Gil v. Metal Service Corp.
| Decision Date | 09 March 1982 |
| Docket Number | No. 12369,12369 |
| Citation | 412 So.2d 706 |
| Parties | 115 L.R.R.M. (BNA) 4460 Rudy GIL v. METAL SERVICE CORPORATION. |
| Court | Court of Appeal of Louisiana — District of US |
Robert B. Mitchell, Kullman, Lang, Inman & Bee, New Orleans, for defendant-appellee.
James F. Willeford, and Randy Opotowsky, Steeg & O'Conner, New Orleans, for plaintiff-appellant.
Before GARRISON, WARD and AUGUSTINE, JJ.
Plaintiff Rudy Gil appeals from a judgment in defendant's favor maintaining the defendant's exceptions of no cause of action. The issue in this appeal is whether plaintiff has established a cause of action under either (1) Louisiana Unfair Trade Practices and Consumer Protection Law, LSA-R.S. 51:1401 et seq., or (2) a general tort claim under LSA-C.C. Art. 2315 for wrongful discharge from employment.
Gil had been employed by Metal Service Corporation for ten years in a management-supervisory capacity when he was fired in January, 1980. His history of employment had apparently been satisfactory, but plaintiff contends the practice which provoked his firing had been a source of conflict between Gil and his supervisors for some time.
He alleges Metal Service Corporation had instituted a practice of removing identification marks from foreign steel and delivering it to their customers, although they specified domestic steel orders. Gil claims he protested the practice and refused to supervise or perform work that resulted in the removal of these markings, and that he was fired for refusing to perform this illegal act.
Gil claims he has a cause of action under LSA-R.S. 51:1401 et seq., because his firing was "in furtherance" of deceptive trade practices by his employer.
R.S. 51:1409. Any person who suffers any ascertainable loss of money or movable property, corporeal or incorporeal, as a result of the use or employment by another person of an unfair or deceptive method, act or practice declared unlawful by R.S. 51:1405, may bring an action individually but not in a representative capacity to recover actual damages.
However, this statute has been construed to give protection only to consumers and business competitors. National Oil Service of Louisiana v. Brown, 381 So.2d 1269 (La.App. 4th Cir. 1980), reh. den. 1980; Reed v. Allison & Perrone, 376 So.2d 1067 (La.App. 4th Cir. 1979). Gil is not a member of one of the protected classes; he does not have a cause of action under this statute. The trial court's decision is correct.
Gil's second claim of a cause of action is under Louisiana's general tort article, LSA-C.C. Art. 2315. He claims he was wrongfully terminated because he refused to perform an illegal act, although ordered to do this act by his employer, and that his refusal is protected conduct for which he could not be fired.
Defendant Metal Service denies that Gil has a cause of action and contends an employer is free to terminate the services of an employee without reason, unless specifically prohibited by the U. S. Constitution, the Constitution of Louisiana of 1974, or statute. Defendant relies on LSA-C.C. Art. 2747:
A man is at liberty to dismiss a hired servant attached to his person or family, without assigning any reason for so doing. The servant is also free to depart without assigning any cause.
Gil concedes that under the traditional common law and Art. 2747, an employment contract of indefinite duration is, in general, terminable at the will of either party. However, he contends, there is good reason for a public policy exception to this rule. He contends that LSA-C.C. Art. 11 proscribes employment contracts...
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