White v. Slaughter et al

REPLY MEMORANDUM in Support of 6 MOTION to Dismiss all claims against Defendants Ricky Slaughter and Tony Anderson

W.D. La.September 21, 2017

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA ROBERT WHITE, Plaintiff, versus RICKY SLAUGHTER TONY ANDERSON AND CROP PRODUCTION SERVICES, INC. Defendants. ) ) ) ) ) ) ) ) ) Case No. 3:17-cv-01022 Judge Robert G. James Magistrate Judge Karen L. Hayes MEMORANDUM IN SUPPORT OF RULE 12(b)(6) MOTION TO DISMISS OF DEFENDANTS, RICKY SLAUGHTER AND TONY ANDERSON MAY IT PLEASE THE COURT: Defendants Ricky Slaughter and Tony Anderson (“Slaughter” and “Anderson” respectively; “Defendants” collectively), submit the following Reply Memorandum in Support of their Rule 12(b)(6) Motion to Dismiss. I. PLAINTIFF’S WHISTLEBLOWER CLAIMS SHOULD BE DISMISSED AS UNOPPOSED Plaintiff concedes his claims against individual Defendants Slaughter and Anderson for alleged retaliation under Louisiana Whistleblower (La. R.S. 23:967) and Louisiana Environmental Whistleblower (LA. R.S. 30:2027). Defendants Slaughter and Anderson urged in their Motion that Plaintiff cannot bring Louisiana Whistleblower (La. R.S. 23:967) and Louisiana Environmental Whistleblower (LA. R.S. 30:2027) claims against them because they were not Plaintiff’s employer as required by Louisiana law. See Doc. 6 and 6-1, Sec. III and IV. Plaintiff did not oppose this argument. See Doc. 16. Thus, Plaintiff’s claims against Defendants Anderson and Slaughter under Louisiana Whistleblower (La. R.S. 23:967) and Louisiana Environmental Whistleblower (LA. R.S. 30:2027) should be dismissed with prejudice. Case 3:17-cv-01022-RGJ-KLH Document 20 Filed 09/21/17 Page 1 of 10 PageID #: 227 2 II. PLAINTIFF HAS NOT ALLEGED A VIABLE CAUSE OF ACTION FOR NEGLIGENCE. In opposition to Defendants Slaughter and Anderson’s Motion to Dismiss, Plaintiff argues that he has alleged viable negligence claims against Defendants Slaughter and Anderson. Plaintiff is mistaken. As an initial matter, any negligence claims purportedly alleged against Defendants Slaughter and Anderson are barred by the exclusive remedy provision of the Louisiana Worker’s Compensation Act. Moreover, even if they were viable, Plaintiff did not actually plead a negligence claim. A. Any purported claims of Negligence are precluded by Louisiana law. The Court should not permit a negligence claim in this action, whether by amendment or otherwise, because the claim is barred by the exclusive remedy of the Workers Compensation Act. The Louisiana Worker’s Compensation Act declares the following: A. (1)(a) Except for intentional acts provided for in Subsection B, the rights and remedies herein granted to an employee . . . shall be exclusive of all other rights, remedies, and claims for damages,. . . as against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal, for said injury, or compensable sickness or disease. (b) This exclusive remedy is exclusive of all claims, including any claims that might arise against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal under any dual capacity theory or doctrine. La. R.S. 23:1032. There is no dispute that “claims of negligence are barred by the Act’s [above stated] exclusive remedy provision.” Charkhian v. Nat'l Envtl. Testing, Inc., 907 F. Supp. 961, 964 (M.D. La. 1995). Soo too are claims for gross negligence. See Field v. Lafayette Par. Sch. Bd., Case 3:17-cv-01022-RGJ-KLH Document 20 Filed 09/21/17 Page 2 of 10 PageID #: 228 3 2016-495 (La. App. 3 Cir. 11/9/16), 205 So. 3d 986, 989 (citing Mouton v. Blue Marlin Specialty Tools, Inc., 01–648 (La.App. 3 Cir. 10/31/01), 799 So.2d 1215) (“The statute as enacted limits the availability of tort recovery only to employees whose injuries are caused by genuine intentional acts. Anything less than intentional, whether it be gross negligence or violation of a safety rule, remains in workers' compensation.”). This exclusion includes claims against co-employees. Craft v. Wal-Mart Stores, Inc., 2001-564 (La. App. 3 Cir. 10/31/01), 799 So. 2d 1211, 1214(internal citations omitted) (“[W]orkers' compensation is the exclusive remedy for an employee injured on the job as the result of the negligence of his co-employee. This immunity from tort claims extends to the co- employee as well as the employer.”); see also Charkian, 907 F. Supp. at 964. (“[T]here is clearly no possibility that the plaintiffs can recover from the three co-employees under this theory since claims of negligence are barred by the Act's exclusive remedy provision.”). Plaintiff urges to the contrary, but he relies on bad law. All of Plaintiff’s authority pre- dates the 1976 amendments to the Louisiana Worker’s Compensation Act which expanded the exclusive remedy statute with the above quoted exclusions. See Bazley v. Tortorich, 397 So.2d 475, 478-479 (“The worker's compensation statute was amended by Act 147 of 1976 to preclude suits by an employee to recover for work-related injuries from certain designated persons, including a fellow employee engaged at the time of injury in the normal course and scope of employment, unless his injury resulted from the co-worker's intentional tortious act.”). Thus, to the extent Plaintiff claims he has viable negligence claims against Defendants Slaughter and Anderson, he does not. This result further supports dismissal of Defendants Slaughter and Anderson from this lawsuit. B. Plaintiff’s allegations involve work-related conduct and thus arise within the Course and Scope of Employment. Case 3:17-cv-01022-RGJ-KLH Document 20 Filed 09/21/17 Page 3 of 10 PageID #: 229 4 There is no question that the allegations raised by Plaintiff involve work-related conduct and thus arise within the course and scope of employment. “[T]the exclusive remedy rule of the Worker's Compensation law only applies to negligence claims arising within the course and scope of employment”. Tumbs v. Wemco, Inc., 97-2437 (La. App. 4 Cir. 4/22/98), 714 So. 2d 761, 763, writ denied, 98-1750 (La. 10/9/98), 726 So. 2d 34. “The course of employment test refers to time and place, while the scope of employment test examines the employment related risk of injury.” Menson v. Taylor, 1999-0300 (La. App. 1 Cir. 4/17/00), 764 So. 2d 1079, 1083 (internal citations omitted). Plaintiff’s assertions not-withstanding, all of Plaintiff’s allegations, whether in the Petition or in his Opposition, relate to Defendants’ and even Plaintiff’s work-related conduct relative to perceived work-related risks. Plaintiff alleges that Defendants made work-related decisions, and directed Plaintiff accordingly. Plaintiff’s argument that the alleged misconduct occurred outside the course and scope of Plaintiff’s employment is specious. C. Even if Plaintiff could maintain a negligence claims against Defendants Slaughter and Anderson, Negligence was not pled in his Complaint. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(emphasis added). A negligence claim requires proof of five elements: (1) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) proof that the defendant's conduct failed to conform to the appropriate standard (the breach element); (3) proof that the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element); (4) proof that the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of liability or scope of protection element); and(5) proof of actual damages (the damages element). Case 3:17-cv-01022-RGJ-KLH Document 20 Filed 09/21/17 Page 4 of 10 PageID #: 230 5 McKee v. Wal-Mart Stores, Inc., 2006-1672 (La. App. 1 Cir. 6/8/07), 964 So. 2d 1008, 1011, writ denied, 2007-1655 (La. 10/26/07), 966 So. 2d 583 (citing Detraz v. Lee, 05–1263, p. 8 (La.1/17/07), 950 So.2d 557, 562). In his Complaint, Plaintiff failed to allege any facts sufficient to support that Defendants owed any duties to Plaintiff in the way Plaintiff alleges in his Opposition. Plaintiff does not even conclusorily allege in his Complaint that any duties were owed by Defendant, which would nonetheless be inadequate because “[a] formulaic recitation of the elements of the cause of action are insufficient.” Twombly, 550 U.S. at 570. Plaintiff’s Complaint does not plead a single element of a negligence claim. Plaintiff does not allege that Defendants owed a duty or breached that duty owed to him. See Doc.1-1, pp. 4-8. Plaintiff does not allege that Defendants’ negligence was the cause in fact of his alleged injury. Plaintiff does not allege that Defendants’ alleged negligence was the legal cause of his injury. Plaintiff does not even allege that he actually suffered damage as a result of Defendants’ breach of Defendants’ unalleged duties. Indeed, the words duty, breach, and negligence are not in the Petition. Plaintiff’s damage allegation is entirely limited to the following: “Defendants Ricky Slaughter, Tony Anderson and Crop Production Services, Inc., wrongfully terminated Robert White for raising concerns about repeated, ongoing violations of the laws and regulations of the State of Louisiana; including the environmental regulations of the State of Louisiana. As a result of the retaliatory firing, Petitioner has suffered both pecuniary damage and damage to his reputation.” See Doc. 1-1, ¶ 17. Thus, Defendants did not consider in their Motion challenging the viability of a negligence claim in this action because there simply is no negligence claim plead in this action. It is clear that the only issues raised in the Petition are whether Plaintiff was retaliated against in the form of termination for allegedly blowing the whistle, and whether he was Case 3:17-cv-01022-RGJ-KLH Document 20 Filed 09/21/17 Page 5 of 10 PageID #: 231 6 damaged as a result. As this Court stated previously, “[w]hen considering a motion to dismiss, courts … are limited to the complaint and its proper attachments. Grimes v. Stephens, No. CV 16-1736, 2017 WL 2888583, at *3 (W.D. La. May 5, 2017) (citing Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008)) (citation omitted). There are no facts or allegations actually pled in the Petition (i.e., Complaint) to support that a negligence claim is actually pending in this action. Defendants’ Motion should be granted and all claims pending against them should be dismissed with prejudice. III. PLAINTIFF HAS NOT ALLEGED A VIABLE CAUSE OF ACTION FOR INTENTIONAL TORTS AGAINST DEFENDANTS SLAUGHTER AND ANDERSON. Here, there is no dispute that Plaintiff alleges Slaughter and Anderson intentionally terminated him in response to his alleged blowing of an environmental whistle. While the worker’s compensation act exclusion discussed above does not prevent the assertion of claims for intentional acts, as explained in Doc. 6, and unopposed by Plaintiff, Plaintiff’s whistleblower claims are simply unavailable against Defendants Slaughter and Anderson because they were not his employer. Plaintiff pleads no other viable, intentional claim. In fact, Plaintiff identifies no other intentional claim in his Opposition.1 In spite of Plaintiff’s usage, there is no such thing as “intentional negligence.” See Mitchell v. Exxon Corp., 907 F. Supp. 198, 200 (M.D. La. 1995)(“No degree of carelessness, negligence, or even gross negligence can, or ever will, amount to “an intentional act” so long as those words remain a part of the English language.”). If Plaintiff means to bring negligence claims against his co-employees, such claims are excluded, for the reasons provided above. 1 Plaintiff alleges in his opposition that Defendants breached certain duties, but such allegations are negligence claims masked as “intentional negligence” claims – a legal misnomer – in order to avoid the exclusive remedy provisions of the Louisiana Worker’s Compensation Act. Case 3:17-cv-01022-RGJ-KLH Document 20 Filed 09/21/17 Page 6 of 10 PageID #: 232 7 “[A]n act is considered intentional whenever it is shown that the defendant either ‘consciously desired’ the physical results of his conduct or was ‘substantially certain’ that those physical results would follow from his actions.” Charkhian v. Nat'l Envtl. Testing, Inc., 907 F. Supp. 961, 964 (M.D. La. 1995). “To satisfy the criteria of ‘substantial certainty,’ …it is necessary to show more than a reasonable probability that an injury will occur. The term has been interpreted as being equivalent to “inevitable,” “virtually sure” and “incapable of failing.” Id. (quoting King v. Schuylkill Metals Corp., 581 So.2d 300, 302 (La.App. 1st Cir.1991)). Plaintiff does not so plead. A. Speculative injury is inadequate Plaintiff claims in his Opposition that Defendants Slaughter and Anderson2 owed a duty to the general public, including Plaintiff, to protect them from injuries from the harm that the alleged unauthorized release of toxic chemicals could impose.3 First, this is a negligence claim and not an intentional tort. Further, Plaintiff does not allege, either in his Petition or even in his Opposition, that he was actually injured by the release of toxic chemicals, or that such an injury was inevitable or substantially certain, which is his burden. See Bazley, supra. A speculative risk of injury is not injury, and is therefore inadequate. Plaintiff argues next that Defendant Slaughter allegedly forced Plaintiff to inaccurately input inventory into the computer system which Plaintiff says “created an unreasonable risk of harm for the Plaintiff by subjecting him to past and continual criminal liability by potentially being charged with or accused of stealing the inventory himself by CPS or any customer of 2 This is the only specific allegation pertaining to Defendant Anderson, whether in the Petition or in Plaintiff’s Opposition, besides his alleged complicity in Defendant Slaughter’s conduct. 3 Plaintiff cites to Ford v. Ellsbury, 32 F.3d 931, 936 (1994) as support for the idea that such a duty is owed. However, the Ford case did not involve a claim by one employee against co-employees, but instead involved a claim from third-party neighbors resulting from a fertilizer plant explosion. Id. at 933. This is the only case cited by Plaintiff to support his argument that Defendants owed any alleged duties to Plaintiff. Case 3:17-cv-01022-RGJ-KLH Document 20 Filed 09/21/17 Page 7 of 10 PageID #: 233 8 CPS.” Doc. 16 (emphasis added). Plaintiff does not claim he was charged with a crime. Plaintiff does not claim he was arrested or suffered any harm because of this alleged direction to input inventory incorrectly, let alone that such a result was “inevitable.” Plaintiff alleges that such conduct created unreasonable risk, which is again a negligence argument. These allegations are not intentional claims. B. General safety concerns are inadequate A Louisiana Fourth Circuit case is instructive on Plaintiff’s other allegations. In Faridnia v. Eclab, 593 So. 2d 936, 938 (La. Ct. App.), writ denied, 595 So. 2d 659 (La. 1992), an employee plaintiff sued her employer for injuries allegedly caused by workplace exposure to toxic or hazardous chemicals. She claimed that employees and management knowingly exposed her to toxic and/or hazardous materials during the course and scope of her employment. Id. at 937. The plaintiff also allegedly complained about the unsafe conditions to her employer to no avail. Id. at 938. In rejecting the idea that the plaintiff’s allegations rose to the level of intentional tort, the court held that “the failure to correct unsafe working conditions is insufficient proof of an intentional tort for purposes of L.S.A.–R.S. 23:1032.” Id. (citing Dycus v. Martin Marietta Corp, 568 So.2d 592, 594 (La.App. 4 Cir. 1990); Hood v. South Louisiana Medical Center, 517 So.2d 469 (La.App. 1st Cir.1987)). Failure to maintain safe working conditions may give rise to conditions “which, at most, could be said to have made the occurrence of an accident likely, but the circumstances fall short of indicating that injury to plaintiff was inevitable or substantially certain to occur.” Id (citing Hood, 517 So.2d at 471). Plaintiff alleges in his Opposition that Defendant Slaughter was negligent by failing to attend safety meetings but, again, this conduct does not rise to the level of intentional tort Case 3:17-cv-01022-RGJ-KLH Document 20 Filed 09/21/17 Page 8 of 10 PageID #: 234 9 because it is a speculative allegation about unsafe work conditions, precluded by Hood and its progeny cited above. Indeed, the Fourth Circuit has held that even “an employer's failure to provide …specifically requested safety equipment is not an intentional tort for purposes of the exception to the worker's compensation exclusivity rule.” Gallon v. Vaughan Contractors, Inc., 619 So. 2d 746, 749 (La. Ct. App.), writ denied, 625 So. 2d 1035 (La. 1993)(citing Jacobsen v. Southeast Distributors, Inc., 413 So.2d 995 (La.App. 4th Cir.), writ denied, 415 So.2d 953 (La.1982)). Defendant Slaughter’s alleged failure to attend safety meetings as required by Slaughter and Plaintiff’s employer is arguably even less egregious. The result of the foregoing is that Plaintiff has not and cannot assert viable intentional torts against Defendants Slaughter and Anderson, whether in his Petition or in his Opposition.4 V. CONCLUSION Defendants Slaughter and Anderson should be dismissed because Plaintiff has not alleged any viable claim against these individual Defendants. Plaintiff concedes his claims against Defendants Slaughter and Anderson under Louisiana whistleblower claims, because they were not his “employer” as required by law. Moreover, any claims of negligence purportedly alleged by Plaintiff are bared by the exclusive remedy of the Workers Compensation Act. Though Plaintiff urges he can bring negligence claims against his co-employees, he relies on law that was overturned 40 years ago. To the extent Plaintiff asserts negligence claims against Defendants Slaughter and Anderson, they should be dismissed as precluded by the Louisiana Worker’s Compensation Act as amended in 1976. Finally, Plaintiff has not alleged a viable cause of action for intentional torts against Defendants Slaughter and Anderson. 4 Plaintiff claims Defendant Slaughter was fired from another employer for similar alleged misconduct. This allegation is irrelevant to the question at-hand, which is whether Plaintiff has stated any viable cause of action against Defendants Slaughter and Anderson. Case 3:17-cv-01022-RGJ-KLH Document 20 Filed 09/21/17 Page 9 of 10 PageID #: 235 10 Defendants Slaughter and Anderson pray for an Order of prejudicial dismissal. /s/ Hal D. Ungar Hal D. Ungar, La. Bar No. 31344 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 701 Poydras Street, Suite 3500 New Orleans, LA 70139 Telephone: (504) 648-3840 Facsimile: (504) 648-3859 Email: hal.ungar@ogletreedeakins.com * Robin Banck Taylor (MS. Bar No. 100195) Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 207 West Jackson Street, Suite 200 Ridgeland, Mississippi 39157 Ridgeland, Mississippi 39157 Telephone: (601) 360-8444 Facsimile: (601) 360-0995 Email: robin.taylor@ogletreedeakins.com *Admitted Pro Hac Vice Attorneys for Defendants, Ricky Slaughter and Tony Anderson CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been filed via the Court’s Electronic Case Filing System, which provides for service on all counsel of record. This 20th day of September, 2017. /s/ Hal D. Ungar HAL D. UNGAR 31274507.1 Case 3:17-cv-01022-RGJ-KLH Document 20 Filed 09/21/17 Page 10 of 10 PageID #: 236