     Case: 11-30295     Document: 00511648141         Page: 1     Date Filed: 10/28/2011




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

                                                                            FILED
                                                                         October 28, 2011

                                     No. 11-30295                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



MARTY ROBERTS,

                                                  Plaintiff-Appellant
v.

FLORIDA GAS TRANSMISSION COMPANY, L.L.C.,

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                         Case No. 3:09-CV-361-JJB-SCR


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges..
PER CURIAM:*
        Plaintiff-Appellant, Marty Roberts, appeals the district court’s grant of
summary judgment in favor of Defendant-Appellee, Florida Gas Transmission
Co. (“FGT”), on his retaliation claims. As there is no genuine issue of any
material fact, we affirm the district court’s judgment.




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                       I.
      Roberts worked as a technician for FGT for seventeen years until his
termination on August 19, 2008. At a meeting on April 3, 2008, in the employee
break room, which included a company vice-president, Tommy Stone, and
Roberts’ immediate supervisors, John Mire and Kent Arrant, Roberts made
complaints about compressors, specifically with regard to engine detonation, and
cooling towers.
      Following the acquisition of FGT by Southern Union Company in
November 2004, FGT has had a living restriction policy which requires that
employees provided company vehicles on a full-time basis reside within 45
minutes of their assigned facility. The policy also prohibits employees from
using company vehicles for anything other than official business or minimal
personal use. When FGT was acquired, Roberts had been assigned a company
vehicle, but lived 70 miles from his assigned facility in Zachary, Louisiana,
which exceeded the residential restriction. However, Roberts’ then supervisor
did not enforce the policy as to Roberts alone, because he planned to transfer
him to a facility closer to his residence. The transfer never happened. While
traveling to the April 3, 2008, meeting, Stone was informed that Roberts was not
in compliance with the living restriction policy. Within a week of the April 3
meeting, Roberts was given three options to resolve the issue: accept a pay cut
and transfer to a job within 45 minutes of his residence, relinquish the company
truck, or relocate to an address within 45 minutes of his assigned location.
Roberts chose to relocate to a friend’s rental cabin in the woods of Greensburg,
Louisiana.
      In July 2008, Roberts took sick leave and later had surgery for kidney
stones. On July 18, 2008, Arrant went to retrieve the company truck from the
residence Roberts provided upon his relocation. Arrant could not locate the
residence. When asked, Roberts lied about the location of the truck, stating that

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it was at his home in Greensburg. Arrant ultimately discovered the vehicle in
the driveway of Roberts’ wife’s home in Mandeville, Louisiana. When Arrant
called Roberts to confront him about the car, Roberts inquired about the
consequences.
      On or about July 21, 2008, Roberts applied for medical leave through
“FMLA Source,” the company’s independent third-party administrator. On July
30, 2008, Roberts was informed that his claim for leave was being denied
because his physician did not return a medical certification form.
      On August 18, 2008, Stone attempted to contact Roberts to inform him of
his termination, but was unable to reach him. On the same day, Roberts made
a new request for leave to FMLA Source, attributed to back problems.
      On August 19, 2008, Roberts was informed that he was terminated,
effective August 18, 2008. Stone explained to Roberts that the decision was
based on his deliberate lying, improper use of a company vehicle, and failure to
relocate as agreed. Later that day, a physician faxed a medical certification form
to FMLA Source.
      In May 2009, Roberts filed a complaint in state court against FGT. On
June 12, 2009, FGT removed the case to the United States District Court for the
Middle District of Louisiana. In his amended complaint, Roberts asserts a
Family Medical Leave Act retaliation claim and a Louisiana Environmental
Whistleblower Act retaliation claim. On March 25, 2011, the district court
granted FGT’s Motion for Summary Judgment and dismissed Roberts’ claims.
This appeal followed.
                                       II.
                                       A.
      This court reviews a district court’s grant of summary judgment de novo.
Holt v. State Farm Fire & Cas. Co., 627 F.3d 188, 191 (5th Cir. 2010). Summary
judgment is appropriate “if the movant shows that there is no genuine dispute

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as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). In reviewing summary judgment, “[w]e construe all
facts and inferences in the light most favorable to the nonmoving party[.]”
Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010) (citation and internal
quotation marks omitted).
       “In a non-jury case, such as this one, ‘a district court has somewhat greater
discretion to consider what weight it will accord the evidence.’” Johnson v.
Diversicare Afton Oaks, LLC, 597 F.3d 673, 676 (5th Cir. 2010) (quoting In re
Placid Oil Co., 932 F.2d 394, 397 (5th Cir.1991)). “When deciding a motion for
summary judgment prior to a bench trial, the district court has the limited
discretion to decide that the same evidence, presented to him or her as a trier of
fact in a plenary trial, could not possibly lead to a different result.” Id. (internal
quotation marks and citations omitted).
                                             B.
       Roberts has brought retaliation claims under the Louisiana Environmental
Whistleblower Act (LEWA), La. Rev. Stat. Ann. § 30:2027, and the Family Medical Leave
Act (FMLA). As Roberts offers only circumstantial evidence of retaliation, the familiar
McDonnell Douglas burden shifting framework applies to both retaliation claims. See
Gonzales v. J. E. Merit Constructors, Inc., No. 00-30584, 2001 WL 803545 (5th Cir. 2001)
(applying McDonnell Douglas framework to LEWA retaliation claim); Hunt v. Rapides
Healthcare Sys., LLC, 277 F.3d 757 (applying McDonnell Douglas framework to FMLA
retaliation claim). This framework “requires the plaintiff, after making a prima facie case
followed by the employer’s articulation of a nondiscriminatory reason for its action, to show
that the employer’s stated reason is a mere pretext.” Smith v. Xerox Corp., 602 F.3d 320, 326
(5th Cir. 2010).
       To establish a prima facie case of retaliation, the plaintiff must show: (1) he engaged
in activity protected by statute; (2) he suffered an adverse employment action; and (3) a




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causal connection existed between the protected activity in which he engaged and the adverse
action.
          The district court determined that Roberts failed to establish a prima facie case of
retaliation under the LEWA. “[T]o retaliate within the meaning of § 2027 requires a showing
of illicit motivation.” Powers v. Vista Chem. Co., 109 F.3d 1089, 1094 (5th Cir. 1997).
“Under the L[EWA], an employee’s failure to show that his protected actions motivated the
employer’s termination decision is fatal to his claim.” Gonzales, 2001 WL 803545 at *3.
          Roberts has failed to set forth a prima facie case of retaliation under the LEWA. First,
pursuant to the LEWA, an employee is protected if he discloses an employment practice
“that the employee reasonably believes is in violation of an environmental law, rule or
regulation.” La. Rev. Stat. Ann. § 30:2027(A)(1). When Roberts voiced concerns about
engine detonation and cooling towers at the April 3 meeting, he did not identify any law,
rule, or regulation which had been violated. Although the absence of such a reference is not
dispositive, any complaint regarding an employment practice which might have some
hypothetical consequence on the environment does not amount to a reasonable belief that the
practice is against the law. It is the obligation of a plaintiff to establish that he held such a
belief, and Roberts failed to do so.
          Additionally, Roberts cannot establish a prima facie case of retaliation under the
LEWA because he has not demonstrated a causal connection between the concerns he raised
at the April 3 meeting and his termination. Roberts was terminated several months after the
meeting. In the intervening period, Roberts was allowed to remain employed with FGT and
keep his company vehicle privileges although he had not been in compliance with the living
restriction policy. It was only after Roberts failed to comply with his agreement to relocate
and lied about the location of a company vehicle that he was terminated. Accordingly, the
requisite causal link has not been demonstrated.
          Likewise, Roberts cannot establish a prima facie case of retaliation under the FMLA,
because he has not demonstrated a causal connection between his protected activity and his
termination.      At the time that Roberts first requested FMLA leave through FGT’s
independent third-party administrator, his failure to comply with FGT’s vehicular use policy

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had already been discovered. His subsequent FMLA leave request was made to the
independent third-party administrator the day before he was terminated, and was not certified
by the doctor until after his termination. Roberts has not demonstrated that Stone was even
aware of the leave requests. “Obviously, an employer cannot retaliate against an employee
for engaging in a protected activity that it did not know about at the time of the challenged
action.” Gonzales, 2001 WL 803545 at *3.
       Lastly, even if Roberts could establish a prima facie case of retaliation under both the
LEWA and FMLA, his claims would still fail because he has not shown that FGT’s
legitimate reasons for his termination constitute mere pretext. Roberts lied about the location
of the company vehicle, and he has not shown that his lying and failure to comply with
company policies were not the true bases for his termination.
                                             III.
       For the foregoing reasons, the district court’s judgment is AFFIRMED.




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