit from his meeting with Lewing and accompanying curse was

grounds for discharge. In addition, the information Powers claims

was the basis for his re taliatory discharge—that low-flashpoint

materials were on the sand filters for months—had already been

disclosed to Vista approximately two weeks before Powers's

disclosure and two weeks prior to Vista's report to the EPA and DEQ

that Vista had violated one of the terms of its environmental15

permit.

We have carefully searched the record for evidence that Vista

fired Powers in retaliation for disclosing that low-flashpoint

materials were on the sand filters for more than two or three days.

We have found precious little that is directly relevant to the

issue of whether Powers's disclosure motivated Vista to fire him.

Indeed, the only relevant evidence presented by Powers on this

point was the alleged aggressive behavior of supervisor Lewing in

his meeting with Powers. But this evidence too cannot give rise to

an inference of § 2027 retaliation absent evidence suggesting that

Vista was motivated to terminate Powers on the basis of the

environmental disclosure. The record is devoid of any such

evidence.

Powers is simply mistaken when he asserts that his disclosure

to Lewing that the low-flashpoint material was on the sand filters

for a few months motivated Vista's decision to terminate him. From

the point of view of Vista, the length of time the flammable

material was on the sand filters was inconsequential because Vista

had already informed the DEQ that Vista did not know how long the

materials were on the sand filters. There was no, as Powers seems

to think, "party line" to which Vista was trying to force

adherence. Ron Cady, the DEQ inspector, was asked by Powers's

attorney on cross-examination whether "the solvent material had

been on the sand filters for a period of time in excess of just one

or two days?" Cady responded that Vista "said they didn't know."

In other words, Vista was not attempting to mislead the4 Powers contends that his disclosure that the low-flashpoint

material was on the san d filters for a few months raised the

specter of harsher penalties from the DEQ. Powers characterizes the

testimony as follows: "If this is a one time [ s ic ] spill or upset

event, DEQ approaches the penalty to be imposed differently than if

it was a situation which had been goi ng on for a long period of

time, and one which someone should have recognized and addressed."

We have reviewed the relevant portions of the record and conclude

that Powers p resented no evidence suggesting that Lewing was

cov ering up the alleged two-month (or more) problem to avoid

harsher DEQ penalties. We agree with the district court's

interpretation of the evidence that "th e probable reason for Mr.

Lewing's displeasure with Mr. Powers" was that Powers's account

tended to discredit Lewing's conclusions about what had occurred,

"not because of any concern that [Lewing] or, for that matter,

Vista, had for the environmental people."

16 environmental authorities about the length of time the fl ammable

materials remained on the sand filters. In fact, the

uncontradicted evidence showed that a representative of the DEQ

believed that Vista was not trying to cover anything up. Precisely

the oppos ite was true: Vista exhibited "total cooperation," was

"very helpful," and "at no time did [the DEQ representative] feel

like anybody involved in the investigation felt like Vista was

trying to conceal anything from us." In light of these facts as

well as Vista's knowledge (gleaned from other employees) about the

possibly lengthy presence of the material on the sand filters,

Powers fa ilure to present any evidence suggesting that his

disclosure could have mot i vated Vista's decision to terminate

Powers is fatal to his claim that Vista violated § 2027. 4

We conclude that the meager evidence presente d by Powers on

the issue of whether Powers 's disclosure motivated Vista to

terminate him is insufficient to support a finding of liability

under § 2027. Rather, the record is insufficient to support a jury17

verdict that Powers's disclosure of an environmental violation to

his supervisor was any kind of motivatin g factor, whether sole,

substantial, or simply one of several. In fact, the only jury

verdict that the evidence is sufficient to support is that Vista

fired Powers for his insubordinate conduct in the meeting with

supervisor Lewing.

CONCLUSION

Because we find error in the district court's conclusion that

Powers was not required to prove that Vista's decision to terminate

him was motivated by a desire or intention to retaliate against him

for his environmental disclosure, we REVERSE the district court's

denial of Vista's post-trial motion for judgment as a matter of

law. Because we further find that, even if there had been a jury

instruction on retaliatory motive, the evidence is in sufficient to

support a finding of illicit motivation, we RENDER judgment for

Vista.

REVERSED AND RENDERED.