Walter v. BP Am., Inc.

• Decision Date: 06 May 2014
• Docket Number: CIVIL ACTION NO. 12-177
• Parties: AUGUST WALTER v. BP AMERICA, INC.
• Court: U.S. District Court — Eastern District of Louisiana

AUGUST WALTER v. BP AMERICA, INC.

CIVIL ACTION NO. 12-177

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

Dated: May 6, 2014

MAGISTRATE JUDGE

JOSEPH C. WILKINSON, JR.

ORDER AND REASONS ON MOTIONS

In this action, plaintiff, August Walter, sued his former employer, BP America, Inc., contending that BP terminated his employment in retaliation for his complaints about BP's alleged violations of environmental law during the aftermath of the Deepwater Horizon oil spill, in violation of the Louisiana Whistleblower Statute, La. Rev. Stat. § 23:967, and the Louisiana Environmental Whistleblower Statute, La. Rev. Stat. § 30:2027. Walter also asserts state law claims of intentional infliction of emotional distress, defamation, fraud and intentional misrepresentation under Louisiana law.

BP moved for summary judgment on all of plaintiff's claims, supported by excerpts from several depositions and by documentary exhibits. Record Doc. No. 54. Defendant argues that (1) Walter's claim under the Louisiana Whistleblower Statute, La. Rev. Stat. § 23:967, is preempted by the more specific Louisiana Environmental Whistleblower Statute, La. Rev. Stat. § 30:2027; (2) plaintiff has no evidence that BP violated any state law (as required under the Louisiana Whistleblower Statute), or committed any of the alleged retaliatory acts in Louisiana, so that Louisiana law does notapply; (3) if Louisiana law does apply, Walter cannot establish a prima facie case of retaliation under the Louisiana Environmental Whistleblower Statute because there is no evidence that he engaged in any protected activity; (4) BP has articulated legitimate, non-retaliatory reasons for terminating plaintiff's employment and he has no evidence that the reasons were a pretext for retaliation; (5) Walter has no evidence that BP had an illicit motive for terminating his employment; and (6) plaintiff has no evidence to support each of the elements of his claims of intentional infliction of emotional distress, defamation, fraud and misrepresentation under Louisiana law.¹

Plaintiff filed a memorandum in opposition to defendant's motion for summary judgment. Record Doc. No. 98. He supports his opposition with complete deposition transcripts of numerous witnesses, declarations under penalty of perjury and documentary exhibits, which he filed into the record as separate documents. Record Doc. Nos. 90-96, 99-105. BP received leave to file a reply memorandum. Record Doc. Nos. 112, 118, 119.

On February 13, 2014, the court heard oral argument regarding BP's motions for summary judgment and to exclude the expert opinions of Marc L. Zimmerman, Ph.D., M.P., Record Doc. No. 52; John J. Muggivan, LCSW, ACSW, DCSW, M.E., Record Doc. No. 53; and Michele Allen, LCSW, Record Doc. No. 51. Considering thediscussion in open court regarding the planned deposition of Katherine Martinez, which was scheduled to be taken on February 19, 2014; the amount of time available before the scheduled trial date; the facts and complexity of this case; the already voluminous summary judgment record; and all of the demands on counsel's time and the court's, I found that a continuance of the trial was appropriate. Accordingly, I continued the final pretrial conference and trial dates. I ordered that none of the other dates and deadlines previously set in the court's scheduling orders are extended; that no further discovery may be conducted, except the deposition of Martinez, which had been previously ordered; and that the summary judgment record is closed as to both evidence and briefing, except to permit the parties to take Martinez's deposition, file it in the record and designate lines of the deposition for the court's particular attention. Record Doc. No. 134.

BP filed the complete transcript of Katherine Martinez-Vitela's deposition, including its exhibits. Record Doc. No. 150.² Each party designated particular lines of the deposition for the court's attention. Record Doc. Nos. 151, 158. BP received leave to file supplemental designations in response to plaintiff's designations. Record Doc. Nos. 161, 162, 163.

Having considered the complaint, as amended, the submissions of the parties, and the applicable law, and for the following reasons, IT IS ORDERED that defendant's motion for summary judgment is GRANTED and that plaintiff's claims are DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that defendant's motions to exclude the expert opinions of Marc L. Zimmerman, Ph.D., M.P., Record Doc. No. 52; John J. Muggivan, LCSW, ACSW, DCSW, M.E., Record Doc. No. 53; and Michele Allen, LCSW, Record Doc. No. 51, are DISMISSED AS MOOT.

I. STANDARD OF REVIEW FOR SUMMARY JUDGMENT MOTIONS

"A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).

Rule 56, as revised effective December 1, 2010, establishes new procedures for supporting factual positions:

(1) A party asserting that a fact cannot be or is genuinely disputed must

support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.

(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.

(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

Fed. R. Civ. P. 56(c).

Thus, the moving party bears the initial burden of identifying those materials in the record that it believes demonstrate the absence of a genuinely disputed material fact, but it is not required to negate elements of the nonmoving party's case. Capitol Indem. Corp. v. United States, 452 F.3d 428, 430 (5th Cir. 2006) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "[A] party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to [a particular material] fact." Advisory Committee Notes, at 261.

A fact is "material" if its resolution in favor of one party might affect the outcome of the action under governing law. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). No genuine dispute of material fact exists if a rational trier of fact could not findfor the nonmoving party based on the evidence presented. Nat'l Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 712 (5th Cir. 1994).

To withstand a properly supported motion, the nonmoving party who bears the burden of proof at trial must cite to particular evidence in the record to support the essential elements of its claim. Id. (citing Celotex, 477 U.S. at 321-23); accord U.S. ex rel. Patton v. Shaw Servs., L.L.C., 418 F. App'x 366, 371 (5th Cir. 2011). "[A] complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial." Celotex, 477 U.S. at 323; accord U.S. ex rel. Patton, 418 F. App'x at 371.

"Factual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that an actual controversy exists." Edwards v. Your Credit, Inc., 148 F.3d 427, 432 (5th Cir. 1998); accord Murray v. Earle, 405 F.3d 278, 284 (5th Cir. 2005). "We do not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts." Badon v. R J R Nabisco Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quotation omitted) (emphasis in original). "Conclusory allegations unsupported by specific facts . . . will not prevent the award of summary judgment; 'the plaintiff [can]not rest on his allegations . . . to get to a jury without any "significant probative evidence tending to support the complaint."'" Nat'l Ass'n of Gov't Employees, 40 F.3d at 713 (quoting Anderson, 477 U.S. at 249).

"Moreover, the nonmoving party's burden is not affected by the type of case; summary judgment is appropriate in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (quotation omitted) (emphasis in original); accord Duron v. Albertson's LLC, 560 F.3d 288, 291 (5th Cir. 2009).

II. UNDISPUTED FACTS

The following material facts are established by the competent summary judgment evidence and are accepted as undisputed solely for purposes of the pending motion for summary judgment. Material fact disputes are construed in the light most favorable to plaintiff when there is a conflict between his testimony and that of other witnesses.

Plaintiff has a bachelor's degree in homeland security and a master's degree in emergency and disaster management. He has worked with and taken courses in the Incident Management System.

After the explosion of the Deepwater Horizon oil well in the Gulf of Mexico in April 2010, Walter worked as a contractor for BP in the oil cleanup efforts. He was Branch Planning Lead in St. Bernard Parish in 2010. Between November 2010 and May 9, 2011, still...