Gonzales v. J E Merit Const Inc ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 00-30584
_______________________
Donald Gonzales,
Plaintiff-Appellant,
versus
J.E. Merit Constructors, Inc.,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Middle District of Louisiana
(98-CV-380)
_________________________________________________________________
June 8, 2001
Before REYNALDO G. GARZA, DAVIS, and JONES, Circuit Judges.
Edith H. Jones, Circuit Judge:*
This diversity case concerns Plaintiff-Appellant Donald
Gonzales’s (“Gonzales”) claim that he was terminated in retaliation
for reporting a dangerous mercury spill to his employer, Defendant-
Appellee J.E. Merit Constructors, Inc. (“Merit”). Holding that
Gonzales failed to create a genuine issue of material fact on all
elements of his prima facie case of retaliation, the district court
*
Pursuant to 5th Cir. Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Cir. Rule 47.5.4.
granted Merit’s motion for summary judgment. Because we agree with
the district court that Gonzales has produced insufficient evidence
to allow a reasonable jury to infer a causal connection between his
report of the mercury spill and his subsequent termination, we now
affirm.
Gonzales was employed as a “cherry picker” operator and
“class B” mechanic by Merit for nearly eleven years before his
termination on March 31, 1997. For approximately the last two
years of his employment with Merit, Gonzales was assigned to work
at the Pioneer Alkali Plant in St. Gabriel, Louisiana. This plant
was owned by Pioneer Chlor Akali Co. (“Pioneer”), but pursuant to
a contractual relationship, plant maintenance was performed by
Merit. Aside from this maintenance contract, there was no
corporate relationship between Merit and Pioneer.
The primary function of this Pioneer plant is to produce
chlorine gas, caustic soda and hydrogen from salt water. Mercury
is used in these processes. It is not uncommon for the employees to
encounter mercury while servicing equipment at the Pioneer plant.
The procedure to be followed by a Merit employee encountering
mercury at the Pioneer plant is simple: the employee is to notify
either of two Pioneer employees, Dana Oliver or Bob Winterton.
Oliver is Pioneer’s manager for environmental matters at the plant,
while Winterton is charged with the handling and disposal of
mercury spills. The reporting employee is also required to fill
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out an internal spill report form. Merit asserts, without
contradiction in the record, that no employee has ever suffered
adverse employment consequences as a result of reporting a mercury
spill.
Gonzales discovered a large mercury spill in the
hazardous waste storage area of the Pioneer plant on March 6, 1997.
Gonzales notified his foreman Freddie Hebert, Merit’s chief
mechanic, who instructed Gonzales to inform Pioneer’s Oliver, as
per Merit’s standard procedure. Gonzales reported the spill to
Oliver on March 7. According to Gonzales, Oliver initially told
Gonzales to clean up the mercury spill himself, but Gonzales
replied that he was not qualified to do so. Oliver then paged
Winterton, Pioneer’s mercury spill clean-up expert, and assured
Gonzales that the spill would be taken care of.
It was after this conversation with Oliver that Gonzales
asserts that Merit’s treatment of him began to change. Gonzales
alleges that he was given unusual and dangerous tasks, that he was
denied the opportunity to work overtime, and that he was not
allowed to attend a scheduled meeting of the Plant Safety Committee
on March 12, 1997. Finally, on March 31, 1997, Gonzales was
fired.
The decision to terminate Gonzales was made by Merit’s
two managers at the Pioneer plant, Ronnie Little and Robert Wascom.
They claim that the termination decision was based on Gonzales’
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poor job performance and the need to have his tasks performed by a
more skilled “class A” mechanic. Wascom and Little assert that at
the time they fired Gonzales they had no knowledge of his March 6-
7, 1997 report of a mercury spill.
Suspecting that his termination was in retaliation for
his spill report, Gonzales filed suit against Merit in Louisiana
state court for a violation of the Louisiana Environmental
Whistleblower Act, La. Rev. Stat. Ann. § 30:2027. The suit was
removed to federal district court on diversity grounds. Merit
moved for summary judgment, claiming that its decision makers were
unaware of the mercury spill incident at the time of Gonzales’
termination and therefore could not be retaliating for it. The
district court granted judgment, as it agreed that Gonzales had not
produced sufficient evidence to create a genuine issue of material
fact regarding the connection between the spill report and his
termination. This appeal followed.
Standard of Review
This court reviews the grant of summary judgment de novo,
applying the same standard as the district court. Lechuga v.
Southern Pacific Transportation Co., 949 F.2d 790 (5th Cir. 1992).
The record and inferences are viewed in the light most favorable to
the nonmovant. Walters v. City of Ocean Springs, 626 F.2d 1317
(5th Cir. 1980). The party moving for summary judgment must
“demonstrate the absence of a genuine issue of material fact, but
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need not negate the elements of the nonmovant’s case.” Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (internal
quotations and citations omitted). If the movant meets this
burden, the nonmovant must go beyond the pleadings to designate
specific facts, as opposed to general allegations, to show a
genuine issue of material fact worthy of trial. See id.; Lujan v.
Defenders of Wildlife, 504 U.S. 555 (1992); Celotex Corp. v.
Catrett, 477 U.S. 317, 321-23 (1986).
Discussion
Gonzales argues that he established the elements of a
prima facie retaliation claim. The district court found, however,
that Gonzales had failed to designate specific facts creating a
genuine issue for trial on all elements of his prima facie case of
retaliation.
A prima facie case under the Louisiana Environmental
Whistleblower Act includes three elements: (1) that the employee
engaged in a protected activity; (2) that an adverse employment
decision followed; and (3) that a causal connection between the two
existed. See Powers v. Vista Chemical Company, 109 F.3d 1089, 1095
(5th Cir. 1997). See also Grizzle v. Travelers Health Network,
Inc. 14 F.3d 261 (5th Cir. 1994) (outlining the three-part prima
facie case for retaliation in the ADEA context); Jones v. Flagship
Int’l, 793 F.2d 714, 724 (5th Cir. 1986) (describing a similar
prima facie case under the retaliation provision of Title VII).
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Gonzales satisfied the first two prongs of the
retaliation test: he engaged in a protected activity by reporting
the mercury spill and was subsequently fired. Both sides agree
that Gonzales reported the mercury spill to his immediate
supervisor, chief mechanic Freddie Hebert, and both parties
acknowledge that Gonzales was terminated on March 31, 1997.
In question is whether Gonzales has presented sufficient
evidence to survive summary judgment on the third prong of his
prima facie case, the existence of any causal connection between
his report of the spill and his termination. Under the Louisiana
Environmental Whistleblower Act, an employee’s failure to show that
his protected actions motivated the employer’s termination decision
is fatal to his claim. See Powers, 109 F.3d at 1096. Obviously,
an employer cannot retaliate against an employee for engaging in a
protected activity that it did not know about at the time of the
challenged action. Watts v. The Kroger Company, 170 F.3d 505, 512
(5th Cir. 1999); Robertson v. Bell Helicopter, 32 F.3d 948, 952
(5th Cir. 1994); Grizzle v. Travelers Health Networks, Inc., 14
F.3d 261, 267 (5th Cir. 1994). The knowledge of the primary
employment decision makers within the company is relevant for this
analysis. Grizzle, 14 F.3d at 267-68.
Gonzales had to offer evidence creating a genuine issue
of material fact that Wascom and/or Little, Merit’s employment
decision makers at the Pioneer plant, were aware of his mercury
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spill report at the time that they terminated him. As Gonzales
concedes, there is no such direct evidence. Gonzales himself did
not inform Wascom or Little. The only Merit employee that Gonzales
did inform about the spill was Frank Hebert, a non-management
worker with no input into employment decisions. Hebert, in turn,
did not talk to Little or Wascom about the mercury spill. The only
other person to whom Gonzales reported the spill was Dana Oliver,
Pioneer’s environmental compliance director. Oliver asserts that
she has no recollection of Gonzales’ spill report and that she did
not talk to Wascom or Little about it. Nor would it have been
standard practice for Oliver to report a mercury spill to Merit’s
managers: mercury spills at the Pioneer plant are Pioneer’s
responsibility, and Merit employees are responsible only for
reporting the spills they encounter. Gonzales also failed to
produce any document, such as an entry in Dana Oliver’s spill log
or any sort of spill report, evidencing that Wascom or Little were
aware of this spill.
Lacking any semblance of direct evidence that Wascom or
Little was aware of his protected activity, the mercury spill
report, Gonzales instead presented four pieces of circumstantial
evidence. However, even taken together, Gonzales’ circumstantial
evidence would not permit a reasonable jury to draw the required
connection between his termination and Merit’s decisionmakers’
knowledge of the spill report.
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DRAFT
April 29, 2004 (10:35am)
Gonzales asserts that he was “treated differently” and
given “onerous and unusual” tasks by the Merit managers after his
spill report. Two incidents illustrate this different treatment.
First, Gonzales was asked to participate in the removal of a heavy
fiberglass cover. But this assignment was self-evidently not
punitive, as supervisor Little, a foreman and two other Merit
employees also participated in moving the bulky object.
In the second incident of “different” treatment,
Gonzales, a member of the plant’s safety committee, was required to
miss a committee meeting on March 12, 1997. However, a reasonable
and uncontradicted explanation exists for requiring Gonzales to
miss the meeting. Both “clarifier units” at the Pioneer Plant were
inoperable on the day in question, and a cherry picker crane was
required to repair these units. Merit considered the rapid
completion of these repairs essential and classified the event as
a “hot job” requiring workers, including Gonzales, to remain on the
job. Id. Company policy required workers to remain on site at
“hot jobs” until complete. Gonzales contests neither the existence
of this policy nor the fact that he operated a cherry picker for
this particular “hot job.” Additionally, the record indicates that
only eight of seventeen committee members were present for this
meeting, so Gonzales was not singled out for exclusion.
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DRAFT
April 29, 2004 (10:35am)
Since the foregoing examples simply do not prove his
point about mistreatment, Gonzales’ statement is merely self-
serving, and it is well-established that a self-serving statement
from a party, even if sworn, is not sufficient summary judgment
evidence. See Southern Concrete Co. v. U.S. Steel Corp., 535 F.2d
313 (5th Cir. 1976); Curl v. IBM, 517 F.2d 212 (5th Cir. 1975).
Gonzales next alleges that he was assigned little
overtime after his spill report. Gonzales was only asked to work
one night of overtime between his spill report and his termination,
and he claims that this was an abnormally low amount. But the
record does not indicate whether other employees received overtime
during this three week period, nor does the record show how much
overtime Gonzales usually worked in a given week or month. In the
absence of comparative information, Gonzales’ contention that he
was singled out for reduced overtime has no probative value and
does not help him to withstand summary judgment.
Gonzales also emphasizes the close temporal proximity
between his spill report and subsequent termination. He invokes
cases from various jurisdictions, all standing for the proposition
that “discharge soon after protected activity is indirect proof of
causal connection” in a retaliation claim. See, e.g. Rath v.
Selection Research, Inc., 978 F.2d 1087, 1090 (8th Cir. 1992).
This Circuit has also held that temporal proximity of termination
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April 29, 2004 (10:35am)
can support an inference of causal nexus. See Armstrong v. City of
Dallas, 997 F.2d 62, 67 (5th Cir. 1993). Unfortunately for
Gonzales, all of these cases are inapplicable to the present
situation because in each of them it was undisputed that the
decision makers were aware of the employee’s protected activity.
Gonzales has cited no temporal proximity cases in which the
decision maker did not know about the employee’s protected
activity.
Moreover, this court has cautioned that a short interval
between the protected activity and the alleged retaliation is “not
necessarily a determinative factor” in a retaliation claim. See
Mayberry v. Vought Aircraft Co., 5 F.3d 1086, 1092 (5th Cir. 1995).
It is therefore important not to assign excessive weight to
temporal proximity. Allowing an inference of retaliation from
temporal proximity where the employer clearly knows of the
protected activity is reasonable, but permitting the jury to infer
both knowledge of the activity and retaliation for it creates too
attenuated an inferential chain.
The final pieces of circumstantial evidence relied upon
by Gonzales in his effort to show that Little and/or Wascom knew
about his mercury spill report are the inconsistencies in Merit’s
explanation as to why he was terminated. Gonzales claims that
Merit’s first stated reason for dismissing him, referring to a
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DRAFT
April 29, 2004 (10:35am)
“reduction in force,” was pretextual, since a replacement mechanic,
albeit one with an “class A” rating rather than Gonzales’ “class
B,” was almost immediately hired. Merit’s verbal explanation of
the termination differs from the written separation notice,
however, asserting that Gonzales was fired because of his poor job
performance and the need to upgrade to a more skilled “class A”
mechanic in his position. Merit attributes the separation notice’s
“reduction in force” explanation to the supervisors’ desire to
allow him to find work quickly at another Merit job site.1
Whatever one might think of the consistency or inconsistency of
these explanations, there is no evidence nor can one infer that
these minor inconsistencies mask an intent to retaliate against
Gonzales or acknowledge the decision-makers’ knowledge of his spill
report.
Gonzales invokes Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000), for the proposition that
a plaintiff’s prima facie case, combined with sufficient evidence
for a reasonable factfinder to reject the defendant employer’s
nondiscriminatory explanation for its decision, may be adequate to
sustain a finding of intentional discrimination, or in this
1
An in-house policy at Merit allows an employee terminated in
a reduction of force to apply for work immediately on another Merit
job site. Employees terminated for other reasons must wait at
least 30 days to be rehired.
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DRAFT
April 29, 2004 (10:35am)
instance retaliation. However, Gonzales misapprehends the
applicability of Reeves to his situation. Reeves is premised on
the plaintiff’s first establishing his prima facie case. Reeves,
120 S. Ct. at 2109. Citing earlier discriminatory treatment cases,
Reeves reiterates that “[f]irst, the plaintiff must establish a
prima facie case of discrimination.” Id. at 2106. Reeves is not
relevant until all elements of the prima facie case have been
established.
Gonzales has been unable to produce any direct or
circumstantial evidence which would allow a reasonable jury to
infer that the Merit decision makers even knew about his report of
the mercury spill. Lacking any evidence of a causal connection
between his spill report and termination, Gonzales has failed to
make out a prima facie case of retaliation. The district court’s
grant of summary judgment is therefore AFFIRMED.
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