White v. Slaughter et al

REPLY to Response to Motion re MEMORANDUM in Opposition re Motion for Summary Judgment

W.D. La.February 12, 2019

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 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT /s/ M. Kimberly Hodges *Melissa Kimberly Hodges (MS Bar No. 100276) Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 6401 Poplar Avenue, Suite 300 Memphis, Tennessee 38119 Telephone: (901) 767-6160 Facsimile: (901) 767-7411 Email: kim.hodges@ogletreedeakins.com *Admitted Pro Hac Vice /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 Attorneys for Defendant, Crop Production Services, Inc. Case 3:17-cv-01022-TAD-KLH Document 45 Filed 02/12/19 Page 1 of 9 PageID #: 455 MAY IT PLEASE THE COURT: Defendant, Crop Production Services, Inc. (“CPS” or “Defendant”), submits this Reply Memorandum in Support of its Motion for Summary Judgment. As set forth in full below, Plaintiff has failed to state a prima facie case of retaliatory discharge under the Louisiana Whistleblower Protection Act or the Louisiana Environmental Whistleblower Law, and further has not provided any evidence that Defendant’s stated reason for his termination is pretextual. For these reasons, Defendant is entitled to summary judgment as to all of Plaintiff’s claims. I. INTRODUCTION Plaintiff, Robert White (“White”) responds to CPS’s Motion for Summary Judgment with nothing more than irrelevant speculation as to alleged illegal activities and attorney-crafted assertions which contradict White’s own testimony. White utterly fails to meet his obligation of producing evidence sufficient to carry his prima facie burden and/or demonstrate that CPS’s stated reason for his termination is pretextual. In the absence of such evidence, White’s claims cannot survive a motion for summary judgment. “Although the non-moving party receives the benefit of all factual inferences in the court’s consideration of a motion for summary judgment, the nonmoving party must point to some evidence in the record that creates a genuine issue of material fact. In this respect, summary judgment is essentially ‘put up or shut up’ time for the non-moving party: the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument.” Berckeley Inv. Group, Ltd. v. Colkitt, ––– F.3d ––––, 2006 WL 2052228, *4 (3d Cir. July 25, 2006) (internal citations omitted and emphasis added). The only ‘evidence’ White puts forth to defend against CPS’s motion is his own declaration and the declaration of a former co-worker, both of which are riddled with immaterial and Case 3:17-cv-01022-TAD-KLH Document 45 Filed 02/12/19 Page 2 of 9 PageID #: 456 2 conclusory allegations, rank speculation, and unsubstantiated assertions.1 Additionally, with regard to a number of his factual assertions, White’s declaration is inconsistent with his own deposition testimony. Without production of competent evidence sufficient to support his allegations, CPS is entitled to summary judgment as to White’s claims in their entirety. II. LAW AND ARGUMENT In opposition to CPS’s Motion for Summary Judgment, White argues he was terminated for making complaints about the treatment and sale of seeds using chemicals outside of their labeled use. This argument completely ignores the factual record and White’s own testimony. In particular, the relevant portions of the record reflect the following2: 1. White recalls only one specific occasion prior to his termination in which he discussed the illegality of treating seeds off label with anyone from CPS. That occasion was a conversation between White and Slaughter in 2016 - nearly a year prior to his 2017 termination – in which White recalls that Slaughter made a comment that treating seeds with chemicals off label was illegal, and White commented “then we probably shouldn’t do it.” White did not complain about any illegal activity during that conversation or refuse to engage in any practices he believed to be illegal. See White Depo., pp. 71-72, 124 (DSOF ¶¶ 31-32)3. 2. After this conversation, White continued to participate in and direct the treatment of seeds with chemicals which he now claims were being used outside their labeled use. DSOF ¶¶ 32-34. 1 CPS notes that, despite having ample opportunity to do so, White engaged in no written discovery and took no depositions. 2 White did not respond to or controvert CPS’s Statement of Undisputed Material Facts. As such, CPS’s statement of facts should be deemed admitted as required by L.R. 56.2. 3 Citations to CPS’s Statement of Undisputed Material Facts will be referred to herein as “DSOF.” Case 3:17-cv-01022-TAD-KLH Document 45 Filed 02/12/19 Page 3 of 9 PageID #: 457 3 3. The only other conversations White recalls having regarding the alleged illegal treatment of seeds took place after his termination, when he discussed it with Tony Anderson and Mark Matthews during a meeting in which he asked to be given his job back. DSOF ¶¶18-20, 27-30, 37. 4. White did not complain to Slaughter or anyone else from CPS about any other activity which he believed to be illegal. See, e.g., DSOF ¶¶ 21-26. 5. On or about April 13, 2017, White and Slaughter got into an argument related to Slaughter’s request that White delete an entry for a seed order in the computer system. DSOF ¶¶ 8-10. See also, Defendant’s Response to Plaintiff’s Statement of Material Facts, ¶9. White testified that he does not believe this request, or the activity which prompted the request, involved any illegal activity and never told Slaughter that he believed it involved illegal activity. See, Defendant’s Response to Plaintiff’s Statement of Material Facts, ¶ 9. 6. During the argument, White – a member of the management team - shouted “f*ck you” to Slaughter in front of subordinate, non-management employees. DSOF ¶¶ 8-10. Slaughter concedes that this conduct warranted his termination. Id. 7. Slaughter conferred with his direct supervisor, Mark Matthews, as well as Division Manager, Tony Andrews, and Human Resources Representative, Marilyn Major, about the event. DSOF ¶¶ 11-14, 26. All agreed that termination for the outburst was appropriate. Id. 8. Slaughter terminated White on April 21, 2017. Although White discusses a number of other events which he believes were improper or against company policy during his employment, he notably does not claim that any other activities Case 3:17-cv-01022-TAD-KLH Document 45 Filed 02/12/19 Page 4 of 9 PageID #: 458 4 were illegal and does not claim that he complained about any other illegal activities prior to his termination. A. Louisiana Whistleblower Law “[T]he [Louisiana] Whistleblower Statute only offers protection to a specific class of employees: those employees who face ‘reprisals’ from their employers based solely upon an employee's knowledge of an illegal workplace practice and his refusal to participate in the practice or intention to report it.” Williams v. Hosp. Serv. Dist. of W. Feliciana Par., Louisiana, 250 F. Supp. 3d 90, 97 (M.D. La. 2017) (emphasis added). As explained in CPS’s Memorandum in Support of its Motion for Summary Judgment, White bears a prima facie burden to prove: 1) CPS actually violated Louisiana law through a prohibited workplace act or practice, 2) he advised CPS of the violation, 3) he refused to participate in the prohibited practice or threatened to disclose such practice, and 4) he was fired as a result. Hale v. Touro Infirmary, 2004 (La. App. 4 Cir. 11/3/04), 886 So.2d 1210, 1216. If he is able to meet that burden, White must still produce sufficient evidence to persuade a reasonable juror that CPS’s stated reason for his termination was a pretext for a retaliatory motive. See, e.g. Delouise v. Iberville Par. Sch. Bd., 8 F. Supp. 3d 789, 802 (M.D. La. 2014). White’s opposition to CPS’s Motion for Summary Judgment fails to meet any of his required burdens. Even if, arguendo, the seed treatment White now complains of actually violates a law, White still has not produced any competent evidence sufficient to meet the remaining elements of his prima facie case. First, White does not describe, and in fact cannot recall, any specific occasion prior to his termination in which he complained about illegal activities. The sole occasion on which he recalls a discussion involved Slaughter supposedly telling White that treating seeds off label was illegal in 2016. This is a far cry from White actually opposing illegal activity. Second, White concedes both in his deposition testimony and in his opposition brief that he continued to Case 3:17-cv-01022-TAD-KLH Document 45 Filed 02/12/19 Page 5 of 9 PageID #: 459 5 treat seeds with chemicals in a manner he believed to be off label after his 2016 conversation with Slaughter. Finally, White concedes that his outburst to Slaughter warranted his termination. As a result of this record evidence, White has failed to state a prima facie case under the Louisiana Whistleblower Statute. However, even if he had met his prima facie burden, White also failed to produce evidence sufficient to demonstrate that CPS’s reason for his termination was pretextual. In an attempt to meet this requirement, White asserts that other employees used profanity in the workplace. However, this assertion – even if true – ignores the incomparability of the conduct. White was a member of the management team who engaged in an argument and shouted “f*ck you” to his boss in an insubordinate manner in front of subordinate employees. This conduct is very different from non-management employees merely using profanity in the workplace. White acknowledged in his deposition as well as at the time of his termination that his conduct warranted termination. Therefore, his attempt to now claim that it is pretextual is disingenuous and not worthy of credence. White’s failure to produce competent evidence sufficient to establish a prima facie case or to demonstrate that the stated reason for his termination is pretextual is fatal to his claims under the Louisiana Whistleblower Statute. As a result, CPS is entitled to summary judgment. B. Louisiana Environmental Whistleblower Law White’s prima facie burden under the Louisiana Environmental Whistleblower statute requires him to prove: (1) he engaged in protected activity; (2) an adverse employment decision followed; and (3) that a causal connection between the two existed.” Myers v. BP Am., Inc., No. CIV.A.6:08-0168, 2010 WL 3878920, at *6 (W.D. La. Sept. 28, 2010). White has failed to carry this burden. Although there is no dispute that his termination is an adverse employment decision, White has produced no competent evidence to establish the first and third prongs. Case 3:17-cv-01022-TAD-KLH Document 45 Filed 02/12/19 Page 6 of 9 PageID #: 460 6 First, White has not provided any evidence that he actually engaged in protected activity prior to his termination. His own description of his 2016 conversation with Slaughter does not consist of White making a complaint of an environmental violation. Even if his description of Slaughter’s comment about the illegality of treating seed with chemicals outside their labeled use is accurate, White does not claim he complained about the practice during that conversation. However, even if that conversation rose to the level of protected conduct, it is too remote in time from his termination to bear a causal relationship. White was terminated on April 21, 2017. He recalls that his conversation with Slaughter occurred in 2016. He does not recall any other specific occasion in which he complained of any activity he believed to be illegal or an environmental violation, and does not believe the circumstances surrounding the argument which led to his termination involved illegal activity. “Temporal proximity only supports causation ‘when the protected act and the adverse employment action are ‘very close’ in time.’” Washburn v. Harvey, 504 F.3d 505, 511 (5th Cir. 2007) (quoting Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (a three-month or four-month period may be close enough to make a prima facie showing of causation but a twenty-month period is not)). Not only has White failed to meet his prima facie burden, he has also failed to produce any competent evidence sufficient to demonstrate that the reason for his termination was pretextual. As explained in section II-A, supra, White concedes he engaged in an insubordinate argument and cursed out his supervisor and that such activity warranted his termination. Moreover, he also concedes he never discussed any of his concerns with Anderson, Matthews, or Major prior to his termination. It is also undisputed that the three of them conferred with Slaughter about White’s outburst prior to his termination and communicated to Slaughter that they agreed with the decision to terminate White. Case 3:17-cv-01022-TAD-KLH Document 45 Filed 02/12/19 Page 7 of 9 PageID #: 461 7 Finally, White has entirely failed to produce evidence of the ‘illicit motivation’ required to dispute CPS’s stated reason for his termination. Although he speculates heavily in his declaration that Slaughter and Anderson were close friends and that they had some personal and financial motivation for engaging in and continuing to engage in allegedly illegal activity, his allegations in this regard are no more than rank speculation with absolutely no evidentiary support. As such, these allegations and statements in his declaration should be disregarded because they are not competent evidence for consideration in an opposition to summary judgment. Louisiana’s Environmental Whistleblower law does not serve as “a wrongful-discharge statute which covers adverse employment actions that have nothing to do with an employee's disclosure of an environmental violation . . .”. Brown v. Catalyst Recovery of Louisiana, Inc., 2001-1370 (La. App. 3 Cir. 4/3/02), 813 So. 2d 1156, 1166–67. (citing Powers v. Vista Chem. Co., 109 F.3d 1089, 1094 (5th Cir.1997)). White’s failure to meet his prima facie burden or to show that CPS’s reason for terminating him was pretextual and concealed an illicit motivation prevents him from surviving CPS’s Motion for Summary Judgment. CPS is therefore entitled to summary judgment as to this claim. III. CONCLUSION Based upon the foregoing and the record as a whole, Defendant CPS is entitled to summary judgment as to all of Plaintiff’s claims against it. Accordingly CPS respectfully requests that this Court enter an order granting summary judgment in its favor in addition to all such other and further relief to which it may be entitled. Case 3:17-cv-01022-TAD-KLH Document 45 Filed 02/12/19 Page 8 of 9 PageID #: 462 8 /s/ M. Kimberly Hodges *Melissa Kimberly Hodges (MS Bar No. 100276) Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 6401 Poplar Avenue, Suite 300 Memphis, Tennessee 38119 Telephone: (901) 767-6160 Facsimile: (901) 767-7411 Email: kim.hodges@ogletreedeakins.com *Admitted Pro Hac Vice /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 Attorneys for Defendant, Crop Production Services, Inc. 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 12th day of February, 2019. /s/ M. Kimberly Hodges M. Kimberly Hodges 36967989.1 Case 3:17-cv-01022-TAD-KLH Document 45 Filed 02/12/19 Page 9 of 9 PageID #: 463