     Case: 15-30435      Document: 00513598623         Page: 1    Date Filed: 07/19/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                      No. 15-30435                                 FILED
                                                                               July 19, 2016
                                                                              Lyle W. Cayce
ERIC BORCIK,                                                                       Clerk

              Plaintiff - Appellant

v.

CROSBY TUGS, L.L.C.,

              Defendant - Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:13-CV-6212


Before REAVLEY, JOLLY, and ELROD, Circuit Judges.
PER CURIAM:*
       Eric Borcik brought this whistleblower suit against Crosby Tugs,
alleging that Crosby had fired him in retaliation for reporting environmental
violations. Under Louisiana law, Borcik can only recover if he reported the
violation in “good faith.” La. Stat. Ann. § 30:2027. The case was tried to a jury,
which was instructed that Borcik lacked good faith if he “report[ed] [the
violation] either to seek an unfair advantage or to try to harm his employer or


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-30435
another employee.” The jury found via special interrogatory that Borcik did
not report the violation in good faith, resulting in a defense verdict. Borcik
now appeals, arguing that the district court misinterpreted the statutory term
“good faith.”
      Because the Louisiana Supreme Court has not addressed the meaning of
“good faith” and because other Louisiana courts have not provided enough
guidance to inform our Erie guess, we certify the question of the meaning of
“good faith” to the Louisiana Supreme Court.
                                        I.
      Eric Borcik was employed by Crosby Tugs as a deckhand. While working
on the motor vessel Nelda Faye, Borcik claims that Captain Ronnie LeBlanc
repeatedly ordered him to dump oil and otherwise violate environmental laws
over a period of three years. Borcik followed these orders.
      In May 2013 Borcik emailed Crosby’s Chief Administrator Officer, Tara
Crosby Cheramie. His email stated:
      Ms. Crosby [Cheramie], my name is Eric Borcik. I am a very
      grateful employee. I would like to ask for a face-to-face meeting. I
      have some concerns that I feel need your attention. I have tried to
      address them with captain, relief captain, and the wheelman.
      They have all fallen on deaf ears. Every time I bring up one of my
      concerns, it is followed by harsh criticism and some form of verbal
      harassment and never addressed. Usually the response is, that is
      the way it is; if you don’t like it, find another job boat. Crosby has
      plenty of boats.
      I hope this will remain in confidence between us for now. If not, I
      fear some form of retaliation. I truly enjoy the boat I am on and
      just wish to have my concerns addressed in a professional manner.
After this email, Borcik met with Cheramie in person.           The parties and
witnesses dispute what took place at this meeting. Borcik testified that he
talked with Cheramie about his concerns about safety, inadequate training,
and violations of environmental laws. Conversely, Cheramie testified Borcik

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“was really just complaining about [Captain] LeBlanc, that he didn’t feel that
he deserved to be the lead captain on the vessel, that he would have liked
someone else to be the lead captain, that he would like to be transferred
vessels. Then he vaguely mentioned a safety issue of dumping oil.” The parties
agree that, after this meeting, Borcik was transferred to another boat.
      A month later, Borcik was fired.       Borcik contends he was fired in
retaliation for his complaints; Crosby contends that Borcik was fired for
insubordination.     After being fired, Borcik sued, alleging retaliatory
termination in violation of Louisiana Environmental Quality Act, Louisiana
Revised Statutes 30:2027. This statute provides that
      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.
Id. The case proceeded to trial and, with the agreement of both parties, the
court instructed the jury that:
      There are four requirements for the plaintiff to be successful in
      this lawsuit under the Louisiana Environmental Whistleblower
      Act: 1) employee acts in good faith; 2) employee reports or threatens
      to report, to a supervisor an environmental violation of a boat
      captain employed by the defendant; 3) employee reasonably
      believes this activity, policy, or practice of the boat captain is in
      violation of an environmental law, and 4) employer acts in a
      retaliatory manner because the employee reported, or threatened
      to report, a violation.
The parties disagreed about how “good faith” should be defined, however.
Crosby proposed the definition of “[g]ood 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 that definition and proposed



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                                 No. 15-30435
his own: “A finding of good faith means that the Plaintiff had an honest belief
that an environmental violation occurred.”
      The district court adopted a jury instruction that did not exactly match
either of the proposed instructions but that incorporated language from both.
The court charged the jury that “‘good 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.” When given an opportunity to orally object, Borcik did so,
saying:
      The other objection, Your Honor, is that there is a definition of good
      faith at the bottom of page 9. . . . We object to that because it
      misstates the law that’s taken from a Louisiana Fourth Circuit
      Court of Appeal case called Overton, where it talked about seeking
      unfair advantage or defraud.         This isn’t a case involving
      defrauding, and harm is certainly less than defrauding. We’re
      concerned that it would mislead the jury, so we just want to
      register our objection to that.
The district court overruled this objection.
      In closing argument, Crosby focused specifically on this definition. It
argued that Borcik “wanted to get [Captain] Ronnie LeBlanc in trouble” and
that “if you conclude that’s why he made this complaint, to get an unfair
advantage, or to harm Captain LeBlanc or anyone else, then you’ve got to
dismiss this case. That’s what the Judge will instruct you after I sit down.”
      The court provided the jury with a verdict form that asked the jury to
answer a series of questions. The first question asked, “Do you find from a
preponderance of the evidence that Eric Borcik reasonably believed the activity
which he reported was in violation of an environmental law?” The jury checked
“yes.” The second question asked, “Do you find from a preponderance of the
evidence that Eric Borcik make his report in good faith?” The jury checked
“no.” The form instructed the jury to “sign and return th[e] form without

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                                      No. 15-30435
answering any other questions” if they checked no. Accordingly, the jury did
not answer the questions about causation, damages, or whether Borcik
committed the violation without direction from his supervisor. Based on this
verdict form, the court entered a judgment for Crosby; Borcik appealed.
                                             II.
         The Louisiana Environmental Quality Act does not define “good faith”
and the Louisiana Supreme Court has never addressed the issue. Thus, the
only relevant Louisiana case addressing “good faith” is Overton v. Shell Oil
Co. 1        Overton, also a whistleblower case, involved a whistleblower who,
troubled by repeated environmental violations, cooperated with federal
authorities; as a consequence, armed federal agents raided the worksite;
Overton was subsequently discharged. Id. at 410–13. Overton held that “[t]he
employee claiming protection under the Whistleblower Statute must show that
he was acting in good faith.” Id. at 411. The court then went on to quote two
definitions of “good faith” without adopting either:
         Barron’s Law Dictionary defines good faith as “a total absence of
         any intention to seek an unfair advantage or to defraud another
         party; an honest and sincere intention to fulfill one’s obligations.”
         BARRON’S LAW DICTIONARY 220 (4th ed. 1996). Black’s Law
         Dictionary states that good faith is an “intangible and abstract
         quality with no technical meaning or statutory definition.”
         BLACK’S LAW DICTIONARY 693 (6th ed.1990). “[A]n honest
         belief, the absence of malice and the absence of design to defraud
         or to seek unconscionable advantage . . . .” Id.
Overton, 937 So. 2d at 411.




         Borcik cites some additional cases dealing with good faith. These cases, however,
         1

are inapposite because they discuss good faith in contexts that call for a context-specific
definition of the term. See, e.g., Smith v. Our Lady of the Lake Hosp., Inc., 639 So. 2d 730,
749 (La. 1994) (qualified immunity context); Rouly v. Enserch Corp., 835 F.2d 1127 (5th Cir.
1988) (defamation context).
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       The Overton court concluded that “[a]fter reviewing all of the evidence
in the record, we cannot find that the trial court manifestly erred [in
determining that] Mr. Overton appeared to be acting in good faith because he
was acting without malice and without any intentions of obtaining an unfair
advantage or of defrauding anyone.” Id. at 413. Thus, Overton does not, at
any point, provide a generalized definition of “good faith” under Louisiana law.
Instead, it holds only that Overton was acting in good faith under the facts
before the court.
      Based on Overton’s limited guidance, we are not prepared to speculate
about how the Louisiana Supreme Court would define “good faith” as it is used
in the whistleblower statute. It may be that Louisiana would, like Texas and
several other states, define “good faith” broadly, for example as encompassing
any situation in which an employee has a reasonable belief that a law has been
broken. See, e.g., Wichita Cty., Tex. v. Hart, 917 S.W.2d 779, 784–85 (Tex.
1996) (“‘Good faith’ means that (1) the employee believed that the conduct
reported was a violation of law and (2) the employee’s belief was reasonable in
light of the employee’s training and experience.”). Conversely, the Louisiana
Supreme Court might define “good faith” narrowly and thereby exclude
situations in which employees act at least partly out of a desire to harm their
employer or fellow employees (as the jury found Borcik acted).
      Given similar lack of guidance we have previously held that certification
is appropriate. Given that “this is a question of state law that no on-point
precedent from the Supreme Court of [Louisiana] has resolved, that the
Supreme Court of [Louisiana] is the final arbiter of [Louisiana]’s law, and that
the meaning of ‘[good faith]’ is central to this case . . . , we believe it is best to
certify the question at issue.” Janvey v. Golf Channel, Inc., 792 F.3d 539, 547
(5th Cir. 2015), certified question accepted (July 17, 2015), certified question
answered 487 S.W.3d 560 (Tex. 2016).
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                                  No. 15-30435
                                       III.
      This case satisfies the requirements for certification under La. Stat.
§ 13:72 and Rule 12 of the Louisiana Supreme Court Rules. Specifically, the
outcome of this case will be determined by the resolution of a question of
Louisiana law (the meaning of “good faith” in the Louisiana Environmental
Quality Act); this question is independent of any other questions in the case;
and there are “no clear controlling precedents” from the Louisiana Supreme
Court. Sup.Ct. of La R. XII. Accordingly, we hereby CERTIFY the question to
the Louisiana Supreme Court.
      In conformity with Rule XII, § 3, we include the style of the case, a
statement of the facts, and the exact question of law to be answered. The style
of the case is ERIC BORCIK, Plaintiff-Appellant, v. CROSBY TUGS, L.L.C.,
Defendant-Appellee. The “statement of facts, showing the nature of the cause
and this circumstance out of which to question[] . . . of law ar[ose],” is provided
in Part I, above.    The question that we certify to the Supreme Court of
Louisiana is:
      What is the meaning of “good faith” as that term is used in the
      Louisiana Environmental Quality Act, Louisiana Revised Statutes
      30:2027?
The Supreme Court of Louisiana need not confine its reply to the precise form
or scope of the question certified.     We transfer to the Supreme Court of
Louisiana the record and appellate briefs with our certification. This panel
retains cognizance of this appeal pending the response.
                                                        QUESTION CERTIFIED




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