Case: 22-30178     Document: 00516600643         Page: 1    Date Filed: 01/06/2023




           United States Court of Appeals
                for the Fifth Circuit                                United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                                                      January 6, 2023
                                  No. 22-30178                         Lyle W. Cayce
                                                                            Clerk

   Kirk Menard,

                                                            Plaintiff—Appellee,

                                      versus

   Targa Resources, L.L.C.,

                                                         Defendant—Appellant.


                  Appeal from the United States District Court
                      for the Middle District of Louisiana
                             USDC No. 3:19-CV-50


   Before King, Stewart, and Haynes, Circuit Judges.
   Per Curiam:
          This case concerns the proper interpretation of certain provisions of
   the Louisiana Environmental Whistleblower Statute (“LEWS”).                Kirk
   Menard alleges Targa violated the Statute by discharging him after he refused
   and reported a manager’s directive to dilute sewage samples. The district
   court denied Targa’s motion for summary judgment and, following a bench
   trial, rendered judgment for Menard. Targa argues on appeal that Menard’s
   report of the manager’s directive and refusal to comply do not constitute
   “protected activities” under LEWS. Because we lack clear guidance from
   the Louisiana Supreme Court on how to resolve these issues, and the
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                                     No. 22-30178


   outcome is determinative of the entire appeal, we respectfully CERTIFY
   questions to the Louisiana Supreme Court.
          CERTIFICATE FROM THE UNITED STATES
          COURT OF APPEALS FOR THE FIFTH CIRCUIT
          TO THE SUPREME COURT OF LOUISIANA,
          PURSUANT TO RULE XII, LOUISIANA SUPREME
          COURT RULES.
          TO THE SUPREME COURT OF LOUISIANA AND
          THE HONORABLE JUSTICES THEREOF:

                                    I.      Style of the Case

          The style of the case in which this certification is made is Menard v.
   Targa Resources, L.L.C., No. 22-30178, in the United States Court of Appeals
   for the Fifth Circuit. The case is on appeal from the United States District
   Court for the Middle District of Louisiana. Federal jurisdiction is based on
   the parties’ diversity of citizenship.

                                     II.      Background

          This suit implicates a provision of LEWS which prohibits businesses
   from    retaliating   “against    an     employee,    acting    in   good   faith,
   who . . . [d]iscloses” an employer’s practice that he “reasonably believes”
   violates an environmental law or regulation.                 

(A)(1).      In June 2018, Kirk Menard began working as an
   environmental, safety, and health specialist at Targa’s Venice, Louisiana
   plant. His job duties included ensuring Targa complied with various state
   and federal environmental and safety standards. Menard reported to two
   individuals—his “official supervisor,” who resided at another facility, and
   an “indirect supervisor,” who served as an area manager for the Venice




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                                    No. 22-30178


   plant. Menard’s indirect supervisor, in turn, reported to Perry Berthelot, a
   Targa District Manager.
          On an October 5 conference call—which included Berthelot—
   Menard reported that the total suspended solids in certain recent water
   samples exceeded regulatory limits. At the end of the call, Berthelot told
   Menard to call him back to discuss the plan for rectifying these exceedances.
   Menard obliged, and he alleges that Berthelot told him he should dilute the
   sewage samples with bottled water. Menard claims that in response he
   nervously laughed and said, “no, we’re going to correct it the right way.”
          Menard subsequently reported Berthelot’s request to Menard’s
   official supervisor, who responded, “no we’re not going to do that, because
   that will not correct the problem.” Six days later Menard was terminated by
   Targa for supposed work performance issues. Shortly thereafter, Menard
   filed this suit alleging that Targa violated LEWS by discharging him for
   (1) refusing to comply with Berthelot’s request to dilute certain sewage
   samples with bottled water to ensure they met certain environmental
   regulatory standards, and (2) reporting the request to his supervisor.
          Targa removed the case and moved for summary judgment, urging
   that Menard couldn’t establish his prima facie case for retaliation because
   (1) he did not engage in a protected activity under LEWS, and (2) the
   evidence showed he was legitimately fired for inappropriate conduct. The
   district court denied Targa’s motion. The court agreed with Targa that
   LEWS did not apply to Menard’s report because reporting environmental
   violations was “part of [Menard’s] normal job responsibilities.” However,
   the court reasoned that under Cheramie v. J. Wayne Plaisance, Inc., 

 (La. 1992), LEWS applied to Menard’s refusal to dilute the




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   samples. 1 The case proceeded to a bench trial, and the district court
   subsequently ruled for Menard “in all respects” and awarded him damages
   and attorney’s fees. Targa timely appealed.

                                          III.       Discussion

           The threshold issue in this case—whether Menard engaged in a
   “protected activity” under LEWS—turns on two questions: (1) whether
   “refusals” to engage in an illegal activity constitute “disclosures” under the
   current version of the Statute, and (2) whether LEWS applies to reports
   made as part of an employee’s normal job duties. 2 Given that these questions
   implicate important, unsettled issues of Louisiana state law, we believe that
   certification to the Louisiana Supreme Court is appropriate.
           We consult the following factors when deciding whether to certify a
   question to a state supreme court: (1) “the closeness of the question[s]”;
   (2) federal–state comity; and (3) “practical limitations,” such as the
   possibility of delay or difficulty of framing the issue. Swindol v. Aurora Flight
   Scis. Corp., 

 (5th Cir. 2015) (quotation omitted). 3
           At the outset, we conclude that the second and third Swindol factors
   clearly support certification. First, “considerations of comity” are at an apex


           1
            The court also concluded that Menard had submitted sufficient evidence of a
   causal connection between his protected activity and his termination to survive summary
   judgment.
           2
            If the answer to both questions is “no,” then Targa is entitled to summary
   judgment, and we need not reach the causation issue.
           3
             Menard requested certification of the relevant questions in his opening brief.
   Louisiana Supreme Court Rule XII, section 2 authorizes such certification. See also In re
   Katrina Canal Breaches Litig., 

 (5th Cir. 2010), certified question accepted
   sub nom. In re Katrina Canal Breaches Litig., 

 (La. 2010), and certified question
   answered, 

 (La. 2011); Kelly v. State Farm Fire & Cas. Co., 

,
   293 (5th Cir. 2014) (per curiam) (unpublished).




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                                            No. 22-30178


   here. LEWS is part of the Louisiana Environmental Quality Act, a regulatory
   scheme aimed at “protect[ing], conserv[ing], and replenish[ing]” the
   “natural resources” and “quality of the environment” in Louisiana. See
   Borcik v. Crosby Tugs, L.L.C., 

 (La. 2017) (quoting La.
   Const. art. IX, § 1).              In enacting LEWS, the Louisiana legislature
   emphasized that environmental conservation “is a matter of critical state
   concern”—in fact, it’s a constitutional directive. 4 Id. (quoting 

(1)) (alteration omitted).                  Additionally, there are few
   practical barriers to certification. Both issues are straightforward and purely
   legal, and at oral argument the parties agreed that their resolution is not
   particularly time sensitive.
           Additionally, based on our review of the case law, no controlling
   precedent answers either question, and the issues are quite “close[].”
   Swindol, 

 (quotation omitted). As to the first question,
   Cheramie squarely holds that LEWS covers refusals to engage in illegal
   activity. See 

. But Cheramie addressed a pre-1991 version of
   LEWS that prohibited employers from retaliating against “an employee,
   acting in good faith, who reports or complains about possible environmental
   violations.” See 

 (prior to its 1991 amendment)
   (emphasis added). The current version of the statute, however, protects an
   employee who “[d]iscloses, or threatens to disclose, to a supervisor . . . [a]
   practice of the employer . . . that the employee reasonably believes is in



           4
               Specifically, the Louisiana Constitution provides:
            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.
           La. Const. art. IX, § 1.




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   violation of an environmental law, rule, or regulation.” 

(A)(1) (emphasis added). It’s thus unclear whether Cheramie’s
   holding survives the statutory amendment.
          Menard emphasizes that in the thirty-year period since LEWS’s
   amendment, the Louisiana Supreme Court has never expressly overruled
   Cheramie—in fact, it has cited it favorably when interpreting other
   (unamended) provisions of LEWS. See, e.g., Borcik, 

   (addressing LEWS’s good-faith requirement, which is identical in the pre-
   and post-1991 versions of the statute).         Yet, it is difficult to see how
   Cheramie’s holding can be reconciled with the current version of the Statute,
   particularly given its reliance on now-amended language. The Cheramie
   court reasoned that a “[r]efusal to participate in illegal and environmentally
   damaging work is an extreme form of complaint, and constitutes ‘complaining’
   under [LEWS].” 

 (emphasis added). But while a refusal
   may be a “complaint,” it’s not clear how it can be a “disclos[ure].” 

(A)(1).
          We are thus left with an unclear issue of state law. If we apply
   Cheramie’s holding here, we must disregard the amended statute’s ordinary
   meaning, potentially treading on the state legislature’s toes. On the other
   hand, ignoring Cheramie requires us to conclude that it is dead precedent—
   at least on this point. While not every such situation justifies certification,
   this one—which implicates such important state interests—clearly does.
          Our determination of the second question is also worthy of
   certification. As discussed, the district court held that LEWS does not
   protect Menard’s report to his own supervisor because reporting was “part
   of his normal job responsibilities.” The Louisiana Supreme Court has never
   recognized such a “job-duties exception,” and LEWS’s text doesn’t
   mention one.     Nonetheless, lower state court precedent suggests the




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   existence of the exception is, at the very least, unsettled. Two state courts
   have explicitly embraced the exclusion. See Stone v. Entergy Servs., Inc., 

 (La. Ct. App. 2009) (holding that LEWS “does not afford
   protection to an employee who generates reports regarding environmental
   issues when reporting [such issues] . . . is a part of one’s normal job
   responsibilities”); Matthews v. Mil. Dep’t ex rel. State, 

   (La. Ct. App. 2007) (same). Yet, the same Louisiana circuit court deciding
   the latter case seemed to recently reverse course in Derbonne v. State Police
   Commission, 

 (La. Ct. App. 2020), rejecting the exclusion as
   atextual and contrary to the purpose of whistleblower statutes. See 

 at 870–
   73.
          Targa stresses that Derbonne is irrelevant because it addressed the
   Louisiana Whistleblower Act, a slightly different state whistleblower statute.
   See 

 at 870–73. That’s true—but the Derbonne court didn’t indicate that
   its analysis was limited only to LEWS. To the contrary, the court explicitly
   criticized the reasoning and lack of authority undergirding Stone and
   Matthews, emphasizing that Matthews relied on a Sixth Circuit case
   interpreting inapposite federal whistleblower statutes, 

 at 871 n.3, and
   Stone referenced no authority at all, 

.
          This indeterminacy is furthered by the fact that other state courts
   grappling with the same issue have reached contrary conclusions. See, e.g.,
   City of Fort Worth v. Pridgen, 

, 186 (Tex. 2022) (rejecting the
   existence of a job-duties exclusion in the Texas Whistleblower Act). But see
   Kidwell v. Sybaritic, Inc., 

 (Minn. 2010) (holding that an
   “employee cannot be said to have ‘blown the whistle’” under Minnesota’s
   whistleblower statute “when the employee’s report is made because it is the
   employee’s job to investigate and report wrongdoing”). These fractured
   opinions also reveal the competing policy implications at stake: On the one
   hand, adopting a job-duties exclusion may undermine protections for the



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   employees who are best-positioned to report misconduct but most vulnerable
   to retaliation. See Pridgen, 653 S.W.3d at 186; Kidwell, 

   (Anderson, J., dissenting). On the other hand, rejecting the exclusion risks
   insulating a massive class of employees from discipline. See Pridgen, 653
   S.W.3d at 189 (Blacklock, J., concurring). Accordingly, we are left with a
   split of authority and no clear way to resolve it. Therefore, we believe
   certification of this second question is also appropriate.
            In sum, resolution of this appeal turns on contested, unsettled issues
   of Louisiana state law that implicate matters of “critical concern” to the
   state.    We therefore conclude that certification of these questions is
   warranted.

                                 IV.     Questions Certified

            We respectfully request that the Louisiana Supreme Court address
   and answer the following questions:
            (1) Whether refusals to engage in illegal or environmentally
            damaging activities are “disclosures” under the current
            version of the Louisiana Environmental Whistleblower
            Statute, La. Stat. Ann. 30:2027; and
            (2) Whether the Louisiana Environmental Whistleblower
            Statute affords protection to an employee who reports to his
            supervisor an activity, policy, or practice of an employer which
            he reasonably believes is in violation of an environmental law,
            rule, or regulation, where reporting violations of environmental
            law, rules, or regulations, is a part of the employee’s normal job
            responsibilities.
                                       V.       Conclusion

            We disclaim any intent that the Louisiana Supreme Court confine its
   reply to the precise form or scope of the questions certified. More generally,
   if the Louisiana Supreme Court determines a more effective expression of




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   the meaning of LEWS than answering the precise questions we have asked,
   we defer to the court to take that course. We transfer to the Louisiana
   Supreme Court the record and appellate briefs in this case with our
   certification. We retain this appeal pending the Louisiana Supreme Court’s
   response.
         QUESTIONS CERTIFIED TO THE SUPREME COURT
   OF LOUISIANA.




                                           A True Copy
                                           Certified Jan 06, 2023


                                           Clerk, U.S. Court of Appeals, Fifth Circuit




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