     Case: 18-30870   Document: 00514929497   Page: 1   Date Filed: 04/24/2019




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


                                No. 18-30870
                                                                      FILED
                                                                  April 24, 2019
                              Summary Calendar
                                                                 Lyle W. Cayce
                                                                      Clerk
ORAY BREAUX, Jr.,

             Plaintiff - Appellant

v.

ROSEMONT REALTY, doing business as Rosemont Property Management,
L.L.C.; SOUTH POINT OPERATING ASSOCIATES, L.P.; JACK STAHL
COMPANY, L.L.C.; CHERYL WILLOUGHBY,

             Defendants - Appellees

************************************************************************
MIKE CAMERON,

             Plaintiff - Appellant

v.

ROSEMONT REALTY, doing business as Rosemont Property Management,
L.L.C.; SOUTH POINT OPERATING ASSOCIATES, L.P.; JACK STAHL
COMPANY, L.L.C.; CHERYL WILLOUGHBY,

             Defendants - Appellees




                Appeal from the United States District Court
                   for the Western District of Louisiana
                USDC Nos. 6:14-CV-2265 and 6:14-CV-2268
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                                      No. 18-30870
Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Two maintenance technicians at an apartment complex filed suit against
various corporate entities and individuals regarding their former employment.
The district court granted summary judgment to the defendants on the
plaintiffs’ claims that the defendants violated the federal Age Discrimination
in Employment Act, the Louisiana Environmental Whistleblower Act, a state
statutory duty to provide a safe workplace, and a claim under state law for
damages caused by ruin of a building. Plaintiffs appeal. We AFFIRM.


                FACTUAL AND PROCEDURAL BACKGROUND
       Until 2013, Oray Breaux, Jr. and Mike Cameron were maintenance
technicians at South Point Apartments in Lafayette, Louisiana. Breaux began
working for South Point in 2006 at the age of 49. Cameron began working at
South Point in 2012 at the age of 55. After Breaux and Cameron were fired in
2013, they filed separate, but nearly-identical, petitions in Louisiana state
court. The cases were removed to federal court and then consolidated. Several
of the plaintiffs’ claims were dismissed pursuant to Federal Rule of Civil
Procedure 12(b)(6). The district court then granted the defendants’ motion for
summary judgment, dismissing the claims under the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. §§ 621-634, the retaliation claims under
the Louisiana Environmental Whistleblower Act (“LEWA”), LA. STAT. ANN.
§ 30:2027, the claims for breach of duty to provide a safe workplace under LA.




       * 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. 18-30870
STAT. ANN. § 23:13, and the claims for damages caused by ruin of a building
under LA. CIV. CODE ANN. art. 2322. The plaintiffs timely appealed.
                                 DISCUSSION
      “We review the grant of a motion for summary judgment de novo,
applying the same standard as the district court.” Moss v. BMC Software, Inc.,
610 F.3d 917, 922 (5th Cir. 2010). Summary judgment should be granted if
“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). “A genuine issue of
material fact exists when the evidence is such that a reasonable jury could
return a verdict for the non-moving party.” Gates v. Tex. Dep’t of Protective &
Regulatory Servs., 537 F.3d 404, 417 (5th Cir. 2008). All facts must be viewed
“in the light most favorable to the non-moving party,” drawing all reasonable
inferences in that party’s favor. E.E.O.C. v. WC&M Enters., Inc., 496 F.3d 393,
397 (5th Cir. 2007).


I. ADEA and Louisiana Environmental Whistleblower Act Claims
      Claims made under both the ADEA and the LEWA are analyzed under
the McDonnell Douglas framework. See Squires v. Heico Cos., L.L.C., 782 F.3d
224, 231 (5th Cir. 2015) (analyzing an ADEA claim under the framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973));
Roberts v. Fla. Gas Transmission Co., 447 F. App’x 599, 601 (5th Cir. 2011)
(applying McDonnell Douglas to a LEWA claim). To succeed on either claim,
plaintiffs are first required to make out a prima facie case. If a plaintiff does
so, the burden of production shifts to the defendant to “articulate a legitimate,
non-discriminatory reason for its decision to terminate him.” Machinchick v.
PB Power, Inc., 398 F.3d 345, 354 (5th Cir. 2005). If the defendant meets its
burden, the burden of persuasion is on the plaintiff to show that the defendant


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engaged in intentional discrimination or, for purposes of the LEWA, retaliation
by, for example, showing the defendant’s stated reason was pretextual. Id.
      The ADEA makes it “unlawful for an employer . . . to discharge any
individual or otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual’s age.” 29 U.S.C. § 623(a)(1). In employment discrimination cases
under the ADEA, plaintiffs must prove by direct or circumstantial evidence
that age was the “but-for” cause of the alleged adverse employment action.
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78 (2009).
      To establish a prima facie case of age discrimination, “a plaintiff
      must show that (1) he was discharged; (2) he was qualified for the
      position; (3) he was within the protected class at the time of
      discharge; and (4) he was either i) replaced by someone outside the
      protected class, ii) replaced by someone younger, or iii) otherwise
      discharged because of his age.”

Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 378 (5th Cir. 2010) (quoting
Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007)).
      Plaintiffs argue that summary judgment on their ADEA claim was
improper because “there is a genuine issue of material fact as to who employed”
the plaintiffs. In analyzing whether the plaintiffs established a prima facie
case of age discrimination, we see that Cameron testified that a fellow
maintenance technician would on occasion refer to him as “grandpa” or “old
man,” but that he did not believe that other employees or maintenance
technicians were treated better. Breaux testified that Betsy Primeaux, the
property manager of South Point, sometimes referred to him as “Papa Hen,”
but that Breaux never complained to anyone about her comments.               Such
evidence is of marginal relevance. Fatal to the claim is that the plaintiffs allege
on appeal that they were replaced by 25-year-old Andy Trahan. The evidence
is undisputed, though, that Trahan was hired before either plaintiff was

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                                  No. 18-30870
terminated. No evidence supports that Trahan replaced either plaintiff. It is
true that Breaux alleged in his complaint and in his deposition that he was
replaced by Bryan Koateska, and only on appeal alleges he was replaced by
Trahan. Because Breaux testified during his deposition that Koateska was
hired while he was still employed, that claim, if not abandoned, fails too.
      We next address the Louisiana statute. It prohibits retaliation “against
an employee, acting in good faith, who,” among other things,
      Discloses, or threatens to disclose, to a supervisor or to a public
      body an activity, policy, practice of the employer, or another
      employer with whom there is a business relationship, that the
      employee reasonably believes is in violation of an environmental
      law, rule, or regulation.
LA. STAT. ANN. § 30:2027(A)(1).
      The plaintiffs’ claims are based on their alleged reporting of
environmental violations related to air conditioning units and the presence of
mold in some apartments.       As the district court correctly concluded, the
plaintiffs failed to make out a prima facie case for violations of this statute
because there was “insufficient evidence to establish a causal connection
between the Plaintiffs’ protected activity and their termination.”
      Further, even had the plaintiffs established a prima facie case under the
ADEA or the LEWA, the defendants have articulated legitimate, non-
discriminatory reasons for both terminations that the plaintiffs have not
rebutted as pretextual.
      In particular, Cameron was frequently absent from work — including on
the three days preceding his termination. He at times refused to respond to
after-hours calls, even when he was on call. He once refused to correct one of
his earlier, inadequate repairs, leaving the work to others. Further, Cameron
had informed his employer on multiple occasions that he had completed all



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                                  No. 18-30870
repairs necessary to make apartments ready for new tenants, only to have his
supervisors discover still more repairs were necessary.
      On July 19, 2013 Breaux received a disciplinary action report from
Primeaux which stated the following about Breaux’s work:
      (1) Not following instructions and proper work schedule given by
      superior; (2) Withholding important information regarding the
      well-being of the property; (3) Not cooperating and getting along
      with co-workers; (4) Using work time to discuss useless non-work
      related and personal issues; (5) Insubordination; (6) Quality of
      work; (7) Quantity of work.
Breaux expressed his disagreement with every claim in the report in a letter
sent to the complex’s property administrator, Cam Peron.         There, Breaux
accused Primeaux of “borderline stupidity.” Breaux was terminated the day
he sent this letter to Peron.
      Neither plaintiff has shown that the absenteeism on the part of Cameron
and insubordination on the part of Breaux that were the bases for their
terminations were pretextual.


II. Duty to Provide a Safe Workplace and Ruin of a Building Claims
      Plaintiffs allege that defendants failed to provide a safe workplace,
claiming exposure to mold during their employment. Their claim is that the
following statute was violated:
      Every employer shall furnish employment which shall be
      reasonably safe for the employees therein. They shall furnish and
      use safety devices and safeguards, shall adopt and use methods
      and processes reasonably adequate to render such employment
      and the place of employment safe in accordance with the accepted
      and approved practice in such or similar industry or places of
      employment considering the normal hazard of such employment,
      and shall do every other thing reasonably necessary to protect the
      life, health, safety, and welfare of such employees.
LA. STAT. ANN. § 23:13.

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      Plaintiffs also claim under Louisiana law that the “owner of a building
is answerable for the damage occasioned by its ruin, when this is caused by
neglect to repair it, or when it is the result of a vice or defect in its original
construction.” LA. CIV. CODE ANN. art. 2322. That general statute does not
apply if the plaintiffs’ claims are against their employer and are subject to the
Louisiana Workers’ Compensation Act.         That Act provides the exclusive
remedy for claims by an employee who is injured by a defective building owned
or operated by the employer. See LA. STAT. ANN. § 23:1032.
      The district court found the plaintiffs’ claimed injuries to be occupational
diseases because they “were hired as maintenance technicians, whose primary
job duties included servicing and repairing HVAC systems.” See LA. STAT.
ANN. § 23:1031.1(B). The district court also found that as “maintenance
technicians, both Cameron and Breaux encountered mold as a routine matter
when cleaning the AC units, responding to work orders, and preparing
apartments for new tenants.”       For workers’ compensation purposes, “an
occupational disease is one in which there is a demonstrated causal link
between the particular disease or illness and the occupation.”         Arrant v.
Graphic Packaging Int’l, Inc., 169 So. 3d 296, 309 (La. 2015).
      The district did not err in its legal analysis of these two Louisiana
statutes or in the fact-finding undergirding that analysis.
      AFFIRMED.




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