KIRK MENARD VS. TARGA RESOURCES, L.L.C.
No. 2023-CQ-00246
SUPREME COURT OF LOUISIANA
June 27, 2023
NEWS RELEASE #032
On Certified Question from the United States Court of Appeals for the Fifth Circuit
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 27th day of June, 2023 are as follows:
BY Crain, J.::
2023-CQ-00246 KIRK MENARD VS. TARGA RESOURCES, L.L.C.
CERTIFIED QUESTIONS ANSWERED. SEE OPINION.
No. 2023-CQ-00246
KIRK MENARD
VS.
TARGA RESOURCES, L.L.C.
On Certified Question from the United States Court of Appeals for the Fifth Circuit
CRAIN, J.
Invoking
(1) Whether refusals to engage in illegal or environmentally damaging activities are “disclosures” under the current version of the Louisiana Environmental Whistleblower Statute, [
Louisiana Revised Statutes] 30:2027 [LEWS]; and(2) Whether [LEWS] affords protection to an employee who reports to his supervisor an activity, policy, or practice of an employer which he reasonably believes is in violation of an environmental law, rule, or regulation, where reporting violations of environmental law, rules, or regulations, is a part of the employee’s normal job responsibilities?
Menard v. Targa Resources, L.L.C., 56 F. 4th 1019, 1024 (5th Cir. 2023). We accepted certification2 and answer both questions affirmatively.
We decide the certified questions on the facts presented by the Court of Appeals:3
In June 2018, Kirk Menard began working as an environmental, safety, and health specialist at Targa’s Venice, Louisiana plant. His job duties included ensuring Targa complied with various state and federal environmental and safety standards. Menard reported to two individuals–his “official supervisor,” [David Smith], who resided at another facility, and an “indirect supervisor,” [Ted Keller][,] who served as an area manager for the Venice plant. Menard’s indirect supervisor, in turn, reported to Perry Berthelot, a Targa District Manager.
On an October 5 conference call–which included Berthelot–Menard reported that the total suspended solids in certain recent water samples exceeded regulatory limits. At the end of the call, Berthelot told Menard to call him back to discuss the plan for rectifying these exceedances. Menard obliged, and he alleges that Berthelot told him he should dilute the sewage samples with bottled water. Menard claims that in response he nervously laughed and said, “no, we’re going to correct it the right way.”
Menard subsequently reported Berthelot’s request to Menard’s official supervisor [Smith], who responded, “no we’re not going to do that, because that will not correct the problem.” Six days later Menard was terminated by Targa for supposed work performance issues. Shortly thereafter, Menard filed this suit [in state court] alleging that Targa violated LEWS by discharging him for (1) refusing to comply with Berthelot’s request to dilute certain sewage samples with bottled water to ensure they met certain environmental regulatory standards, and (2) reporting the request to his supervisor[,] [Smith].
Targa moved for summary judgment, arguing Menard did not engage in a protected activity under LEWS. The district court found Menard’s report to Smith not protected because reporting environmental violations was “part of [Menard’s] normal job responsibilities.” It did find LEWS applied to Menard’s refusal to dilute the sewage sample, citing Cheramie v. J. Wayne Plaisance, Inc., 595 So. 2d 619, 624 (La. 1992). Thus, Targa’s motion for summary judgment was denied.
DISCUSSION
Refusal and “discloses”
Legislation is the solemn expression of legislative will; thus, the interpretation of legislation is primarily the search for legislative intent. See, e.g., Dunn v. City of Kenner, 15-1175, p. 4 (La. 1/27/16), 187 So. 3d 404, 409–10. See also
LEWS provides, in pertinent 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 with whom there is a business relationship, that the employee reasonably believes is in violation of an environmental law, rule, or regulation. [emphasis added]
(2) Provides information to, or testifies before any public body conducting an investigation, hearing, or inquiry into any environmental violation by the employer, or another employer with whom there is a business relationship, of an environmental law, rule, or regulation.
B. (1) Any employee against whom any action is taken as a result of acting under Subsection A of this Section may commence a civil action in a district court of the employee’s parish of domicile, and shall recover from his employer triple damages resulting from the action taken against him and all costs of preparing, filing, prosecuting, appealing, or otherwise conducting a law suit, including attorney‘s fees, if the court finds that Subsection A of this Section has been violated. In addition, the employee shall be entitled to all other civil and criminal remedies available under any other state, federal, or local law.
The first certified question requires us to determine the meaning of “discloses.” The statute does not define the term. The employer argues that “discloses” does not include a refusal to act or participate, while the employee argues that it does. We turn to secondary rules of statutory interpretation to discern its meaning. See Red Stick Studio Dev., L.L.C. v. State ex rel. Dep’t of Econ. Dev., 10-0193, p. 10 (La. 1/19/11), 56 So. 3d 181, 187-88. The statute “must be interpreted as having the meaning that best conforms to the purpose of the law. Moreover, when the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole.” Id.
In Borcik v. Crosby Tugs, LLC, 16-1372 (La. 5/3/17), 222 So. 3d 672, this court interpreted “good faith” as that term is used in
In Cheramie, the court addressed whether “complains,” the term used in the pre-1991 version of LEWS, included a refusal to participate.5 Cheramie, 595 So. 2d at 624. The employee refused to follow a job order that he believed violated the law. The employer argued that a refusal did not constitute “complains.” This court held that refusal was an extreme form of complaint; thus, the employee was protected from retaliation for his refusal to participate. Targa now argues that by changing
Cheramie and Borcik instruct us in two ways that are important to our analysis. First, the purpose of LEWS is to further the constitutional mandate to protect the environment by protecting employees who act on their honest belief that an environmental law has been violated. And, second, a “broad interpretation” of Section 2027 is required to effectuate the constitutional and statutory directive and purpose.
Merriam-Webster defines “discloses” as “to make known or public.” Disclose, MERRIAM-WEBSTER ONLINE DICTIONARY, http://www.merriam-webster.com/dictionary/disclose (last visited May 22, 2023). That definition is expansive enough to include a refusal to participate.6 Both “complains” and “discloses” contemplate an expressive or communicative act. In either case, when a person refuses to act or participate in perceived illegal conduct, that is an extreme form of communicating as stated in Cheramie. LEWS protects such an employee, as willful inaction is a communication. And, no absurd consequences flow from that reading. Protecting the environment by protecting an employee who refuses to harm it is not absurd. The absurdity results if an employee is only protected after actually engaging in the environmentally harmful action and officially reporting it. That interpretation would both frustrate the statute’s purpose of protecting the environment and incentivize violations.
Federal law supports our interpretation of “discloses.” In 1989, Congress enacted the Whistleblower Protection Act (“WPA”) to protect “any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences . . . any violation of any law, rule, or regulation . . . .”
Targa also argues the legislature, if desired, could protect an employee who “[r]efuses to participate in an employment act or practice that is in violation of law,” because it did so when enacting the Louisiana Whistleblower Statute (“LWS”) in 1997, but did not include that language when LEWS was amended in 1991.7 However, the legislature did consider such language but found it unnecessary given the breadth of the statute.8
Targa next argues that because Paragraph B of LEWS (
Answering the first certified question, we find a refusal to participate in environmentally damaging employment activities constitutes “discloses” under LEWS and is a protected action.
Job Duties Exception
The second question is whether a job duty exception exists, which would deny protection for employees whose job includes reporting environmental violations. Again, we start with the language of the statute, which contains no exceptions. It protects “an employee” who does any of the statutory prescribed actions. The statute does not distinguish between an employee who is required to report a violation and an employee who is not required to report a violation. There is no logical reason to protect one but not the other. A plain reading of the statute requires that any employee be protected when he reports a violation, even if the reporting is required by his job. This interpretation does not lead to absurd consequences. To the contrary, judicially inserting a job duty exception into the statute results in employees who likely have the most knowledge of environmental violations not being protected from retaliation. That directly conflicts with the purpose of LEWS, which is to protect the environment. Not only does judicially crafting such an exception deny protection for the persons best positioned to disclose
Federal law, again, supports this interpretation. The job duty exception was created in Willis v. Department of Agriculture, 141 F.3d 1139 (Fed.Cir. 1998). Citing Willis, several federal cases perpetuated the exception. See Sasse v. U.S. Department of Labor, 409 F.3d 773 (6th Cir. 2005) and Huffman v. Office of Pers. Management, 263 F.3d 1341 (Fed. Cir. 2001). In 2012, amendments to
Two state law cases decided between passage of the 1991 amendment to LEWS and the 2012 clarifying federal statute relied upon the Willis line of cases. See Matthews v. Military Department ex rel. State, 07-1337 (La. App. 1 Cir. 9/24/07), 970 So. 2d 1089 and Stone v. Entergy Services, 08-0651 (La. App. 4 Cir. 2/4/09), 9 So. 3d 193.9 Because Willis is an incorrect interpretation of the WPA, reliance on those cases is misplaced. We interpret the similar language in LEWS consistent with Congress’ interpretation of the WPA. There is no job duty exception.
Targa argues our decision violates Louisiana’s public policy favoring employment at will. That argument is without merit. The right to terminate an employee is not unlimited. For example, an employee cannot be terminated because
DECREE
We have answered the certified questions as set forth in this opinion. Pursuant to Rule XII, Supreme Court of Louisiana, the judgment rendered by this court upon the questions certified shall be sent by the clerk of this court under its seal to the United States Court of Appeals for the Fifth Circuit and to the parties.
CERTIFIED QUESTIONS ANSWERED.
Notes
When it appears to ... any circuit court of appeal of the United States, that there are involved in any proceedings before it questions or propositions of law of this state which are determinative of said cause independently of any other questions involved in said case and that there are no clear controlling precedents in the decisions of the supreme court of this state, such federal court before rendering a decision may certify such questions or propositions of law of this state to the Supreme Court of Louisiana for rendition of a judgment or opinion concerning such questions or propositions of Louisiana law. This court may, in its discretion, decline to answer the questions certified to it.
The natural resources of the state, including air and water, and the healthful, scenic, historic, and esthetic quality of the environment shall be protected, conserved, and replenished insofar as possible and consistent with the health, safety, and welfare of the people. The legislature shall enact laws to implement this policy.
The Louisiana Environmental Quality Act (LEQA),
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 reports or complains about possible environmental violations. [emphasis added].