Opinion
Civil Action No. 00-2656 Section "N".
June 20, 2001.
ORDER AND REASONS
Before the Court are defendants Lafarge Corporation's and David Gage's Motion for Summary Judgment. For the following reasons, the defendants' motion is GRANTED.
BACKGROUND
On August 1, 1993, plaintiff Patrick Dronet began working for defendant Lafarge Corporation as a truck driver. Dronet was initially paid by the hour, but Lafarge eventually changed its drivers' pay scale to a per load basis. Dronet was unhappy with his wages under the new system and thought it was improper that his vacation time continued to accrue at an hourly rate, rather than per load. In addition, Dronet complained to Lafarge management that the company failed to provide proper cleaning facilities for both trucks and drivers, mistreated the drivers and forced them to work long hours, failed to pay adequate wages, and failed to provide adequate sick leave or vacation pay.
Dronet admits that he was "outspoken" in his complaints against Lafarge. Dronet's Mem. at 2. Lafarge management, however, characterizes Dronet's "outspokenness" as disruptive. On February 5, 1999, defendant Dave Gage, the general manager of Lafarge's Louisiana division, sent Dronet a memo which cited numerous instances of allegedly inappropriate behavior and warned Dronet that "[a]ny further violation of the rules of conduct, disruptive behavior or lack of cooperation" would result in his termination. Defendants' Ex. "H." Gage admonished Dronet for expressing "extreme discontent, dislike, and lack of respect for the management" of Lafarge, for intimidating management with his "nose to nose overwhelming approach" and his "sheer physical appearance," for encouraging other employees to intimidate management, for calling his supervisors late at night at their homes and subjecting them to "long periods" of "verbal barrage", and for unilaterally changing his delivery schedule. Id. In addition, Gage asserted that management received numerous complaints from employees who wished to avoid all contact with Dronet, that Dronet violated company policy by changing the speed setting on his vehicle, and that Dronet's truck was always the dirtiest in the fleet.
On February 12, 1999, Dronet responded to this memo with a letter of his own. He denied all of Gage's charges, claiming that he "always speak[s] of Lafarge with pride" and that Gage has "misinterpreted his enthusiasm as badgering of [his] supervisors." Defendant's Ex. "I." As proof of his personal dedication to Gage, Dronet stated that he was "probably the only driver who visited [Gage] in the hospital when [he] had pneumonia," even though Gage failed to visit him when he was "incapacitated after surgery." Id. He asserted that his only "nose-to-nose" confrontation with management occurred with operations manager Robert Doubleday in 1996 and that Doubleday "brought on" that confrontation. Id. Finally, Dronet claimed that all the accusations against him were untrue and that he was being singled-out and "used as a scapegoat for all the problems in [Gage's] division." Id.
Dronet's termination came about as the result of an incident on April 23, 1999. The circumstances surrounding this incident are in dispute. According to the defendants, Dronet threatened another Lafarge driver over the company radio. Dronet denies threatening anyone and asserts that he simply told two Lafarge drivers to stop using racial slurs over the airwaves. Regardless of what actually happened, it is undisputed that Dronet refused to meet Gage at his office directly after the incident. Dronet claims he did not want to meet with Gage without a lawyer, but he denies that Gage told him the purpose of the meeting was to investigate allegations that he threatened other employees. When Gage sought out Dronet at his truck, Dronet allegedly said that Gage should be fired and sent back to Canada (Gage is Canadian) and that Gage only had a job because his brother, a Lafarge executive, protected him. Dronet was immediately suspended as a result of this confrontation.
On April 30, 1999, Dronet received a formal letter of termination. The stated reasons for his discharge were insubordination, use of profane language toward Gage, and refusing to cooperate in Gage's investigation of the alleged threats, all in violation of the warning issued in Gage's memo on February 5, 1999. Dronet argues that he was not informed of the allegations against him and could not have cooperated with the investigation because he did not know it existed. Accordingly, Dronet maintains that Lafarge's reasons for discharging him are pretextual and that Lafarge really fired him because he was protesting wage violations and encouraging the other drivers to become unionized.
On May 1, 2000, Dronet filed the instant suit against Lafarge and Gage under the Louisiana Whistleblower Statute, La. Rev. Stat. § 23:967, claiming that he was unlawfully fired for complaining about safety, health, and wage and hour law violations. See Pet. at ¶ 2. Although Dronet did not assert any other causes of action, the defendants noted in their removal pleadings that Dronet was arguably asserting a violation of the Federal Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (FLSA), because Louisiana does not have wage or hour laws relating to either minimum wage or overtime payments.
On November 17, 2000, the Court dismissed Dronet's claim against Gage under the Whistleblower Statute on the grounds that Gage was not Dronet's employer within the meaning of the Statute. The Court reserved ruling on the viability of the FLSA claim, which had not yet been addressed by the defendants. The defendants now move for summary judgment on the Whistleblower claims against Lafarge and on the FLSA claims against both Lafarge and Gage.
LAW AND ANALYSIS 1. Whistleblower Act
Lafarge first moves for summary judgment on Dronet's claims under the Louisiana Whistleblower Statute. The Whistleblower Statute provides that:
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.
(2) Provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of law.
(3) Objects to or refuses to participate in an employment act or practice that is in violation of law.
LA. Rev. STAT. ANN. § 23:967 (West 1998).
The defendants argue that they are entitled to summary judgment on Dronet's Whistleblower claims because he admits that none of the practices he complained about violated any state or federal laws and because he did not file or threaten to file a complaint against Lafarge with any governmental agency, union or member of the media. See Dronet Dep., Vol. I at 90-91, 125, 133-134, 149. In fact, all of Dronet's complaints relate solely to his belief that Lafarge failed to follow its own safety, health and pay policies. Dronet does not refute the defendants' argument, and he fails to even address his Whistleblower claims in his Opposition to the defendants' motion for summary judgment. Because Dronet has not alleged a violation of state or federal law, the Court finds that he has failed to state a cause of action under the Whistleblower Statute. Accordingly, the defendants' motion for summary judgment on Dronet's Whistleblower claims is GRANTED.
2. FLSA Claims
For at least the last two years of his employment, Dronet complained to Doubleday and Gage that he felt the tanker drivers could make more money if they were paid by the hour rather than by the load. See Dronet Dep., Vol. I at pp. 138-142; Vol. II at pp. 46-47. Dronet also disputed the calculation of his vacation pay and 401k contributions at an hourly rate, rather than a per load rate. Id. In addition, Dronet protested Lafarge's failure to pay him according to a safety bonus program initiated by Gage. Finally, in his opposition memorandum Dronet raises for the first time the allegation that he was not fully paid for his overtime hours.
Dronet claims he was illegally discharged in retaliation for these complaints. Specifically, he asserts that he was fired in violation of the FLSA, which forbids an employer from discharging or discriminating against any employee because such employee has "filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee." See 29 U.S.C. § 215(a)(3) (West 1998).
A claim of retaliatory discharge is analyzed under the same shifting burden test established in McDonnell-Douglass Corp. v. Green, 411 U.S. 792 (1973). See Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998). The plaintiff bears the burden of establishing a prima facie case of retaliation and must show: (1) participation in a protected activity; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action. See Holt v. JTM Industries, Inc., 89 F.3d 1224, 1225-26 (5th Cir. 1996). Once the employee demonstrates a prima facie case of retaliation, the burden shifts to the employer to articulate a legitimate, nonretaliatory reason for the employee's rejection. McDonnell Douglas Corp., 411 U.S. at 802. The employee then has the opportunity to rebut the employer's explanation and show that the reason given is pretextual. See id. at 804.
a. Prima Facie Case
In the instant case, it is undisputed that Dronet did not file a complaint, institute a proceeding, testify in a proceeding, or serve on an industry committee. See 29 U.S.C. § 215(a)(3) (West 1998). Nonetheless, Dronet submits that he has engaged in an activity protected by the Act because he made informal complaints that implicated rights under the FLSA. Specifically, Dronet lodged "continued verbal complaints over the last two years of his employment"; wrote a letter to his supervisor William Williams on March 1, 1999; and at some unspecified time contacted an unspecified governmental agency to inquire about how vacation pay, which is voluntary on the part of an employer, should be calculated. See Dronet Depo., Vol. I at 147-149. However, Dronet has not cited any Fifth Circuit authority that elevates informal complaints to protected activity under the FLSA. But see Conner v. Schnuck Markets Inc., 121 F.3d 1390 (10th Cir. 1997) (holding that an employee's assertion to his employer that he was owed overtime wages under the FLSA was sufficient to support an FLSA retaliation claim); Wittenberg v. Wheels Inc., 963 F. Supp. 654 (N.D.Ill. 1997) (holding that the antiretaliation provision of the FLSA encompasses informal complaints that implicate rights under the FLSA). Accordingly, because Dronet has not filed a complaint, instituted a proceeding, testified in a proceeding, or served on an industry committee, the Court finds that Dronet has not engaged in a protected activity under the Act. See 29 U.S.C. § 215(a)(3) (West 1998).
However, even if Dronet's informal complaints do qualify for FLSA protection, the Court does not find a causal connection between his history of complaints about his salary over the years and his termination in April 1999. Dronet admits that he continuously complained about his wages over a period of several years. In light of this fact, the defendants argue that it is unreasonable to presume that he was suddenly discharged in April 1999 for voicing the same complaints he had been making for years. The Court agrees. Because Dronet had lodged his informal complaints for several years without adverse consequences, the Court finds that he has failed to establish a causal connection between his complaints and his termination on April 30, 1999. See, e.g., Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1092 (5th Cir. 1995) (holding that "there is nothing inherently 'suspicious' about a 13-day suspension that occurs at least several years after the protected activity begins. Indeed, one might argue that the 'timing' here is evidence against retaliation"). Accordingly, even if Dronet's informal complaints are protected activity under the FLSA, the Court finds that Dronet has failed to make out a prima facie case of retaliation because he has failed to establish a causal relationship between his alleged protected activity and his termination.
b. Legitimate Nonretaliatory Reason
Even if Dronet had made out a prima facie case, the Court finds that the April 23, 1999 incident is clearly a legitimate, nonretaliatory reason for his discharge. Regardless of what actually happened over the radio that day, it is undisputed (1) that Dronet was advised in the February 5, 1999 memo that his attitude and conduct must change or he would face termination, (2) that Dronet refused Gage's order to meet him at his office after the April 23 incident, (3) that Dronet and Gage engaged in a verbal confrontation at Dronet's truck, and (4) that Dronet was suspended on the spot after that confrontation. In addition, Dronet's termination letter states that he was discharged because he refused to cooperate with Gage's investigation, was insubordinate toward Gage, and used profane language toward Gage.
Regardless of Dronet's claim that he did not know about the investigation, the Court finds that his flat-out refusal to report to Gage's office and the ensuing confrontation at Dronet's truck are legitimate reasons for his discharge. See Chaney v. New Orleans Public Facility Management Inc., 179 F.3d 164, 167-168 (5th Cir. 1999) (holding that the failure of a subordinate to follow the direct order of a supervisor is a legitimate nondiscriminatory reason for discharging that employee); Cain v. Blackwell, 246 F.3d 758, 761 (5th Cir. 2001) (holding that "few would question a manager's decision to terminate an employee for an insulting remark and then for summarily leaving the manager's office").
c. Pretext
Dronet bears the final burden of establishing that the defendants' legitimate, nonretaliatory reasons for his discharge are pretextual. When an employer has articulated a rational justification for terminating an employee and the facts supporting that justification are not seriously disputed, the task of proving pretext becomes quite difficult. See Elliott v. Group Med. Surgical Serv., 714 F.2d 556, 567 (5th Cir. 1983). To demonstrate a pretext, Dronet must prove that the defendants' proffered reasons are false and that retaliation was the real reason for their actions. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993). Dronet must show more than mere disagreement with Lafarge's decision. A general subjective belief on the part of the employee that his termination was the result of retaliation is insufficient to establish pretext. See Elliott, 714 F.2d at 564. Moreover, "the question is not whether an employer made an erroneous decision: it is whether the decision was made with [retaliatory] motive." Mayberry, 55 F.3d at 1091. See also Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991) ("an incorrect belief that an employee's performance is inadequate constitutes a legitimate, nondiscriminatory reason").
Dronet submits that he was not terminated for the April 23, 1999 incident, but was fired because he frequently spoke out in favor of becoming unionized and stood up to Gage and Doubleday. In support of this argument, Dronet cites his unemployment application, in which the Louisiana Department of Labor determined that no misconduct was connected with his employment. However, because this determination "shall not be used as conclusive evidence in any separate or subsequent action," LA. REV. STAT. ANN. § 23:1636 (West 1998), and because there is no evidence that the Department of Labor obtained anything other than Dronet's version of his termination, the Court finds that Dronet's unemployment application fails to raise an issue of material fact. Dronet also cites conflicting deposition testimony by Gage concerning whether the April 23, 1999 incident was the only reason for his discharge. Because the April 23 incident is the reason given in Dronet's termination letter and because the Court has already found that incident to be a legitimate reason for his discharge, the Court does not find Gage's testimony creates an issue of material fact.
Dronet has offered no evidence of his pro-union activities or of the defendants' knowledge of those efforts, and his only other evidence of pretext is his personal opinion that Lafarge terminated him for standing up to management. Such "conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the nonmovant's burden." Douglass v. United Services Automobile Assoc., 79 F.3d 1415, 1429 (5th Cir. 1996). See also Britt v. Grocers Supply Co., 978 F.2d 1441, 1451 (5th Cir. 1992) (asserting that speculation and belief are "insufficient to create a fact issue as to pretext").
Because Dronet has failed to assert more than his subjective belief that his termination was retaliatory, the Court finds that he has not produced sufficient evidence to allow a jury to find that the defendants' articulated reasons for his discharge are pretextual.
CONCLUSION
For the reasons stated above, the Court finds that plaintiff Patrick N. Dronet, Sr. has failed to state a claim against defendant Lafarge Corporation for violations of the Louisiana Whistleblower Statute.
In addition, the Court finds that Dronet has failed to state a claim against either Lafarge or Gage for retaliatory discharge under the FLSA. Dronet has failed to make out a prima facie case; and even if he had, the defendants have articulated legitimate non-retaliatory reasons for his discharge that Dronet cannot rebut.
Accordingly, IT IS ORDERED that defendants Lafarge Corporation's and Dave Gage's Motion for Summary Judgment is GRANTED.