Labor & Employment Law Daily Wrap Up, RETALIATION—N.D. Miss.: Maintenance manager fired months after reporting Clean Water Act violation advances McArn claim, (May 11, 2026)

By Kathleen Kapusta, J.D.

The employee alleged he was terminated for reporting a Clean Water Act violation related to the dumping of flood-related scrubber water outside of his employer’s facility.

Despite the seven-month gap between having reported the release of flood-related “scrubber water” at his packaging company employer’s facility and his subsequent termination for a safety violation, a mechanical engineer can proceed to trial on his McArn retaliatory discharge claim, a federal court in Mississippi ruled, finding triable fact issues as to whether an actual criminal violation of the Clean Water Act (CWA) occurred and whether reporting the violation played a role in his termination. He failed, however, to connect his termination with his age, said the court, granting summary judgment against his ADEA claim (Weibel v. Pregis LLC, No. 1:23-CV-155-SA-DAS (N.D. Miss. May 8, 2026)).

Flooded. Hired at the age of 59 as a mechanical engineer in the company’s Tupelo, Mississippi, facility, the employee was responsible for overseeing plant equipment, safety procedures, maintenance, and troubleshooting equipment failures. When, in June 2023, a forklift operator hit a sprinkler pipe around midnight, causing a flood, the employee drove to the facility and made the required repairs.

Although the plant manager, the next morning, told the employee to rent two floor scrubbers to clean up the water, the employee alleged that he told the manager “we have to be careful because we can’t take the water, pick it up, dump it out back... when you pick it up with the scrubber.” The employee rented a single floor scrubber to vacuum the water off the floor but later that day, he saw the manufacturing manager dumping the water onto a concrete ramp area outside the facility. It was, he learned, the second time the manager had dumped the scrubber tank that day.

Violation. The employee then photographed the manager to document the incident and called the company’s third-party environmental consultant, who confirmed that the dumping was in violation of the company’s permit and needed to be documented on a spill log. The employee reported this to the plant manager who stopped the release of the scrubber water.

Disciplined. In September, the plant manager issued the employee a disciplinary coaching for being “rude, demeaning, and disrespectful” on multiple occasions. That was his first and only coaching.

Frozen regulators. In December 2023, cold weather caused regulators on three outside isobutane tanks to freeze, reducing the pressure of the gas that was being pumped through them. The plant manager told the employee to call the maintenance manager at the company’s Granite Falls facility to help find a solution. That manager purportedly recommended using heated electrical wire called “heat trace” to warm the regulators although he denied telling the employee to do so.

Termination. According to the employee, the plant manager told him to install the heat trace even though the employee questioned whether that would violate safety protocols. In January, the Granite Falls maintenance manager visited the plant, took pictures of the heat trace, and sent them to an outside contractor who contacted the company’s engineering manager. The employee was then told to remove the heat trace. After a subsequent investigation by the HR director, the employee was fired for the heat trace incident. His prior disciplinary coaching was also mentioned in the investigative report.

McArn retaliatory discharge. The employee subsequently brought a state-law claim for retaliation alleging he was fired for reporting a CWA violation related to the release of the scrubber water outside of the facility. In McArn v. Allied Bruce-Terminix Co., the court here observed, the Mississippi Supreme Court created a narrow exception to the at-will employment rule for reporting the illegal activity of an employer to the employer or anyone else.

To sustain a McArn claim, the reported illegal act which caused the termination must “warrant the imposition of criminal penalties, as opposed to mere civil penalties.” Moreover, said the court, “it is insufficient to only show that the employee ‘reasonably believed that the complained-of activity is criminally illegal[,]’ the alleged act must be actually illegal.”

Regulatory scheme. Under the CWA’s regulatory scheme, the court explained, it is unlawful to discharge pollutants into covered bodies of water unless authorized by permit. Moreover, the CWA prescribes criminal penalties for both negligent and knowing violations of these requirements. The CWA also authorizes state agencies, like the Mississippi Department of Environmental Quality (MDEQ) to issue permits that impose requirements on entities that want to discharge “pollutants” into U.S. waters. MDEQ also regulates discharges of stormwater and non-stormwater at covered industrial facilities and requires them to apply for a stormwater permit and maintain a stormwater pollution prevention plan.

Discharge. Because it was undisputed the released scrubber water was not stormwater, the court explained that the company criminally violated the CWA if it negligently or knowingly discharged the water unless it fell within a specific exemption. The company, relying on its expert’s report, first argued that the released water was not a discharge because, rather than reaching the “waters of the United States,” it “plausibl[y]... evaporated or infiltrated soil” before reaching any “outfall,” which is a “place[] on-site where the water leaves the property in like a ditch or conveyance.”

In response, the employee, who was designated as a hybrid fact/expert witness, stated in his expert designation that “more likely than not, some of the contaminated water flowed into the eastern drainage outfall... approximately 200 linear feet from the discharge area.” Though the company appeared to argue that the employee had to prove beyond a reasonable doubt that the scrubber water reached the outfall, the court, finding no support for this proposition, declined to extend McArn to add this requirement. Further, said the court, the company’s expert stated only that it was “feasible” the scrubber water did not reach the nearest outfall and the company, as the moving party, bore the burden to prove a violation did not occur. Thus, the court found the parties’ expert testimony created a triable question of fact for the jury as to whether the scrubber water reached an outfall.

Allowable non-stormwater discharge. The company next argued that if the scrubber water was a discharge, it could have been an allowable non-stormwater exception under the “[d]ischarge from actual fire-fighting activities” or “[f]ire hydrant flushings” exception. The employee, however, pointed to the testimony of the company’s environmental consultant, who testified that the scrubber release was not an allowable non-stormwater discharge exempt from the permit requirement. Accordingly, the court found sufficient evidence to preclude summary judgment as to whether an actual criminal violation of the CWA occurred.

Causation. In arguing that there was no causal connection between the scrubber water incident and the employee’s termination, the company pointed out that the HR director, who conducted the heat trace investigation, did not know about the scrubber incident until after the employee’s termination. The court, however, noted that the plant manager, who was one of three individuals responsible for the termination decision, knew about both the heat trace and scrubber water incidents. And while he could not remember if he directly recommended the employee’s termination, the HR director testified that the plant manager was one of the three individuals who participated in the termination decision.

Further, said the court, the plant manager personally led the conversation informing the employee of his termination. Based on this, said the court, a reasonable jury could conclude that the plant manager influenced the termination decision and that influence was motivated by the employee’s reporting of the CWA violation.

Pretext. Finally, the court found evidence indicating the employee’s termination for the heat trace incident was pretextual. Specifically, the employee testified that he frequently collaborated with the Granite Falls maintenance manager on equipment issues at the Tupelo plant, the plant manager told him to call the Granite Falls manager about the frozen regulators, the Granite Falls manager recommended the treat trace, and the plant manager approved its installation.

The court also found it crucial that both the plant and manufacturing managers were involved in the heat trace incident yet suffered no consequences. According to the employee, the plant manager approved the use of the heat trace, both managers personally viewed in on one of the regulators, and the plant manager approved its use on the rest of the tanks. Despite this active participation in the heat trace, the court observed, neither manager received any adverse employment action and the plant manager played a critical role in the employee’s termination.

Moreover, the court noted, despite the plant manager’s approval of the heat trace, the investigative report indicated that he told the HR manager the employee should have known this was not an acceptable solution. Finding a triable fact issue as to whether the heat trace incident was pretextual, the court denied summary judgment on this issue.

Age discrimination. Turning to the employee’s age discrimination claim, the court noted that he asserted he was replaced by an individual who was roughly 15 years younger and the company did not appear to contest that he established a prima facie case. Because the company proffered a legitimate, nonretaliatory reason for terminating the employee, the heat trace incident, the court turned to evidence of pretext.

Although the employee again pointed to his pretext argument from his McArn claim, “McArn and the ADEA,” said the court, “apply different frameworks and causation standards” and while he “presented evidence to connect his reporting of the alleged CWA violation with a retaliatory termination, he has failed to point to a single piece of evidence that connects his termination with his age.” Thus, the court granted the company’s motion as to this claim.

The case is No. 1:23-CV-155-SA-DAS.

Judge: Aycock, S.

Attorneys: Grafton Eric Bragg (BraggLaw) for Brian Weibel. Melissa Kimberly Hodges (Ogletree Deakins) for Pregis LLC.

Companies: Pregis LLC

Cases: Retaliation Discharge AgeDiscrimination Discrimination StateLawClaims MississippiNews