     Case: 11-30046     Document: 00511752129         Page: 1     Date Filed: 02/08/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                         February 8, 2012

                                       No. 11-30046                        Lyle W. Cayce
                                                                                Clerk

RONALD K. BAIN


                                                  Plaintiff - Appellant

v.

GEORGIA GULF CORPORATION


                                                  Defendant - Appellee




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                                   3:99-CV-392


Before DeMOSS, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
        Ronald K. Bain testified at three depositions that he and other Georgia
Gulf Corporation (“Georgia Gulf”) employees were reporting false readings on
environmental tests at the Georgia Gulf facility in Plaquemine, Louisiana.
Nearly one year after Bain’s third deposition, he was terminated after


        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 11-30046

threatening a co-worker. Bain sued Georgia Gulf under Louisiana Revised
Statute 30:2027, the Louisiana Whistleblower Statute, for wrongful termination.
Following a jury trial in which the jury found in favor of Bain, the district court
granted Georgia Gulf’s motion for judgment as a matter of law. Bain appeals
and we AFFIRM.
                        FACTS AND PROCEEDINGS
      From 1982 until 1998, Bain was employed by Georgia Gulf in Plaquemine,
Louisiana. In early 1995 Bain requested and was assigned to be a top deck
operator. His job required him to work around reactors and perform various
manual tasks as part of the process of producing Polyvinyl Chloride (“PVC”).
PVC is produced in reactors which must be opened at times to visually inspect
their interiors for potential problems or maintenance issues. Prior to the
inspections, PVC in liquid form is recovered from the reactor, but some residual
vinyl chloride vapor remains inside and escapes into the air when the reactor’s
lid is opened. The escaped residual vapor is referred to as Reactor Open Loss.
      Because vinyl chloride vapor is toxic and carcinogenic it is subject to
regulations under the National Environmental Standards for Hazardous Air
Pollutants (NESHAP). Both NESHAP and Louisiana’s particular version of the
standards, LESHAP, require specific monitoring procedures for emissions of
vinyl chloride vapor when opening the reactor’s lid, including the submission of
quarterly reports. To monitor and report Reactor Open Loss, Georgia Gulf
employs “top deck operators,” such as Bain, who use a threshold level value
meter to obtain air samples at the top, middle, and bottom of the reactor. These
readings are logged and sent to the senior production manager who summarizes
the data for Georgia Gulf’s environmental department. The environmental
department uses the data to prepare reports for the Louisiana Department of
Environmental Quality.



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      In September 1996, January 1997, and May 1997, Bain was deposed for
a separate legal proceeding involving Georgia Gulf. During the depositions, he
testified that he and other top deck operators were not reporting the actual
Reactor Open Loss readings during their tests, but were instead reporting “false
zeros.” Georgia Gulf investigated and determined that many top deck operators
were reporting false zeros and sought to clarify and emphasize its policy that top
deck operators were to report the actual readings from the tests.
      Georgia Gulf’s employee policy guide included a Corrective Action
Program. The program comprised five steps of disciplinary action to address and
remedy employee disciplinary issues. Once an employee reached the fourth
disciplinary step, he would be terminated for any further infractions. In March
1995, after Bain committed an error which caused a release of vinyl chloride
vapor, he was assigned the third step of the program as discipline.
      On July 1, 1997, Bain reached the fourth step of the program because he
was sleeping on the job. He was required to take two days off and return to work
with a written action plan to address his sleeping and his job performance
deficiencies. In his written action plan, Bain indicated that personal problems
away from work were causing the work-related problems. He further indicated
he was dealing with the stress of marital problems and medical problems with
one of his children. In April 1998, Bain threatened one of his co-workers with
physical harm for allegedly taking photographs from his work bag. Bain was
reprimanded for the threat and terminated from Georgia Gulf on May 4,1998.
      Nearly one year later, in April 1999, Bain filed suit against Georgia Gulf,
alleging violations of the Louisiana Whistleblower Statute. He claimed he was
terminated because he had reported environmental violations committed by
Georgia Gulf during his depositions in 1996 and 1997. Following a jury trial in
which the jury found in favor of Bain, Georgia Gulf filed a motion for judgment
as a matter of law under Rule 50 of the Federal Rules of Civil Procedure. The

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district court found that Bain’s deliberate violation of the environmental
regulations by reporting false zeros against the policy of Georgia Gulf barred his
recovery under the Louisiana Whistleblower Statute’s “clean hands” defense, La.
R.S. 30:2027(C), and granted Georgia Gulf’s motion. Bain timely appealed.
                          STANDARD OF REVIEW
      We review the district court’s Rule 50 judgment de novo, viewing the
      evidence in the light most favorable to the non-moving party.
      Federal Rule of Civil Procedure 50(a) authorizes the entry of
      judgment as a matter of law “[i]f a party has been fully heard on an
      issue during a jury trial and the court finds that a reasonable jury
      would not have a legally sufficient evidentiary basis to find for the
      party on that issue.” In our review here we ask whether there is “a
      conflict in substantial evidence on each essential element” of
      [Bain’s] claim against [Georgia Gulf] such that a reasonable jury
      could find in [his] favor.
James v. Harris Cnty., 577 F.3d 612, 617 (5th Cir. 2009) (internal citations
omitted) (first alteration in original). The standard for granting both Rule 56
motions for summary judgment and Rule 50 motions for judgment as a matter
of law is the same. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
                                 DISCUSSION
      We may affirm a district court’s judgment on any ground raised before the
district court and supported by the record. See Montoya v. Fedex Ground
Package Sys., 614 F.3d 145, 148-49 (5th Cir. 2010); see also Jaffke v. Dunham,
352 U.S. 280, 281 (1957) (per curiam) (“A successful party in the District Court
may sustain its judgment on any ground that finds support in the record.”). In
its briefing, Georgia Gulf identifies multiple grounds on which this court may
affirm the district court’s ruling, including Bain’s failure to prove that Georgia
Gulf retaliated against him.
      Georgia Gulf argues that Bain cannot make a prima facie showing of
retaliation because he cannot show there was a causal connection between his
testimony at the deposition and his ultimate termination because the individual

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                                  No. 11-30046

who terminated Bain, Roger Massey, made his decision without the knowledge
of Bain’s protected deposition testimony. Bain fails to reply to this argument on
appeal and did not refute Massey’s testimony at trial.
      In order for a plaintiff to establish a prima facie case of retaliation
      under [La. R.S. 30:2027], he must show: (1) that he engaged in
      activity protected by the statute; (2) he suffered an adverse
      employment action; and (3) a causal connection existed between the
      protected activity in which he engaged and the adverse action.
Stone v. Entergy Services, Inc., 9 So. 3d 193, 198 (La. App. 4 Cir. 2/4/09). Bain’s
retaliation claim fails, however, because he cannot show a vital prerequisite:
that the decisionmaker, Massey, knew of his protected activity.
      [I]n order to establish the causation prong of a retaliation claim, the
      employee should demonstrate that the employer knew about the
      employee’s protected activity. . . . If an employer is unaware of an
      employee’s protected conduct at the time of the adverse employment
      action, the employer plainly could not have retaliated against the
      employee based on that conduct.
Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 883 (5th Cir. 2003) (internal
citations and quotation marks omitted).
      Roger Massey testified at trial that he was the decisionmaker who chose
to terminate Bain. Massey’s employment at Georgia Gulf began in September
1997 at which time Bain was already in Step 4 of Georgia Gulf’s 5-step
disciplinary process. Massey testified that he did not know of Bain’s deposition
testimony regarding the false zero readings at the time he decided to terminate
Bain for threatening a co-worker. Bain has not presented any evidence that
Massey knew of the protected deposition testimony at the time Massey decided
to terminate Bain.
      The party opposing [judgment as a matter of law] must be able to
      point to some facts which may or will entitle him to judgment, or
      refute the proof of the moving party in some material portion, and
      . . . the opposing party may not merely recite the incantation,



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      “Credibility,” and have a trial on the hope that a jury may disbelieve
      factually uncontested proof.
Curl v. Int’l Bus. Machs. Corp., 517 F.2d 212, 214 (5th Cir. 1975) (quoting Rinieri
v. Scanlon, 254 F. Supp. 469, 474 (S.D.N.Y. 1966)); see Lee v. Kan. City S. Ry.
Co., 574 F.3d 253, 258 (5th Cir. 2009) (“Lee offers only speculative inferences to
support his assertion, which is insufficient to demonstrate the existence of a
genuine issue of material fact.”). Because Bain cannot prove the retaliation
prong of his claim, he cannot establish a prima facie case and his retaliation
claim must fail.
                                CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s judgment as a
matter of law.




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