English v. Wood Grp. PSN, Inc.

• Decision Date: 25 August 2015
• Docket Number: CIVIL ACTION NO. 15-568 SECTION "K"(3)
• Parties: STEVE ENGLISH v. WOOD GROUP PSN, INC. AND W&T OFFSHORE, INC.
• Court: U.S. District Court — Eastern District of Louisiana

STEVE ENGLISH
v.
WOOD GROUP PSN, INC. AND W&T OFFSHORE, INC.

CIVIL ACTION NO. 15-568 SECTION "K"(3)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

August 25, 2015

ORDER AND REASONS

Before the Court are two Motions to Dismiss pursuant to Federal Rule of Civil Procedure Rule 12(b)(6) filed by Defendant Wood Group PSN, Inc. ("Wood Group") and Defendant W&T Offshore, Inc. ("W&T Offshore"), respectively. (R. Docs. 8 and 10). Having reviewed the motions, memoranda, pleadings, and relevant law, the Court GRANTS the motions for the reasons stated herein.

I. BACKGROUND

Plaintiff, Steve English, is a former employee of Wood Group and was assigned to work on an offshore oil platform operated by W&T Offshore. Plaintiff was employed as an Electronics Instrumentation Technician on the platform from July 2012 through March 2014. Compl. ¶¶ 9-10, R. Doc. 1. One of the Plaintiff's "primary duties was to inspect the platform VK-823 and complete monthly compliance reports for the Bureau of Safety and Environmental Enforcement, United States Department of the Interior ('BSEE')." Compl. ¶ 11, R. Doc. 1. Plaintiff alleges that during his employment, he discovered in October of 2013 that the fire and gas safety system on VK-823 was not fully functional and that the "A5 downhole valve," due for an inspection in October of 2013, was not inspected until January of 2014. Compl. ¶¶ 12-18. Plaintiff alleges that he reported the A5 downhole valve inspection issue to BSEE in January of 2014 causing an investigation by BSEE on VK-823. Compl. ¶¶ 19-20. According to Plaintiff,

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during the investigation, BSEE performed a "shut-in" test on the fire and gas safety system on VK-823 in February 28, 2014. Compl. ¶ 24. Plaintiff also alleges that he reported the non-functional fire and gas safety system on VK-823 to his Wood Group supervisor and that he reported both issues to W&T Offshore and BSEE. Compl. ¶¶ 14, 16, and 21.

Thereafter, Plaintiff alleges that his Wood Group supervisor informed him that "he was no longer welcome on any W&T platform, including the platform VK-823," that he was terminated (or alternatively transferred to a new facility), and that Wood Group has not hired Plaintiff for any available positions since he was removed from VK-823. Compl. ¶¶ 25-29. In addition, Plaintiff alleges that Wood Group falsely failed to acknowledge that the Plaintiff had been its employee or his status as a former employee to third parties. Compl. ¶¶ 30, 38.

Based on the foregoing, on February 23, 2015, Plaintiff filed suit against Wood Group and W&T Offshore alleging that he was wrongfully terminated from his employment through an act of reprisal by his employers in violation of the Louisiana Whistleblower Act ("LWA"), La. R.S. § 23:967. Compl. ¶¶ 31-35. In addition, Plaintiff also asserted claims under Louisiana state law for defamation, intentional infliction of emotional distress, and fault generally. Compl. ¶¶ 36-46.

Defendant Wood Group PSN, Inc. ("Wood Group"), filed their Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), asserting that the Plaintiff failed to allege sufficient facts establishing a claim under the LWA, arguing that Plaintiff failed to allege facts relating to an essential element of the LWA, that the employer engaged in an actual violation of state law. Defendant W&T Offshore, Inc. ("W&T Offshore"), filed their Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), asserting that the Plaintiff failed to state a claim under the LWA because W&T Offshore is not the Plaintiff's "employer" for purposes of

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the LWA in addition to failing to allege any actual violation of state law violated by W&T Offshore. Specifically, W&T Offshore asserts that, although the LWA lacks a definition for the term "employer," courts routinely apply the definition of "employer" in the Louisiana Employment Discrimination Law ("LEDL") and this definition excludes W&T Offshore as an "employer." In addition, both Wood Group and W&T Offshore assert that Plaintiff failed to allege sufficient facts to establish his state law claims for negligence, defamation, and intentional infliction of emotional distress.

In response, Plaintiff makes an argument that, as a person employed on an offshore oil platform who performed the majority of his employment duties on the Outer Continental Shelf, the Plaintiff's case is governed by the Outer Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. § 1333, et seq, although this was not alleged in his Complaint. Plaintiff alleges that the OCSLA applies Louisiana state law to this matter as surrogate federal law. Furthermore, Plaintiff argues that wherever Louisiana law (as "federalized") is not consistent with federal law, the federal law on point is adopted. Specifically, Plaintiff argues that the "borrowed employee" doctrine from the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. §§ 901-950, would supply with the LWA definition of "employer" and would apply to W&T Offshore as a "borrowed employer." In addition, Plaintiff argues that any ambiguity as to whether the LWA concerns only reporting of violations of state law or state and federal law should be resolved to include federal law as the LWA under OCSLA becomes surrogate federal law.

As to the remaining causes of action, Plaintiff argues that his claim for mental distress under Louisiana Civil Code article 2315 as "federalized" under OCSLA need not be limited to "physical or psychological injury" and his claim (for negligence or other form of fault) should not be subject to the exclusivity provision of the LHWCA. The Plaintiff then acknowledges,

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however, that under the OCSLA and the LHWCA, his claims related to his "mental distress" injury, whether negligent or intentional, injury would be barred by the LHWCA's exclusivity provision. If, however, the Court finds that one or both of the parties are non-employer third parties under the LHWCA, then the Plaintiff argues that he may maintain a claim against them for acts of fault causing damages, whether negligent or intentional. Plaintiff asserts that the Defendants' ignoring of the Plaintiff's concerns over the safety violations and subsequent termination due to his reporting is extreme and outrageous and is sufficient to state a plausible claim for intentional (or negligent) infliction of emotional distress. Finally, as to the defamation claim, the Plaintiff notes that he alleged that Wood Group failed to acknowledge his employment status to potential employers, which comes in the form of a response to a request from a potential employer to verify that an employment application has in fact worked for an employer listed on the applicant's curriculum vitae. Plaintiff avers that this constitutes a "false statement" that makes Plaintiff appear dishonest and lacking in qualifications for employment, and as such harmed the Plaintiff's reputation. Thus, Plaintiff contends that his claim is plausible on its face.

Ultimately, the Plaintiff argues that the motions to dismiss should be denied, but alternatively requests leave to amend his complaint to cure any deficiency in factual pleading perceived by the Court, and, provided the Court accepts his argument that this is an OCSLA claim, to remove alternate forms of relief not available against OCSLA employers because of the LWHCA provisions.

II. LEGAL STANDARD

The Federal Rules of Civil Procedure sanction dismissal of a plaintiff's complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). However, such motions are generally viewed with disfavor and rarely granted. Turner v. Pleasant, 663

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F.3d 770, 775 (5th Cir.2011) (citing Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir.2009)).

To state a claim, under Federal Rule of Civil Procedure 8(a)(2) requires the complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 677-78, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009)(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65, 167 L. Ed. 2d 929 (2007)). The court must accept all well-pleaded factual allegations as true, view them in the light most favorable to the plaintiff, and draw all reasonable inferences in the plaintiff's favor. Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001), cert. denied sub nom Cloud v. United States, 122 S.Ct. 2665 (2002). Although the court must accept as true all well-pleaded factual allegations set forth in the complaint, this tenet "is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. As Twombly indicates, the complaint must allege enough facts to give rise to a reasonable hope or expectation that discovery will reveal evidence of the foregoing elements of loss causation. 550 U.S. at 556.

To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient factual matter "to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. at 697...