Menard v. Targa Resources ( 2023 )

Case: 22-30178 Document: 00516834768 Page: 1 Date Filed: 07/26/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
July 26, 2023
No. 22-30178
Lyle W. Cayce
____________ Clerk
Kirk Menard,
Plaintiff—Appellee,
versus
Targa Resources, L.L.C.,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:19-CV-50
______________________________
Before King, Stewart, and Haynes, Circuit Judges.
Per Curiam: *
Targa appealed the district court’s order concluding that its former
employee, Kirk Menard, was entitled to protection under the Louisiana
Environmental Whistleblower Statute (“LEWS”) for refusing to comply
with a manager’s illegal directive. In our January 6, 2023, opinion, we
certified questions to the Louisiana Supreme Court regarding whether
Menard engaged in “protected activity” under LEWS. Menard v. Targa Res.,
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-30178
L.L.C., 56 F.4th 1019, 1024 (5th Cir. 2023). On June 27, 2023, the Louisiana
Supreme Court answered these questions and confirmed that it was. See No.
2023-CQ-00246, 2023 WL 4195779, at *5 (La. June 27, 2023). 1 This leaves
us with one final issue to resolve—whether Menard met his burden to show
that this “protected activity” 2 was the but-for cause of his termination. We
conclude that he has made this showing, and we therefore AFFIRM.
I. Background
Our prior opinion summarizes much of this case’s relevant factual
background and procedural history. See Menard, 56 F.4th at 1021. In sum,
after Menard was fired by Targa, he sued the company contending that his
termination was retaliation for protected conduct in violation of LEWS. Id.
at 1021. Turning to Targa’s version of the events, it disagrees that it
terminated Menard in retaliation for his refusal to comply with Manager
Perry Berthelot’s illegal directive. Rather, Targa contends it fired Menard
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1
Specifically, we asked the following, both of which the Louisiana Supreme Court
answered “yes”:
(1) Whether refusals to engage in illegal or environmentally damaging ac-
tivities are “disclosures” under the current version of the Louisiana Envi-
ronmental Whistleblower Statute, La. Stat. Ann. 30:2027; and
(2) Whether the Louisiana Environmental Whistleblower Statute 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 en-
vironmental law, rules, or regulations, is a part of the employee's normal
job responsibilities.
56 F.4th at 1024.
2
Menard urges that Targa retaliated against him for (1) refusing to follow
Berthelot’s directive and (2) reporting the directive to his official supervisor. The
Louisiana Supreme Court held that these are both “protected activities” under LEWS. See
2023 WL 4195779, at *5—6. However, because we conclude Menard established his
LEWS claim based on the former, we do not address the latter.
2
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No. 22-30178
due to “performance issues” and several incidents of inappropriate
workplace conduct.
Targa provides the following account: Four days after the call with
Berthelot, Menard’s “indirect supervisor,” Tim Keller, received complaints
about Menard’s behavior. Specifically, some of Menard’s co-workers alleged
Menard had shown them intimate pictures of his partner’s medical condition
and made crude comments about their wives. Keller subsequently relayed
this information—along with his concerns about Menard’s performance—to
Menard’s “official” supervisors and members of Targa’s human resources
(“HR”) department. These HR representatives then met with Jessica
Keiser, a Targa Senior Vice President, who ultimately decided to fire
Menard. Menard disputed much of this account, and he presented
conflicting evidence in response to Targa’s motion for summary judgment.
The district court found that this evidence raised several genuine disputes of
material fact, precluding summary judgment for Targa. Following a bench
trial, the district court issued an opinion finding for Menard “in all respects”
and entered judgment in his favor.
II. Jurisdiction & Standard of Review
The district court had diversity jurisdiction under 28 U.S.C.
§ 1332(a). We have appellate jurisdiction over the district court’s final order
under 28 U.S.C. § 1291. Additionally, we may review Targa’s challenges to
the district court’s denial of its motion for summary judgment to the extent
they address the court’s rulings on “issue[s] of law.” 3 Becker v. Tidewater,
Inc., 586 F.3d 358, 365 n.4 (5th Cir. 2009).
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3
This is an exception to the general rule that orders denying summary judgment
are not reviewable “when final judgment adverse to the movant is rendered on the basis of
3
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We review a district court’s legal rulings in an order denying summary
judgment de novo. Tanks v. Lockheed Martin Corp., 417 F.3d 456, 461 (5th
Cir. 2005). The standard of review for an order following a bench trial is
bifurcated: we review findings of fact for clear error and legal conclusions and
mixed questions of law and fact de novo. Dickerson v. Lexington Ins. Co., 556
F.3d 290, 294 (5th Cir. 2009). We will only disturb the district court’s
findings of fact if we are “left with the definite and firm conviction that a
mistake has been committed.” Deloach Marine Servs., L.L.C. v. Marquette
Transp. Co., L.L.C., 974 F.3d 601, 606–07 (5th Cir. 2020) (quotation
omitted). We grant “even greater deference to the trial court’s findings
when they are based on determinations of credibility.” Id. at 607 (quotation
omitted). There is “a strong presumption that the [district] court’s findings
must be sustained even though [we may] have weighed the evidence
differently.” Id. (quotation omitted).
III. Discussion
LEWS bars employers from “act[ing] in a retaliatory manner”
towards an employee who engages in conduct the Statute protects.
LA. R.S. 30:2027(A). Given that Menard’s retaliation claim relies on a
pretext theory, “our analysis is governed by the well-known McDonnell
Douglas test and its burden-shifting framework.” Strong v. Univ. Healthcare
Sys., L.L.C., 482 F.3d 802, 805 (5th Cir. 2007). “Under th[is] framework,
the employee’s ultimate burden is to prove that the employer’s stated reason
for the adverse action was merely a pretext for the real, retaliatory purpose.”
Septimus v. Univ. of Hous., 399 F.3d 601, 608 (5th Cir. 2005). To accomplish
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a full trial on the merits.” Blessey Marine Servs., Inc. v. Jeffboat, L.L.C., 771 F.3d 894, 897
(5th Cir. 2014) (quotation omitted).
4
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this, Menard needed to establish that Targa would not have discharged him
“‘but for’ [his] protected conduct.” Id.After considering the parties’ evidence, the district court concluded
that Menard satisfied this burden. It provided several interrelated reasons.
First, the district court emphasized the close temporal proximity (six days)
between Menard’s phone call with Berthelot and his discharge. 4 Second, the
district court cited extensive evidence discrediting Targa’s witness
testimony and its proffered rationale for Menard’s discharge. For example,
the district court noted: (1) Keller’s inability to provide specific details about
Menard’s allegedly defective work performance; (2) numerous
inconsistencies between Keller’s and the reporting employees’ accounts of
Menard’s allegedly inappropriate conduct; (3) the lack of any records of
inappropriate conduct in Menard’s personnel file; and (4) Berthelot’s failure
to recall any of the details of his conversation with Menard.
Third, the district court found that other evidence supported
Menard’s contention that his refusal was the but-for cause of his termination.
The court acknowledged that it was undisputed that the ultimate
decisionmaker—Keiser—lacked the requisite retaliatory animus. However,
it reasoned that the evidence nonetheless supported Menard’s allegations
that Berthelot and Keller retaliated against him by improperly influencing
Keiser through Keller’s negative reports. This, the court reasoned, was
sufficient to establish but-for causation under a “cat’s paw” framework.
Under this theory of liability, courts may impute an agent’s improper
motive to a de facto decisionmaker upon a showing that the agent
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4
Indeed, under our precedents, temporal proximity (particularly this close), while
insufficient in isolation, constitutes evidence of pretext. See Watkins v. Tregre, 997 F.3d
275, 284–86 (5th Cir. 2021); Strong, 482 F.3d at 807–08.
5
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(1) exhibited the requisite retaliatory animus, and (2) possessed leverage, or
exerted influence, over the titular decisionmaker. Russell v. McKinney Hosp.
Venture, 235 F.3d 219, 226–27 (5th Cir. 2000). The district court determined
both prongs were satisfied based on evidence that: (1) Berthelot was Keller’s
direct supervisor; (2) Keller had had “plenty of time” to speak with
Berthelot after the phone call and before Keller’s report to HR; and
(3) Keiser based her decision to terminate Menard solely on Keller’s report—
that is, neither she nor the HR Representatives independently investigated
Keller’s allegations. Taken together, the district court reasoned, this
circumstantial evidence invited the reasonable inference that (1) Berthelot
imputed his retaliatory animus to Keller, and (2) Keller, in turn, “used”
Keiser “to bring about the intended retaliatory action.”
Targa challenges this reasoning on two fronts. First, Targa argues that
to satisfy the cat’s paw analysis, Menard needed to show that the same party
both harbored retaliatory animus and influenced the final decisionmaker.
Yet, Targa argues, Menard’s evidence at most showed that Berthelot had the
requisite motive and Keller influenced Keiser.
Of course, the district court found that Keller did possess the requisite
retaliatory animus—it credited evidence indicating Keller and Berthelot
conspired together to have Menard terminated in the days following the
phone call. 5 To the extent Targa asks us to second-guess the district court’s
factual findings and credibility determinations, we decline. See Deloach, 974
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5
The district court cited extensive evidence supporting this theory beyond Keller’s
aforementioned admission that he would’ve had time to talk to Berthelot in the days
following the phone call. For instance, the court noted that Keller conceded at trial that he
had told Menard on multiple occasions that if Menard “made [] Berthelot look bad[,] [] it
would not be good.” Additionally, Keller testified that four days after the phone call, he
told Berthelot he planned to report Menard to HR—even though Menard “was not in
Berthelot’s chain of command.”
6
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F.3d at 607. But Targa’s greater point seems to be that this “causal chain”—
in which the requisite animus purportedly passed from Berthelot, to Keller,
to HR, to Keiser—is too attenuated to establish but-for causation, even under
a “cat’s paw” theory. In other words, Targa seems to contend that Menard
was required to show that the person who leveraged the decisionmaker was
also the original source of any improper motive.
We refuse to adopt this rigid construction of the cat’s paw theory. In
Staub v. Proctor Hospital, the Supreme Court explicitly rejected the notion
that intermediary “exercise[s] of judgment” necessarily make the link to an
agent’s retaliatory motive excessively “‘remote’ or ‘purely contingent.’”
562 U.S. 411, 419 (2011). The cat’s paw theory recognizes that because
“[t]he one who makes the ultimate decision” often “does so on the basis of
performance assessments by other supervisors,” supervisors may cause an
employee’s discharge by leveraging other employees and submitting false
reports. Id. at 421. Failing to account for this possibility, the Court noted,
would “effectively shield[]” an employer from retaliatory “acts and
recommendations of supervisors that were designed and intended to produce
the adverse action.” Id. at 420 (emphasis in original). Accordingly, the cat’s
paw framework is not a mechanical, extra-textual test for assessing liability.
Rather, it aims to focus the court on its central task—determining whether
retaliatory animus caused an adverse employment action. See Long v.
Eastfield Coll., 88 F.3d 300, 307 (5th Cir. 1996) (indicating the key
determination under a cat’s paw analysis is whether “the causal link between
[the supervisor’s] allegedly retaliatory intent and [the employee’s]
termination[] would be broken”). Because this is exactly the analysis the
district court conducted, we reject Targa’s first point of error.
Second, Targa urges that Menard failed to show that Keller
“leverage[d]” or “influence[d]” Keiser. See Russell, 235 F.3d at 226.
Rather, Targa asserts, the evidence establishes that Keiser based her decision
7
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on a “good faith” belief that Menard engaged in the conduct Keller reported.
But this, too, misses the point. First, under our precedent, evidence that an
ultimate decisionmaker “rubber stamp[ed]” a biased supervisor’s
termination recommendation typically satisfies the second prong of the cat’s
paw analysis. See Gorman v. Verizon Wireless Tex., L.L.C., 753 F.3d 165, 171
(5th Cir. 2014); Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1122–23 (5th Cir.
1998). That’s exactly what the district court determined transpired here. To
the extent Keiser asserted otherwise at trial, the district court cited
reasonable grounds for discrediting her testimony. 6
Along the same lines, Targa confuses “good faith” for “blind faith.”
Keiser couldn’t have demonstrated “good faith” reliance on Keller’s
allegations—it was undisputed that both she and Targa’s HR
Representatives accepted his report at face value without making any attempt
to validate its veracity.7 Again, the very purpose of the cat’s paw theory is to
prevent employers from escaping liability by passively facilitating such
retaliatory acts. Therefore, this argument also fails.8
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6
Indeed, the district court noted that Keiser couldn’t recall numerous important
details relevant to her termination decision, including anything about Menard’s
employment with Targa or which employees witnessed Menard’s alleged inappropriate
conduct.
7
Moreover, Targa relies on our statement in Waggoner v. City of Garland, 987 F.2d
1160 (5th Cir. 1993) that “[t]he real issue is whether the employer reasonably believed the
employee’s allegation and acted on it in good faith.” Id. at 1165. But Waggoner didn’t
implicate a cat’s paw analysis, and therefore it’s inapplicable here.
8
Targa also asserts that the district court erred by mistakenly stating that Menard’s
protected activity was Berthelot’s request for Menard to dilute the samples. But given that
the rest of the court’s order makes clear that the protected activity at issue was Menard’s
refusal to follow this directive, this writing mistake is plainly not reversible error. See S.S.
Silberblatt, Inc. v. U.S. for Use & Benefit of Kambert Corp., 353 F.2d 545, 549 (5th Cir. 1965)
(noting that the district court is only required to detail its findings so as to “indicate the
factual basis for [its] ultimate conclusion”) (quotation omitted).
8
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IV. Conclusion
For the reasons discussed, we agree that, given the district court’s
factual findings, Menard met his burden to show that but for his protected
activity he would not have been discharged. We AFFIRM the district
court’s denial of Targa’s motion for summary judgment and the final
judgment in favor of Menard.
9