Louisiana Supreme Court Defines “Good Faith” for LEQA Whistleblower Actions
Answering a question certified by the United States Court of Appeals for the Fifth Circuit, the Louisiana Supreme Court has ruled that the term “good faith,” as used in the whistleblower section of the Louisiana Environmental Quality Act (LEQA), refers to “an employee … acting with an honest belief that a violation of an environmental law, rule, or regulation occurred.” The case is particularly instructive because the phrase “good faith” is used in Louisiana’s general anti-reprisal statute.
In Borcik v. Crosby Tugs, LLC, No. 2016-CQ-1372 (May 3, 2017), Borcik sued Crosby Tugs, L.L.C. alleging retaliatory termination in violation of the LEQA and its anti-retaliation provision, Louisiana Revised Statutes 30:2027. Borcik claimed that the captain on a vessel on which he worked for Crosby ordered him to dump waste oil into navigable waters and to otherwise violate environmental laws for a period of three years. Borcik claimed that at the end of this three-year period, he emailed the chief administrative officer (CAO) of Crosby Tugs, stating he had “concerns” that “had fallen on deaf ears.” He also expressed in the same email that he feared retaliation for making a report about his concerns.
Borcik and Crosby Tugs’ CAO later met in person. The substance of that meeting was disputed by the parties. Borcik claims that he discussed his safety and environmental concerns with the CAO at this meeting, while Crosby Tugs claims the substance of the conversation was Borcik “just complaining” while “vaguely mention[ing]” the concerns. After the meeting between Borcik and the CAO, Borcik was transferred by Crosby Tugs to another vessel and later fired.
As mentioned above, Borcik filed a retaliation claim under the whistleblower statute of the LEQA (La. R.S. 30:2027), which provides in pertinent part:
No . . . business . . . 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 . . . that the employee reasonably believes is in violation of an environmental law, rule, or regulation.
Borcik filed his suit in the U.S. District Court for the Eastern District of Louisiana.
The case was tried to a jury. At trial, and per the agreement of the parties, the district court instructed the jury that, among the requirements of the LEQA, is a requirement that the “employee acts in good faith” and “reasonably believes this activity, policy, or practice of the boat captain is in violation of an environmental law.”
The district court then defined the term “good faith” for the jury. Crosby Tugs proposed the following definition: “‘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.” Borcik objected to this proposed definition and offered his own: “A finding of good faith means that the Plaintiff had an honest belief that an environmental violation occurred.” The district court adopted an instruction incorporating both proposals and instructed the jury accordingly: “‘[G]ood 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.” The district court instructed the jury in this manner over Borcik’s objection.
Thereafter, during closing argument, Crosby Tugs emphasized the district court’s definition of “good faith,” arguing that if the jury concluded Borcik made the complaint to get the captain in trouble, they must find for Crosby Tugs. The jury ultimately found that Borcik “reasonably believed the activity which he reported was in violation of an environmental law.” However, the jury nonetheless found that Borcik did not make his report in “good faith” resulting in a defense verdict.
Borcik appealed to the United States Court of Appeals for the Fifth Circuit. In a per curiam opinion, the court of appeals responded that it was “not prepared to speculate about how the Louisiana Supreme Court would define ‘good faith’ as used in the [LEQA],” and certified the question for consideration by the Louisiana Supreme Court.
Louisiana Supreme Court Decision
To determine the meaning of “good faith” in the LEQA, the Louisiana Supreme Court first looked to the statute itself. However, the court concluded the statute was not clear or unambiguous relative to the meaning of good faith. The court thereafter resorted to the notion that a statute “must be interpreted as having the meaning that best conforms to the purpose of the law.” The court held that if the words of a law are unambiguous, “their meaning must be sought by examining the context in which they occur and the text of the law as a whole.”
To this end, the court reviewed the Louisiana Constitution. The court inferred a Louisiana constitutional imperative, based on this text in the state constitution (at art. IX, Sec. 1):
The natural resources of 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 LEQA, according to the court, was the legislative response to this constitutional imperative. The court emphasized that the LEQA itself explicitly declares that the maintenance of a healthful and safe environment for the people of Louisiana is a matter of critical state concern.
Based on these considerations, the Louisiana Supreme Court declared that the broad definition of “good faith,” like the one proposed by Borcik and rejected by the federal district court, was necessary to uphold the purpose of the LEQA. The court reasoned that the whistleblower statute within the LEQA furthers that constitutional directive and the purpose of the LEQA by protecting employees from retaliation for reporting possible environmental violations. Borcik urged these very reasons as to why his proposed definition was appropriate, and thus why the district court committed reversible error. The Louisiana Supreme Court agreed, and declared that “the term ‘good faith, as used in [the LEQA’s whistleblower statute], means an employee is acting with an honest belief that a violation of an environmental law, rule, or regulation occurred.”
The message of Borcik is that the Louisiana Supreme Court might broadly define the term “good faith” in other anti-reprisal laws of the state in order to protect employees from retaliation for reporting illegal activity in the workplace. For example, the general Louisiana anti-reprisal statute, Louisiana Revised Statutes 23:967, provides, in pertinent part, that “[a]n employer shall not take reprisal against an employee who in good faith . . . threatens to disclose a workplace act or practice that is in violation of state law.” The Borcik reading of the term “good faith” might very well be applied to the general anti-reprisal law to approve sincerely-held but mistaken perceptions of illegal activity.