United States Court of Appeals,

                          Fifth Circuit.

                          No. 96-30138.

     Norman M. POWERS, Plaintiff-Appellee, Cross-Appellant,

                                v.

  VISTA CHEMICAL COMPANY, Defendant-Appellant, Cross-Appellee.

                         April 11, 1997.

Appeal from the United States District Court for the Western
District of Louisiana.

Before POLITZ, Chief Judge, and WIENER and STEWART, Circuit Judges.

     STEWART, Circuit Judge:

     This case presents the question of whether Vista Chemical

Company violated Louisiana's environmental whistleblower statute

(La. R.S. 30:2027 (West Supp.1996)) by firing Norman M. Powers in

retaliation for Powers's disclosure of an environmental violation.

Powers was terminated after he stormed out of a meeting in which he

disclosed environmental violations to his supervisor at Vista.   It

was uncontradicted that approximately two weeks prior to the

meeting with Powers, Vista had already reported the environmental

violation to the United States Environmental Protection Agency and

Louisiana's Department of Environmental Quality (DEQ);    Vista had

already obtained identical information about the violation from

Powers's co-workers; Vista did not take any adverse action against

any of Powers's co-workers; Vista never advised Powers to withhold

information from the environmental authorities;    and Vista did not

take any adverse action against Powers for anything he said to the

DEQ. At the same time, Powers admitted that abruptly leaving the

                                1
meeting with his supervisor (in which he cursed at the supervisor)

was grounds for discharge.              Under these facts, Powers's case was

submitted to a jury, who returned a verdict in Powers's favor.

Pursuant to § 2027, the jury awarded Powers $504,000 (after damages

were trebled), which was remitted to $369,000.

       Vista moved for judgment as a matter of law, arguing that §

2027 required        Powers    to    prove       that    his    disclosure     must   have

motivated Vista to terminate him, and that the evidence did not

support such a finding.             The district court denied the motion,

reasoning    that     §   2027    did     not    require       a   showing    of   illicit

motivation and that, "unfortunately for Vista," Powers's disclosure

happened to concern the environment.

       Finding that § 2027 does require a showing of motivation and

that   therefore      the     district     court        erred      in   denying    Vista's

post-trial motion for judgment as a matter of law, we REVERSE.

Because we also find that the evidence was insufficient to support

a finding of illicit motivation, we RENDER judgment for Vista.

                                     BACKGROUND

       The defendant, Vista Chemical Company (Vista), is a large

petrochemical plant, and Vista hired the plaintiff, Norman M.

Powers, in 1991.          Vista's Rules of Conduct, which Powers signed,

provided that Vista employees may be fired at any time for, among

other things, insubordination.

       In   1992,    Powers      worked    in     a     "Quench     Unit,"    which   uses

oil-based liquids to manufacture Vista's products. The solid waste

generated     from    Vista's       manufacturing         process       is   dumped   into


                                             2
concrete-lined sand filters.   Vista's permit from Louisiana's DEQ

allows Vista to dump the waste in the sand filters provided the

materials have a "low flashpoint" (i.e., the materials do not
                                     o
ignite at a temperature below 140     F).   The flashpoint level can

only be determined through laboratory testing, not by sight or

smell.   Once the waste is dumped into the sand filters, Vista

further processes the waste.   Whatever is left over is then taken

to a hazardous waste landfill (to Chem Waste Management), which

customarily tests the waste for flashpoint levels.

     On October 13-14, 1992, one of Vista's operators pumped solid

waste into the sand filters.   On October 15, 1992, Powers loaded

40,000 pounds of waste from the filters into a truck bound for Chem

Waste. Although Vista's shipments had never before tested positive

for a low flashpoint, the October 15 shipment did.       Chem Waste

immediately notified Vista. Vista then conducted its own tests and

confirmed that the October 15 shipment did indeed test positive for

a low flashpoint.   By early afternoon on October 15, 1992, Vista

realized that it had violated the terms of its DEQ permit.        By

October 16, 1992, Vista had notified the various state and regional

divisions of the DEQ and the Environmental Protection Agency that

waste dumped into Vista's sand filters tested positive for a low

flashpoint.   On October 16, Vista assembled a four-person team to

investigate the incident.   Jim Lewing was a member of that team.

     On October 19, DEQ inspectors made an unannounced visit to

Vista's plant.    The purpose of the visit was to determine how

low-flashpoint material made its way into the sand filters and


                                 3
what, if anything, Vista was doing to prevent that from happening

again. Lewing's subordinate instructed Powers to accompany the DEQ

inspectors because Powers was on duty when the lowflashpoint

material was shipped to Chem Waste.                     Powers was instructed to

truthfully answer questions posed by the DEQ. During DEQ's visit,

Powers    did    not   complain    about       any     environmental    problems     or

violations.

     At    the   same   time,     on    October      19,   Lewing    prepared    eight

standard    questions     he    would    ask     the     operators     who   would   be

questioned in connection with the investigation of the incident.

Question 4 stated the following:               "When did you find the solvent on

the sand filters[?]"           According to Vista, on October 19 and 20,

Lewing questioned various operators, including Powers, who had

worked in the sand filter area on or about October 15.                   In response

to Question 4, one operator told Lewing that the solvent had been

there "approximately three weeks";               another operator said that the

sand filters "always" contained solvent;                    and a third operator

allegedly told Lewing that the solvent problem existed for "several

weeks."    None of these operators were ever told to change their

story with regard to the existence of low-flashpoint solvent on the

sand filters and none were fired as a result of their disclosures.

According to Vista, Powers told Lewing that he found low-flashpoint

solvent in the sand filters "last Thursday, October 15, 1992, or

last Wednesday."         Lewing    took        notes    during   the   meeting   that

reflected the operators' responses to Question 4. At this point,

Lewing believed that operator error caused low-flashpoint material


                                           4
to enter the sand filters.

      At trial, Powers denied that an October 19 meeting with Lewing

ever took place and denied that he responded to Question 4 in the

manner that Lewing claimed.        The parties also disagree about what

happened after the alleged October 19 meeting between Lewing and

Powers.

      According to Vista, on October 27, Lewing began a customary

second round of interviews with the operators who had knowledge of

the   October   15   incident.     Lewing       testified   that   all    of   the

operators provided Lewing with essentially the same responses, with

one exception—Powers.      Vista claims that at the second interview,

conducted   about    one   mile   from       Lewing's   office   (at   the   press

building), Powers changed his story and stated that solvent had

been on the sand filters several months earlier.                   Lewing then

became frustrated with Powers's changed story and went back to his

office.     Lewing summoned Powers to his office.                After further

questioning, Powers abruptly got up and walked out of the meeting,

saying "I don't have to put up with this crap...."                     Powers was

allegedly fired for his insubordinate conduct at the meeting.

      Powers admitted that his conduct at the meeting was grounds

for discharge. Powers also admitted that neither Lewing nor anyone

else at Vista (1) told Powers to withhold information from the EPA

or DEQ, (2) took any action against Powers "for anything [he] said"

or any "report [he] gave" the DEQ, or (3) told Powers to cover up

the environmental violations.            The DEQ concluded that Vista was

helpful and cooperative and that Vista was not attempting to cover


                                         5
up the environmental violations.

     Powers story is slightly different.           He claims that the first

meeting he had with Lewing occurred on October 27, not October 19,

when Lewing approached him at the press building.             When asked when

he first saw the solvent in the sand filters, Powers responded that

it had been there since Powers first began working in the sand

filter area (i.e., for months).           Powers claims that at that point

Lewing "kind of exploded" and said that Powers was lying.                 Powers

denied the allegation and repeated his claim that the solvent had

been there for months. At that point, Powers testified that Lewing

threatened Powers by saying the following: "Look, ... you are just

a green hat out here, and ... you are going to say any damn thing

I want you to say, or I am going to run your ass out the gate."

     Without any citation to the record, Powers claims that he "was

of the impression that Jim Lewing wished to intimidate him into

saying that the October 15th incident was just a three day [sic ]

problem."      Powers claims that Lewing then abruptly left.               After

being summoned to Lewing's office, Powers reiterated his claim that

the low-flashpoint solvent had been in the sand filters for months,

to which Lewing allegedly yelled, hit the desk, accused Powers's of

lying,   and   said   that   he   would    run   his   "ass   out   the   gate."

According to Powers, Lewing sought to ensure that Lewing's version

of the cause of the accident—operator error—went unchallenged.

Powers sums up the evidence as follows:

     [T]he "party line" on October 27, 1992, to which Jim Lewing
     was attempting to force adherence, was that it was operator
     error, in order that Lewing could assert that the violation
     had just been on the sand filter impoundments for just a day

                                      6
     or so, not two months or longer. This is certainly a credible
     interpretation of the evidence, which leads one to the
     conclusion that Jim Lewing's actions against plaintiff were to
     retaliate against him for disclosing the longer term problem.

                               PROCEDURAL HISTORY

     Powers filed suit against Vista claiming that he was fired in

retaliation for disclosing that the low-flashpoint solvent was in

the sand filters for weeks to months, not just a few days.                The

jury found that Vista violated Louisiana's whistleblower law and

awarded Powers $168,000, which, pursuant to the statute, was

trebled to $504,000.       Powers was also awarded attorneys' fees.

     At the close of Powers's case and after the jury returned its

verdict, Vista moved the district court for judgment as a matter of

law, arguing that the evidence was insufficient to support Powers's

claim that Vista terminated him in violation of the whistleblower

statute.    In the alternative, Vista asked for a remittitur.             The

district court, although it found that there was insufficient

evidence    to   show   that    Vista   was   motivated   by   "environmental

reasons,"    nonetheless       denied   Vista's   motion,   concluding    that

"unfortunately for Vista," the disagreement between Lewing and

Powers happened to concern the environment.          However, the district

court ordered Powers to accept a remittitur to $369,000 or face a

retrial on all issues.           Powers accepted the remittitur.         Vista

timely appealed and Powers cross-appealed.

                               STANDARD OF REVIEW

     We must determine whether the district court erred when it

denied Vista's motion for judgment as a matter of law at the close

of the evidence and after the jury returned its verdict.                 "The

                                        7
standard of review of a denial of a motion for judgment as a matter

of law depends on whether the defendant has properly preserved the

issue by moving for judgment as a matter of law at the conclusion

of all of the evidence."                 See Polanco v. City of Austin, 

, 973-74 (5th Cir.1996) (citing Bunch v. Walter, 

,

130 n. 4 (5th Cir.1982)).                  Here, Vista moved for judgment as a

matter of law at the close of the evidence.

       Accordingly, we analyze the sufficiency of the evidence to

determine     whether        a    reasonable       jury   could     have   come   to   the

conclusion that it did.                 

    "We will reject a verdict in

those instances when, despite considering all the evidence in the

light and with all reasonable inference most favorable to the

verdict, we find no evidence of such quality and weight that

reasonable    and      fair-minded          men    in   the     exercise   of   impartial

discretion could arrive at the same conclusion."                        Thrash v. State

Farm   Fire    &      Cas.       Co.,    

,    1356   (5th    Cir.1993)

(quotations omitted).              Of course, we review de novo the district

court's conclusions of law.

                                          DISCUSSION

I. THE MEANING   OF   LOUISIANA'S ENVIRONMENTAL WHISTLEBLOWER STATUTE

       This case presents an issue of first impression for the Fifth

Circuit and Louisiana attorneys.                    We must decide the meaning of

Louisiana's environmental whistleblower statute, codified at La.

R.S. 30:2027 (West Supp.1996). Because we sit in diversity, we are

mindful of our duty to interpret the law as would a Louisiana

court.   Erie R.R. v. Tompkins, 

, 

, 

1188 (1938).    In making an Erie guess, we have said that "[w]e are

emphatically not permitted to do merely what we think best;                 we

must do that which we think the [Louisiana] Supreme Court would

deem best."     Jackson v. Johns-Manville Sales Corp., 

,

397 (5th Cir.) (en banc), cert. denied, 

, 

, 

(1986).

       With that said, we begin with the statute.                Louisiana's

environmental whistleblower statute provides in part:

       A. No firm, business, private or public corporation,
       partnership, individual employer, or federal, state, or local
       governmental agency 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,
       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.

                          *    *    *       *   *     *

       B. (1) Any employee against whom any action is taken as a
       result of acting under Subsection A of this Section may
       commence a civil action ... and shall recover from his
       employer triple damages resulting from the action taken
       against him....

La. R.S. 30:2027 (emphasis added).

       The parties both argue that the term "discloses" in § 2027 is

unambiguous and supports their respective positions. Powers argues

that the language of § 2027 is plain—it covers "disclosures"

regardless of the economic or other consequences that may flow from

such a disclosure.      He contends, and the district court agreed,

that   any   other   reading   of   the     statute   would   produce   absurd

consequences.    "Under defendant's reading of the statute," argues


                                        9
Powers, "if twenty employees learned of an environmental violation

and disclosed it to their supervisor, only the first would be

protected and the other nineteen could be terminated with impunity,

as nothing new was being disclosed."           Vista, on the other hand,

contends that the plain language of § 2027 supports its position.

Vista argues that the term "discloses" should be interpreted from

the perspective of the employer.           "[I]t makes no sense," asserts

Vista, "to view the word "discloses' from the standpoint of the

employee ... because the plaintiff cannot free himself from secrecy

or ignorance by telling something."

     We do not find, however, that this case turns on the meaning

of "discloses" in § 2027.           We assume, without deciding, that

Powers's statements to his supervisor were disclosures protected by

§ 2027.   Instead, we must decide what it means for an employer to

"act in a retaliatory manner" after an employee discloses or

threatens to disclose an environmental violation.               The district

court concluded that Powers was not required to show that his

disclosure motivated Vista to terminate him.              Stated differently,

the district court was of the view that under § 2027, an employer

can retaliate against an employee for disclosing an environmental

violation    even   though   the   employer    is   not    motivated    by    the

disclosure    to    take   the   adverse   employment     action.      We    must

determine whether the district court was correct in so concluding.

      We hold that to retaliate within the meaning of § 2027

requires a showing of illicit motivation. Section 2027 was enacted




                                      10
in 1981 and amended in 1991,1 and we deal here with the amended §

2027.     However,     neither     the     Louisiana    Supreme     Court    nor    any

intermediate appellate courts within Louisiana have interpreted the

amended version of § 2027.               Nor have we found any legislative

history that sheds light on the issues in this case.                        Louisiana

courts have, however, interpreted the predecessor to § 2027, and we

find these decisions helpful in our determination of the meaning of

the phrase "act in a retaliatory manner" in § 2027.

     In   Cheramie      v.   J.    Wayne    Plaisance,     Inc.,    

(La.1992), the Louisiana Supreme Court, interpreting the pre-1991

version of § 2027 (which contained the identical retaliation

language), held that an employee fired for refusing to do illegal

work that is damaging to the environment is entitled to damages

under § 2027.     

      The court reasoned that § 2027 provided

relief    for    the   plaintiff      because     "he     complained      about     his

employer's      intention     of   violating      state    and     federal    law   by

continuing operations in a protected area without a permit."                        

   Bartlett      v.   I.D.    Reese,     

(La.Ct.App. 1st Cir.), writ denied, 

(La.1991), the

Louisiana Court of Appeals held that the precursor to § 2027,

which, as in Cheramie, contained the same "retaliation" language as

the current version of § 2027, is triggered because the employee

was fired because he reported an environmental violation.                      

   In reaching this conclusion, the court of appeals noted

    1
     The relevant portions of the 1981 version of § 2027 protected
"reports or complain[ts] about possible environmental violations."
(Emphasis added.)

                                           11
that the reported environmental violation had potentially adverse

economic consequences for the company (in the form of cancellation

of a contract).       

202.

     The construction of § 2027 in Cheramie and Bartlett comports

with the    common-sense         meaning    of   the   word   "retaliate."      The

dictionary defines "retaliate" as "to return like for like;                  ... to

return evil for evil;           pay back injury for injury;         ... to return

an injury, wrong ... for (an injury, wrong ... )...."                 WEBSTER'S NEW

WORLD DICTIONARY at 1145 (3d College ed.1994);            see, e.g., Sumrall v.

Luhr Bros., 

, 800 (La.Ct.App. 1st Cir.1995) (looking

to Black's Law Dictionary for common and approved usage), writ

denied, 

(La.1996).                 Plainly, for an employer to

retaliate against an employee, the employer must be motivated

(i.e., form a subjective intent) to take adverse employment action

in return for the perceived "wrongful" conduct of the employee.2

In both Cheramie and Bartlett, the employer fired the employee

because the employee committed the "wrong" of whistleblowing—by

refusing    to   do   a   job    that   would    have   been   in   violation   of

environmental laws (Cheramie ) and by reporting an unreported

environmental violation (Bartlett ).

     Although Cheramie and Bartlett involved interpretations of the

pre-1991 version of § 2027, we nonetheless conclude that the

Louisiana Supreme Court would hold that the meaning of the phrase

"act in a retaliatory manner" in § 2027 requires a showing that the

        2
        The dictionary defines "motive" as "some inner drive,
impulse, intention, etc. that causes a person to do something or
act in a certain way...." WEBSTER'S, at 886.

                                           12
employer    was    motivated      to       fire   an   employee    because    of   the

employee's disclosure of an environmental violation.                     Otherwise, §

2027 would be transformed into a wrongful-discharge statute which

covers adverse employment actions that have nothing to do with an

employee's    disclosure        of    an    environmental       violation—a    result

inconsistent with Louisiana's employment at-will doctrine. See La.

C.C. art.    2747 (West 1996);         Stevenson v. Lavalco, Inc., 

, 610 (La.Ct.App.2d Cir.1996).                 As such, we conclude that the

district court erred in finding that § 2027 does not require an

employee to prove that an employer's adverse employment action was

motivated    by    the     employee's        disclosure    of     an    environmental

violation.

II. SUFFICIENCY   OF THE   EVIDENCE

     Because we have concluded that § 2027 requires a showing of

illicit motivation, we now turn to the evidence to determine

whether it is sufficient to support the jury's conclusion that

Powers was terminated in violation of § 2027.3                         We note at the

      3
      The parties spent a great deal of energy arguing over the
propriety of the jury instructions.     The jury was told that to
recover under § 2027, Powers's disclosure had to be "a
determinative factor" in Vista's decision to terminate him. Vista
argued strenuously that the statute requires a showing that the
disclosure was the "sole" or "the substantial determinative" factor
in Vista's decision.

          We decline to address this issue because it is
     unnecessary to the resolution of this case. As we discuss in
     the text, we have found that the record does not support a
     finding that Powers's environmental disclosure motivated Vista
     to fire him.    Given the facts of this case, providing a
     precise definition of "motivation" (in the form of a § 2027
     jury instruction) would not only be unwise, but is precisely
     the type of exercise we feel is best left to the Louisiana
     Supreme Court and intermediate courts of appeals.

                                            13
outset that the district court, when ruling on Vista's post-trial

motion for judgment as a matter of law, concluded that the evidence

was insufficient to support the conclusion that Powers was fired

for "environmental reasons" and that the evidence relating to the

"retaliation factor" posed a "bothersome issue."                  The district

court nonetheless denied Vista's motion because the disagreement

between Lewing and Powers, "unfortunately for Vista," happened to

concern the environment.

       Our independent review of the record persuades us that the

evidence was simply insufficient to support a finding that Vista

was   motivated    to     terminate   Powers     because     he   disclosed   to

supervisor Lewing that the low-flashpoint material was on the sand

filters for several months.       At trial, Vista produced a wealth of

evidence to this effect.       Powers admitted at trial that (1) Vista

did not tell him to withhold any information from the environmental

authorities investigating the Vista incident, (2) Vista did not

take any action against him "for anything [he] said" or any "report

[he] gave" the DEQ, (3) Vista took no adverse action against his

co-workers (who made similar disclosures to Lewing), and (4) his

abrupt exit from his meeting with Lewing and accompanying curse was

grounds for discharge.       In addition, the information Powers claims

was the basis for his retaliatory discharge—that low-flashpoint

materials were on the sand filters for months—had already been

disclosed   to    Vista     approximately      two   weeks    before   Powers's

disclosure and two weeks prior to Vista's report to the EPA and DEQ

that Vista had violated one of the terms of its environmental


                                      14
permit.

      We have carefully searched the record for evidence that Vista

fired Powers in retaliation for disclosing that low-flashpoint

materials were on the sand filters for more than two or three days.

We have found precious little that is directly relevant to the

issue of whether Powers's disclosure motivated Vista to fire him.

Indeed, the only relevant evidence presented by Powers on this

point was the alleged aggressive behavior of supervisor Lewing in

his meeting with Powers.       But this evidence too cannot give rise to

an inference of § 2027 retaliation absent evidence suggesting that

Vista was motivated to terminate Powers on the basis of the

environmental    disclosure.         The    record   is    devoid   of   any   such

evidence.

      Powers is simply mistaken when he asserts that his disclosure

to Lewing that the low-flashpoint material was on the sand filters

for a few months motivated Vista's decision to terminate him. From

the point of view of Vista, the length of time the flammable

material was on the sand filters was inconsequential because Vista

had already informed the DEQ that Vista did not know how long the

materials were on the sand filters.           There was no, as Powers seems

to   think,   "party   line"    to    which    Vista      was   trying   to    force

adherence.     Ron Cady, the DEQ inspector, was asked by Powers's

attorney on cross-examination whether "the solvent material had

been on the sand filters for a period of time in excess of just one

or two days?"    Cady responded that Vista "said they didn't know."

      In other words, Vista was not attempting to mislead the


                                       15
environmental authorities about the length of time the flammable

materials     remained     on     the    sand     filters.        In     fact,    the

uncontradicted evidence showed that a representative of the DEQ

believed that Vista was not trying to cover anything up. Precisely

the opposite was true:          Vista exhibited "total cooperation," was

"very helpful," and "at no time did [the DEQ representative] feel

like anybody involved in the investigation felt like Vista was

trying to conceal anything from us."               In light of these facts as

well as Vista's knowledge (gleaned from other employees) about the

possibly lengthy presence of the material on the sand filters,

Powers    failure    to   present       any    evidence     suggesting    that    his

disclosure could have motivated Vista's decision to terminate

Powers is fatal to his claim that Vista violated § 2027.4

      We conclude that the meager evidence presented by Powers on

the   issue   of    whether     Powers's       disclosure    motivated    Vista    to

terminate him is insufficient to support a finding of liability

under § 2027.      Rather, the record is insufficient to support a jury


      4
      Powers contends that his disclosure that the low-flashpoint
material was on the sand filters for a few months raised the
specter of harsher penalties from the DEQ. Powers characterizes the
testimony as follows: "If this is a one time [sic ] spill or upset
event, DEQ approaches the penalty to be imposed differently than if
it was a situation which had been going on for a long period of
time, and one which someone should have recognized and addressed."
We have reviewed the relevant portions of the record and conclude
that Powers presented no evidence suggesting that Lewing was
covering up the alleged two-month (or more) problem to avoid
harsher DEQ penalties.      We agree with the district court's
interpretation of the evidence that "the probable reason for Mr.
Lewing's displeasure with Mr. Powers" was that Powers's account
tended to discredit Lewing's conclusions about what had occurred,
"not because of any concern that [Lewing] or, for that matter,
Vista, had for the environmental people."

                                          16
verdict that Powers's disclosure of an environmental violation to

his supervisor was any kind of motivating factor, whether sole,

substantial, or simply one of several.       In fact, the only jury

verdict that the evidence is sufficient to support is that Vista

fired Powers for his insubordinate conduct in the meeting with

supervisor Lewing.

                                CONCLUSION

       Because we find error in the district court's conclusion that

Powers was not required to prove that Vista's decision to terminate

him was motivated by a desire or intention to retaliate against him

for his environmental disclosure, we REVERSE the district court's

denial of Vista's post-trial motion for judgment as a matter of

law.    Because we further find that, even if there had been a jury

instruction on retaliatory motive, the evidence is in sufficient to

support a finding of illicit motivation, we RENDER judgment for

Vista.

       REVERSED AND RENDERED.




                                    17