Kimble v. Cargo Carriers Inc ( 2002 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 02-30002
Summary Calendar
_____________________
JEFFERY W. KIMBLE,
Plaintiff — Counter-Defendant — Appellant — Cross-Appellee,
versus
CARGO CARRIERS, INC.,
Defendant — Counter-Claimant — Appellee — Cross-Appellant.
Appeal from the United States District Court
for the Middle District of Louisiana
(00-CV-624-A)
June 17, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Jeffery Kimble appeals the summary judgment awarded his former
employer, Cargill Marine and Terminal, Inc. (incorrectly captioned
as Cargo Carriers, Inc.), on his claims for reprisal, in violation
of LA. REV. STAT. § 23:967, and retaliation, in violation of LA. REV.
STAT. § 30:2027. Cargill cross-appeals the denial of summary
judgment on, and dismissal of, its counterclaim for attorneys’ fees
and costs under LA. REV. STAT. § 23:967(D). AFFIRMED.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I.
Kimble was hired by Cargill as a mechanic in 1998. After not
reporting to work on 2 April 1999, he was fired on 7 April.
Cargill maintains that it fired Kimble for insubordination and
violation of safety requirements; Kimble, that he was fired in
retaliation for having complained about Cargill’s environmental and
safety violations.
II.
A summary judgment is reviewed de novo. E.g., Stout v. Baxter
Healthcare Corp., 282 F.3d 856, 859 (5th Cir. 2002). “Summary
judgment is appropriate ‘if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law’”. Id. (quoting FED. R. CIV. P. 56(c)). “While
we view the evidence in a light most favorable to the non-movant,
in order to avoid summary judgment, the non-movant must go beyond
the pleadings and come forward with specific facts indicating a
genuine issue for trial”. Vela v. City of Houston, 276 F.3d 659,
666 (5th Cir. 2001) (internal citations omitted). “Conclusional
allegations and denials, speculation, improbable inferences,
unsubstantiated assertions, and legalistic argumentation do not
adequately substitute for specific facts showing a genuine issue
for trial.” Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002)
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(citing Securities & Exch. Comm’n v. Recile, 10 F.3d 1093, 1097
(5th Cir. 1993)).
Neither party urges a standard of review for the denial of
attorneys’ fees. Generally it is reviewed for an abuse of
discretion. See, e.g., Scham v. Dist. Courts Trying Criminal
Cases, 148 F.3d 554, 556-57 (1998) (42 U.S.C. § 1988).
A.
Kimble’s reprisal claim was brought pursuant to LA. REV. STAT.
§ 23:967, which provides in part:
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.
....
(3) Objects to or refuses to participate
in an employment act or practice that is
in violation of law.
(Emphasis added.) The district court awarded Cargill summary
judgment because Kimble had produced no evidence of a violation of
state law. (His claim under this section concerns alleged
violations of federal law: Occupational Health and Safety
Administration regulations.)
Puig v. Greater New Orleans Expressway Comm’n, 772 So. 2d 842(La. App. 5 Cir. 2000), writ denied, 786 So. 2d 731 (La. 2001),
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notes: “[Section] 23:967 ... specifies that the employer must have
committed a ‘violation of state law’ for an employee to be
protected from reprisal”. Id. at 845 (second emphasis added); see
also Nolan v. Jefferson Parish Hosp. Service Dist. No. 2, 790 So.
2d 725, 732 (La. App. 5 Cir. 2001) (quoting Puig). Kimble asserts:
this language is dicta; and, while subsection (A)(1) requires that
the violation be of state law, subsection (A)(3) requires only a
“violation of law”.
The § 23:967 claim, however, was apparently brought pursuant
to subsection (A)(1),the disclosure provision, not (A)(3):
Plaintiff was wrongfully discharged by
Defendant for reporting to supervisors and to
the Occupational Health and Safety
Administration concerning an unsafe working
condition in regard to a crane which was in
need of repair. This termination is in
violation of LA R.S. 23:967 forbidding
retaliation against an employee disclosing an
act or practice of the employer which is, or
is reasonably believed to be, in violation of
state law.
(Emphasis added.)
In any event, Kimble presents no case law in support of his
interpretation of the statute. In sum, there is no basis for our
questioning the only interpretation offered by a Louisiana court.
When making ... an Erie guess, we are bound by
an intermediate state appellate court decision
unless convinced by other persuasive data that
the highest court of the state would decide
otherwise. However, we will not expand state
law beyond its presently existing boundaries.
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Barfield v. Madison County, Miss., 212 F.3d 269, 272 (5th Cir.
2000) (internal citations and quotation marks omitted).
B.
Kimble’s retaliation claim was brought pursuant to REV. STAT.
§ 30:2027. It provides in part:
A. No ... business ... 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, [or] practice of the
employer ... that the employee reasonably
believes is in violation of an
environmental law, rule, or regulation.
(Emphasis added.)
“[T]he phrase ‘act in a retaliatory manner’ ... requires ...
showing that the employer was motivated to fire an employee because
of the employee’s disclosure of an environmental violation”.
Powers v. Vista Chemical Co., 109 F.3d 1089, 1094-95 (5th Cir.
1997); see also Chiro v. Harmony Corp., 745 So. 2d 1198, 1201 (La.
App. 1 Cir. 1999) (“Chiro was required to establish that the
conduct complained of ... occurred as a result of a report of, or
complaint of, an environmental violation. In other words, Chiro
must show a causal connection between his participation in the
protected activity ... and the alleged adverse action taken by
Harmony”.). The district court concluded Kimble failed to create
a material fact issue for this causation requirement.
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Based upon our de novo review of the record, and viewing the
evidence in the light most favorable to Kimble, we agree.
C.
Cargill counter-claimed for attorneys’ fees and costs under
LA. REV. STAT. § 23:967(D). It provides:
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.
(Emphasis added.)
Cargill moved for summary judgment on its counterclaim. The
district court denied the motion, finding no evidence of bad faith.
In addition, it dismissed the counterclaim. And, all claims having
been disposed of, the court entered final judgment.
Cargill contends: the evidence established that Kimble
“manufactured” a whistleblower claim; and, as a result, summary
judgment should have been entered in its favor. Alternatively, it
contends that, notwithstanding the motion’s being denied, the
district court should have reserved the counterclaim for trial.
Cargill provides no legal authority, other than one mention of FED.
R. CIV. P. 7(b)(1), in support of its contentions. We will not
consider an issue not properly briefed on appeal. E.g., Abbott v.
Equity Group, Inc., 2 F.3d 613, 627 n.50 (5th Cir. 1993), cert.
denied, 510 U.S. 1177 (1994).
III.
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For the foregoing reasons, the judgment is
AFFIRMED.
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