Schlesinger v. ES&H, Inc. et al

Filing 63

ORDER AND REASONS granting in part and denying in part 44 Motion for Judgment on the Pleadings. Signed by Judge Ivan L.R. Lemelle on 10/28/11. (mmv, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARTIN SCHLESINGER

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VERSUS
ES&H, INC., ET. AL.

CIVIL ACTION
NO. 11-294
SECTION “B”(2)

ORDER AND REASONS

Defendants ES&H, Inc.’s (“ES&H”) and Team Labor Force,
LLC’s (TLF) opposed Motion for Partial Judgment on the Pleadings
is DENIED in PART and GRANTED in Part. (Rec.Docs. 44, 52 & 58)

Cause of Action and Facts of the Case:
The facts of this case are well known to the Court.

As such,

this analysis will adopt and incorporate by reference the factual
and procedural history as stated by this Court in its August 30,
2011 Order and Reasons (Rec. Doc. No. 40 at 2-5).
Law and Analysis
a. Motion for Summary Judgment:
Summary judgment is proper
interrogatory

answers,

and

if

the

pleadings,

admissions,

together

depositions,
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).

A genuine issue exists if the evidence

would

allow

nonmovant.
(1986).

a

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).

b. General and Environmental Whistleblower Claims:
Louisiana’s General Whistleblower statute, La.
R.S. § 23:967, requires that the violation of state law and the
alleged assault upon which a plaintiff’s claim is based must occur
within Louisiana. Here, as this Court previously recognized, (Rec.
Doc. No. 40 at 13), Plaintiff’s amended complaint failed to
sufficiently plead these facts, as Plaintiff alleges that the
assault occurred in Mississippi.

(Rec. Doc. No. 39 at 14).

As

such, Plaintiff’s General Whistleblower claim against Defendants
must fail.

2

Louisiana’s Environmental Whistleblower statute, La. R.S. §
30:2027, requires a plaintiff to report possible violations of
environmental law to his/her employer or to a regulatory agency.
However, Plaintiff merely alleges that he reported an assault to
his employer that was precipitated by his duty to implement OSHA
directives, and not any environmental issues. (Rec. Doc. No. 39 at
15).

Accordingly, this Court found that Plaintiff’s amended

complaint failed to state a claim under La. R.S. § 30:3027, and
this immediate analysis will adopt and incorporate those reasons.
(Id.).

c. McCarn Wrongful Termination Claim:
Under McArn v. Allied Bruce-Terminex Co., 626 So.2d 603 (Miss.
1993), a plaintiff may only recover from a wrongful termination
claim

if

he:

(1)

alleges

he

was

terminated

for

refusal

to

participate in an illegal activity or for reporting an employer’s
illegal conduct to the employer or anyone else; (2) the conduct at
issue is criminal; and (3) the allegedly illegal conduct relates to
the employer’s business itself. McCarn, 626 So.2d at 607; see also
(Rec. Doc. No. 39 at 16).
This Court previously dismissed Plaintiff’s McCarn claim against
BP because the alleged assault was not plausibly related to BP’s
business and Plaintiff failed to allege BP encouraged the alleged
assault.

(Id. at 18).

The alleged assault was not plausibly

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related to instant moving Defendants’ business, nor did Plaintiff
allege that any Defendants encouraged the assault at issue.

d. Louisiana Wage Payment Act (“LWPA”) claim:
To recover under the LWPA, plaintiff must: (1) show
that wages were due and owing; (2) demand payment at the place
where he was usually paid, and (3) show that the employer failed to
pay upon demand.

Cleary v. LEC Unwired, LLC, 804 So.2d 916, 923

(La. App. 1 Cir. 2001) (citation omitted).
This Court found that Defendants were sister companies, and,
as such, were Plaintiff’s employers at the time he was terminated.
(Rec. Doc. No. 40 at 11).

Therefore, while Plaintiff only made

payment demand upon ES&H, because of the intertwined nature of
these companies, that notice was proper as to both Defendants.
Plaintiff alleged that wages were owing, he made payment demand
upon ES&H, which simultaneously notified TFL of such demand, and he
alleged that he was not fully compensated.

Accordingly, moving

Defendants’ request for partial judgment on the pleadings for the
LWPA claim is DENIED.

e. Civil Conspiracy and Extortion Claims:
In Smith v. Atlas Off-shore Boat Service, Inc., 653 F.2d
1057, 1063 (5th Cir. 1981), the Fifth Circuit held that “[t]he
employer should not be permitted to use his absolute discharge

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right to retaliate against a seaman for seeking to recover what is
due him or to intimidate the seaman from seeking legal redress.
The right to discharge at will should not be allowed to bar the
courthouse door.”
Here, Defendants cite Louisiana law that states employers
cannot be liable for allegedly conspiring to terminate an at-will
employee, Ingram v. Kaiser Aluminum & Chemical Corp., 323 So.2d 921
(La. App. 4 Cir. 1975).1 Defendants’ essentially argue that they
did

not

harm

Plaintiff,

even

if

they

were

part

of

a

civil

conspiracy against Plaintiff, because he was an at-will employee.
If Defendants committed civil conspiracy and extortion against
Plaintiff, then that would be a violation of La. Civil Code 2315.
As such, this would be one of the “limited circumstances,” when an
employer could be liable for terminating an at-will employee, as
conceded

by

Accordingly,

Defendants.
Defendants’

(Rec.
motion

Doc.
for

No.

44-1

partial

at

judgment

8

n.4).
on

the

pleadings for the civil conspiracy and extortion claims is DENIED.
New Orleans, Louisiana, this 28th day of October, 2011.

---------------------------UNITED STATES DISTRICT JUDGE
1

Defendants do concede there are “limited circumstances in
which an employer can be liable for terminating an at-will
employee.
Specifically, an employer cannot terminate an
employee if doing so would violate statutory or constitutional
provisions.” (Rec. Doc. No. 44-1 at 8 n.4) (citations
omitted).
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