Opinion
Civil Action No. 04-1122, Section "N".
January 11, 2005
ORDER AND REASONS
Before the Court is Defendant's Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim Upon Which Relief May be Granted (Rec. Doc. No. 4). For the reasons explained herein, Defendant's motion is GRANTED IN PART and DENIED IN PART. If Plaintiff chooses to amend his complaint with respect to the claim that has been dismissed, those amendments must be submitted within twenty (20) days from the date that this Order is entered by the clerk of court, and are to be set forth in a superseding complaint that includes both the amendments and the allegations in his original complaint on which Plaintiff continues to rely.
BACKGROUND
While employed as a night stockman at the retail store owned and operated by Defendant, Lowe's Home Centers, Inc., in Hammond, Louisiana, Plaintiff witnessed what he believes to have been an illegal drug transaction on the store premises during working hours. Specifically, Plaintiff states that, during the first week of November 2003, he observed two other store employees receive an envelope under a metal door, slide money out under the door to an unseen third party, and then walk in the direction of the break room with the envelope. Plaintiff reported the apparent drug purchase to his supervisor, who advised Plaintiff that someone had to actually witness the consumption itself, or smell or otherwise detect the presence of the illegal substance, before Defendant would take action. Subsequently, on or about December 11, 2003, at approximately 3:45 a.m., Plaintiff witnessed one of the aforementioned employees handling what appeared to be loose marijuana, and immediately thereafter detected a strong odor of what appeared to be burning marijuana. Plaintiff immediately reported his co-workers' conduct to his supervisor, who in turn alerted upper management.
See Complaint, ¶¶ VI (first), VI (second), and VIII.
Id. at ¶ IX.
Id. at ¶ X.
Id. at ¶ XI.
Three days later, on or about December 14, 2003, Defendant's store manager fired Plaintiff. The stated reason for the termination was Plaintiff's failure to wear a safety harness while working. Plaintiff contends that this reason is a pretext, and that he actually was terminated because he reported illegal drug activity occurring on the premises to this supervisor. He alleges that the store employees rarely wore safety harnesses, and actually were discouraged from doing so, because their use was believed to cause injury.
Id. at ¶ XII.
Id. at ¶ XIII.
Id. at ¶ XVI.
Id. at ¶ XIV-XV.
Plaintiff's complaint seeks to assert a claim for retaliatory discharge pursuant to Louisiana's whistleblower statute, La.R.S. 23:967, and an abuse of rights claim. Defendant's motion seeks dismissal of both claims.
LAW AND ANALYSIS
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." To satisfy this requirement, the statement must provide the defendant with "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz v. Sorema, 534 U.S. 506, 511, 122 S. Ct. 992, 998 (2002) (internal citations omitted); see also Christopher v. Harbury, 536 U.S. 403, 416, 122 S. Ct. 2179, 2187 (2002) (the elements of the plaintiff's claim(s) "must be addressed by allegations in the complaint sufficient to give fair notice to a defendant").
Given this simplified notice pleading standard, Rule 12(b)(6) motions to dismiss are "viewed with disfavor and [are] rarely granted." Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000) (internal citations omitted). In considering these motions, courts must liberally construe the complaint in favor of the plaintiff, and take all well-pleaded facts in the complaint as true. Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir. 1986). "All questions of fact and any ambiguities in the controlling substantive law must be resolved in the plaintiff's favor." Lewis v. Fresne, 252 F.3d 352, 357 (5th Cir. 2001).
A Rule 12(b)(6) motion to dismiss should be granted "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations" in the complaint. Swierkiewicz, 534 U.S. at 514, 122 S. Ct. at 998 (internal citations omitted); see also Indest v. Freeman Decorating, Inc., 164 F.3d 258, 261 (5th Cir. 1999) ("dismissal will not be affirmed if the allegations support relief on any possible theory") (internal citations omitted)). "'The question therefore is whether in the light most favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states any valid claim for relief.'" Lowrey v. Texas A M Univ. Sys. 117 F.3d 242, 246-47 (5th Cir. 1997) (quoting 5 CHARLES A. WRIGHT ARTHUR R. MILLER, Federal Practice and Procedure § 1357, at 601 (1969)). If the complaint "fails to specify the allegations in a manner that provides sufficient notice," a motion for more definite statement, pursuant to Rule 12(e), is appropriate. Swierkiewicz, 534 U.S. at 514, 122 S. Ct. at 998. "[L]iberal discovery rules and summary judgment motions [also are available] to define disputed facts and issues and to dispose of unmeritorious claims." Id. at 998.
I. Whistleblower Statute — La.R.S. 23:967
Plaintiff alleges that Defendant terminated his employment because he informed his supervisor that his two co-employees had engaged in an illegal drug transaction while they were at work on the Defendant's premises. Based on these allegations, Plaintiff seeks damages under Louisiana's general whistleblower statute-Louisiana Revised Statute 23:967. That provision states, in pertinent part:
A. An employer shall not take reprisal against an employee who in good faith, and after advising the employer of the violation of the 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 the law.
(3) Objects to or refuses to participate in an employment act or practice that is in violation of the law.
B. An employee may commence a civil action in a district court where the violation occurred against any employer who engages in a practice prohibited by Subsection A of this Section. If the court finds the provisions of Subsection A of this Section have been violated, the plaintiff may recover from the employer damages, reasonable attorney fees, and court costs.
C. For purposes of this Section, the following terms shall have the definitions ascribed below:
(1) "Reprisal" includes firing, layoff, loss of benefits, or any discriminatory action the court finds was taken as a result of an action by the employee that is protected under Subsection A of this Section; however, nothing in this Section shall prohibit an employer from enforcing an established employment policy, procedure, or practice or exempt an employee from compliance with such. . . .
D. If suit or complaint is brought in bad faith or if it should be determined by a court that the employer's act or practice was not in violation of the law, the employer may be entitled to reasonable attorney fees and court costs from the employee.
Defendant argues that Plaintiff has not stated a claim under La.R.S. 23:967 because his complaint does not allege that it, as opposed to two of its employees, violated the law. On this point, the Court notes that subsection A of the whistleblower statute applies to unlawful conduct by an employee that is deemed to be that of a corporate employer. At the same time, that subsection expressly refers to "a violation" of "law" or "state law," not the "employer's violation," and does not provide a statutory definition of "workplace act or practice" or "employment act or practice." Given this lack of specificity, one can reasonably question whether subsection A also applies to conduct of another employee that is not fairly attributable to an employer, but occurs at the workplace during work hours, violates state law, and results in reprisal by the employer.
In comparison, the Court notes that the environmental whistleblower statute, La.R.S. 30:2027, was amended in 1991 to specifically refer to "an activity, policy, practice of the employer, or another employer with whom there is a business relationship. . . . See La.R.S. 30:2027(A)(1) and (2).
Subsection D of the statute, however, offers some clarification of subsection A. It specifically refers to the "employer's act or practice" in connection with the alleged violation of the law. See La.R.S. 23:967(D). In addition, another judge of this Court, as well as a panel of the Fifth Circuit, previously declined to find that a claim had been stated under La.R.S. 23:967 when it was another employee, rather than the defendant-employer, who allegedly had committed the violation of the law that the plaintiff later reported to the employer. See Genella v. Renaissance Media LLC, 2004 WL 113487, *1 (E.D. La. 2004) (Beer, J.), aff'd, 2004 WL 2244244, *2 (5th Cir. 2004) (summary calendar) (unpub.). Although not binding on this Court, these decisions provide persuasive authority. Accordingly, the Court agrees with Defendant that, in order to state a claim pursuant to La.R.S. 23:967, Plaintiff must identify unlawful conduct that is legally attributable to Defendant, as the employer.
The original version of Senate Bill 1098 of 1997, which became La.R.S. 23:967, did not contain subsection D. See SB 1098 (Original Version), 1997 Regular Session, Louisiana Legislature. That provision was added by House amendment prior to final passage. See SB 1098 (Reengrossed), 1997 Regular Session, Louisiana Legislature.
See Local Rule 47.5.4 of the United States Court of Appeals for the Fifth Circuit.
Taking a different approach to this question, the Court acknowledges that subsection A(2) of La.R.S. 23:967 refers to "any violation of law" and does not include the limiting phrases "workplace act or practice" or "employment act or practice" that are found in subsection A(1) and (3), respectively. Plaintiff's allegations do not implicate subsection A(2), however, as he has never alleged that Defendant retaliated against him because he provided information to or testified before a "public body." The Court similarly concludes that subsection A(1) has not been implicated for the reason that Plaintiff has never alleged he suffered reprisal because he disclosed or threatened to disclose the alleged unlawful conduct to anyone other than his immediate supervisor, Sam Green. While his reports to Mr. Green satisfied the requirement in the first sentence of subsection A that he "advis[e] the employer of the violation of the law," the Court believes that the subsequent disclosure or threatened disclosure referred to in subsection A(1) contemplates communication to another person, i.e. someone in addition to Mr. Green. Otherwise, the preceding language "and after advising the employer of the violation of law" is rendered meaningless when subsection A(1) forms the basis of the claim for relief. Thus, Plaintiff is left with subsection A(3). Although that provision likewise does not contain language such as "the employer's violation of law," "a violation of the law by the employer," or "a violation of the law that is attributable to the employer," it does contain the phrase "employment act or practice." That language, like the phrase "workplace act or practice" in subsection A(1), was not found in the original version of SB 1098, which instead simply referred to "an activity, policy, or practice." See SB 1098 (Original Version), 1997 Regular Session, Louisiana Legislature. Considering the Legislature's obvious intent to narrow the scope of the statute by adding the phrase "employment act or practice" prior to final passage, and construing that language in conjunction with the phrase "employer's act or practice" added as part of subsection D, the Court alternatively concludes that, at least where subsection A(3) provides the only basis for a claim for relief under the statute, the plaintiff must allege unlawful conduct that it is fairly attributable to the employer, rather than solely to rogue co-employees.
Analyzing Plaintiff's submissions in light of this requirement, the Court agrees that Plaintiff's complaint does not allege criminal conduct by Defendant. Indeed, it does not even assert that Defendant should bear responsibility for the criminal conduct of its employees. Rather, it asserts only the personal violations of the law by two unnamed, former co-employees. In his opposition memorandum, however, Plaintiff focuses on Defendant by contending that "[k]nowingly or unknowingly permitting drug sales on one's premises is a violation of La.R.S. 40:2601, et seq., and 13:4711(A)(1), et seq." Although not included in his complaint, the Court considers whether Plaintiff's citation of these statutory provisions in his opposition memorandum reveals an alleged violation of law by Defendant as contemplated by La.R.S. 23:967.
On at least two occasions, the Fifth Circuit, in unpublished opinions, has affirmed dismissals of claims on the basis that the plaintiff failed to specify in his complaint the state law that allegedly was violated. See Genella v. Renaissance Media, 2004 WL 2244244 (5th Cir. 2004) (summary calendar); Ware v. CLECO Power L.L.C., 90 Fed. Appx. 705, 2004 WL 133869 (5th Cir. 2004). Although these decisions are not precedent because they were not published, they can be persuasive authority. See Local Rule 47.5.4 of the United States Court of Appeals for the Fifth Circuit.
A. La.R.S. 40:2601, et seq.
Louisiana Revised Statutes 40:2601, et seq., authorize and pertain to the seizure and forfeiture of property that is associated with or derived from conduct involving controlled substances that is declared unlawful by other statutes. See La.R.S. 40:2603 (referencing conduct prohibited by La.R.S. 40:961, et seq.). Although the alleged purchase and possession of controlled substances by Plaintiff's former co-employees certainly appears to violate La.R.S. 40:966 (or another section of the drug statutes), Plaintiff has not alleged that Defendant was knowingly involved in its employees' unlawful conduct in such a manner that would render it subject to criminal liability under La.R.S. 40:961, et seq. Nor has Plaintiff alleged that Defendant has, in some way, prevented the proper operation of these forfeiture provisions, and that Plaintiff disclosed, threatened to disclose, informed a public body of, objected to, or refused to participate in that particular conduct. Thus, the Court finds that Plaintiff's complaint, as presently pled, does not establish that Defendant has violated La.R.S. 40:2601, et seq.
Neither Plaintiff's complaint nor its opposition memorandum contain any reference to, much less address, the prohibitions of La.R.S. 40:961, et seq.
B. La.R.S. 13:4711(A)(1), et seq.
Louisiana Revised Statutes 13:4711(A)(1), et seq., allow state officials and certain private citizens to petition courts to enjoin property owners from maintaining public nuisances and to issue orders of abatement. Analysis of these statutory provisions likewise reveals that Plaintiff has not alleged a violation of them by Defendant.
As defined by statute, "'[m]aintenance of a nuisance' means to conduct, carry on, or knowingly permit to exist on one's premises a prohibited activity as defined in this Subsection." See La.R.S. 13:4711(A)(3) (emphasis added). "'Prohibited activity' means . . . a pattern of drug-related criminal activity as defined in this Subsection. . . ." See La.R.S. 13:4711(A)(7). "'Drug-related criminal activity' means the illegal manufacture, sale, or distribution of, or possession with intent to manufacture, sell, or distribute, a controlled dangerous substance, as defined by R.S. 40:961 or of drug paraphernalia as defined in this Subsection." See La.R.S. 13:4711(A)(2). Finally, a "pattern" is defined by the statute as two or more instances of criminal activity within a three-year period." See La.R.S. 13:4711(A)(5).
Here, as previously stated, Plaintiff does not allege facts demonstrating that Defendant (again, as opposed to two of its employees) conducted or carried on drug-related criminal activity, as that term is defined by La.R.S. 13:4711(A)(2). While his opposition memorandum alleges that Defendant permitted drug sales to occur on its premises, the question of whether Defendant in fact knowingly permitted that conduct is left unanswered. Furthermore, Plaintiff has alleged only one instance of controlled substances being sold on the premises. Although Plaintiff's statements regarding December 11, 2003, arguably also allege possession of a controlled substance, they do not suggest any intent to manufacture, sell, or distribute a controlled substance. Thus, Plaintiff's allegations do not establish a "pattern" of "drug-related criminal activity" as is required by the statute.
As stated above, Plaintiff's opposition memorandum simply states that "[k]nowingly or unknowingly permitting drug sales on one's premises is a violation of La.R.S. 40:2601, et. seq., and 13:4711(A)(1), et seq. (emphasis added).
See Complaint ¶ X.
C. Leave to Amend
Although the Court has determined that the allegations of Plaintiff's complaint, as it presently is pled, do not state a valid claim for relief under La.R.S. 23:967, the Court does not rule out the possibility that Plaintiff may be able to amend his complaint so as to enable him to state a valid claim under that statute. Relative to this, Rule 15(a) of the Federal Rules of Civil Procedure dictates that leave to amend "shall be freely given when justice so requires." Fed.R.Civ.Pr. 15(b). The Fifth Circuit, moreover, has cautioned that "this mandate is to be heeded." Lowrey, 117 F.3d at 245. Accordingly, given the early stage of this proceeding, and considering that the Court's ruling on Defendant's Rule 12(b)(6) motion otherwise will result in a dismissal with prejudice of this particular claim, the Court will allow Plaintiff twenty (20) days to cure the deficiencies of his complaint with regard to stating a retaliatory discharge claim under La.R.S. 23:967, if he in good faith can.
II. Abuse of Rights Doctrine
Plaintiff's complaint seeks alternative relief under the Louisiana abuse of rights doctrine. The complaint states in part: "[a]ssuming defendant has any right whatsoever under the circumstances to terminate Plaintiff, which is specifically denied, it is plead in the alternative that said "rights" were exercised for a wrongful purpose, particularly for retaliating against Plaintiff for exercising legally protected rights."
Id. at ¶ 25.
Plaintiff's complaint does not allege that he was anything other than an "at will" employee. Subject to certain exceptions not relevant here, he thus could be dismissed "by the employer at any time for whatever reason without the employer incurring liability for the discharge." Walther v. National Tea Company, 848 F.2d 518, 519 n. 1 (5th Cir. 1988) (quoting Ballaron v. Equitable Shipyards, Inc., 521 So. 2d 481, 482 (La.Ct.App.), writ denied, 522 So. 2d 571 (La. 1988)). The Fifth Circuit also has recognized, however, that an employer who has terminated an at-will employee can be held liable for damages under the abuse of rights doctrine if (1) the employer received no benefit from the exercise of the legal right to terminate, and (2) the terminated employee was damaged or injured in fact. Id. at 519 (citing Lambert v. Maryland Cas. Co., 403 So.2d 739, 755 (La.Ct.App. 1981), aff'd, 418 So. 2d 553 (1982)).
Thus far, the only benefit from Plaintiff's discharge that Defendant has identified is the removal from its workplace of an employee who violated a safety policy by failing to wear a safety harness. Plaintiff's complaint, however, rebuts this contention by alleging that Defendant actually discouraged the use of such harnesses because of a belief that they, in fact, cause, not prevent, injury." Plaintiff further alleges that Defendant's video surveillance system should substantiate this contention by revealing that Defendant's employees rarely, if ever, wore the harnesses. Given these allegations, the substance of Defendant's policy regarding usage of safety harnesses has been placed in dispute.
See Defendant's 12(b)(6) Motion at 8-9.
Complaint, ¶ XIII-XV.
Id. at ¶ XV.
The Court recognizes that Plaintiff's chances of ultimately prevailing on an abuse of rights claim are not great. To do so will require him to prove that Defendant received absolutely no legitimate benefit from his discharge. Significantly, however, the motion before the Court is one asserted pursuant to Rule 12(b)(6); it is not one for summary judgment filed after the parties have had an opportunity to conduct discovery. Accordingly, focusing only on the allegations of Plaintiff's complaint, as it must at this juncture of the proceeding, the Court is unable to find that Plaintiff cannot prove any set of facts in support of his abuse of rights claim that would entitle him to relief. Accordingly, the Court denies Defendant's Rule 12(b)(6) motion to dismiss with respect to this claim. This ruling, of course, is without prejudice to Defendant's right to submit a properly supported motion for summary judgment with regard to this claim for consideration by the Court at the appropriate time.
CONCLUSION
As stated herein, Defendant's Rule 12(b)(6) motion to dismiss is GRANTED IN PART AND DENIED IN PART. Any amendments to Plaintiff's complaint allowed by the Court must be submitted within (20) days from the date this Order is entered by the clerk of court. Additionally, the allegations in its original complaint on which Plaintiff continues to rely and Plaintiff's amendments are to be submitted in the form of a single superseding complaint.