Jordan v. Jewel Marine, Inc.

Filing 64

ORDER & REASONS denying 49 Motion for Summary Judgment. Signed by Judge Ivan L.R. Lemelle on 5/25/2011. (lag, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JACK W. JORDAN, II

*
*
*
*
*

VERSUS
JEWEL MARINE, INC.

CIVIL ACTION
NO. 09-3542
SECTION “B”(1)

ORDER AND REASONS
Before the Court is Defendant’s Motion for Summary Judgment
seeking summary judgment of Plaintiff’s state law whistle blower
claim and alleged exception to the employment at will doctrine.
(Rec. Doc. No. 49).
For

the

reasons

pronounced

below,

IT

IS

ORDERED

that

Defendant’s opposed (Rec. Doc. No. 51) Motion for Summary Judgment
(Rec. Doc. No. 49) is hereby DENIED.
I. Cause of Action and Facts of Case
This case involves a former at-will employee’s claims for
wrongful discharge allegedly in violation of Louisiana Revised
Statute 23:967 (“the Louisiana Whistleblower Act”) and the Jones
Act exception to the “employment-at-will doctrine. (Rec. Doc. Nos.
1, 51).

Jack Jordan was employed by Defendant as a Captain and

alleges his employment with Defendant was terminated after he
reported that the lead captain of the vessel, Mike Terry (“Terry”),
was operating the vessel under the influence of alcohol and

1

marijuana.1

Plaintiff was rehired by Defendant on September 8,

2008 and terminated on or about March 23, 2009.

(Rec. Doc. No. 51-

2 at 8).
On or about March 6, 2009, Plaintiff reported to Defendant’s
Operations Manger, Treva Crosby (“Crosby”), that Terry was smoking
marijuana on the vessel.

(Rec. Doc. No. 49 at 2).

Terry was

subsequently given a drug test and passed the test, without
evidence of illegal substances.
series of events.2

Plaintiff does not dispute that

(Rec. Doc. Nos. 49-5 at 3-4; 49-1 at 2; 51-1 at

2).
Defendant gives several reasons for Plaintiff’s termination.
“Mr. Jordan was terminated because one day he gave Treva Crosby an
ultimatum – either [] Crosby had to fire the rest of the crew . .
. or him.”

(Rec. Doc. No. 49-5 at 4).

“[t]herefore,

[Plaintiff]

was

terminated

Defendant states that
due

to

his

conflicts with other fellow employees.”May 16, 2011

ongoing

Id.

Plaintiff states that he watched Terry smoking marijuana
aboard the vessel, that Terry invited Respondent to “smoke a joint
with him” and that Terry would state that he was going to smoke
marijuana

in

the

engine

rooms.

(Rec.

Doc.

No.

51

at

2).

Respondent also cites testimony of another employee of Defendant,
1

The other Captain with whom Plaintiff and Terry worked on the vessel
was named Mike Bonham. (Rec. Doc. No. 51-2 at 10).
2
Nor does Plaintiff dispute Defendant’s statement that Terry has passed
every drug screen during his employment with Defendant. (Rec. Doc. Nos. 49-1
at 2; 51-1 at 2).

2

Thomas King, who stated that Terry told him he was able to stay
awake “from port to port because ‘[Terry] said he had a plate of
cocaine.’”

Id. at 3.
II. Law and Analysis

A.

Summary Judgment Standard
Summary judgment is proper if the pleadings, depositions,

interrogatory

answers,

and

admissions,

together

with

any

affidavits, show 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.

Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett,

477 U.S. 317, 327 (1986).
would

allow

nonmovant.
(1986).

a

A genuine issue exists if the evidence

reasonable

jury

to

return

a

verdict

for

the

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,

Although the Court must consider the evidence with all

reasonable inferences in the light most favorable to the nonmoving
party, the nonmovant must produce specific facts to demonstrate
that a genuine issue exists for trial.

Webb v. Cardiothoracic

Surgery Assocs. of N. Texas, 139 F.3d 532, 536 (5th Cir. 1998).
The nonmovant must go beyond the pleadings and use affidavits,
depositions, interrogatory responses, admissions, or other evidence
to establish a genuine issue.

Id.

Accordingly, conclusory

rebuttals of the pleadings are insufficient to avoid summary
judgment.

Travelers Ins. Co. v. Liljeberg Enter., Inc. 7 F.3d

1203, 1207 (5th Cir. 1993).
3

B.

La. Rev. Stat. Ann. § 23:967
Louisiana Revised Statute, entitled “Employee protection from

reprisal; prohibited practices; remedies” states:
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.
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 the 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.
(2) “Damages” include compensatory damages, back
pay, benefits, reinstatement, reasonable attorney
fees, and court costs resulting from the reprisal.
D. If suit or complaint is brought in bad faith or if it
should be determined by a court that the employer's act
4

or practice was not in violation of the law, the employer
may be entitled to reasonable attorney fees and court
costs from the employee.
La. Rev. Stat. Ann. § 23:967.
In Accardo v. Louisiana Health Services & Indem. Co., 943
So.2d 381 (2006), the Louisiana First Circuit Court of Appeal
addressed

the

issue

of

violation of state law.

whether

§

23:967

requires

an

actual

Noting that the Louisiana Supreme Court

has not addressed the issue, the First Circuit pointed out that the
Louisiana Fourth and Fifth Circuit Courts of Appeal had.

The

Accardo court stated:
[W]e note that the inclusion of the requirement of good
faith in La. R.S. 23:967 creates an appearance of
ambiguity as to whether an actual violation of law must
be established. However, based on the legislative history
of the statute, which deleted the phrase “reasonably
believes is in violation of law” and substituted the
phrase “that is in violation of state law”, it [] appears
that the legislature intended the requirement of a
violation of state law. Although we have grave concerns
regarding the chilling effect that this requirement will
have on the reporting by an employee of illegal acts, we
are
compelled
to
conclude
that
the
Louisiana
Whistleblower Statute, La. R.S. 23:967, requires an
employee to prove an actual violation of state law in
order to prevail on the merits of the case.
Accardo, 943 So.2d at 386-87.

Indeed, the United States Court of

Appeals for the Fifth Circuit, in affirming the lower court’s
ruling in an unpublished opinion stated “[a] violation of state law
is an element of the claim.”

Diaz v. Superior Energy Services,

LLC, 341 Fed.Appx. 26 (5th Cir.2009).
The lower court’s opinion in Diaz, authored by Magistrate
5

Judge

Wilkinson,

involved

a

pro

se

plaintiff

who

brought

a

retaliation claim against his former employer pursuant to La. R.S.
23:967.

Plaintiff

there

“allege[d]

vaguely

that

[Defendant]

violated unspecified federal laws by conspiring to influence a
[U.S.C.G.] Inspector . . . .”

Diaz v. Superior Energy Services,

LLC, No. 07-2805, 2008 WL 3077071 (E.D. La. Aug. 4, 2008).

Diaz is

distinguishable from the instant case in that Plaintiff here
alleges violations of specific state and federal law.
“complaints

concern

actual

violations

of

state

Plaintiff’s
law,

namely

possession of marijuana, which is unlawful pursuant to La. R.S.
40:966,

and operating a vehicle while intoxicated, which is

unlawful pursuant to La. R.S. 14:98.”

(Rec. Doc. No. 51 at 8).

Magistrate Judge Wilkinson further listed four factors as
requisites to a cognizable claim under La. R.S. 23:967:
To survive summary judgment on his whistleblower claim,
Diaz must establish that (1) his employer violated the
law through a prohibited workplace act or practice; (2)
he advised his employer of the violation; (3) he then
refused to participate in the prohibited practice or
threatened to disclose the practice; and (4) he was fired
as a result of his refusal to participate in the unlawful
practice or threat to disclose the practice. Failure to
put forth evidence to satisfy any of these elements must
result in a summary judgment in favor of his employer.
Diaz, 2008 WL 3077071 at *8.

Assuming arguendo that Plaintiff’s

testimony that he witnessed Terry smoke marijuana and consume
alcohol, along with Defendant’s employee Thomas King’s testimony
that Terry’s “substance abuse escalated from February 2008 to
November 2008" satisfy the first part of the test above, similar
6

testimony establishes the second prong.

(Rec. Doc. No. 51 at 2).

Defendant states that, if this is so, Plaintiff’s claims must
fail as he cannot satisfy the third and fourth prongs of the above
enunciated requisites.

However, Plaintiff contends he advised

Defendant on more than one occasion of Terry’s behavior. Plaintiff
states that his “continuing objections [] reflect that he refused
to participate in the employment or practice.”
at 9).

(Rec. Doc. No. 51

As for the fourth prong, Plaintiff testified that, after

his March complaint about Terry to Defendant, a deck hand cornered
him in the pilot house of the vessel and intimidated Plaintiff
regarding Plaintiff’s complaint about Terry.

Id.

Plaintiff

reported this action to Crosby who then took no action.

Citing

this failure to act as ratification of the deck hand’s behavior,
Plaintiff
Plaintiff?s

points
March

out

that

the

“temporal

4,

2009

report

and

termination, is evidence of causation.”

his

proximity
March

Id. at 10.

between

17,

2009

(citing Smith

v. Xerox, 584 F. Supp 2d 905, 915 (N.D. Tex. 2008)).
C.

Public Policy Exception
Plaintiff’s complaint alleges that his “termination violates

clearly important public policy, namely, protecting the safety not
only of seamen, but the public as well.

46 U.S.C. § 10901 et seq.”

(Rec. Doc. No. 1 at 2).
46 U.S.C. § 10902(a)(1) states, in pertinent part:
7

If the chief and second mates . . . of a vessel ready to
begin a voyage discover, before the vessel leaves harbor,
that the vessel is unfit as to crew . . . to proceed on
the intended voyage and require the unfitness to be
inquired into, the master immediately shall apply to the
district court of the United States at the place at which
the vessel is located, or, if no court is being held at
the place at which the vessel is located, to a judge or
justice of the peace, for the appointment of surveyors.
At least 2 complaining seamen shall accompany the master
to the judge or justice of the peace.
The text of the statute, as written, does not appear to
require a report be made, indeed two requirements appear.

“If the

chief . . . [1] discover[s] the vessel is unfit . . . and [2]
require[s] the unfitness to be inquired into . . . .”
10902(a)(1).

46 U.S.C. §

The Ninth Circuit, discussing 46 U.S.C. § 10901-908

stated “[t]he statutes create a means of quasi-self-regulation:
members of the crew are empowered to initiate a court-supervised
inspection of conditions they believe are unfit.”3
Defendant notes Plaintiff’s deposition testimony in which
Plaintiff stated that he did not report his concerns regarding
Terry’s alleged drug use to anyone other than Defendant.

(Rec.

Doc. No. 49-5 at 11). Defendant states that, given the statute and
Plaintiff’s “admission”, Plaintiff “cannot rely on 46 U.S.C. §

3

Herman v. Tidewater Pacific, Inc., 160 F.3d 1239, 1242 (9th Cir.1998)
But cf. U.S. v. Rivera, 131 F.3d 222, 224 n.4 (1st Cir.1997) (stating that a
“master receiving such a complaint is then required to apply to a district
court of the United States for the appointment of ‘3 experienced and skilled
marine surveyors to examine the vessel for the defects or insufficiencies
complained of.’”

8

10901 et seq, for he did not comply with those statutes; so
logically, he could not have been fired for his compliance with
those statutes.”

Id.

The unwritten and flawed logical step

implied by Defendant’s motion is that Plaintiff could only rely on
those

statutes

had

he

been

fired

for

compliance

therewith.

Defendant cites neither statute nor case law to support the
proposition that Movant was required to notify any other party.
In Smith v. Atlas Off-Shore Boat Service, 653 F.2d 1057 (5th
Cir.1981), a seamen was fired for maintenance of a Jones Act
personal injury claim against his former employer.

The Fifth

Circuit stated:
The maritime employer may discharge the seaman for good
cause, for no cause, or even, in most circumstances, for
a morally reprehensible cause. We conclude, however, that
a discharge in retaliation for the seaman's exercise of
his legal right to file a personal injury action against
the employer constitutes a maritime tort.
Id. at 1063.

In finding an exception to the employment at will

doctrine, the Smith court stated “[w]hether grounded in tort or
contract, the cause of action is based on the notion that the
employer's conduct in discharging the employee constitutes an abuse
of the employer's absolute right to terminate the employment
relationship when the employer utilizes that right to contravene an
established public policy.”

Smith, F.2d at 1062.

Defendant cites Feemster v. BJ-Titan Services Co., 873 F.2d 91

9

(5th Cir.1991) in which the Fifth Circuit affirmed the District
Court’s grant of summary judgment against tugboat captain who
refused to sale an eighteen hour voyage claiming it violated a
federal statute restricting vessel operation to twelve hours in any
twenty four hour period.4

Distinguishing the holding in Smith, the

court stated “[i]n Smith we acknowledged that . . . . a seaman has
a cause of action if a substantial motivating factor in his
discharge
Employer.”

is

the

filing

Id. at 92.

of

a

Jones

Act

action

against

his

In that case, Feemster conceded that the

statute did not grant him a “personal right to refuse a management
directive with which he disagreed, even if it violated a safety
statute.”

Id. at 93.

The court found that the statute at issue

did not create a private cause of action and so affirmed the prior
grant of summary judgment.
Defendant’s argument that the instant case is analogous to
Feemster save for that here “there is no violation of any statute”
disregard the genuine issues of fact already discussed supra.
(Rec. Doc. No. 49-5 at 12).

The same can be said for the assertion

that the “same reasons . . . why [Plaintiff cannot prove an actual
violation under the Louisiana Whistleblower Statue apply here to
defeat his claim under the employment-at-will doctrine.”

Id.

Plaintiff cites Borden v. Amoco Coastwise Trading Company, 985
4

The statute at issue in Feemster was 46 U.S.C. § 8104(h).

10

Id. at 93.

F.Supp. 692, 697 (S.D. Tex. 1997), denying Defendant’s summary
judgment motion in a wrongful discharge suit brought by captain of
an ocean-going tug who twice refused to sail due to storms in which
the district court discussed both Smith and Feemster from.
Doc. No. 51 at 12).

(Rec.

Defendant moved for summary judgment arguing

(1) no exception to the employment at will doctrine existed based
on the facts (2) that if an exception existed, Plaintiff was not
ordered to violate the law and (3) that if an exception was found
to exist, that Plaintiff was not solely terminated for his refusal
to violate law.

Id. at 694.

In Smith, the Fifth Circuit acknowledged the stringency
of the employment-at-will doctrine, but recognized that
an exception to this doctrine exists when the employee's
termination violates clearly important public policy.
Thus, reading Feemster in light of Smith, the primary
inquiry is whether public policy considerations in
particular factual circumstances are sufficient to
override the at-will doctrine. Simply stated, clearly
important public policy concerns were not at issue in
Feemster. Such concerns were at issue in Smith, and such
concerns are at issue here.
Id. at 697 (internal parentheticals omitted)(emphasis in original).
The

district

court

noted

that

the

safety

at

issue

in

Feemster involved overtime labor and the safety at issue in Borden
involved two leaks found in the ship and a resultant feat that the
ship would spill paraxylene, a chemical classified as “extremely
toxic and harmful to aquatic life” by the Coast Guard.

Id. at 698.

In the case sub judice, insuring the safety of both seamen and
11

the general public, potentially by preventing Captains under the
influence of drugs and alcohol from manning vessel, is certainly a
an matter of public policy. Plaintiff has raised issues of fact in
this regard that preclude summary judgment.
III. Conclusion
Plaintiff has barely raised a genuine issue of material
fact such that summary judgment at this stage is precluded.
Additionally,
Plaintiff’s

there

claims

exist
of

an

genuine
exception

issues
to

of

the

fact

surrounding

employment-at-will

doctrine under the Jones Act, specifically with regard to the
public policy implications outlined supra, albeit with a weak
factual foundation for same.
New Orleans, Louisiana, this 25TH day of May, 2011.

________________________________
UNITED STATES DISTRICT JUDGE

12