Baldwin Haspel Burke & Mayer LLC

Louisiana Supreme Court Clarifies the Meaning of “Good Faith” in Environmental Whistleblower Statute

S. Beaux Jones -  Posted on by Baldwin, Haspel, Burke & Mayer

Siding with a terminated employee and the Louisiana Department of Environmental Quality (LDEQ), the Louisiana Supreme Court clarified the meaning of the phrase “good faith” in the context of the Louisiana Environmental Quality Act (LEQA) whistleblower protection statute, La. R.S. 30:2027.[1] In Eric Borcik v. Crosby Tugs, L.L.C., 2016-1372, — So. 3d –, (La. 5/3/17), the Court found that in order for an employee to be entitled to protection under the statute, they must only have reported their employer under an honest belief that an environmental violation occurred and it is irrelevant whether the employee also possessed malice against their employer.

This case began as a whistleblower suit brought by an employee who alleged that he was terminated from his job as a deckhand on a tugboat for reporting environmental violations. The Plaintiff sought treble damages, including three years of lost wages, as well as damages for mental anguish and depression, humiliation and embarrassment, loss of enjoyment of life, medical expenses and attorney’s fees and costs.

At trial in the Eastern District of Louisiana, the core dispute was whether the Plaintiff fit within the language of the whistleblower protection statute, which would protect him from retaliation. All parties agreed that the statute contained four requirements for a plaintiff to be successful under the statue: “1) employee acts in good faith; 2) employee reports or threatens to report, to a supervisor an environmental violation of a boat captain employed by the defendant; 3) employee reasonably believes this activity, policy, or practice of the boat captain is in violation of an environmental law, and 4) employer acts in a retaliatory manner because the employee reported, or threatened to report, a violation.”[2] The parties, however, disagreed over the proper definition of “good faith.”

This disagreement played out in the submission of two different versions of proposed jury instructions. The employer proposed that the definition of “good faith,” “means that Plaintiff had no intent to seek an unfair advantage or harm another party in making his report of an environmental violation.”[3] The employee instead proposed that “good faith” be defined as “the Plaintiff had an honest belief that an environmental violation occurred.”[4] The district court then adopted a jury instruction that pulled from both proposed definitions. The court charged the jury that “‘good faith’ means that the plaintiff had an honest belief that an environmental violation occurred and that he did not report it either to seek an unfair advantage or to try to harm his employer or another employee.”[5] The employee’s objection to the instruction was overruled and the jury found that the employee reasonably believed he reported a violation of the law, but not in good faith. Thus, the court found in favor of the employer.

On appeal, the U.S. Fifth Circuit recognized that the overriding question was one of state law interpretation to which there was no clear precedent, and certified the question to the Louisiana Supreme Court for consideration.

The Court quickly established that the statute was unclear on its face and thus looked to the purpose and context of the statute to understand the meaning of “good faith” within. The Court recognized that the LEQA was a direct legislative response to Article IX §1 of the Louisiana Constitution, which provides:

The natural resources the state, including air and water, and the healthful, scenic, historic, and esthetic quality of the environment shall be protected, conserved, and replenished insofar as possible and consistent with the health, safety, and welfare of the people. The legislature shall enact laws to implement this policy.

The Louisiana Legislature made clear in passing the LEQA that, “[t]he maintenance of a healthful and safe environmental for the people of Louisiana is a matter of critical state concern.”[6] More specifically, the Court noted that the whistleblower statute “furthers the constitutional directive and statutory purpose of the LEQA by protecting employees from retaliation or other adverse employment action for reporting possible environmental violations.”[7] In recognition of this context, the employee and the Louisiana Department of Environmental Quality (LDEQ), who filed an amicus curiae brief, urged the Court to adopt a broader definition of “good faith” requiring only that a plaintiff have an “honest belief that an environmental violation occurred.”[8] Conversely, the employer advocated that the Court adopt a standard that “requires the plaintiff to act without malice, harm, or otherwise seeking an unfair advantage.”[9] The employer further argued that its proposed standard would not conflict with the policy goals of the LEQA, but instead “promotes those goals by shielding employees who act solely to protect the environment versus those who have the motivation to harm their employers.”[10]

The Court sided with the employee and LDEQ in finding that a “broad definition of ‘good faith’ is necessary to uphold the purpose of the LEQA and the Louisiana Constitution’s mandate.”[11] Under the employer’s definition, the Court reasoned that “an employee who likes his employer and an employee who does not like his employer would be treated different for reporting an identical violation.”[12] Since reporting environmental violations against your employer would necessarily result in harm to the employer, “an employee would therefore be seen as having an ‘intent to harm’ in every case.”[13] The Court further stated that “[its interpretation] promotes the purpose of the LEQA and balances competing interests of the State and the environment, employers and industry, and employees, by encouraging reporting of environmental violations and protecting employers from potential whistleblowers who are not operating in good faith.”[14]

Accordingly, the Court held that “the term ‘good faith,’ as used in R.S. 30:2027, means an employee is acting with an honest belief that a violation of an environmental law, rule, or regulation occurred.”[15] This decision squarely contradicts the standard put forth at the trial court and removes the subjective intent of an environmental whistleblower from consideration.

On June 1, 2017, the U.S. Fifth Circuit, accepted the Louisiana Supreme Court’s definition of “good faith” and found that, based on that definition, the district court erred in its jury instructions and remanded the case for further proceedings.[16] And although, this particular decision is based only on Louisiana law and thus not applicable to the entire federal circuit, Louisiana’s interpretation of “good faith” in the whistleblower context is now consistent with neighboring Texas as was established in Wichita County v. Hart, 917 S.W.2d 779 (Tex. 1996).

[1] A. No firm, business, private or public corporation, partnership, individual employer, or federal, state, or local governmental agency 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, practice of the employer, or another employer with whom there is a business relationship, that the employee reasonably believes is in violation of an environmental law, rule, or regulation.

[2] Borcik v. Crosby Tugs, L.L.C., 656 F. App’x 681, 683 (5th Cir.), certified question accepted, 2016-1372 (La. 11/7/16), 213 So. 3d 391, and c).

[3] Id.(emphasis added).

[4] Id. (emphasis added).

[5] Id.

[6] La. R.S. 30:2002(1).

[7] Borcik at 3.

[8] Id.

[9] Id. at 4.

[10] Id.

[11] Id.

[12] Id. at 5. (Emphasis omitted).

[13] Id.

[14] Id.

[15] Id.

[16] Borcik, 858 F.3d 936 (5th Cir. 2017).



Connect with us