FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2012-07799,
DIVISION "C" Honorable Sidney H. Cates, Judge
Jean-Paul Robert Attorney at Law COUNSELFOR
J. MCGOEY, II LISKOW & LEWIS KINDALL C. JAMES LISKOW
& LEWIS COUNSEL FOR DEFENDANT/APPELLEE
composed of Judge Rosemary Ledet, Judge Sandra Cabrina
Jenkins, Judge Regina Bartholomew-Woods
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
AND PROCEDURAL BACKGROUND
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
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. Appellant's petition also alleged that
he was wrongfully terminated, as provided in La. R.S.
23:1361,  as a result of making a workers'
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.
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.
October 4, 2016, Appellees filed a motion for summary
judgment, 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.
first argued that Appellant's LWA and LEDL claims should
fail because neither SIEP nor SEPCO employed
Appellant. 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
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.
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.
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.
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.
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."
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[, ]" 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."
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.
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[.]"
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.
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
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.
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,
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.
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.
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.
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
[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.
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.
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."
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,
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), citing Jones v. JCC Holding Co.,
2001 WL 537001 (E.D.La.2001).
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
we use the definition of "employer" as used in
La.R.S. 23:302(2) for both Appellant's ...