Hanna v. Shell Exploration & Prod., Inc.

Decision Date06 December 2017
Docket NumberNO. 2017–CA–0293,2017–CA–0293
Parties Danny HANNA v. SHELL EXPLORATION AND PRODUCTION, INC., Brunel Energy, Inc., Charles Perrilliat, Mark Tipton, 123 Insurance Company and XYZ Insurance Company
CourtCourt of Appeal of Louisiana — District of US

234 So.3d 179

Danny HANNA
v.
SHELL EXPLORATION AND PRODUCTION, INC., Brunel Energy, Inc., Charles Perrilliat, Mark Tipton, 123 Insurance Company and XYZ Insurance Company

NO. 2017–CA–0293

Court of Appeal of Louisiana, Fourth Circuit.

December 6, 2017


Jean–Paul Robert, Attorney at Law, 2315 S. Burnside Ave., Gonzales, LA 70737, COUNSEL FOR PLAINTIFF/APPELLANT

THOMAS J. MCGOEY, II, LISKOW & LEWIS, ONE SHELL SQUARE, 701 POYDRAS ST., SUITE 5000, NEW ORLEANS, LA 70139, KINDALL C. JAMES, LISKOW & LEWIS, FIRST CITY TOWER, 1001 FANNIN, SUITE 1800, HOUSTON, TEXAS 77002, COUNSEL FOR DEFENDANT/APPELLEE

(Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew–Woods)

Judge Regina Bartholomew–Woods

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

234 So.3d 183

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

234 So.3d 184

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

234 So.3d 185

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

234 So.3d 186

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...

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