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Hanna v. Shell Exploration and Production, Inc.

Court of Appeals of Louisiana, Fourth Circuit

December 6, 2017

DANNY HANNA
v.
SHELL EXPLORATION AND PRODUCTION, INC., BRUNEL ENERGY, INC., CHARLES PERRILLIAT, MARK TIPTON, 123 INSURANCE COMPANY AND XYZ INSURANCE COMPANY

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2012-07799, DIVISION "C" Honorable Sidney H. Cates, Judge

          Jean-Paul Robert Attorney at Law COUNSELFOR PLAINTIFF/APPELLANT

          THOMAS J. MCGOEY, II LISKOW & LEWIS KINDALL C. JAMES LISKOW & LEWIS COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods

          Regina Bartholomew-Woods Judge.

         Plaintiff, Danny Hanna ("Appellant" or "Mr. Hanna") appeals the January 3, 2017 judgment of the Orleans Parish Civil District Court granting a motion for summary judgment in favor of Defendants, Shell Exploration and Production Company ("SEPCO"), Shell International Exploration and Production, Inc. ("SIEP"), Mark Tipton, and Charles Perrilliat (collectively, "Appellees"). The judgment additionally dismissed Appellant's claims with prejudice, with each party to bear their own costs. For the reasons that follow, we affirm the judgment of the district court.

         FACTUAL AND PROCEDURAL BACKGROUND

         Appellant filed a petition in the Orleans Parish District Court on August 3, 2012. Therein, Appellant stated that he was recruited by Brunel Energy, Inc. ("Brunel"), to work for SIEP/SEPCO as a Cost Engineering Manager, beginning his employment in New Orleans on August 22, 2011. Appellant alleged that his direct supervisor at SIEP/SEPCO, Charles Perrilliat, falsified reports relative to the funding of what was known as the "Cardamom" project, and asserted his obligation to report such "accounting irregularities" and "mis-estimates." However, Appellant alleged that before he could report such conduct, Mr. Perrilliat entered Appellant's computer, without permission, to "falsify and change" Appellant's financial reports. Based upon this conduct, Appellant alleged several violations of Louisiana law by Mr. Perrilliat, as well as a violation of the contract between SIEP/SEPCO and Brunel. Ultimately, Appellant reported Mr. Perrilliat's conduct to Mr. Tipton, Mr. Perrilliat's direct supervisor at SIEP/SEPCO, alleging that Mr. Tipton took no action thereon. He also alleged to have taken his complaints regarding both Mr. Perrilliat and Mr. Tipton to Kurt Schallenburger, the Cardamom project manager, who took no action.

         Based on the allegedly fraudulent and illegal conduct of Mr. Perrilliat and Tipton, Appellant claimed to have suffered a stress-induced cardiac event resulting in hospitalization, generating an unpaid workers' compensation claim. Appellant ultimately scheduled a meeting with SIEP/SEPCO's human resources department in Houston, Texas, for November 11, 2011, after his numerous complaints went ignored. However, Mr. Hanna asserted he was terminated en route to the meeting and threatened with arrest should he appear at the Houston corporate office. Appellant claimed he was wrongfully terminated due to his complaints of the activity described above, in violation of the Louisiana Whistleblower Act ("LWA"), La. R.S. 23:967.[1] Appellant's petition also alleged that he was wrongfully terminated, as provided in La. R.S. 23:1361, [2] as a result of making a workers' compensation claim.

         Appellant's petition further noted that he was born without a right hand and with a smaller right arm. He alleged he was terminated because of his disability in violation of the Louisiana Employment Discrimination Law ("LEDL"), La R.S. 23:301, et seq. He alleged that Mr. Perrilliat would call him names and ask for high fives "on an almost weekly basis[, ]" in violation of La. R.S. 23:322, et seq, and La. Const. Art. 1, sections 3 and 12. Hence, Appellant alleged intentional infliction of emotional distress and intentional infliction of assault.

         Lastly, Appellant alleged he had been "black balled" in the industry as a result of his alleged wrongful termination, and reporting thereof to third parties by Appellees, which caused ongoing and future lost wages and suffering.

         On October 4, 2016, Appellees filed a motion for summary judgment, [3]accusing Appellant of using an "everything but the kitchen sink" approach; that is, alleging numerous claims in his petition, all or most known to be meritless, hoping that at least one would result in some sort of relief.

         Appellees first argued that Appellant's LWA and LEDL claims should fail because neither SIEP nor SEPCO employed Appellant.[4] In support, Appellees cited the definition of "employer" in La. R.S. 23:302, and submitted that because SIEP did not provide Appellant's compensation, SIEP did not qualify as Mr. Hanna's "employer." Appellees additionally cited jurisprudence from the Louisiana Supreme Court and this Court indicating that in making such a determination, the courts may look to the entity paying the employee's wages, the entity withholding taxes, whether the employee's name appears on the entity's payroll, and whether the employee participates in the entity's benefits plans. Relying thereon, Appellees note that Brunel, not SIEP, paid Appellant's wages; Appellant participated in Brunel's benefits plans, not SIEP's; Brunel, not SIEP, withheld his taxes; and that Appellant did not appear on SIEP's payroll.

         Alternatively, Appellees argued that Appellant failed to prove that SIEP, in fact, violated Louisiana state law through Mr. Perrilliat's conduct, as required by the LWA. That Appellant reasonably believed Mr. Perrilliat to have violated state law is not enough; instead, Appellees argued, Appellant was required to prove an actual violation of state law. Appellees noted Appellant's inability to identify any violation of state law based on Mr. Perrilliat's act of changing calculations on monthly reports using Appellant's computer. Appellees highlighted Appellant's inability to identify any such law in his deposition testimony. Furthermore, Appellees argued Appellant failed to report to anyone that he thought Mr. Perrilliat's conduct was illegal.

         Appellees further argued that Appellant failed to show a violation of the LWA based on a "threat" made by Mr. Perrilliat. Specifically, Mr. Perrilliat allegedly commented to two other employees, "It's a crazy day. I could just shoot somebody." According to Appellees, neither of these other employees testified that they took the comment seriously. Furthermore, Appellants noted there was no evidence that Mr. Perrilliat attempted to carry out this "threat, " and that, in any event, the law requires a violation by SIEP as the employer.

         Appellees next pointed to Appellant's deposition testimony to show that even Mr. Hanna did not attribute his termination to his disability. They also argued that SIEP was not a party to Appellant's employment services agreement, and, therefore, SIEP could not be held liable for a breach thereof. In a related vein, Appellees argued that the existence of a contract between SIEP and Brunel did not create privity of contract between Appellant and SIEP.

         Appellees next attacked Appellant's allegation of intentional interference with his contract of employment with Brunel, arguing Appellant's status as an "at-will" employee fatally undercut his claim. They further noted that SIEP is not a "corporate officer" of Brunel, a necessary predicate to his claim, as established by Louisiana Supreme Court jurisprudence. Additionally, Appellees argued Appellant's contract did not have a fixed-term, eliminating any claim that he had a "legally protected interest" in continued employment.

         Lastly, Appellees argued that Appellant's claims of intentional infliction of emotional distress ("IIED") and defamation failed. As to the IIED claim, Appellees argue the conduct in question did not arise to "extreme or outrageous conduct" as that term has been developed and understood in Louisiana jurisprudence. As for the defamation claim, Appellees assert that Appellant relies on nothing more than speculation that Mr. Perrilliat or Mr. Tipton provided negative references to potential employers, despite the jurisprudential requirement that such a claim be demonstrated with "convincing clarity."

         Appellant first responded in opposition to the motion by suggesting Appellees used an incorrect definition of "employer, " arguing that Appellees' use of a definition from Chapter 3 of Title 23 of the Louisiana Revised Statutes was inappropriate. In any event, Appellant noted that "the source of the funds" used to pay him "was at all times Defendant Shell[, ]"[5] as SIEP paid Brunel's invoices. Appellant further noted that Brunel and SIEP had entered into a long term contractual relationship for professional services, and that at all relevant times he "worked at Shell."

         Appellant next argued that Mr. Perrilliat's use of his computer violated Shell policy. Further, Appellant argued such conduct violated La. R.S. 14:70 relative to false accounting, La. R.S. 14:73.5 relative to computer fraud, and La. R.S. 14:73.7 relative to computer tampering.

         Appellant also suggested a genuine issue of material fact existed as to whether Mr. Perrilliat made a workplace threat when he "threatened to shoot every employee at Shell[.]"

         Appellant also addressed Appellees' claim that there existed no genuine issue of material fact as to his termination based on his disability. Appellant referred the court to his deposition testimony in which he testified that he believed his "complaints about disability discrimination were a motivating factor in his termination." He further submitted his IIED claim was meritorious based on his emergency room visit during his time working under Mr. Perrilliat, which his doctor attributed to the stressful working environment created by Mr. Perrilliat.

         Appellant also disputed the contention that his contract was an "at-will" agreement. He argued that he expected to be on the job for four years, and would have so remained had he not been wrongfully terminated. He therefore submitted Mr. Tipton's termination of him interfered with that contract between Brunel and Shell for Appellant's services. Lastly, Appellant noted that he has lost recent employment after a "check" of references. Appellant therefore "attributes his inability to find work to Shell reporting [his] wrongful termination" based on an incorrect recitation of the facts regarding his conduct and resulting termination.

         After conducting a hearing, the district court rendered judgment on January 3, 2017, granting Appellees' motion and dismissing all claims against them with prejudice. The district court also provided "Reasons for Judgment." Therein, the district court first noted it need not decide the question of the employment relationship between SIEP/SEPCO and Mr. Hanna, "because even if Mr. Hanna was Shell's employee, plaintiff's claims against the Shell defendants, based on some form of employment discrimination, would still fail." Turning next to Appellant's whistleblower claim, the district court noted that Appellant must first "prove that the employer committed an actual violation of state law." The court found that Appellant presented "no evidence" of the violation of any state law or that he was terminated for reporting such violations. It similarly found "no evidence" that Mr. Perrilliat's "inappropriately strange comments" amounted to "actual violations of state law." As for Appellant's employment discrimination claim, the district court again found "no evidence" that his termination was due to his physical disability. Next, the district court ruled Appellant had no claim for breach of contract or intentional interference with contract, finding "[n]o contract existed between Mr. Hanna and any Shell defendant." It further found that Appellant's contract with Brunel was an "at will" contract that could be terminated at any time, vitiating any claim that Appellant should have expected employment for a specific term of years. The district court also found Appellant's claim of intentional infliction of emotional distress unconvincing, finding the conduct of Mr. Perrilliat and Mr. Tipton was not so extreme or outrageous as to support his claims. Lastly, the district court found Appellant's defamation claim to be without merit, describing his allegations as "pure speculation." Appellant now appeals, alleging nine assignments of error.

         STANDARD OF REVIEW

         The applicable standard of review in this matter is well-settled:

We review the granting of a motion for summary judgment utilizing the de novo standard of review. Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533, p. 5 n. 2 (La.2/20/04), 866 So.2d 228, 232; Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, p. 7 (La.2/29/00), 755 So.2d 226, 230. We utilize the same standard applied by the trial court in deciding the motion for summary judgment. Cusimano v. Port Esplanade Condominium Ass'n, Inc., 10-0477, p. 4 (La.App. 4 Cir. 1/12/11), 55 So.3d 931, 934; Lingoni v. Hibernia Nat'l Bank, 09-0737, p. 3 (La.App. 4 Cir. 3/3/10), 33 So.3d 372, 375. Because we review a motion for summary judgment de novo, we do not give deference to the trial court's judgment or its reasons therefor. Cusimano, p. 4, 55 So.3d at 934. A trial court's reasoning for granting a summary judgment may be informative, but it is not determinative of the issues to be resolved by this court. Cusimano, pp. 4-5, 55 So.3d at 935. If a genuine issue of material fact exists, then summary judgment is inappropriate. La. C.C.P. art. 966 B(2).

Jones v. Buck Kreihs Marine Repair, L.L.C., 2013-0083, pp. 1-2 (La.App. 4 Cir. 8/21/13), 122 So.3d 1181, 1183. Furthermore:

When . . . the mover will not bear the burden of proof at trial, the mover is not required to negate all essential elements of the adverse party's claim, but only to point out to the court that there is an absence of factual support for one or more of those essential elements. La. C.C.P. art. 966(C)(2). Once the mover has done so, the burden shifts to the adverse party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, and if he fails to do so, the mover is entitled to summary judgment. Schwarz v. Administrators of Tulane Educational Fund, 97-0222, p. 4 (La.App. 4 Cir. 9/10/97), 699 So.2d 895, 897.

Duboue v. CBS Outdoor, Inc., 2008-0715, p. 2 (La.App. 4 Cir. 10/1/08), 996 So.2d 561, 562.

         Based on the foregoing, Appellees, as the party moving for summary judgment, needed only to point to the absence of factual support for one of the essential elements of each of Appellant's claims. Once the trial court found an absence thereof, the burden shifted to Appellant to produce factual support sufficient to show that he could meet his burden at trial. We conduct the same analysis herein.

         ANALYSIS

         Employment Relationship

         Though the district court declined to address which entity employed Mr. Hanna - SIEP or Brunel - we address it here first, as it is a threshold issue. That is, should we find that Appellee showed there existed no genuine issue of material fact as to the employment relationship between Mr. Hanna and SIEP, many of his claims against SIEP would fall, as his claims under the LWA and LEDL require a showing of adverse action by an "employer, " to wit:

B. An employer, labor organization, or employment agency shall not engage in any of the following practices:
* * *
(2) Discharge or otherwise discriminate against an otherwise qualified person with a disability with respect to compensation or the terms, conditions, or privileges of employment on the basis of a disability when it is unrelated to the individual's ability to perform the duties of a particular job or position.

La.R.S. 23:323; and,

A. An employer shall not take reprisal against an employee who in good faith, and after advising the employer of the violation of law:
(1) Discloses or threatens to disclose a workplace act or practice that is in violation of state law.
(2) Provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of law.
(3) Objects to or refuses to participate in an employment act or practice that is in violation of law.

La.R.S. 23:967.

         Appellees asserted that the definition of "employer" that applies to both Appellant's LEDL and LWA claim is set forth in La.R.S. 23:302(2), which defines the term as follows:

[A] person, association, legal or commercial entity, the state, or any state agency, board, commission, or political subdivision of the state receiving services from an employee and, in return, giving compensation of any kind to an employee. The provisions of this Chapter shall apply only to an employer who employs twenty or more employees within this state for each working day in each of twenty or more calendar weeks in the current or preceding calendar year. "Employer" shall also include an insurer, as defined in R.S. 22:46, with respect to appointment of agents, regardless of the character of the agent's employment.

         There is no dispute that this definition applies to Mr. Hanna's LEDL claim, as the definition is contained in Chapter 3 of Title 23 relative to employment discrimination. However, the definitional section of Chapter 3 specifically states that the definitions are relevant only "[f]or purposes of this Chapter." Accordingly, Appellant challenged the application of this definition to his LWA claim, the law on which is set forth in Chapter 9 of Title 23. Appellant suggested the applicable definition of employer should instead be drawn from La.R.S. 23:900(3), which provides that an employer is:

A person, firm or corporation who employs any employee to perform services for a wage or salary and includes any person, firm or corporation acting as an agent of any employer, directly or indirectly.

         Much like the definitional section of Chapter 3, however, this definition was limited in its application to "[a]s used in R.S. 23:900 through R.S. 23:904."

         We rely on the reasoning of the Louisiana Court of Appeal for the Second Circuit in Ray v. City of Bossier City, 37, 708, pp. 9-10 (La.App. 2 Cir. 10/24/03), 859 So.2d 264, 272, which held:

The whistleblower statute does not define "employer;" however, the term "employer" was precisely defined by Louisiana Employment Discrimination Law to require receipt of services by the employee in exchange for compensation to him. La. R.S. 23:302(2); Langley v. Pinkerton's Inc., 220 F.Supp.2d 575 (M.D.La.09/04/02). Specifically, "employer" is defined as "a person, association, legal or commercial entity, the state, or any state agency, board, commission, or political subdivision of the state receiving services from an employee and, in return, giving compensation of any kind to an employee." La. R.S 23:302(2). (Emphasis added). Courts have interpreted Section 23:302(2)'s definition of "employer" to apply in cases where employment status is at issue. Jackson v. Xavier University of Louisiana, 2002 WL 1482756 (E.D.La.2002)[6], citing Jones v. JCC Holding Co., 2001 WL 537001 (E.D.La.2001)[7].
In determining whether an employment relationship exists in other contexts, jurisprudence of this state has uniformly held that the most important element to be considered is the right of control and supervision over an individual. Savoie v. Fireman's Fund Ins. Co., 347 So.2d 188 (La.1977); Cassey v. Stewart, 31, 437 (La.App.2d Cir.01/20/99), 727 So.2d 655, writ denied, 99-0811 (La.04/30/99), 743 So.2d 209; Fuller v. U.S. Aircraft Ins. Group, 530 So.2d 1282 (La.App. 2d Cir.1988), writ denied, 534 So.2d 444 (La.1988), cert. denied, 490 U.S. 1046, 109 S.Ct. 1954, 104 L.Ed.2d 424 (1989).

         Accordingly, we use the definition of "employer" as used in La.R.S. 23:302(2) for both Appellant's ...


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