Petition for Writ of Certiorari — Wells v. City of Alexandria

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Q4 249 AUG 23 2004

No. GFFICE OF THE CLERK

IN THE

Supreme Court of the United States

CHADWICK E. WELLS, PETITIONER

CITY OF ALEXANDRIA; JOHN HAMERNICK;

WILLIAM GERARD ALWELL,

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

DANIEL E. BROUSSARD, JR.,

Counsel of Record

BROUSSARD, BOLTON,

HALCOMB & VIZZIER

P.O. Box 1311

912 Fifth Street

Alexandria, Louisiana 71309

(318) 487-4589

Attorneys for Petitioner

CURRY & TAYLOR @ WASH D.C. @ (202) 223-3160 @ USSCINFO.COM

QUESTIONS PRESENTED

1. Did the District Court and the Court of Appeals

err in their decisions granting respondents’

motions for summary judgment regarding

petitioner’s Louisiana state intentional tort claim

by failing to analyze petitioner's evidence

opposing said motions in accordance with the

summary judgment guidelines set forth by this

Court in Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986)

when they:

(a) failed to give any weight to

petitioner’s contradictory evidence

a light most favorable’ to

petitioner in which evidence

consisted of petitioner’s own sworn

testimony and the sworn

deposition testimony of seven (7)

former co-employees _ including

petitioner’s former immediate

supervisor;

(b) made an adverse’ evidentiary

inference and conclusion that the

evidence of the individual

defendants’ anger and retaliatory

motive was not proof of a desire on

their -part to physically injure

petitioner;

regarding the sworn testimony of

petitioner and seven (7) former co-

Il.

Did the Court of Appeals err in deciding a

factual issue that was raised for the first time on

appeal in oral argument and was not presented

to the District Court. The Court of Appeals

employees by characterizing said

testimony as “colorable” and

rejecting it; and

decided the issue of the _ individual

defendants’ state of mind regarding their

motive and intent in their actions toward

petitioner on summary judgment.

erred by:

(a)

(b)

(c)

allowing counsel for defendants to

raise a new issue at oral argument

that was not previously argued to

the District Court below;

denying petitioner the opportunity

to offer evidence in response to

that issue; and

making a factual determination on

that issue in support of its decision

sustaining the District Court’s

granting of respondents’ motions

for summary judgment.

ili

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED.........c..sccsccsssscsccscsesescsesecssesecsesnesonsnsessees i

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REASONS FOR GRANTING THE PETITION .........scssssessssssseseess 21

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APPENDIX

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ORDER DENYING REHEARING. .........cccccsesssssessenssessessenses 24a

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TABLE OF AUTHORITIES

Page

CASES

ANDERSON V. LIBERTY LOBBY, INC., 477 U.S. 242,

106 S.CT. 2505, 91 L.ED. 2D 202 (1986) ............sccscesseeeeees passim

BAZLEY V. TORTORICH, 397 SO.2D 475, 481 (LA. 1981)............ 2

BENOIT V. CAPITOL MANUFACTURING CO., 617 SO.2D

MEE CE Ai, a csicinsshdbiiiinitaiieainniceen ileal 3

BRUCE V. CLEGGETT-LUCAS, M.D., 2003 WL 1733530

COEF, Cah, TIE cnttcitnnaiicaaisttinntivnitsinneisncceadesbineitnitinsionindibeiabianmiiiaiinbape 25

CAPITAL CONCEPTS PROPS. 85-1 V. MUTUAL FIRST,

INC., 85 F.3D 170, 174 (GTH CIR. 1994) ......ccccccoccorsecrescseesecseese 6

CAUDLE V. BETTS, 512 SO.2D 389 (LA. UD sesisitesicleecdbiisninieieiinnh 3

FDIC v. LAGUARTA, 939 F.2D 1231 (5TH CIR. 1991)......... 27, 28

HUNT V. CROMARTIE, 526 U.S. 541, 119 S.CT. 1545,

Re Fn Ty Fae Ce ci nceeiinnnnntcinnssensintsitsen niet teninee 24

IN RE: COMBUSTION, INC., 960 F.SUPP. 1076, 1081

CORED. Sah, Be itesnstasntnscntics sas aiacnessadadiaaadabaaaianiioatads 25

INTERNATIONAL SHORTSTOP, INV. V. RALLY'S, INC.,

939 F2D 1257, 1265-66 (5TH CIR. 1991), CERT.DEN.

502 U.S. 1059, 112 S.CT. 936, 117 L.ED.2D 107 (1992)......... 24

REEVES V. SANDERSON PLUMBING PRODS., INC., 530

Fk. Rare, Be re ET eictenssincseneissieniasaediechetnciaatiadetiaioaaes 7,21

REEVES VS. STRUCTURAL PRESERVATION SYSTEMS,

731 SO.2D 208, 211 (LAA. 1999)............ccecsccsrsecsesecsesensensssecssesases 2

SWOPE V. COLUMBIAN CHEMS. Co., 281 F.3D 185 (5TH

a IN et laasaaledidie lac ee 25

TOPALIAN V. EHRMAN, 954 F2p 1125, 1131, N.10 (5TH

CIR. 1992), REH. DEN., 961 F.2D 215 (5TH CIR.

1992), CERT. DEN., 506 U.S. 825, 113 S.CT. 82 ( ae 27

STATUTES

leicinan se TORE: 1

OPINIONS BELOW

The unpublished April 29, 2004 panel opinion of

the United States Court of Appeals for the Fifth

Circuit is reported at 2004 WL 909735 (5" Cir., 4/20/04)

and is reprinted at App. A. The May 24, 2004 Fifth

Circuit Petition for Rehearing opinion is reprinted at

App. C. The April 19, 2004 Court of Appeals decision

denying petitioner’s Motion to Supplement Record is

reprinted at App. E. The July 15, 2003 Memorandum

Ruling of the United States District Court for the

Western District of the State of Louisiana is reprinted

at App. B.

JURISDICTION

The Fifth Circuit issued an opinion denying

petitioner’s Petition for Rehearing on May 24, 2004.

This Petition for Certiorari is timely in that petitioner

has filed it within 90 days of May 24, 2004. The Court

has jurisdiction pursuant to 28 U.S.C. § 1254(1).

STATEMENT

Petitioner, Chad E. Wells, a present resident of

Alabama, filed this action against his former employer,

City of Alexandria (“City”) and two (2) of his former

supervisors, John Hamerniclk, Jr. (“Hamernick”) and

William Gerard Alwell (“Alwell”). Originally filed in

Louisiana state court, the case was removed to federal

court based on diversity and federal question

jurisdiction.

Petitioner was employed as an Operator 2 by

defendant City in its Electric Production Department

until he resigned in April 2001. Defendant Alwell was

the Superintendent of the Electric Production

Department and defendant Hamernick was the Chief

Plant Operator.

Petitioner alleged several grounds in his state

court petition as a basis for this action. (App. F) Of

particular note for purposes of this petition is his

allegation that the individual defendants, while acting

within the course and scope of their employment,

intentionally assigned him job duties that exceeded his

treating physician’s post-knee surgery restrictions.

These actions caused petitioner to re-injure his knee

and sustain additional pain and suffering. He contends

that the defendants’ actions were intentional and were

taken in reprisal to punish petitioner for his actions in

reporting defendants’ after work activities to the

Louisiana State Police.

In Louisiana, an employee may sue his employer

in tort for injuries that result from an intentional act.

The Louisiana Supreme Court in Reeves vs. Structural

Preservation Systems, 731 So.2d 208, 211 (La. 1999)

defined that cause of action:

“We held that the meaning of ‘intent’ in

this context ‘is that the person who acts

either (1) consciously desires the physical

result of his act, whatever the likelihood

of that result happening from his conduct;

or (2) knows that the _ result is

substantially certain to follow from his

conduct, whatever his desire may be as to

that result.” [Quoting Bazley v.

Tortorich, 397 So.2d 475, 481 (La. 1981)]

CoO LEE ——————

Cases where an employer was held to have

consciously desired the physical result of his act are

Caudle v. Betts, 512 So.2d 389 (La. 1987) and Benoit v.

Capitol Manufacturing Co., 617 So.2d 477 (La. 1993)

In the instant case, petitioner contends that

defendants Alwell and Hamernick had the actual desire

to cause him injury by ordering him to do physical

activities they knew were precluded by his treating

physician and the medical condition of his right knee.

The motive for this desire was to retaliate or punish

petitioner for his reporting to the Louisiana State

Police defendants’ conduct of removing red roofing

material after work from a City job site which report

precipitated an investigation by that agency. Petitioner

contended that the evidence supported the finding that

the individual defendants had a hostile intent or a

desire to do him harm by specifically ordering him to

do physical job tasks that they knew were in direct

violation of his doctor’s post-surgery restrictions.

Respondents filed motions for summary

judgment on the grounds that there was no genuine

issue of material fact and they were entitled to

judgments as a matter of law.

Petitioner opposed the motions of defendants on

the grounds that the pleadings and depositions with

attached exhibits filed in opposition to defendants’

motions, showed that genuine factual issues existed

regarding: (1) whether or not the individual defendants

Hamernick and Alwell violated the law in accepting a

gift of roofing material from a City contractor; (2) that

the defendants acted with the actual desire to cause

petitioner injury in reprisal and/or retaliation for his

reporting the individual defendants’ activity to the

Louisiana State Police; (8) that defendants

constructively discharged petitioner from his

employment by making his work conditions too

onerous; and (4) that at all times pertinent herein, the

individual defendants were acting within the course

and scope of their employment with the City. Petitioner

submitted the deposition of himself and seven (7)

former co-workers including that of his former

immediate supervisor.

The District Court granted respondents’ motions

for summary judgment and dismissed petitioner’s

action. The Court specifically found defendants

Hamernick and Alwell did not engage in tortious

retaliatory conduct towards the petitioner while

working as City employees. The District Court stated

in its opinion: “The approximate six-month gap

between the first maintenance assignment in August

and the three maintenance assignments in February is

problematic for Wells’s claim.” (App. B, pg. 18a) The

Court concluded: “It seems unlikely that Hamernick

having the conscious desire to cause injury to Wells,

would abide by the physician’s restrictions until

February 2001, and then give Wells a series of

maintenance assignments.” (App. B, pgs. 18a-19a) The

District Court did not mention or address the

deposition evidence offered in opposition by petitioner

in its decision.

Petitioner filed an appeal in the United States

Court of Appeals for the Fifth Circuit. That Court

affirmed the decision of the lower court. Regarding

petitioner’s claim for intentional tort, it stated:

“Summary judgment was warranted on

the personal injury claim. There is no

direct evidence that the city, through

its supervisors, consciously desired

that Wells re-injure his knee or knew

this result was substantially certain to

follow. There was evidence that Wells

was assigned unpleasant cleaning and

maintenance assignments and that his

efforts to leave for physical therapy were

restricted on one or perhaps two

occasions, but this evidence is insufficient

for a reasonable trier to fact to find that

the defendants were trying to re-injure

Wells knee, or knew that an injury was

substantially certain to follow from their

conduct. Defendants offered summary

judgment evidence that the job duties of

Wellss operator position included cleaning

the plant. We further note that the three

specific cleaning and maintenance

assignments about which Wells complains

occurred during periods where his doctors

treatment/restriction reports state that

his activities were unrestricted. 2

Evidence that defendants Alwell and

Hamernick were angry at Wells or

were motivated by a general desire to

retaliate against him is not proof of a

desire to physically injure Wells. If the

record as a whole could not lead a rational

jury to find for the nonmoving party,

there is no genuine issue for trial and

summary judgment is warranted. Capital

Concepts Props. 85-1 v. Mutual First,

Inc., 35 F.3d 170, 174 (5th Cir. 1994).

There is no evidence that defendants

understood the exertion required to cause

Wells to re-injure his knee. Wells did not

specifically tell defendants that the

assignments would cause him to re-injure

the knee. ? Alwell testified in deposition

that he thought Wells was physically

capable of doing the cleaning. Hamernick

testified that he thought Wells could

perform the assignments because Wells

had told him he could do the work and he

had seen Wells jump from the back of

boats and run up stairs. The evidence

that defendants intended to cause a

physical injury to Wells can at best be

described as colorable. Under modern

summary judgment practice, ‘there is no

issue for trial unless there is sufficient

evidence favoring the nonmoving party

for a jury to return a verdict for that

party. If the evidence is merely colorable,

or is not significantly probative, summary

judgment may be granted.’ Anderson v.

Liberty Lobby, Inc.; 477 U.S. 242, 249-50

(1986) (citations omitted).

2 Wells complains about cleaning and

maintenance assignments he performed

on August 11, 2000, February 3, 2001, and

February 12, 2001. A February 28, 2000

doctor report limits his activities to

“Light duty at 90%,” but states that this

restriction is only in effect until March 15,

2000. An August 16, 2000 report states

that he should avoid “consistent

maintenance, prolonged standing &

janitorial duties,” but a September 6, 2000

report states that these restrictions are

only in effect until October 18, 2000.” (Fn.

3 omitted) (App. A, pgs. 4a-6a) (Emphasis

added)

Other than characterizing petitioner’s evidence “as

merely colorable” or “not significantly probative” the

Court of Appeals did not outline a fact intensive review

of petitioner’s evidence.

In addition, the Court made a factual

determination on an issue that was not argued or raised

in the District Court, i.e. that petitioner was not under

his doctor’s restrictions when he was assigned the

three (3) specific cleaning and maintenance jobs he

complains of.

Believing that the lower courts failed to follow

the guidelines set forth by this Court in Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505

(1986) of viewing all the evidence in the light most

favorable to the party opposing the motion for

summary judgment and to draw all reasonable

inferences in that party’s favor, petitioner has filed this

petition. Petitioner also avers that the Fifth Circuit

violated this Court’s admonishment in Reeves v.

Sanderson Plumbing Prods., Inc., 5380 U.S. 133, 120

S.Ct. 2097 that lower courts should not make credibility

determinations and weigh the evidence when ruling on

Rule 50 motions or motions for summary judgment.

Petitioner also contends that the Court of

Appeals erred in making a factual determination on

petitioner’s medical restrictions in its opinion, which

was an issue that was not considered or argued in the

District Court.

STATEMENT OF RELEVANT FACTS

a Deposition of Chad Wells (App. H)

In 1997, petitioner Chadwick E. Wells, while

employed as a millwright for Operational Service, Inc.,

injured his right knee. (App. H, pg. 54a) He received

compensation benefits consisting of supplemental

earnings benefits from this injury. These benefits are

still ongoing. He subsequently became employed by the

City of Alexandria in 1998 as an Operator 1 in the

Electric Power Plant. (App. H, pgs. 55a-56a)

On February 1, 2000, he had surgery on his right

knee which repaired his anterior cruciate ligament and

the medial meniscus. (App. H, pgs. 54a-55a) He was

subsequently released by the surgeon, Dr. David Pope,

to return to work on light duty. Petitioner’s supervisor

Alwell informed him he couldn’t return back to work on

light duty. He then took a job description of Operator 2

to his doctor who released him to perform 90% of the

job duties, the restrictions being squatting and

kneeling. (App. H, pgs. 58a-59a) In June of 2000,

petitioner and Keith White, his former supervisor, went

to the Louisiana State Police to report activities of

Alwell taking roofing material from a City job after

hours. (App. L)

Prior to this time, petitioner’s relationship with

Alwell had been strained and tenuous. There had been

prior incidences at work involving someone taking the

newspaper at the plant, a grievance filed on a wage and

hour claim and a dispute about picking up Alwell’s

lunch.

On at least two (2) occasions, Hamernick and

Alwell had refused to allow the petitioner to go to post-

surgery physical therapy necessitating the petitioner to

report them to the City Director of Personnel, Pam

Saurage.

After petitioner reported Alwell’s activity to the

Louisiana State Police and it was _ investigated,

Hamernick made a threat in frort of several employees

witnesses in the control room. (App. H, pgs. 62a-63a)

Specifically, petitioner stated Hamernick said “It is

going to be bad on the operators that had stuff to do

with the investigation. That stuff that was going on.”

He was referring to the roofing material investigation.

On or about August 11, 2000, petitioner was

ordered by his shift supervisor Barry Tyler to strip and

wax the floor. This was not a primary duty listed in the

operator’s job description. (Ex. N) *! After petitioner

balked because of his knee problem, Hamernick

specifically told him he had to do it or go home if he

refused. Petitioner called Sonny Craig, City Director of

Utilities and told him the job assignment was against

his doctor’s restrictions. Petitioner testified that Alwell

told petitioner directly that he gave the order to

Hamernick to give to Barry Tyler for him to strip and

'* Exhibits attached to Petitioner’s Opposition to Defendants’

Motions for Summary Judgment.

wax the floor. (App. H, pgs. 57a-58a) Later, Alwell

called petitioner in his office in January of 2001 to tell

him he would have to be able to perform 100% of his job

duties to continue on the job. This was contrary to the

City’s policy of 90%. (App. P) Later, Hamernick

ordered petitioner to clean inside of a hot well at the

bottom of the turbines on February 3™. The hot well

chamber is not large enough for a man to stand up in.

As a result of doing this, petitioner aggravated his

knee, causing it to swell. According to Alwell,

Hamernick was acting on his orders when he gave the

order. On February 12", petitioner was ordered to go

into the condenser unit and check the tube for leaks.

This job required him to squat and the opening was

very difficult to get in. As a result of going in the

condenser, petitioner twisted his right knee coming in

and out trying to get back on the ladder because of the

small entrance hole. It was the same knee that had been

operated on. As a result of each of the instances,

petitioner sustained an onset of pain in his knee .

necessitating medical treatment. Alwell told petitioner

he gave all the orders to Hamernick. (App. H, pgs. 59a-

60a)

2. Deposition of Gerard Alwell (Ex. B)*

Mr. Alwell is a Plant Superintendent for the

Electric Production Plant for the City of Alexandria.

He has been employed there for twenty-five (25) years.

(Ex. B, pg. 6)* Alwell was contacted by a Louisiana

State Police detective investigating a report of theft of

the roofing material. They went to his house in Deville

where Alwell had the materials stored behind his

house. Alwell was later contacted and told the

investigation was over and that no wrongdoing was

found. (Ex. B, pg. 24)* Alwell didn’t know if any

complaint was filed with the Louisiana Board of Ethics.

Alwell admitted during and after the

investigation that he asked other employees what was

going on. He didn’t recall which employees he asked.

(Ex. B, pg. 27)* He doesn’t remember asking any

employees who reported him to the State Police for

taking the red roofing material. Before he was told by

the State Police the investigation was over, he talked to

Keith White, who admitted that he was the one who

had filed the report. Alwell also had advised Sonny

Craig of the investigation and Craig told him Wells and

Jerry Sampract had come to his office and discussed the

situation. This was prior to the investigation was being

concluded. (Ex. B, pg. 29)*

Alwell was aware that Wells had surgery. (Ex.

B, pg. 33)* He doesn’t know what brought about the

surgery. Alwell doesn’t remember if there was a

question of whether Wells could perform all his duties.

(Ex. B, pg. 37)* He doesn’t remember if he got

involved in the questions about petitioner’s doctor

excuses, work restrictions and 90% of his work. (Ex. B,

pg. 37)* He doesn’t remember the specific restriction

report of the doctor dated February 28". (Ex. B, pg.

39)* He stated that the City does not have a light duty

policy. He would have to be released for 90% of his job

duty. Alwell didn’t recall seeing a copy of any letter

that Ms. Saurage wrote to the doctor. He was not

familiar with the memo of Ms. Saurage about

employees being able to perform 90% of job duties to be

allowed to return to work. (Ex. B, pg. 41)* He doesn’t

remember seeing the reply from the doctor about Mr.

Wells being able to do 90% of his job duty. He denied

telling Wells that if he wasn’t able to come back 100%,

he couldn’t work at the power plant. He does not

remember the specifics of the doctor’s restrictions. (Ex.

B, pg. 45)* He remembers the doctor’s statement on

8/16/00 saying to avoid maintenance, prolonged

standing and janitorial duties. Alwell said he thought

Wells’ conception was that Wells didn’t want to do any

maintenance or janitorial duties. He said that the

revised doctor’s restrictions said only “avoid.” It didn’t

say he couldn’t do it. (Ex. B, pg. 47)* The way Alwell

perceived it, Wells didn’t think it was part of his job

and he shouldn’t be doing that type of job. He thinks

that Wells could do squatting and kneeling at one point.

He doesn’t remember getting a doctor’s statement

saying he couldn’t do that. He testified that he was not

aware that Wells was assigned duties that required him

to kneel and squat. He was not aware that petitioner

was assigned duties that doctors had told him to avoid.

(Ex. B, pg. 48)* After the fact, Mr. Hamernick told him

about the incident of August 11. Alwell agreed with

Hamernick’s actions and Craig’s actions and that was if

petitioner couldn’t do the work, he ought to go home

and he would be relieved from his duties for that day.

He said that going home not mean Wells would be fired.

He did not talk to Wells about it. He did not intervene.

He does not know if Wells performed the duties or had

any physical consequences to his knee by performing

the duties. He does not remember talking to Wells

about Dr. Pope’s restrictions of August 16". He does

not remember talking to Wells about what prompted

that doctor’s report of August 16. He did not tell any

employees that he would get even with those

_ employees who reported him and caused the State

Police investigation to occur. (Ex. B, pg. 52)* He

remembers telling Wells that he had to have a full

release, meaning 90% of the job duties with no

restrictions. (Ex. B, pg. 56)* He stated he did not say

90%. He said full release.

In his opinion, Wells was capable of working in

the hot well and cleaning the hot well in February of

2001. (Ex. B, pg. 57)* That was based on his doctor’s

release that Wells was able to do 90% of his job duty.

Alwell believed that Wells was able to do 90% of the

job duties in some relative form. (Ex. B, pg. 58)* He

didn’t see any problem with him in getting in the hot

well to clean it from a physical standpoint based on the

medical information he had. He would not have taken

any different action had he been informed of that. (Ex.

B, pg. 59)* He did not talk to Wells or try to make any

effort to retain him when Wells resigned.

> Deposition of John Hamernick, Jr. (Ex. C)*

Hamernick was a Plant General Supervisor. (Ex.

C, pg. 6)* He supervised shift supervisors,

maintenance _ supervisors, employees _ directly

underneath him, electricians, instrument techs and

environmental techs. There was approximately twenty

(20) employees at the power plant full-time. He never

told petitioner he had to be 100% to continue working

for the City as Operator 2. (Ex. C, pg. 31)* Hamernick

stated he told petitioner that at any point if there was a

problem, let him know and we would work through it.

He told him this shortly after petitioner returned to

work.

He testified that petitioner had to have therapy

when he came back. He was aware of one instance

when petitioner had a problem getting off work to go to

post-surgery therapy. He worked with petitioner on

numerous occasions and made every possible attempt

to get him to therapy. The shift supervisor on duty,

myself and Alwell were involved in this discussion. (Ex. -

C, pg. 33)* Does not recall refusing him to take off of

work to go to therapy because of conflict in work

schedule. (Ex. C, pg. 34) * He testified that Craig

contacted him and said that petitioner had called him

and Craig asked Hamernick to see about the situation.

He stated he worked in petitioner’s place twice so he

could go to therapy after Craig’s call. (Ex. C, pg. 35)*

He stated that petitioner had a slight limp.

He did not know that he was_ subject of State

Police investigation. He learned close to the end of the

investigation that Alwell was a subject of the

investigation. (Ex. C, pg. 36)* He never told any

employees that he and Alwell were going to get even

with them. “Had a good working relationship with all

the employees.” (Ex. C, pg. 38)* He knows no reason

why employees would make up stories about him. (Ex.

C, pg. 42)* He testified he never told petitioner not to

go over his head. The City has an open door policy. He

_ told the supervisor to use chain of command. (Ex. C, pg.

43)* Petitioner had not contacted Hamernick about

therapy. Hamernick never turned him down for

therapy. (Ex. C, pg. 44)* He got a call from Craig about

Chad’s ability to strip and wax the floor. He never

talked to Wells before that call about his restrictions.

Craig’s call was the first time any question arose. He

did and filed an injury report. (Ex. Q; Ex. C, pg. 60)*

He never told Wells he had to perform 100% or go

home. He did not order petitioner into a hot well to

clean it. He did not order petitioner into the condenser.

He instructs the shift supervisors. He was present

when he was doing work in condensers and sitting on

the stool and standing upside of the condenser with no

complaints. He described the condenser. He turned

down petitioner’s vacation request of 8/13/01. Petitioner

did not tell Hamernick he was hurting. He doesn’t

recall telling petitioner no light duty existed at the

plant. Alwell never gave him an order to assign Wells

individually. He was floored when Wells resigned.

In addition to the above depositions, petitioner

relies on the testimony of a number of his former co-

workers who contradict the testimony of defendants

Hamernick and Alwell. These depositions are attached

as exhibits to this opposition. They were not referred to

by the District Court in its opinion.

4. Deposition of Darren Sigur (App. I)

Darren Sigur, the Shift Supervisor of petitioner,

testified that on occasions, an Operator 2 cleaned in the

hot well. He would not say it was a “regular part of the

job.” He testified it was a maintenance function and

they assisted maintenance. It was normally done when

the plant was not generating electricity. (App. I, pgs.

64a-65a) When the plant was not running, they assisted

maintenance in cleaning, painting, making rounds and

checking on equipment. (App. I, pgs. 65a-66a) If need

be, check the condenser and strip and wax the floor.

Operator 1 was outside the control room when the plant

was running. (App. I, pgs. 66a-67a) He recalls an

incident where petitioner complained about his knee

giving him a problem after working in the hot well.

Wells and Lannis Day were working in the condenser.

He complained several times about his knee giving him

a problem. He showed Sigur his knee was swollen.

(App. I, pgs. 67a-68a) He said on two (2) occasions,

petitioner showed him his knee. He did an injury report

one time. He talked to Hamernick who told him to fill

out an injury report. (App. I, pgs. 69a-70a) Wells told

Sigur that his limitations imposed by the doctor were

bending, stooping, no crawling around on his knees and

no long-standing. (App. I, pgs. 70a-7la) Sigur said he

reported to Hamernick and Alwell that Wells felt he

was not able to do that part of his job because of his

knee and the buffer was causing problems with his leg.

Alwell said that if he couldn’t perform his job duties, he

could always go home. Sigur reported that comment to

Wells. Sigur testified that both Hamernick and Alwell

specifically requested that he, Sigur, assign duties to

Mr. Wells either cleaning the condenser of the hot well

or stripping and waxing the floor. (App. I, pgs.71a-73a)

He specifically remembers both of them telling Wells to

work in the condenser after his surgery. They

mentioned Chad by name. They wanted him to do it.

Sigur said when he is the operator, he never cleaned

the hot well and he has been an employee since 1982.

He said that Hamernick and Alwell were aware of

Chad’s medical restrictions. (App. I, pgs. 73a-74a) Sigur

also testified that he was questioned by Mr. Alwell

about the State Police investigation and he mentioned

Chad Wells and Jerry Sampract’s name. He said that

the relationship between Alwell and Wells was

strained. He also described the work in the condenser.

You would have to crouch and fit in there the best way

you can to get to the tubes you needed to get to. It was

congested and tight. (App. I, pgs. 74a-75a)

5. Deposition of Lannis Day (App. J)

Mr. Day testified that he had been an Operator

nen sll a na

for the City of Alexandria since 1988. Mr. Day testified

that the job duties that specifically hurt petitioner’s

knee were cleaning out the hot well, working in the

condenser and also mopping and waxing the floors.

(App. J, pgs. 75a-76a)

He indicated that the hot well is “real close

quarters” and to get into it, you had to be on your knees

because you couldn’t stand up. He indicated that

petitioner complained about his leg because of his

surgery. Checking the tubes on the condenser he stated

was another job that was confined where you couldn’t

stand up and it was an awkward place to work. He saw

petitioner’s knee swollen after he performed that job.

(App. J, pgs. 77a-78a) He confirmed that petitioner was

told to either do the job about waxing the floor or go

home. (App. J, pgs. 78a-79a) Mr. Day testified that

petitioner complained to Darren Sigur, the Shift

Supervisor, about his knee after the condenser and the

hot well.

In Mr. Day’s opinion, petitioner was a good

operator and a good worker. He stated there were

other employees that had been injured and had

returned to work even though they were on crutches

and not able to perform physical parts of their job.

On examination by petitioner’s counsel, Mr. Day

stated he never saw an operator strip and wax the

turbine floor while the plant was running. (App. J, pgs.

79a-80a) Mr. Day testified that Alwell asked him about

the State Police investigation. (App. J, pgs. 82a-83a) He

also stated that Hamernick told him in front of

petitioner and Floyd McFarland that the employees

involved in the State Police investigation were going to

suffer a “trickle down effect.” Day assumed that

Hamernick was saying he was going to get even with

the employees involved. (App. J, pgs. 81a-82a)

6. Deposition of Jerry Sampract (App. K)

Jerry Sampract, a former Operator 2, indicated

that he was aware of instances involving petitioner

complaining of knee pain related to him having to work

in the condenser and hot well units. (App. K, pgs. 83a-

84a) He said that Wells and Mr. Alwell did not have the

best of relationships. (App. K, pgs. 84a-85a) He testified

that he took the pictures of Alwell taking the roofing

material. (App. K, pgs. 85a-86a) He indicated that it

was “total war” between petitioner and Hamernick and

Alwell.

7. Deposition of Keith White (App. L)

Keith White was a Shift Supervisor. Mr. White

testified that he and Wells reported Alwell’s actions to

the State Police. Chad went with him. (App. L, pgs.

87a-88a) He also indicated that petitioner told him that

his knee would swell as he was stripping and waxing

the floor. Mr. White saw the swelling.

Mr. White testified that-Alwell asked him about

the State Police investigation. He said Alwell was “mad

about it.” (App. L, pgs. 89a-90a) His conversation with

Alwell took place after the investigation was concluded.

Hamernick was present during the discussion of the

investigation. Alwell had called Mr. White to his office

while he was on duty. He said that Hamernick and

Alwell told him a lot of people were “mad” about the

investigation. (App. L, pgs. 90a-92a) The purpose of the

meeting was in Alwell’s office to find out what White

knew about the investigation. Mr. White testified he

did not mention petitioner. He testified that both

Hamernick and Alwell told him they thought that

petitioner, Mr. White and Jerry Sampract had

instigated the investigation. (App. L, pgs. 92a-93a)

Alwell was very upset about the investigation. “He was

mad.” (App. L, pgs. 93a-94a) Hamernick was

flabbergasted that White would even instigate the

investigation. White testified that he had been a

supervisor for seventeen (17) years and during that

time, he was not aware of any employees ever being

called in on their off day to strip and wax a floor as

petitioner was in August. In describing the condenser,

White stated that on one side you could stand up and

the other side was very cramped. You had to crouch or

sit or kneel down. You couldn’t stand up. He stated

there was a very tense atmosphere between petitioner,

Hamernick and Alwell. He said that Wells left because

of the friction between him and his supervisors, the

individual defendants, Hamernick and Alwell. (App. L,

pgs. 94a-96a)

8. Deposition of David Reed (App. M)

_ He was a former employee for the City of

Alexandria for fourteen (14) years as an Electrician at

the power plant. His immediate supervisor was John

Hamernick. He was familiar with the fact that

petitioner had surgery on his knee. He knew Wells

when he worked at the plant. He was aware of the

State Police investigation. He was contacted by a State

Police detective and questioned. Alwell asked Reed if

he had seen pictures of him loading some of the

material. Reed told him he had, but didn’t tell him who

showed him. (App. M, pgs. 96a-97a) Alwell came down

to the electric shop and questioned Reed. Later in the

control room, Alwell indicated some language about

retaliation similar to “If ya’ll want to play, we will

play.” (App. M, pgs. 97a-99a)

Reed was a witness when Hamernick told Wells

that he was instructed to strip and wax the floor.

Hamernick said if you don’t strip and wax the floor, I

have been instructed to let you go. (App. M, pgs. 99a-

100a) Reed testified that while petitioner did not

consider the job assignments to be part of his job, he

was more concerned with the well-being of his knee.

(App. M, pgs.110a-10la) Hamernick told petitioner’s

then supervisor, Barry Tyler, to have petitioner strip

and wax the floor. He stated that petitioner attempted

to do it.

9. Deposition of Larry McGuirt (App. N)

Mr. McGuirt was a former employee of the City

of Alexandria Electric Power Plant having been

employed for twenty-one (21) years. He retired in

March of 2001. He was an Instrument Tech.

He testified he was aware of Mr. Wells’ stripping

and waxing the turbine floors. He stated when the

evening shift came on, Darren Sigur was given

instructions to have the petitioner strip the floor when

he came on. Those instructions were given by

defendant Hamernick. Sigur told Hamernick that he

would have his crew take care of it and Hamernick said

no “they wanted Chad to do that.” (App. N, pgs. 101a-

102a) This conversation took place in the control room.

McGuirt said he had never heard Hamernick give

instructions to a shift supervisor and select an

employee to do a particular task. This occurred after

petitioner’s surgery. (App. N, pgs. 101a-102a)

10. Deposition of Floyd McFarland (App. O)

Mr. Floyd McFarland, a present employee to the

City of Alexandria Electric Power Plant as an Operator

1, testified that he came to work and saw petitioner

waxing the floor. Petitioner showed him his knee which

was swollen. Mr. McFarland said it wasn’t appropriate

for an operator to be stripping and waxing the turbine

floor while the plant was running. The City had millions

of dollars of equipment that needed to be monitored.

(App. O, pgs. 102a-104a) McFarland testified that

Alwell questioned employee, Lannis Day, about the

j State Police investigation and then Hamernick asked

Day about the investigation in front of McFarland and

petitioner. (App. O, pgs. 104a-106a) Hamernick stated

that those operators who participated in the

investigation were going to suffer a “trickle down

effect.” McFarland took this to mean that he was going

to get even. (App. O, pgs. 106a-107a)

REASONS FOR GRANTING THE PETITION

2. Failure to follow this Court’s guidelines in

deciding summary judgment.

In the instant case, the Court of Appeals did not

follow the guidelines set forth by this Court in

Anderson, supra and Reeves, supra. The lower courts

failed to give any weight to petitioner’s own sworn

testimony and the sworn deposition testimony of seven

(7) former co-employees including petitioner’s former

immediate supervisor. None of that evidence was

construed by those courts in a light most favorable to

the petitioner. They did not address in a fact intensive

manner the nature and extent and quality of

petitioner’s evidence.

For instance, petitioner’s former immediate

supervisor testified that both individual defendants,

Alwell and Hamernick, were aware of petitioner’s

medical restrictions when they ordered Wells to strip

and wax the floor in August. (App. I, pgs. 78a-74a) The

supervisor Darren Sigur also testified he reported to

defendants, Alwell and Hamernick, that Wells stated

he was unable to perform stripping and waxing because

of problems with his knee. Despite this knowledge,

according to Sigur, both Alwell and Hamernick,

specifically ordered Sigur to assign duties to Wells that

they were advised that Wells couldn’t do. (App. I, pgs.

68a-74a)

The evidence also shows that Alwell ordered

Keith White, a co-employee of petitioner, to his office

and interviewed him in front of Hamernick about

White’s part in the State Police investigation of Alwell

and Hamernick. According to White, Alwell was “upset

and mad” about being the subject of the investigation

and stated that he believed that Wells was one of those

involved. (App. L)

The evidence offered by petitioner shows that

Hamernick told petitioner in front of two (2) other

employees, Floyd McFarland and Lannis Day, that he

and Alweli were going to get even with those

employees who initiated the investigation. All three (3)

testified under oath to this fact. (App. H, O & J)

Hamernick denied this in his deposition.

All of this testimony flies directly in the face of

the statement by the Court of Appeals in its opinion

that “there is no direct evidence that the City, through

its supervisors, consciously desired that Wells re-

injured his knee or knew this result was substantially

certain to follow.”

Additionally, the Court of Appeals found that

the evidence of individual respondents were angry at

Wells or motivated by general desire to retaliate

against him, was not proof of a desire to physically

injure Wells. Petitioner submits that whether the

individual respondents recognized that the exertion

required in the jobs assigned Wells would aggravate his

knee condition, is a question for the jury to decide.

While the Court of Appeals stated that the individual

defendants testified they believe Wells was physically

capable of doing the cleaning, there is contrary

evidence showing they were told that he was not

capable of doing the cleaning and were aware of his

doctor’s restrictions.

The Court of Appeals characterized all of

petitioner’s evidence as “colorable” and “not

significantly probative.” In doing so, it made credibility

determinations, weighed the evidence and drew

inferences from the facts, all functions prohibited by

this Court in Anderson, supra.

Moreover, the lower courts resolved the

disputed fact of motivation at the summary judgment

stage which this Court has found in certain cases to be

erroneous. Hunt v. Cromartie, 526 U.S. 541, 119 S.Ct.

1545, 143 L.Ed.2d 731 (1999)

Petitioner contends there is sufficient evidence

to draw the inference that defendants consciously

desired the results of their actions in ordering

petitioner to perform job duties that would aggravate

his post-surgery knee while he was in the process of

recovering from surgery.

In International Shortstop, Inv. v. Rally’s, Inc.,

939 F2d 1257, 1265-66 (5 Cir. 1991), cert.den. 502 U.S.

1059, 112 S.Ct. 936, 117 L.Ed.2d 107 (1992), the court

detailed why summary judgment usually is

inappropriate for issues involving state of mind. The

court stated:

“When the state of mind is an essential

element of the nonmoving party’s claim, it

is less fashionable to grant summary

judgment because a party’s state of mind

is inherently a question of fact which

turns oon credibility. | Credibility

determinations, of course, are within the

province of the fact-finder....Only through

live cross-examination can the fact-finder

observe the demeanor of a witness and

assess his credibility. A cold transcript of

a deposition is generally no substitute

because it cannot unmask the veracity of a

testifying witness clad in a costume of

deception; it cannot unveil that a

seemingly well-groomed witness is

coming apart at the seams; ‘that he

fidgets when answering critical questions,

his eyes shift from the floor to the ceiling,

and he manifests all other indicia

traditionally attributed to perjurers.”

The court went on to clarify that where intent or

state of mind is an issue, summary judgment may be

appropriate if a party rests on conclusionary allegations

and probable inferences and unsupported speculation.

That is not the situation in the instant case. There is

evidence presenting genuine issues of material fact that

preclude summary judgment in this matter.

Intent is a fact-sensitive determination and not

appropriately determined in a motion for summary

judgment. In Re: Combustion, Inc., 960 F.Supp. 1076,

1081 (W.D. La. 1997) Summary judgment is seldom

appropriate for determinations based on subjective

facts, such as motive, intent, good faith, knowledge and

malice. Bruce v. Cleggett-Lucas, M.D., 2003 WL

1733530 (E.D. La. 2003), Hunt, supra.

In Swope v. Columbian Chems. Co., 281 F.3d 185

(5" Cir. 2002), the Fifth Court reversed a summary

judgment in favor of the employer in a Louisiana

intentional tort case in light of competent evidence of

intent. In that case, the Court stated that where a

state of mind was an essential element of the non-

moving party’s claim, summary judgment was usually

not appropriate because a party’s state of mind is

inherently a question of fact which turns on credibility. —

Petitioner submits the lower courts erred as a

matter of law in not following this Court’s guidelines as

set forth in Anderson, supra and granting the

respondents’ motions for summary judgment.

3. Court of Appeals erred in affirming summary

judgment on a factual issue not raised in District

Court.

In its decision, the Court of Appeals made a

factual determination that when the three (8) specific

cleaning and maintenance assignments were given to

petitioner, his work activities were unrestricted by his

treating doctor. (App. A, pg. 7a, FN. 2 of Opinion)

Prior to oral argument before that Court, it had

never been disputed or argued by any of the defendants

that Wells was not under post-surgery restrictions

during the entire time he worked for the City after

returning to work from his knee surgery in February of

2000. At this stage of the proceedings, petitioner’s

medical status was not a contested issue and it had not

been fully developed. Only a portion of the medical

records were in the record. The Statements of

Uncontested Facts submitted by the defendants in

support of their motions showed that petitioner was

under some medical restrictions at all times herein. See

also opinion of District Court stating that supervisors

had abided by petitioner’s doctor’s restrictions since

petitioner had returned to work. (App. B, pgs. 18a-19a)

During oral argument on April 6, 2004 for the

first time in this litigation, a question arose whether

petitioner’s physical restrictions of his job duties

imposed on him by Dr. Pope were in effect when he was

ordered by defendant Hamernick on August 11 to

strip and wax the floor. A representation was made by

counsel for defendants that petitioner’s work

restriction by Dr. Pope had expired by its very terms

on March 15". See Treatment and Restriction Report

dated February 28" of Dr. Pope. This was the first

time any party had made this argument either in the

lower court or in brief before the Court of Appeals.

Since the medical in this case had not been fully

developed prior to the filing of defendants’ motions for

summary judgment, petitioner attempted to

supplement the record with a certified copy of all of Dr.

Pope’s medical records which clearly showed that

petitioner was under and remained

under medical restrictions regarding his work the

whole time he worked for the City of Alexandria after

his surgery until his resignation. The Court of Appeals

denied that motion. (App. E)

It is petitioner’s position that the issue of

whether petitioner was on medical restrictions when he

was assigned the cleaning and maintenance jobs he

objected to, should not have been reached and decided

on appeal. Defendants had not raised this issue before

in the District Court nor was it briefed before the

Court of Appeals.

In Topalian v. Ehrman, 954 F.2d 1125, 1131,

n.10 (5 Cir. 1992), reh. den., 961 F.2d 215 (5" Cir. 1992),

cert. den., 506 U.S. 825, 113 S.Ct. 82 (1992), the court

held that an appellate court’s inquiry is limited to the

summary judgment record before the trial court and

parties may not advance new theories or raise new

issues on appeal.

In FDIC v. Laguarta, 939 F.2d 1231 (5" Cir.

1991), the court opined:

“We hold that it would not be proper

under the circumstances of this case to

affirm a summai, judgment on these

grounds that were neither raised below ;

by the Receiver [FDIC] nor even raised :

sua sponte by the district court. It is true

that we may affirm a summary judgment

on a ground not relied upon by the district

court. This Court has clearly held,

however, that it will generally not

consider a new ground on appeal raised

by an appellant in opposition to summary

judgment. The same should apply to new

grounds raised by an-appellee in defense

of summary judgment where the parties

were not afforded an opportunity to

develop the issue below, and it was not |

implicit or included in the issues or |

evidence tendered below, so that the

party was not on notice of the need to

meet it, and the record appears not to be |

adequately developed in that respect.

Laguarta, 939 F.2d at 1240 (citations

omitted).”

It is petitioner’s position that the Court of

Appeals erred in allowing counsel for defendants to

raise a new issue at oral argument that was not

previously argued to the District Court and was |

contradicted by their own Statements of Uncontested |

Fact.

Additionally, after defendants raised this issue

during oral argument for the first time, the Court of

Appeals erred in not allowing petitioner the

opportunity to supplement the record to offer evidence

on this issue. Then, after denying petitioner’s motion,

the Court of Appeals proceeded to make a factual

determination on that issue in its opinion in support of

its decision. It did this even though petitioner had not

been given the opportunity to respond to that issue

which had not been raised below. It proceeded to make

an adverse factual determination concerning

petitioner’s medical restrictions. This determination

was made contrary to the above cited jurisprudence

and the testimony by the petitioner and Sigur that

defendants knew of petitioner’s medical restrictions

regarding his job duties after his surgery. Moreover, as

shown by Dr. Pope’s medical records, the factual

determination of the Court of Appeals was false and

inaccurate.

CONCLUSION

The Petition for Writ of Certiorari should be

granted. The opinions of the lower courts conflict with

the holding and guidelines set forth by this Court in

Anderson and Reeves. Petitioner requests that this

Court grant this petition to again reiterate the uniform

guidelines it previously gave to the lower courts in

Anderson. Additionally, the question of the Court of

Appeals considering and deciding an issue not raised in

the District Court below while denying petitioner an

opportunity to rebut that issue, merits consideration by

this Court.

Respectfully submitted:

BROUSSARD, BOLTON,

HALCOMB & VIZZIER

DANIEL E. BROUSSARD, JR.,

P.O. Box 1311

912 Fifth Street

30 |

Alexandria, Louisiana 71309

(318) 487-4589

Attorneys for Petitioner

(any footnotes trail end of each document)

No. 03-30750

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CHADWICK E. WELLS,

Plaintiff-Appellant,

versus

CITY OF ALEXANDRIA; JOHN HAMERNICK;

WILLIAM GERARD ALWELL,

Defendants-Appellees.

April 29, 2004, Filed

JUDGES: Before KING, Chief Judge, REAVLEY

and EMILIO M. GARZA, Circuit Judges.

OPINION: PER CURIAM: *

The summary judgment in favor of defendant-appellees

is affirmed, for the following reasons: |

1. Insofar as plaintiff-appellant Chadwick Wells'

petition can be construed as asserting a disability

discrimination claim under federal or state law, the

district court rejected these claims for various reasons,

and Wells does not challenge these rulings. On appeal

Wells maintains that he never asserted a federal claim.

If a state disability discrimination claim was ever

alleged, it is abandoned on appeal. See Johnson v.

Puckett, 176 F.3d 809, 814 (5th Cir. 1999).

2. Wells alleged a retaliation claim for reporting that

defendant and plant superintendent Gerard Alwell had

taken roofing material for personal use. We agree with

the district court that summary judgment on this claim

was warranted. Louisiana has a whistleblower statute,

La. Rev. Stat. Ann. § 23:967 (West 1998), which allows a

private suit for violation of its provisions. The statute

provides that "an employer shall not take reprisal

against an employee who in good faith, and after

advising the employer of the violation of law...

discloses or threatens to disclose a workplace act or

practice that is a violation of state law." (Emphasis

added). This statute by its terms requires the employee

to advise the employer of the violation of law before

reporting it to outside authorities, and there was no

evidence that Wells so advised his employer, defendant

City of Alexandria.

3. We also agree with the district court that for the

Louisiana whistleblower statute to protect the

employee, the employer "must have committed a

violation of state law." Puig v. Greater New Orleans

Expressway Comm'n, 772 So. 2d 842, 845 (La. Ct. App.

2000) (internal quotation marks omitted). While Wells

questions the correctness of Puig, we generally defer to

the holdings of lesser state courts unless we are

convinced that the state supreme court would rule

otherwise. See United States v. Johnson, 160 F.3d 1061,

1063-64 (5th Cir. 1998). The district court reasoned that

the state police found no violation of state law. The

summary judgment record shows that there was no

theft because the contractor who supplied the roofing

material had told Alwell that the extra roofing material

was going to be thrown away and that city employees

could have it. Wells does not now argue otherwise.

4. Insofar as Wells contends that a violation of state law

nevertheless took place because Alwell accepted a gift

of roofing material in violation of State law, La. Rev.

Stat. Ann. § 42.1115(B) (West 1990) provides that no

public employee may accept "any thing of economic

value as a gift or gratuity" from a person "if such public

employee knows or reasonably should know that such

person. .. conducts operations or activities which are

regulated by the public employee's agency" or "has

substantial economic interests which may be

substantially affected by the performance or

nonperformance of the public employee's official duty."

Wells does not point to summary judgment proof that

the agency employing Alwell--the city electric

department--regulates roofing contractors, n1 or that

Alwell's official duties could have had a substantial

effect on substantial economic interests of the roofing

contractor. Wells also failed to offer proof that the

roofing material, which the roofing contractor treated

as refuse, had economic value. Wells fails to

demonstrate that § 42.1115(B) applies.

5. Wells alternatively argues that under La. Rev. Stat.

Ann. § 42.1169(B) (West Supp. 2004), "any public

employee who reports to a person or entity of

competent authority or jurisdiction information which

he reasonably believes is a violation of any law . . . shall

be free from discipline or reprisal for reporting said

acts of alleged impropriety." This statute only requires

a reasonable belief that a violation of law occurred.

However, we do not believe that Wells has a private

cause of action under state law for violations of section

42.1115(B) or section 42.1169(B). These provisions are

part of the Code of Governmental Ethics, which

establishes a Board of Ethics and an administrative

procedure for hearing ethics complaints. Id. §§ 42.1132,

42.1141 (West Supp. 2004). This Code does not provide

a private cause of action for government employees,

except that a court may enforce an order or decision of

the Board, id. § 1135, and that appeals of these

administrative decisions may be made to First Court of

Appeal, id. § 1142. See Nolan v. Jefferson Parish Hosp.

Serv. Dist. No. 2, 790 So. 2d 725, 782 (La. Ct. App. 2001)

("Jurisdiction to enforce the Code of Governmental

Ethics lies in the Board of Ethics. We find no provision

of any private right of action under the Code of

Governmental Ethics; the employee's remedy is to

complain to the Board of Ethics, which then

investigates and takes action to protect the employee, if

appropriate.") (citation and footnotes omitted). We also

note that section 1169(C) expressly provides that any

public employee who is suspended, demoted, or

dismissed in violation of section 1169 "shall report such

action to" the Board of Ethics.

6. Wells also asserted a personal injury claim based on

injury to his knee. The district court correctly held that

workers' compensation is Wells's exclusive remedy

against defendants for work-related injuries unless the

injuries resulted from an intentional act. See La. Rev.

Stat. Ann. § 23:1032 (West 1998). The employer acts

intentionally if he "1) consciously desires the physical

result of his act, whatever the likelihood of that result

happening from his conduct; or 2) knows that the result

is substantially certain to follow from his conduct,

whatever his desire may be as to that result." Reeves v.

Structural Preservation Sys., 731 So. 2d 208, 211 (La.

1999) (internal quotation marks omitted). Summary

judgment was warranted on the personal injury claim.

eiererieeenernineeieeetenimeiaiiaieie

There is no direct evidence that the city, through its

supervisors, consciously desired that Wells re-injure his

knee or knew this result was substantially certain to

follow. There was evidence that Wells was assigned

unpleasant cleaning and maintenance assignments and

that his efforts to leave for physical therapy were

restricted on one or perhaps two occasions, but this

evidence is insufficient for a reasonable trier to fact to

find that the defendants were trying to re-injure Wells'

knee, or knew that an injury was substantially certain

to follow from their conduct. Defendants offered

summary judgment evidence that the job duties of

Wells's operator position included cleaning the plant.

We further note that the three specific cleaning and

maintenance assignments about which Wells complains

occurred during periods where his doctor's

treatment/restriction reports state that his activities

were unrestricted. n2 Evidence that defendants Alwell

and Hamernick were angry at Wells or were motivated

by a general desire to retaliate against him is not proof

of a desire to physically injure Wells. [*8] Ifthe record

as a whole could not lead a rational jury to find for the

nonmoving party, there is no genuine issue for trial and

summary judgment is warranted. Capital Concepts

Props. 85-1 v. Mutual First, Inc., 35 F.3d 170, 174 (5th

Cir. 1994). There is no evidence that defendants

understood the exertion required to cause Wells to re-

injure his knee. Wells did not specifically tell

defendants that the assignments would cause him to re-

injure the knee. n3 Alwell testified in deposition that he

thought Wells was physically capable of doing the

cleaning. Hamernick testified that he thought Wells

could perform the assignments because Wells had told

him he could do the work and he had seen Wells jump

from the back of boats and run up stairs. The evidence

that defendants intended to cause a physical injury to

Wells can at best be described as colorable. Under

modern summary judgment practice, "there is no issue

for trial unless there is sufficient evidence favoring the

nonmoving party for a jury to return a verdict for that

party. If the evidence is merely colorable, or is not

significantly probative, summary judgment may be

granted." Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) [*9]

(citations omitted).

8. Wells also argues that he raised a fact issue on

whether he was constructively discharged. Under

federal law, the constructive discharge doctrine [*10]

is an alternative way of proving an adverse

employment action in Title VII and other cases, but

constructive discharge is not itself a cause of action. It

is a means of proving the element of an adverse

employment action where the employee quits instead of

being fired. Wells does not persuade us that Louisiana

law is different from federal law in this regard. If there

is no cause of action for the reasons discussed above,

proving a constructive discharge alone does not entitle

Wells to relief. Similarly, although the petition alleges a

"hostile work environment," Wells does not persuade us

that Louisiana law recognizes a separate tort for hostile

work environment, independent of the disability

discrimination, whistleblower, and intentional personal

injury claims which fail for the various reasons

discussed above.

AFFIRMED.

* Pursuant to 5TH CIR. R. 47.5, the Court has

determined that this opinion should not be

published and is not precedent except under the

limited circumstances set forth in 5TH CIR. R.

47.5.4,

nl Wells states in his appellate brief that "in his

deposition, Alwell testified it was part of his job

duties as Power Plant Superintendent to

monitor the work of the roofing contractor from

whom he received the material." The fact that a

plant superintendent might monitor a roofing job

at one plant does not, in our view, mean that

roofing contractors "are regulated by the public

employee's agency" under section 1115(B).

n2 Wells complains about cleaning and

maintenance assignments he performed on

August 11, 2000, February 3, 2001, and February

12, 2001. A February 28, 2000 doctor report

limits his activities to "Light duty at 90," but

states that this restriction is only in effect until

March 15, 2000. An August 16, 2000 report states

that he should avoid "consistent maintenance,

prolonged standing & janitorial duties," but a

September 6, 2000 report states that these

restrictions are only in effect until October 18,

2000.

n3 Wells did testify that with respect to one of

the cleaning assignments, he had told Sonny

Craig, the City Director of Utilities, that "it was

against my doctor's excuse," and that Hamernick

then called Wells and told him "to do it or go

home." Hamernick, however, testified that Wells

"told me he could do the task and he went to it.

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

ALEXANDRIA DIVISION

CIVIL ACTION NO. 01-1686 SECTION "A" (JUDGE

LITTLE) 7

CHADWICK E. WELLS

-VS-

CITY OF ALEXANDRIA, GERARD W. ALWELL

and JOHN HAMERNICK

MEMORANDUM

The defendants John Hamernick, the City of

Alexandria, and Gerard A. Alwell move for summary

Judgment on the plaintiff Chadwick E. Wells's

complaint [Doc. Nos. 68, 72, 751. Plaintiff opposes the

motions of the defendants. For the reasons explained

below, the motions for summary judgment filed by the

three defendants are GRANTED.

BACKGROUND

The defendants' motions for summary judgment arise

out of the lawsuit the plaintiff, Chadwick E. Wells

(‘wells"), has brought against the City of Alexandria

("City"), Gerard W. Alwell (" Alwell" ), and John

Hamernick (" Hamernick") . Wells, Alwell, and

Hamernick were employed by the City's Electric

Production Department during the time of the events

that give rise to this litigation. The plaintiffs complaint

alleges that when he returned to work on 8 March 2000

after undergoing knee surgery, Alwell and Hamernick,

10a

who served in supervisory positions, harassed Wells

and engaged in acts that created a hostile work

environment. These acts included preventing Wells

from attending necessary physical therapy sessions,

assigning Wells work that he had been advised by his

physician not to perform, and suggesting to Wells that

he would be terminated if he did not comply with

Alwell's and Hamernick's orders, despite Wells's

physical limitations. Plaintiff further alleges this

harassment was done in retaliation for Wells's

reporting improper conduct by Alwell to a state law

enforcement agency. As a result of the missed therapy

sessions and physically demanding work assignments,

Wells reinjured his knee and sustained additional pain

and suffering in February of 2001. He resigned from his

position with the City in April 2001. Plaintiff filed this

suit against the City, Alwell, and Harnernick in August

of 2001.

DISCUSSION

Plaintiff Wells is a resident of Alabama. The defendants

are all Louisiana citizens. Jurisdiction of this claim is

proper under 28 U.S.C. § 1332.

Standard of Review

Summary judgment may be granted to the moving

party only if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with

the affidavits, if any, when viewed in the light most

favorable to the non-moving party, show that there is

no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 249-50 (1986). A dispute about a material fact

lla

is genuine if the evidence is such that a reasonable jury

could return a verdict for the non-moving party.

Anderson, 477 U.S. at 248. In making this

determination, a court must draw all justifiable

inferences in favor of the non-moving party. Id. at 255.

Once the moving party has shown "that there is an

absence of evidence to support the non-moving party's

case," the non-moving party must come forward with

"specific facts" showing a genuine factual issue for trial.

Fed. R. Civ. F. 56; CelotexCorp. v. Catrett, 477 U.S.

317, 325 (1986); Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986). Conclusory

denials, improbable inferences, and legalistic

argumentation are not an adequate substitute for

specific facts showing that there is a genuine issue for

trial. S.E.C. v. Recile,10 F.3d 1093, 1097 (5th Cir.1993).

Americans with Disabilities Act claim

Defendants move for dismissal of Wells's claims based

upon the Americans with Disabilities Act ("ADA"). 42

U.S.C. § 12101 et seq. Under the ADA, an employee

must first file a complaint with the EEOC or with the

appropriate state or local agency prior to bringing a

claim in federal court. See Dao v. Auchan

Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996) (citing 42

U.S.C. § 2000e-5 (e) (1)) . Wells has not filed a complaint

with the EEOC or with a state or local agency

authorized to deal with alleged employment law

violations. Defendants assert, therefore, that Wells's

ADA claim must fail.

In his memorandum opposing summary judgment,

Wells maintains that he does not rely upon the ADA in

12a

his complaint. His claims, rather, are based solely upon

Louisiana state law.

Although some of the allegations in Wells's petition for

damages could be construed as stating a claim under

the ADA, Wells's rejection of the notion that he is

bringing an ADA claim provides a sufficient basis for

granting the defendants' motions for summary

judgment on this particular issue. To the extent that

Wells's complaint states a cause of action under the

ADA, the defendants' motions are granted. All claims

that are or could be brought by Wells pursuant to the

ADA are dismissed with prejudice.

Wells's state law complaint could be construed as

bringing a claim under Louisiana disability

discrimination laws. LSA-R.S. § 23:321 et seq. The

defendants have not moved for summary judgment on a

state disability discrimination claim. Nevertheless,

dismissal of these claims, if Wells does in fact assert

them, seems appropriate. In his memorandum opposing

summary judgment, Wells does not address state

disability discrimination statutes. Rather, Wells states

that "the individual defendants' motive was to punish

plaintiff for reporting to the Louisiana State Police

their taking roofing material ...." Plaintiff's

Memorandum Opposing Summary Judgment, 25.

Wells's focus is upon state whistle blower and

retaliation claims, not disability discrimination. All

claims that are or could be brought by Wells pursuant

to state disability discrimination law, therefore, are

dismissed with prejudice.

RetaKation claim under LSA-R:S. § 23:967

13a

Louisana's whistle blower statute provides protection

from reprisal by an employer when "an employee .. . in

good faith, and after advising the employer

of the violation of law, [dliscloses or threatens to

disclose a workplace act or practice that is in violation

of state law." LSA-R.S. § 23:967(A)(1). Wells states that

he reported to a Louisiana law enforcement agency that

Alwell removed roofing material from a re-roofing hab

at the City's power plant. The Louisiana state police

investigated Alwell and Hamernick but found they had

not violated a state law. Wells believes that Alwell and

Hamernick gave him physically demanding tasks and

refused to allow him to attend physical therapy in

retaliation for Wells's reporting of Alwell. In his

complaint, Wells cites a statement by Hamernick that

the employee responsible for the investigation was

"going to catch it."

In their motions for summary judgment, the defendants

point out that neither Alwell nor Hamernick was found

to have violated a Louisiana state law. For an employee

to be protected under Louisiana's whistle blower

statute, the employer "must have committed a'violation

of state law." Puig v. Greater New Orleans

Exspressway Comm'n, 772 So. 2d 842, 845 (La. Ct. App.

2000). Absent a finding of a violation of state law, Wells

cannot invoke the protections of the whistle blower

statute. Even if there had been a violation of state law,

it is not clear that Wells could take advantage of the

whistle blower protections because he did not report

Alwell's actions to the City prior to contacting the state

law enforcement agency as the statute requires. See

LSA- R.S. § 23:967(A).

l4a

Wells counters in his memorandum opposing summary

judgment that even

though Alwell and Hamernick committed no crime by

removing the roofing material, they did violate a state

law by accepting a gift of roofing material from the

roofing contractor pursuant to LSA-R.S. § 42:1115(B).

Section 42:1115(B) states in part, "No public employee

shall solicit or accept ... anything of economic value as a

gift or gratuity from any person ... if such public

employee knows or reasonably should know that such

person conducts operations or activities-which are

regulated by the public employee's agency." Louisiana

protects public employees who report a violation of

Section 42:1115(B) to the appropriate authority under

LSA-R. S. § 42:1169(B) (stating "Any public employee

who reports to a person or entity of competent

authority or jurisdiction information which he

reasonably believes is a violation of any law . . . shall be

free from discipline or reprisal for reporting said acts of

alleged impropriety.").

It is not clear that Wells may rely upon Section

42:1169(B) for protection from Alwell's and

Hamernick's alleged retaliation Section 42:1169(B) is

part of the Code of Governmental Ethics ("Code").

LSA-R:S. § 42:1101 et se . Under the Code's

procedures, a Board of Ethics has jurisdiction to

administer and enforce the provisions of the Code.

LSA-R:S. § 42:1182(0). Defendants argue wells did not

comply with the Code's procedures for making a

complaint. In addition, Wells does not state in his

complaint that Alwell and Hamernick accepted

anything of economic value as a gift from the roofing

contractor. Wells's reporting of Alwell's and

Hamernick's activities to a state law enforcement

15a

agency suggests that Wells was concerned with a

possible criminal violation rather than an ethical one.

There is very little case law interpreting the scope of

the language of Section 42:1169(B). See Nolan v.

Jefferson Parish Hospital Service Dist. No. 2, 790 So. 2d

725, 731-32 (La. Ct. App. 2001) (discussing Section

42:1169). The language of Section 42:1169(B) may be

broad enough to allow Wells to bring a claim if there

was actual retaliation. Section 42:1169 (B) prohibits

retaliation against "[ aJny public employee who reports

to a person or entity of competent authority or

jurisdiction information which he reasonably believes is

a violation of any law or of any order, rule, or regulation

issued in accordance with law or any other alleged acts

of impropriety related to the scope or duties of public

employment ...." An "entity of competent authority or

jurisdiction" is not defined in the statute, but such an

entity could include a state law enforcement agency,

such as the Louisiana state police. Furthermore,

Section 42:1169(B) applies to the reporting of "a

violation of any law," not only to a violation of a Code

provision. If Wells reasonably believed Alwell and

Hamernick removed the roofing material in violation of

law, then he could invoke the protections of Section

42:1169(B).

As explained below, the court finds that Hamernick and

Alwell did not engage in tortious or retaliatory acts

when they assigned Wells maintenance duties. Having

failed to show that Hamernick and Alwell engaged in

tortious or retaliatory conduct, Wells cannot show that

the defendants' actions were in reprisal for reporting

allegediy improper conduct. Absent a finding of

retaliation, Wells cannot invoke the protections of

Section 42:1169(B).

l6a

The defendants' motions for summary judgment on

Wells's claim for retaliation under LSA-R.S. § 23:967

and LSA-R.S. § 42:1169 are granted. Wells's retaliation

claims are dismissed with prejudice.

Intentional tort claim

Wells alleges in his complaint that defendants Alwell

and Hamernick intentionally assigned him job duties

that were proscribed by his treating physician. As a

result of these assigned job duties, Wells reinjured his

knee and sustained additional pain and suffering. Wells

contends these assignments were intentional and

discriminatory and made in reprisal for Wells's

reporting of Alwell te the Louisiana state police.

Both parties agree that an employee's ordinary remedy

for injuries sustained during employment is workers

compensation. See LSA-R.S. § 23:1032; Adams v. Time

Saver Stores, Inc., 615 So. 2d 460, 461 (La. Ct. App.

1993). An employee may seek damages outside of the _

workers' compensation scheme only if the employee is

injured by an intentional act of the employer. Adams,

615 So. 2d at 461.

Both parties also agree on the definition of "intent"

under Louisiana law. A person acts with intent when he

"1) consciously desires the physical result of his act,

whatever the likelihood of that result happening from

his conduct; or 2) knows that the result is substantially

certain to follow from his conduct, whatever his desire

may be as to that result." Reeves v. Structural

Preservation Systems, 731 So. 2d 208, 211(La.1999)

(citing Bazle v. Tortorich, 397 So. 2d 475, 481 (La. 1981)

17a

The parties disagree, however, on whether plaintiff can

show that Alwell and Harnernick either consciously

desired or were substantially certain to injure Wells by

assigning him physically demanding duties. Plaintiff

asserts that there is sufficient evidence to show that

Alwell and Hamernick consciously desired to injure

Wells and that defendants mistakenly rely upon the

“substantially certain" prong of the definition in their

summary judgment motions.

Plaintiff also argues that determinations involving a

party's state of mind are often inappropriate on

summary judgment because these determinations

require credibility assessments. See International

Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257,1265-66

(5th Mr. 1991). Wells does concede in his memorandum

that summary judgment is appropriate if a party rests

upon conclusory allegations, probable inferences, and

unsupported speculation to show the defendant's state

of mind. See id. at 1266.

The plaintiff cites four separate occasions upon which

Hamernick assigned Wells to jobs that caused injury to

his knee: 1 ) on 11 August 2000, Wells was told to strip

and wax the turbine floor; 27 on 3 February 2401, Wells

was told to clean a hot well; 3) on 12 February 2001,

Wells was told to work in and clean a condenser; and 4)

on 21 February 2001, Wells was told to strip and wax

the turbine floor..In addition, Wells claims Hamernick

prevented him from attending physical therapy

sessions on multiple occasions.

Wells contends that he was ordered to strip and wax

the turbine floor on

11 August 2000 under threat of termination. Hamernick

counters that he told Wells to accept the assignment or

18a

to go home because Wells was working overtime.

Deposition testimony of A. E. Craig ("Craig")

corroborates that wells was told he would be sent

home, not terminated, if he could not perform the

assignment, After this incident, wells approached the

City Personnel Director, Pamela Saurage ("Saurage"),

and told her he was being asked to perform jobs that

were not in his job description, such as mopping,

stripping, and waxing floors. Saurage explained that

Wells's job description included maintenance, which

could include jobs like mopping and waxing floors. On

16 August 2000, Wells's physician issued new

restrictions prohibiting maintenance duties for Wells;

wells claimed that performing maintenance duties

aggravated his knee. Wells was not given any more

maintenance assignments until February 2001. Saurage

testified in her deposition that Wells did not complain

about the maintenance duties he was assigned in

February 2001.

The approximate six-month gap between the first

maintenance assignment in August and the three

maintenance assignments in February is problematic

for Wells's claim. Had Hamernick assigned Wells to

clean hot wells or to strip and wax turbine floors in the

fall of 2000, after Wells's physician issued the additional

restrictions, then Hamernick's intent to cause Wells

harm would be more certain. As the undisputed time

frame of the maintenance assignments reveals,

however, it was not until February of 2001 that Wells

was told to perform these tasks. After these

assignments, Wells did not protest to Saurage or

consult his physician about renewing the maintenance

restriction. It seems unlikely that Hamernick, having

the conscious desire to cause injury to Wells, would

i ee

19a

abide by the physician's restrictions until February

2001, and then give Wells a series of maintenance

assignments. The maintenance assignments in

February 2001 seem to be consistent with the needs of

the business as well as Hamernick's belief that Wells

was capable of performing the work.

Wells also asserts that Hamernick assigned him these

four jobs and prevented him from attending physical

therapy sessions with Alwell's knowledge and approval.

Other than Wells's own assertion, there is no testimony

or evidence that Alwell participated in making the

assignments or that Alwell knew and approved of these

assignments. The arguments that Wells makes

regarding Alwell are the sort of unsupported

allegations that are insufficient to show a party's state

of mind. Wells has not shown that there is any genuine

issue of material fact regarding Alwell's conscious

desire to injure Wells.

Regarding the physical therapy sessions, the

defendants all concede there was one time when Wells

was not permitted to leave work to attend a physical

therapy session. On that occasion, Wells was required

to remain at work because the plant was understaffed,

his help was needed to complete a project, and Wells

had not given his supervisors sufficient notice of his

physical therapy session. Personnel Director Saurage

stated in her deposition that Wells told her once that he

had a conflict between his work and physical therapy

schedules, but to her knowledge, that conflict was

resolved. She testified that the City allows employees

to take time off to attend physical therapy sessions as

long as an employee's absence does not create undue

hardship for the department. She testified that

employees could be asked to reschedule physical

20a

therapy sessions and other medical appointments if

necessary. Saurage also stated that time off for physical

therapy sessions had to be cleared with an employee's

department head.

Although Wells asserts that he was denied permission

to attend multiple physical therapy sessions, he has not

provided dates, or even general times, when these

denials occurred. The defendants, in contrast, have

explained one time when Wells was not permitted to

attend a physical therapy session. Defendants also have

explained why permission was denied and that the

denial was in keeping with the City's policy regarding

medical absences. There is insufficient evidence to show

that Hamernick or Alwell prevented Wells from

attending physical therapy sessions with the conscious

desire to injure him.

The defendants' motions for summary judgment on

Wells's intentional tort claims are granted. Wells's

intentional tort claims are dismissed with prejudice.

Constructive discharge

Wells states in his complaint that he resigned his

employment with the City in April 2001 as a result of

"the continued hostile work environment and the

continued harassment by" Alwell and Hamernick. Wells

asserts he began looking for another job in August 2000

and that in February 2001, he realized he needed to

leave his job with the City or remain and "put up with

the continued intolerable retaliation of defendants."

Under the standard articulated by the Fifth Circuit, a

constructive discharge occurs when an employer has

made employment conditions "so intolerable that the

2la

employee reasonably felt compelled to resign." Shawgo

v. Spradlin, 701 F.2d 470,481 (5th Cir.1983); see also

Young Southeastern Savings and Loan Association, 509

F.2d 140, 144 (5th Cir. 1975); Bourque v. Powell

Electrical Manufacturing Co., 617 F.2d 61, 65 (5th

Cir.1980).

Wells relies exclusively upon Fifth Circuit case law to

show he has a claim for constructive discharge. This

reliance upon federal law is inconsistent with Wells's

previous assertion that he is bringing only state law

claims against defendants. Wells cannot rely upon

federal law for his constructive discharge claim and, in

the same pleading, disavow that his claims arise under

federal law. The majority of the cases cited by Wells

deal with federal employment discrimination law.

Because Wells brings only state law claims, these cases

are irrelevant and do not support his allegation that he

was constructively discharged.

Even if these cases were relevant to Wells's suit, the

alleged harassment does not arise to a level that is so

intolerable a reasonable employee would feel compelled

to resign The four contested maintenance assignments

occurred over a period of six months; they do not show

a pattern of harassment or hostility. In addition, the

single denial of Wells's request to attend a physical

therapy session could not contribute to a hostile work

environment in which Wells felt compelled to resign

from his position.

The defendants' motions for summary judgment on

Wells's claims for constructive discharge are granted.

Wells's claims for constructive discharge are dismissed

with prejudice.

22a

Course and scope of employment

The plaintiff's complaint also alleges that at all

pertinent times, the defendants Alwell and Hamernick

were acting within the course and scope of their

employment with the City. Because the two defendants

were acting in furtherance of the City's objectives,

wells asserts the City is vicariously liable for Alwell's

and Hamernick's actions.

The City denies that it is vicariously liable for any

injury to Wells, asserting that it did not condone any of

Alwell's and Hamernick's alleged actions. The City also

asserts that any intentional or discriminatory acts by

Alwell and Hamernick were beyond the course and

scope of their employment.

Under Louisiana law, "an employer (master) is liable for

a tort committed by his employee (servant) if, at the

time, the servant is acting within the scope of his

employment." LeBrane v. Lewis, 292 So. 2d 216, 217

(La. 1974) (citing LA. CIV. CODE art. 2320.); see also

Baumeisterv. Plunkett, 673 So-2d 994, 996 (La. 1996)

(stating, "According to Louisiana Civil Code article

2320, [m]asters and employers are answerable for the

damage occasioned by their servants and overseers, in

the exercise of the functions in which they are

employed.") .

It has already been determined that Hamernick and

Alwell did not engage in tortious conduct while working

as City employees. The City, therefore, cannot be held

23a

vicariously liable for the alleged tortious conduct of

Hamernick and Alwell.

The defendant City's motion for summary judgment on

Wells's vicarious liability claim is granted. Wells's claim

seeking to hold the City vicariously liable is dismissed

with prejudice.

CONCLUSION

The motions for summary judgment filed by the City,

Hamernick, and Alwell are granted. Wells's claims

against the defendants are dismissed with prejudice

F. A. LITTLE, JR.

UNITED STATES DISTRICT JUDGE

24a

No. 03-30750

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CHADWICK E WELLS,

Plaintiff - Appellant

CITY OF ALEXANDRIA; JOHN HAMERNICK;

WILLIAM GERARD ALWELL,

Defendants - Appellees

May 24, 2004, Filed

JUDGES: Before King, Chief Judge, Reavley and

Emilio M. Garza, Circuit Judges.

OPINIONBY: Thomas M. Reavley

OPINION: ON PETITION FOR REHEARING

PER CURIAM:

IT IS ORDERED that the petition for rehearing is

denied.

ENTERED FOR THE COURT:

25a

Thomas M. Reavley

United States Circuit Judge.

26a

DOCKET NO. 03-30750

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CHADWICK F. WELLS

VERSUS

CITY OF ALEXANDRIA, ET AL

MOTION TO SUPPLEMENT THE RECORD ON

APPEAL

NOW INTO COURT, through undersigned counsel,

comes CHADWICK F. WELLS. Appellant herein, who

desires to supplement the record on appeal in the above

captioned m:.cter with a certified copy of the medical

records of Dr. David Pope. Appellant's treating

orthopaedist for the period from February 14, 2000 to

May 1, 2002 for the following reasons:

During oral argument on April 6, 2004 before this Court

at Baylor University in Waco, Texas, a question arose

for the first time as to whether or not Appellant's

physical restriction of ninety (90%) percent of his job

duties imposed on him by Dr. Pope was in effect when

Appellant was ordered on August 11, 2002 by

Defendant Hamernick to strip and wax the floor of

Turbine #4 at the City of Alexandria Power Plant.

Counsel for Appellees made a representation to this

Court during oral argument that Appellant's work

restriction by Dr. Pope had expired by its very terms

on March 15, 2000 (See Treatment and Restriction

Report dated February 28, 2000) of Dr. David Pope.)

27a

Appellant shows that the certified medical records of

Dr. Pope, a copy of which is attached hereto, made a

part hereof and marked as Exhibit "A," show that

March 15,2000 was Appellant's next scheduled

appointment with Dr. Pope and that Dr. Pope's office

notes of subsequent visits show the work restriction

imposed on Appellant continued and was still in effect

on Appellant's doctor's visit of July 26, 2000

immediately prior to August 11 , 2000 when Dr. Pope

stated "Continue present work activities with

restrictions." (See attached Exhibit "A," pg. 5: Dr.

Pope's office notes of 7/26/00 visit.)

Appellant shows that all of the exhibits submitted in

the record by all parties in connection with the Motions

for Summary Judgment and in Opposition thereto, did

not include all the pertinent medical records and in

order to clear up any mistaken inferences and to

complete the record for this Court to perform an

complete de novo review of the decision granting the

Motions for Surnmary Judgment, the attached

aforesaid medical records are pertinent and should be

made a part of the record herein.

WHEREFORE, Appellant, CHADWICK E. WELLS,

prays that the record of the above captioned matter, be

supplemented with a certified copy of the medical

records of Dr. David Pope, Appellant's treating

orthopaedist for the period from February 14, 2000 to

May 1, 2002 (Exhibit "A") and that said records be

considered by this Court in arriving at its decision.

Respectfully submitted:

BROUSSARD, BOLTON, HALCOMB & VIZZIER

DANIEL E. BROUSSARD, JR., #3510

28a

P.O. Box 1311

912 Fifth Street

Alexandria, Louisiana 71309

(318) 497-4589

ATTORNEYS FOR APPELLANT

29a

DOCKET NO. 03-30750

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CHADWICK F. WELLS

VERSUS

CITY OF ALEXANDRIA, ET AL

ORDER

Considering the foregoing, it is

ORDERED that the appeals record of the above

captioned matter be supplemented with a certified copy

of the medical records of Dr. David Pope, Appellant's

treating orthopaedist, for the period from February 14,

2000 to May 1, 2002,

SIGNED at onthisthe day of April I. 2004.

JUDGE - UNITED STATES COURT OF APPEALS

30a

INFOSTAT,L.L.C.

A RELEASE OF INFORMATION SERVICE

CERTIFICATION

Date: 4/7/04

I hereby certify that the enclosed 10 pages are true,

and correct copies of medical records in our possession

concerning Chadwick Wells for his/her care and

treatment by The Orthopaedic & Sports Medicine

Specialists.

3la

ORTHOPAEDIC & SPORTS MEDICINE

SPECIALISTS

#0700 WELLS, Chadwick 02-14-00 DOS: 02-01-99

PROGRESS NOTE: Follow-up, ACL reconstruction.

Doing well. A little stiff still.

PHYSICAL EXAM: On exam. minimal effusion. He

has good pate!la mobility, both medial lateral and

superior interior. He has range of motion measuring

from 0° to approximately 80° to 85°.

PLAN: Continue protocol. Hold off on work

activities. Follow-up in two weeks. DP MD/be

#0700 WELLS, Chadwick 02-28-00 DOS: 02-01-00

PROGRESS NOTE: Follow-up, ACL reconstruction.

Doing great Much improved Progressing along nicely.

PHYSICAL EXAM: Incision looks good. Good patella

mobility. Scant effusion present. Range of motion now

about 115°. He has about 5° hyperextension today.

Very stable to gentle Lachman testing.

RECOMMENDATIONS: Continue protocol and

recheck in two weeks. We will start some work

activities on the &th, sedentary type activities.

DP, M.D./be

#0700 WELLS, Chadwick 03-15-00 DOS: 02-01-00

PROGRESS NOTE: Follow-up, ACL reconstruction.

PHYSICAL EXAM: Approaching 120° of flexion. Good

patellar mobility. No effusion. Stable on exam.

32a

RECOMMENDATIONS: Protocol Recheck in one

month. Light duty work until follow-up.

dp, m.d./BC

CC: Worker's Compensation

33a

CITY OF ALEXANDRIA

PERSONNEL DEPARTMENT

PAMELA SAURAGE DIRECTOR

February 28, 2000

Re: Chad Wells

Social Security No. 433-61-0832

Dear Dr. Pope:

We are in receipt of your Treatment / Restriction

Report dated February 28. 2000 regarding the above-

referenced 2mployee. Your report states Mr. Wells is

restricted to light duly. In order for the City to allow

Mr. Wells to return to work, he must be able to perform

ninety percent (90%) of the responsibilities outlined in

his job description.

Please find attached Mr. Wells' job description for your

review. After analyzing this information, please provide

a written prognosis regarding Mr. Wells' ability to

perform his job duties.

Your prompt attention to this matter will be greatly

appreciated. Should you have any questions, please do

not hesitate to call.

Sincerely,

Pamela L. Saurage, Director of Personnel

Patient, Chad Wells is able to return to work @ City of

Alex as an Operator II @ 90% of Pt’s job duties

34a

ORTHOPAEDIC & SPORTS MEDICINE

SPECIALISTS

TREATMENT/ RESTRICTION REPORT

Employee Name: Chad Wells

Social Security: 433-61-0832

Date of Injury:4-10-97 Work Related: Yes

Company Name: City of Alexandria

Supervisor: Job Title: |

Date of Visit2-28-00

Job Title:

Nature of Injury and Diagnosis:

Treatment: PT:

Was prescription medication ordered? Yes

Will follow-up care he required? Yes

It yes, list next appointment date and lime: 3-15-00

Work Status

It is my opinion that this employee (Please check one)

1. Can return to his/her light duty at 90% on 3-8-00.

3.Can return to work with the following restrictions:

Light/Sedation

Restrictions in Effect until (date) 3-18-00

Physician's Signature

Date2-28-00

35a

#0700 WELLS, Chadwick 04-26-00

DOS: 02-01-00

PROGRESS NOTE: The patient is in for follow-up of

ACL reconstruction. The knee gets a little sore at

times.

PHYSICAL EXAM: On his exam, he has an excellent

range of motion with near full flexion, near symmetric

extension. No effusion. Very stable to Lachman testing.

Quad girth- is improving.

PLAN: At this point, we are going to continue protocol

He is going to need some dedicated strengthening on

his quads. I will have the therapist check an isokinetic

test prior to his follow-up visit. He will continue his

present activities at work. Possibly start a running

program in one month.

#0700 WELLS, Chadwick 05-29-00

DOS: 02-01-00

PROGRESS NOTE: Follow-up for ACL

reconstruction. Occasional pain in full extension;

otherwise, he is doing well. No instability.

PHYSICAL EXAM: His motion looks very good with

full range of motion. Graft is very stable. No effusion

today. His quad strength is only up around 50% or just

slightly over compared to the uninvolved side.

PLAN: At this point, we just need to continue

strengthening. He is doing very nicely. He still cannot

get more aggressive with running, etc. until he's up to

about 70%. Recheck in about six weeks.

36a

#0700 WELLS, Chadwick 07-10-00

DOS: 02-01-00

PROGRESS NOTE: The patient is in for follow-up of

his knee. He has had some aggravation in the knee.

This has been going on for a few weeks. I have a note

from the therapist that he had to back off on all his

activities. He had intermittent swelling and mostly

anterior.

PHYSICAL EXAM: On his exam today, he has full

range of motion. No effusion Full extension. The

graft is very stable. The most notable finding today is

just fairly significant tenderness over the patellar

tendon.

X-RAYS: X-rays today look good. The graft is in good

position. Tunnel position looks okay I don't see any

evidence of acute fracture of the patella.

IMPRESSION: Status post ACL patellar tendinitis.

RECOMMENDATIONS: We are going to place him on

some modalities to see if we can get things settled

down. Relafen. We will see him back in about 2 to 3

weeks. We are going to have to back off on his PRE's at

this time.

#0700 WELLS, Chadwick 07-26-00

PROGRESS NOTE: Follow-up, knee. Doing much

better. Much less tenderness over the patella He has

responded well to the therapy modalities. We are going

to get him back into a little more aggressive

—

a TS i a eg wre ee reg ce eee re cr es gm es eee eee

37a

strengthening, etc. Follow-up in about 6 weeks.

Continue present work activities with restrictions.

TREATMENT/ RESTRICTION REPORT

#700 WELLS, Chadwick 08-13-01

PROGRESS NOTE: Mr. Wells in for follow-up of his

knee. He has been working for the city water

department. He is tolerating this well. He has

occasional discomfort but no instability. States he is

able to tolerate this activity without recurrent

exacerbation of knee pain and irritation which he was

experiencing prior.

RECOMMENDATION/PLAN: Apparently he is

planning to move to Alabama. We are going to go ahead

and release him at this time. He has had a reasonable

result with his knee stabilization surgery. I do not feel

that he will be capable of millwriting activity which he

was doing pre-operatively, but I think he is capable of

performing the job with the city in his current capacity

which he seems to be tolerating well. We will follow him

up on a prn basis as needed.

#0700 WELLS, Chadwick 08-16-00 DOS: 02-01-00

PROGRESS NOTE: Mr. Wells is in for follow-up of his

knee. The last time I saw him in clinic, he was doing

well. He was progressing nicely with his rehab. He had

hada flare up and some patellar tendinitis which

have settled down. Apparently, at his work place, he is

involved in some maintenance, stripping and waxing

the floors, for a number of hours straight. The twisting

motion involving the knee aggravated it, and he had

significant swelling. This is documented by the

therapist. Quite a bit of pain. Things have actually

settled down somewhat since then, but he is still having

EIS SECS FQN BUR SETI US lc SL SCE ESR

a is i sp a a wep aco pons seemegmen pcan

38a :

discomfort above and beyond what he had been

experiencing.

PHYSICAL EXAM: On his exam today, he has mild

effusion present. He does have a lot of irritability about

the patellofemoral joint. Tender on the medial lateral

facet. No joint line tenderness The knee is, otherwise,

stable to Lachman testing.

RECOMMENDATIONS: At this time, he seems to

have aggravated the knee with a twisting motion

involving in mopping. I don't think he has any problems

performing his operator 11 position, but I would

suggest restricting the assistant maintenance activities, ~

especially with the involved prolonged standing at this

time. Recheck in a couple of weeks Continue with

therapy to see if we can get things settled down. Refill

Relafen.

#700 WELLS, Chadwick 09-06-00 DOS: 02-01-00

PROGRESS NOTE: Here for follow-up of knee. I

backed off of some of the twisting activities at work

which seemed to settle things down considerably.

PHYSICAL EXAM: On exam he has maintained his

motion. There is no effusion He is still a little

tender over the incision, distally over the graft site. No

other significant tenderness noted. He is stable.

RECOMMENDATIONS: Continue present

restrictions. I will let him continue therapy and recheck

him in about four to six weeks I think things have

hopefully settled down at this point.

ee ees

39a

#700 WELLS, Chad 02-23-01

PROGRESS NOTE: Mr. Wells is in for follow-up of his

knee. He has had two accidents at work. One where he

apparently stepped out of a hole and sustained a

twisting injury to right knee with some associated

swelling. Following that, more recently he was waxing

some floors. He stated that it was very slick, and he lost

his footing on the right side. He fell backwards, caught

all of his weight on his left leg, and grabbed himself

between a desk and the wall preventing the fall. He did

not actually hit the ground. He had an onset of some

pain in that knee as a result of that, predominantly on

that right side. He denied any initial back pain but later

that afternoon started feeling some discomfort in the

right paraspinal region of the lumbosacral spine. He

had not had any previous back complaints. At this time,

both his knee and his back are settling down. He is still

having some lateral sided knee pain, no gross

instability. The back likewise is settling down

significantly just with rest.

PHYSICAL EXAM: On his physical exam, he has a

slightly antalgic gait. He has maintained full motion of

his knee. He still has a fair amount of quadriceps

atrophy in the thigh itself on the right. I couldn't see

any effusion to speak of today. The knee was stable to

Lachman testing, and he had a negative Pivot shift. He

had full extension.

RECOMMENDATIONS: At this point, I am going to

hold him off some work activities. I am going to start

him on some Vioxx. I will see him in 10 to 14 days for a

recheck. I would hold on therapy. If things aren't

significantly improving both with the knee and the back

40a

with rest and light activities, then he will give me a call

towards the middle or end of next week, and he can

start some therapy but I will hold on that at this time. I

think his prognosis is good. We should be able to get

him back within that time frame.

#700 WELLS. Chadwick 05-01-02

PROGRESS NOTE: Mr. Wells is in for follow-up of his

knee. He is currently residing in Alabama and is

working there reading meters. This involves some

standing and walking activities which he is tolerating

fine. He states he gets some intermittent pain in the

knee which is infrequent, mostly located

anterolaterolly. He denies any significant swelling or

instability of the knee He has some sensitivity over

the anterior/medial aspect of the knee in the area of the

tunnel which prevents him from kneeling on that side.

Also, squatting is somewhat difficult for him at this

time.

PHYSICAL EXAM: On his exam, he has a smooth,

reciprocal gait. He has just a little mild residual quad

atrophy on that right side, but his muscle tone looks

good. He has full hyperextension and flexion of the

knee. He is stable to varus and valgus stress. He is

tender over that anterior/medial aspect of the knee in

the area of the tibial tunnel. There is no palpable

prominence present there. He has a negative Lachman

and negative pivot shift on his exam today.

X-RAYS: AP and lateral views of the knee reveal well

preserved joint spaces. No evidence of any arthrosis or

joint line narrowing, and the hardware all appears to be

in good position.

4la

RECOMMENDATION/PLAN: At this time, the

patient is at MMI following his ACL reconstruction,

meniscus repair, on 02-01-00. He will have some long-

term restrictions regarding his activities which would

include no kneeling and squatting only on an occasional

basis. Also, he would be unable to crawl on that knee.

For this reason, I do not believe he will be able to

return to his millwright activity. In addition, this would

include avoiding roofing activity which I think he was

involved with at some point. I would limit his lifting to

50 Ibs on an occasional basis and carrying 50 lbs on an

occasional basis.

According to the Fifth Edition of the AMA Guides, he

would have an impairment of 7% lower extremity and

3% whole body based on mild cruciate laxity.

He will be discharged at this time and will follow-up on

a prn basis should he have any further problems.

CERTIFICATE

I hereby certify that I have this day forwarded a copy

of the above and foregoing motion and Order to

Supplement the Record on Appeal to Mr. Stacy C.

Auzene, Keiser, Auzenne & Boudreaux, P.O. Box 12394,

Alexandria, Louisiana, 71315-2394, Mr. H. Bradford

Calvit, Provosty, Sadler, deLaunay, Fiorenza & Sobel,

P.O. Box 1791, Alexandria, Louisiana, 71309-1791 and

Mr. Richard A. Rozanski, Wheelis & Rozanski, P.O.

Box 13199, Alexandria, Louisiana, 71315-3199, on this

8'h day of April, 2004 at Alexandria, Rapides Parish,

Louisiana.

DANIEL F. BROUSSARD, JR.

42a

No. 03-30750

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CHADWICK E. WELLS,

Plaintiff-Appellant,

versus

CITY OF ALEXANDRIA; JOHN HAMERNICK;

WILLIAM GERARD ALWELL,

Defendants-Appellees.

Appeal from the United States District Court for the

Western District of Louisiana, Alexandria

ORDER

IT IS ORDERED that appellant's motion to

supplement the record with a certified copy of the

medical records of Dr. David pope, is denied.

THOMAS M. REAVLEY

UNITED STATES CIRCUIT JUDGE

43a

CIVIL DOCKET NUMBER 205,419

DIVISION F

9th JUDICIAL DISTRICT COURT PARISH OF

RAPIDES

STATE OF LOUISIANA

CHADWICK E. WELLS,

Plaintiff,

versus

CITY OF ALEXANDRIA ET AL,

Defendants.

PETITION FOR DAMAGES

The petiton of CHADWICK E. WE LLS, a resident

and domiciliary of the County of Tuscaloosa, Slate of

Alabama, respectfully represents that

Made defendants herein are:

(A) CITY OF ALEXANDRIA, a municipal

corporation existing under and by virtue of the

constitution laws of the State of Louisiana (hereinafter

referred to as "CITY");

(B) GERARD W. ALWELL, a resident of the full

age of majority of the Parish of Ripides; and,

of majority of the Parish of Rapides.

Defendants are justly, truly and legally indebted unto

petitioner jointly, severally and in solido, for all such

sums as will fully compensate petitioner for all damages

he sustained arising out of the occurrences described

44a

hereinafter, together with legal interest on all sums

from date of judicial demand until paid, and for all costs

of these proceedings for the reasons stated hereinafter.

At all times pertinent herein petitioner and defendants,

ALWELL and HAMERNICK, were employees of

defendant, CITY; in the Electric Production

Department; petitioner being an Operator II, defendant

ALWELL being Superintendent of Electric

Production; and defendant HAMERNICK being Chief

Plant Operator and Defendants being plaintiff's

supervisors over the plant.

Petitioner shows that on or about February 1, 2000 he

had right knee surgery for an ACL repair and a

menisectomy on his right knee which he had previously

injured in 1997.

On or about March 8, 2000, petitioner returned to his

employment duties with the CITY, having been

released by his treating physician as being capable of

performing ninety (90%) percent of his job duties as

outlined in his job description.

Petitioner shows that after his return to work in March

he continued to attend and receive physical therapy

treatment for his knee.

Petitioner shows that subsequent to his return to

employment, he reported and furnished documentation

to a Louisiana law enforcement agency of Certain

activities of defendant ALWELL in removing new

roofing material from the re-roofing job of the Cily's

power plant in his private vehicle after hours while off-

duty; an investigation ensued by that law enforcement

agency.

45a

Shortly after the above investigation was conducted,

defendant HAMERNICK advised plaintiff that any

power plant personnel that was responsible for the

investigation was "going to catch it."

Petitioner further shows that while petitioner was

receiving physical therapy treatment, defendant

ALWELL resisted and at times refused to allow

petitioner time off to attend his physical therapy

sessions in accordance with his treating physician's

orders.

10.

Petitioner shows that he complained to defendant

ALWELL's superiors about the difficulty he was

having in attending physical therapy treatments due to

defendants ALWELL's s and HAMERNICK's

conduct.

11.

Asa result of petitioner's conduct Set forth in

paragraph 10 above, defendant

HAMERNICK threatened petitioner for contacting

defendants' superiors concerning petitioner going to

physical therapy.

12.

On or about August 11, 2000 defendant HAMERNICK

ordered petitioner to strip anc wax the floor of turbine

#4 or to go home it he refused.

13.

Petitioner shows at the time he was ordered to strip

and wax the floor of turbine #4 maintenance personnel

were available at the plant to perform this job and they

attempted to assist petitioner but were ordered to stop

their efforts by defendant HAMERNICK.

14.

46a

Petitioner also shows at the time he was ordered to

strip and wax the floor of turbine #4 both defendants,

ALWELL and HAMERNICK, were aware of

petitioner's physical disability and the restrictions

placed on him by his doctor as well as the fact that that

job was beyond plaintiff's ability at that time

15.

Petitioner shows that as a result of performing the

duties assigned him that day, petitioner's knee became

swollen and painful causing him difficulty to walk on it

16.

As a result of the above-described incident, petitioner

returned to physical therapy on August 14, 2000 having

increased pain in his knee which had been aggravated

and made worse by the activities assigned to him by

defendant HAMERNICK.

17.

As a result of the aforesaid activity being assigned by

defendant HAMERNICK, petitioner's treating

physician increased his restrictions to avoid janitorial

duties or assist in maintenance activities and prolonged

standing.

18.

Petitioner further shows that in January 2001

defendant ALWELL advised petitioner that he would

need a doctor's release to perform one hundred (100%)

percent of his job duties to retain his job position.

19.

Petitioner further avers that on or about February 3,

2001, defendant HAMERNICK ordered petitioner to

get into a hot well and clean it; the hot well being two

and one-half (2 ) to three (3) feet high and requiring a

person in it to squat and crawl for several hours;

petitioner complied with this order under the threat of

termination.

47a

20.

On February 12, 2001 petitioner was ordered to work in

and clean a condenser-, this job required climbing and

working in a squatting position; petitioner complied

with this order.

21.

On February 21, 2001 petitioner was ordered to strip

and wax the turbine floor; and petitioner complied with

that order.

22.

All of the above actions of defendant HAMERNICK

caused petitioner to reinjure his knee necessitating his

missing work and receiving workers compensation

benefits.

23.

Petitioner alleges that at all times pertinent herein,

defendant HAMERNICK was acting with the full

_ authority and knowledge of defendant ALWELL,

which defendant ALWELL admitted to petitioner

24.

As a result of the continued hostile work environment

and the continued harassment by the individual

defendants herein, petitioner WELLS resigned his

employment in April 2001.

25.

Petitioner shows that the individual defendants herein

intentionally assigned him job duties that were against

his treating physician's recommendation which caused

him to re-injure his knee and sustain additional pain

and suffering; the individual defendants' actions were

intentional and discriminatory towards him and were in

reprisal to punish petilioner for his actions in reporting

defendant ALWELL's activities to the State law

enforcement agency.

26.

48a

Petitioner further shows thal at all times herein, he

was able to perform the essential duties of an Operator

II but was unable to perform without pain and

difficulty, the janitorial maintenance duties assigned to

him by the individual defendants, which duties were not

essential to the duties of an Operator IT.

27.

Defendants knew of petitioner's disability with his

knee and deliberately did not accommodate petitioner

on the job for this disability.

28.

At all times pertinent herein, defendants ALWELL

and HAMERNICK were acting within the ambit of

their employment duties and in furtherance of the

CITY's objectives rendering their employer, the CITY,

vicariously liable for the acts of the defendants

complained of herein.

29.

As a result of the defendants' actions in this matter,

petitioner sustained the following damages:

a) Mental anguish, anxiety, emotional distress, and

embarrassment and humiliation past and future;

b) Pain and suffering, past and future;

9) Loss of enjoyment of life, past and future;

d) Increased physical disability, past and future;

e) Loss of past and future income and fringe

benefits from the date of his resignation; and

f) Reasonable attorney fees and costs.

30.

Petitioner shows that he is entitled to an award of

money damages that are reasonable in the premises for

the damages and items set forthe above.

31.

Petitioner asks for a trial by jury.

49a

WHEREFORE, PETITIONER PRAYS that the

defendants each be served with a copy of this petition

and be duly cited to appear and answer same within the

delays allowed by law; that after all legal delays have

elapsed and due proceedings had, there be judgment

rendered herein in favor of petitioner, CHADWICK E.

WELLS, and against defendants, CITY OF

ALEXANDRIA, GERARD W. ALWELL , and JOHN

HAMERNICK, jointly, severally and in solido, for

such sums as will fully compensate petitioner for all

damages set forth herein including reasonable attorney

fees together with legal interest and all sums from date

of judicial demand until paid and for all costs of these

proceedings;

PETITIONER FURTHER PRAYS for a trial by jury.

PETITIONER FURTHER PRAYS for all necessary

orders and decrees. and for full, general and equitable

relief.

BROUSSARD, BOLTON, HALCOMB & VIZZIER

DANIEL E. BROUSSARD, JR., #3510

ATTORNEYS FOR PETITIONER, CHADWICK E.

WELLS

CLERK, PLEASE CITE AND SERVF THE

FOLLOWING DEFENDANTS:

CITY OF ALEXANDRIA, LOUISIANA

which may be served through its Mayor

Honorable Ned Randolph

915 Third Street

Alexandria, Louisiana 71301

JOHN HAMERNICK

175 Moss Ridge Drive Pineville, Louisiana 71360

50a

GERARD W. ALWELL

107 Prairie View Road Deville

Louisiana 71348

9th JUDICIAL DISTRICT COURT

PARISH OF RAPIDES

STATE OF LOUISIANA

5la

CIVIL DOCKET NUMBER 205,419

DIVISION F

9th JUDICIAL DISTRICT COURT PARISH OF

RAPIDES

STATE OF LOUISIANA

CHADWICK E. WELLS,

Plaintiff,

versus

CITY OF ALEXANDRIA ET AL,

Defendants.

ORDER

The above and foregoing Pettion for Damages

considered; It is hereby ORDERED that plaintiff is

hereby granted a Trial by jury upon posting security as

provided by law and the Rules of this Court.

THUS DONE AND SIGNED this 15th day of August,

2001, at Alexandria, Rapider Parish, Louisiana.

JUDGE

NINTH JUDICIAL DISTRICT COURT

52a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

ALEXANDRIA DIVISION

CIVIL ACTION NO. CV01-1686-A

JUDGE F. A. LITTLE, JR.

MAGISTRATE JUDGE KIRK

LIST OF EXHIBITS

A. Deposition of Chadwick E. Wells **

Deposition of W. Gerard Alwell **

Deposition of R. John Hamernick, Jr.**

Deposition of Darren Keith Sigur**

Deposition of Lannis William Day**

Deposition of Jerry Sampract **

Deposition of Keith Wendell White**

Deposition of David A. Reed**

Deposition of Larry McGuirt**

Deposition of Floyd McFarland**

Deposition of Sonny Craig**

Deposition of Pam Saurage**

Copy of subpoena and Louisiana Sate Police

nvestigation File

. (1-2) Job Descriptions of Operator 1 and Operator 2

Memorandum from Pam Saurage dated

ovember 25, 1997*

Photographs (1-5) and Affidavit of Cecil Bunn

Control Room

Hot Well (2 pages)

Turbine Floor (2 pages)

Condenser

Defendant Alwell and son loading roofing

material

Q. Employer Report of Injury dated February 21,

2001 *

TPHONEYZSO*ZSSO ASM MORON

53a

R. Correspondence from Pam Saurage to Dr. David

Pope dated February 28, 2000*

S. (1-2) Certified office notes of Dr. David Pope

1. Certification and record of August 13, 2001

2. Certification and record of February 23, 2001

‘i Questionnaire of Dr. Pope changing limitations

dated August 16, 2000*

Source: Photographs taken by Cecil Bunn

(Affidavit of Cecil Bunn attached)

Source: Photographs taken by Jerry Sampract

“i Source: Deposition of Pam Saurage Exhibit -

Personnel record of Plaintiff

= Filed with original Memorandum only

Respectfully submitted:

BROUSSARD, BOLTON , HALCOMB & VIZZIER

DANIEL E. BROUSSARD, JR., #3510

P.O. Box 1311

912 Fifth Street

Alexandria, Louisiana 71399

(318) 487-4589

ATTORNEYS FOR PLAINTIFF

54a

Q WHERE ARE THEY BASED OUT OF?

A HOUSTON.

Q OKAY.AND ASI UNDERSTAND IT THIS IS

WHILE YOU WERE WORKING FOR 0.8.1. IS

WHEN YOU INJURED YOUR RIGHT KNEE; IS

THAT RIGHT?

A. THATIS CORRECT.

Q@ OKAY. WHO WAS YOUR SUPERVISOR IN -

FOR 0.8.1. WHILE YOU WORKED FOR THEM?

A DOMINICK GIOMETTA.

Q YOU WILL HAVE TO HELP ME ON THAT

ONE.

A I CAN'T HELP YOU ON THAT ONE.

Q OKAY.GIOMETTA?

A GIOMETTA IS HOW IT IS PRONOUNCED.

Q GIOMETTA, OKAY. ALL RIGHT, ANYBODY

ELSE FOR 0.8.1. THAT YOU CAN RECALL?

A HE WASTHE MAIN ONEI WORKED WITH.

Q HE WASTHE MAIN ONE. OKAY, DO YOU

KNOW WHAT TIME FRAME THAT YOU

WORKED FOR O.8.T.? WAS THAT JUST ONE OF

THOSE MANY FOLKS OR MANY COMPANIES?

A JUST ONE OF THE MANY COMPANIES.

Q OKAY.THEY HAPPENED TO HAVE

WORK, YOU WENT?

A THATISCORRECT.

Q@ OKAY.AND ASI UNDERSTAND IT YOU

INJURED YOUR KNEE IN ''97?

A THEBEST- YES.

* * *

Q ATORN,AC.L.?

A _YES, AND ANOTHER PROBLEM. YOU

WOULD HAVE TO LOOK AT THE MEDICAL.

ene Lee Eee ee

+A san

55a

Q HOW ABOUT THE KNEECAP, THE

MEDIAL MENISCUS, WAS THERE A PROBLEM

WITH THAT?

A YEAR, I BELIEVE THAT IS CORRECT.

Q OKAY. AND DOCTOR POPE WANTED TO

DO SURGERY TO FIX THOSE PROBLEMS AT

THE FIRST TIME YOU SAW HIM OR SHORTLY

THEREAFTER?

A THAT IS CORRECT.

Q OKAY. HOW LONG DID YOU WAIT TO

HAVE THAT SURGERY OF DID YOU HAVE IT

RIGHT AWAY?-

A NO, I WAITED.

Q OKAY. WHY DID YOU WAIT?

A BECAUSE I DIDN'T WANT MY LEG CUT

ON.

Q SURE. HAD YOU EVER HAD A SURGERY

BEFORE THE KNEE SURGERY, MR. WELLS?

A YES.

WHAT SURGERY WAS THAT?

APPENDIX.

OKAY. WAS THAT WHEN YOU WERE A

CHILD?

YES.

DID THEY RUPTURE OR DID THEY

ATCH THEM BEFORE THEY RUPTURED?

(NO VERBAL RESPONSE)

* * *

OO PAQAHPYP LAP

AND THEN YOU WOULD RETURN HOME

UNTIL THE NEXT JOB CAME ALONG?

A THAT IS CORRECT.

Q OKAY. COULD YOU TELL ME, IF YOU

RECALL, HOW MANY HITCHES YOU WENT ON

AFTER YOUR KNEE INJURY UNTIL YOU

STOPPED WORKING AS A MILLWRIGHT?

56a

NO, I DON'T RECALL EXACTLY WHEN.

OKAY. MORE THAN FIVE?

I DON'T--

NO TELLING. OKAY, WELL, AS I

UNDERSTAND IT YOU STARTED WORKING

FOR THE CITY OF ALEXANDRIA AS AN

OPERATOR SOMETIME IN '99; IS THAT RIGHT?

A I BELIEVE IT WAS '98.

Q '98. OKAY, AND WHY DID YOU START TO

WORK WITH THE CITY? WAS IT A JOB THAT

DIDN'T REQUIRE YOU AS MUCH PHYSICAL

STRAIN ON YOUR KNEE OR WHAT? WHAT WAS

THE REASON?

A NO TRAVELING.

Q NO TRAVELING. OKAY, WAS TRAVELING

HARD ON YOU?

OPO YS

A YES.

Q WHAT POSITION DID YOU START

WORKING FOR THE CITY AS?

A OPERATOR ONE.

Q OKAY. AND WHO WAS YOUR IMMEDIATE

SUPERVISOR?

A I BELIEVE IT WAS KEITH.

Q KEITH WHITE?

A YES.

* KK

Q OKAY. AND YOU DON'T REMEMBER IF

YOU MISSED ANY WORK?

A YOU WOULD HAVE TO CHECK THE

RECORDS.

Q THE RECORDS WOULD SHOW IT, OKAY.

ALL RIGHT, ITSAYS IN YOUR PETITION, AND I

WILL READ IT, IN PARAGRAPH TWENTY-TWO

ALL OF THE ABOVE ACTIONS, AND I'M TAKING

THAT TO REFER TO THE INCIDENTS WE JUST

a eE—eeEE—eEeEEeee ee

57a

TALKED ABOUT, OF DEFENDANT HAMERNICK

CAUSED PETITIONER TO REINJURY HIS KNEE

NECESSITATING HIS MISSING WORK AND

RECEIVING HIS WORK - RECEIVING

WORKERS' COMPENSATION BENEFITS. IT IS

MY UNDERSTANDING FROM THAT THAT MR.

HAMERNICK WAS THE ONE DIRECTING YOU

TO DO THESE THINGS WHICH EXACERBATED

YOUR KNEE PROBLEM; IS THAT RIGHT?

A NOT - NO. HE WAS NOT THE SOLE - HE

WAS NOT THE ONLY ONE.

Q OKAY. WHO WOULD HAVE BEEN

ANOTHER ONE?

A GERARD TOLD ME THAT HE WOULD

GIVE THE ORDERS TO JOHN ON SOME THINGS.

Q OKAY. AND MR. ALWELL TOLD YOU

THAT DIRECTLY?

A THAT IS CORRECT.

Q AND THEN YOU TOLD ME ABOUT THE

INCIDENTS WHERE YOU TALKED TO SONNY

CRAIG AND PAM SAURAGE. WAS THERE

ANOTHER - OR ANY OTHER INCIDENTS

WHERE YOU SPOKE TO EITHER SONNY OR

PAM?

A I DON'T RECALL EXACTLY WHEN ALL

THAT - I TALKED TO THEM A COUPLE OF

TIMES.

Q OKAY. WAS THERE EVER A TIME THAT

EITHER TALKING TO PAM OR TO SONNY THEY

TOLD YOU THAT THEY COULDN'T DO

ANYTHING?

A I DON'T RECAL_.

Q OKAY. BECAUSE EARLIER YOU TOLD ME

THAT WHEN YOU SPOKE TO PAM AND/OR

58a

SONNY, PAM TOLD YOU TO GO TO YOUR

THERAPY, THAT SHE WOULD TAKE CARE OF

IT?

A YES, THAT IS WHAT SHE GOT BACK TO

ME WITH.

Q OKAY. AND AS A RESULT OF THAT

MEETING YOU WERE ABLE TO GO TO YOUR

THERAPY AND YOU WERE NEVER DENIED

THE ABILITY TO GO BACK TO THERAPY

AFTER THAT DISCUSSION YOU HAD WITH PAM

AND SONNY; IS THAT RIGHT:

A THAT IS CORRECT.

Q OKAY. NOW, DO YOU REMEMBER

SPECIFICALLY EVER TALKING TO PAM OR

SONNY ABOUT STRIPPING AND WAXING THE

FLOORS, OR GETTING IN THE CONDENSER OR

GETTING IN THE HOT WELL CAUSING YOU

ADDITIONAL PROBLEMS?

A WHEN I FIRST COME BACK FROM THE

SURGERY I HAD BROUGHT THE DOCTOR'S

EXCUSE AND IT SAID LIGHT DUTY AND

GERARD TOLD ME I COULDN'T WORK, I HAD

TO GO BACK TO PAM. I WENT BACK TO PAM

AND I CONSULTED MR. DOWNS, TOOK A

DESCRIPTION OF MY - AJOB DESCRIPTION AS

AN OPERATOR TWO, WHICH IS MY PRIMARY

JOB. DOCTOR POPE RELEASED ME TO DO

OPERATOR TWO.

Q DID HE IMPOSE ANY RESTRICTIONS

LIKE - LIKE YOU ARE TALKING ABOUT

SQUATTING OR KNEELING?

A YES, THAT WAS ON THERE. YOU WOULD

HAVE TO LOOK AT THE DOCTOR'S EXCUSES.

59a

Q OKAY. THERE WASN'T ANY DISCUSSION

ABOUT YOU DOING NINETY PERCENT OF

YOUR JOB?

A YES. THAT IS WHAT HE RELEASED ME

TO DO WAS NINETY PERCENT AS AN

OPERATOR TWO.

Q OKAY. NINETY PERCENT OF OPERATOR

TWO. AND HOW DID YOU TAKE THAT TO

MEAN?

A I CONSULTED WITH MR. DOWNS ON

THAT AND HE SAID THAT WE--

MR. BROUSSARD:

WAIT, WE ARE GOING--

A OH, OKAY. YOU WOULD HAVE TO GET

WITH MR. DOWNS ON THAT.

Q WELL, I CAN'T, BECAUSE HE IS YOUR

LAWYER AND HE IS GOING TO CLAIM THE

PRIVILEGE.

A WELL, I - I CAN'T DISCLOSE THAT. HE IS

CLAIM - HE IS CLAIMING A PRIVILEGE TOO.

Q OKAY. WELL, THAT IS FINE. I WAS

HOPING WE WOULDN'T GET TO THE POINT OF

HAVING TO TALK TO JAM.

MR. BROUSSARD:

I ANTICIPATED THAT COMING UP AND IT JUST

- | DON'T KNOW. IT IS SOMETHING I HAVEN'T

HAD A CHANCE TO RESEARCH YET, BUT

DOWNS OBVIOUSLY MAY BE A FACT WITNESS

CONCERNING SOME CONTACTS WITH

* * *

STRIPPING AND WAXNG THE FLOOR WHERE

YOUR KNEE SWOLL UP; IS THAT RIGHT?

MR. BROUSSARD:

NO - YEAH, RIGHT.

BY MR. AUZENNE:

60a

Q WELL, I'M NOT TRYING TO TRICK YOU,

I'M TRYING TO MAKE SURE I'VE GOT THE

SEQUENCE RIGHT. AUGUST 11, 2000---

MR. BROUSSARD:

YEAH, THAT IS RIGHT.

BY MR. AUZENNE.

Q --AND THAT WAS FROM JOHN TO BARRY

TO YOU?

A THATISCORRECT. |

Q AND THAT WAS THE INCIDENT WHERE

YOU WERE WORKING OVERTIME AS AN

OPERATOR ONE; IS THAT RIGHT?

A THATISCORRECT.

Q OKAY. AND HOW ABOUT THIS OTHER

INCIDENT, FEBRUARY 8RD OF 2001 ABOUT

GETTING INTO THE HOT WELL, WHERE DID

THAT ORDER COME FROM?

A | WE WASN'T THROUGH WITH THAT ONE.

Q I'MSORRY?

A WE WASN'T THROUGH WITH THE OTHER

QUESTION. THERE'S THREE.

Q OKAY.SO HOW ABOUT THE SECOND

ONE?

A ANDBARRY AND JOHN -GERARD TOLD

ME HISSELF THAT HE GAVE JOHN THE

ORDER.

* * *

Q OKAY. BEFORE THE STRIPPING AND

WAXING IN AUGUST OF 2000 HAD THE ROOF

LEAK BEEN FIXED?

A I DON'T KNOW.

Q YOU DON'T KNOW- -

A I DON'T RECALL.

Q WELL, TELL ME THIS,--

6la

MR. BROUSSARD- |

YOUR QUESTION ASSUMES THERE WAS A

ROOF LEAK.

MR. AUZENNE:

OH, RIGHT. YOU ARE RIGHT, I'M SORRY. LET

ME BACK UP.

MR. BROUSSARD: YEAH. BY MR. AUZENNE:

Q WASTHERE A ROOF LEAK IN THE

PLANT PRIOR TO AUGUST 11, 2000 THAT

NECESSITATED THE FOLKS, THE ROOFERS,

ALERT, TO COME AND FIX THE ROOF?

A THERE WAS A ROOF LEAK.

Q OKAY. YOU KNEW ABOUT THAT? YOU

OBSERVED IT?

A _ I DIDN'T REALLY OBSERVE IT, THERE

WAS JUST WATER ON THE TURBINE FLOOR.

Q WATER ON THE TURBINE FLOOR. OKAY,

AND AT SOME POINT THERE WAS A ROOFING

JOB DONE AND THE ROOF - THE LEAK

STOPPED?

A YEAH, THEY PUT A NEW ROOF ON.

* * *

A _ HE SAID IT WAS GOING TO BE BAD ON

THE OPERATORS THAT HAD STUFF TO DO

WITH THE INVESTIGATION. THE STUFF THAT

WAS GOING ON, THAT IS ALL HE WOULD SAY.

Q OKAY. THAT WAS HIS EXACT WORDS TO

THE BEST OF YOUR MEMORY WAS THE STUFF

WAS GOING ON?

A THATIS- THAT IS TO THE BEST OF MY

MEMORY.

Q HEDIDN'TSAY ANYTHING ABOUT THE

ROOF?

A HESAID FOR THE STUFF THAT WAS

GOING ON.

62a

Q OKAY. AND WHAT WAS GOING ON, THE

ROOF INVESTIGATION?

A RIGHT.

Q OKAY. AND HE SAID THAT WAS YOU,

LANNIS AND FLOYD MCFARLAND?

A WE WAS ALL PRESENT WHEN HE SAID

THAT, YES.

Q AND THAT WAS IN THE CONTROL ROOM?

A THAT IS CORRECT.

Q OKAY. ALL RIGHT, WHAT OTHER

INCIDENT?

A BEFORE THAT LANNIS AND THEM SAID

GERARD HAD TOLD HIM IN THE WATER

PLANT. BUT YOU WOULD HAVE TO ASK

LANNIS WHAT ALL ACTUALLY WENT - TOOK

PLACE.

Q OKAY. SO LANNIS WAS THREATENED OR

TALKED TO BY GERARD?

A THAT IS CORRECT. ;

Q OKAY. I'M TALKING ABOUT YOU, MR.

WELLS. LANNIS AND ALL OF THEM, WE ARE

GOING TO GET INTO ALL OF THAT. I'M

TALKING ABOUT YOU PERSONALLY, AND YOU

JUST TOLD ME ABOUT

JOHN. WHAT OTHER INCIDENT?

A THE THREAT ABOUT GOING OVER THEIR

HEADS.

Q OKAY.SO THAT WAS THE THREAT

RELATED TO THE PHYSICAL THERAPY?

A THAT IS CORRECT.

Q OKAY. WHAT OTHER THREAT?

A OTHER - I DON'T KNOW IF YOU

CONSIDER IT A THREAT, BUT IT WAS JUST

SOMETHING I DIDN'T AGREE WITH.

Q OKAY. WHAT WAS THAT?

63a

A THAT WAS WHEN JOHN ASKED ME

WHEN I HAD MY SURGERY HOW COME I

DIDN'T SAY I HURT IT UP THERE.

Q I'M SORRY, SAY THAT AGAIN.

A HE ASKED ME HOW COME I DIDN'T SAY I

HAD HURT IT THERE INSTEAD OF USING MY

VACATION, AND SICK TIME AND ALL THAT. I

JUST TOOK THAT AS SOMETHING THAT

WASN'T REAL GOOD. |

Q WELL, MAYBE I'M NOT

UNDERSTANDING YOU. HURT, HURT IT

THERE. WHEN YOU TOOK TIME OFF FOR YOUR

SURGERY?

A WHEN I HAD MY SURGERY HE ASKED

HOW COME I DID NOT MAKE A CLAIM AGAINST

THE CITY.

Q JOHN HAMERNICK TOLD YOU THAT?

A YES, ASKED IT.

Q AND THAT WAS WHEN YOU HAD YOUR

KNEE SURGERY?

A YES, WHEN I COME BACK..

Q OKAY_SO WHEN YOU RETURNED FROM

YOUR KNEE SURGERY. HOW LONG WERE YOU

OUT DURING YOUR KNEE SURGERY?

64a

Q. ALL RIGHT. TELL US, IF YOU COULD, A

LITTLE BIT ABOUT THE DUTIES OF AN

OPERATOR2? __

A. WELL, LIKE I SAID BEFORE, YOU HAVE

TO HAVE HIS JOB DESCRIPTION TO

UNDERSTAND WHAT THEY ARE. MY

INTERPRETATION OF AN OPERATOR 2 WHICH

I DON'T HAVE THE JOB DESCRIPTION IN

FRONT OF ME -- IS OPERATING THE FIRE

BOARD, CONTROL BOARD, THE SWITCHBOARD

PUTTING THE UNITS ON AND OFF LINE, AND

ANY AND ALL OTHER DUTIES ASSIGNED. YOU

HAVE TO TAKE READINGS, MONITOR ALL

YOUR EQUIPMENT.

Q. ALL RIGHT.WAS THERE EVER AN

OCCASION WHERE AN OPERATOR 2 HAD TO

PERFORM CLEANING WORK IN THE HOT

WELL UNITS?

A. YES.

Q. WASTHAT A REGULAR PART OF THE

OPERATOR 2 JOB?

A. OPERATOR 2'S HAVE DONE IT BEFORE. I

AM ASSUMING THAT --WELL, I AM NOT GOING

TO SAY I ASSUME. I KNOW THAT WE ASSIST

MAINTENANCE. THAT IS PART OF A

MAINTENANCE FUNCTION I WOULD SAY.

Q. ALL RIGHT. ANDI AM ASSUMING THAT

WHEN THIS HOT WELL CLEANING WAS

PERFORMED, IT IS WHEN THE PLANT IS NOT

GENERATING ELECTRICITY; IS THAT RIGHT?

IT IS NOT RUNNING?

A. NORMALLY. ~

Q. IS THERE A DISTINCT DIFFERENCE

BETWEEN THE DUTIES OF AN OPERATOR 2

65a

WHEN THE PLANT IS RUNNING VERSUS

WHEN THE PLANT IS NOT RUNNING?

A. YES.

Q. WHAT ARE THEY?

A. HEIS BASICALLY CONFINED TO

CONTROL OF OPERATING EQUIPMENT,

OPERATING THE BOARD, TAKING HIS

READINGS, ADJUSTING VOLTAGE, THINGS OF

THAT NATURE.

Q. AND THAT IS WHEN THE PLANT IS

RUNNING?

A. YES.

Q. I AM NOT GOING TO ASSUME, BUT WHAT

CAN THE OPERATOR 2 DO WHEN THE PLANT

IS NOT RUNNING?

A. ASSISTMAINTENANCE. WE HAVE

ROUNDS WE HAVE TO MAKE EVERY HOUR TO

CHECK EQUIPMENT. THERE HAS BEEN

CLEANING THAT WE HAVE DONE, AND

PAINTING; JUST A VARIETY OF THINGS.

Q. WE TALKED A LITTLE BIT ABOUT THE

HOT WELL. HOW ABOUT THE CONDENSER

UNIT? IS THE CONDENSER UNIT

MAINTENANCE PERFORMED WHEN THE

PLANT IS NOT RUNNING BY OPERATOR 2'S?

A. I GUESS THAT WOULD DEPEND ON

WHAT IS GOING ON. IF IT IS AN EMERGENCY

AND I GUESS YOU NEED CREWS; THEN YOU

WOULD USE WHOEVER IS AT HAND.

Q. ALL RIGHT. INCLUDING OPERATOR 2'S?

A. IF NEED BE-.

Q. I UNDERSTAND THAT THE TUBES IN

THE CONDENSER UNIT ARE CHECKED FOR

LEAKS WITH AIR WHEN THE PLANT IS NOT

66a

RUNNING. IS THAT ALSO A FUNCTION OF AN

OPERATOR 2 IF NECESSARY?

A. ITCAN BE.

Q. HOW ABOUT STRIPPING AND WAXING A

FLOOR? IS THAT AN OPERATOR 2 JOB DUTY

WHEN THE PLANT IS NOT RUNNING?

A. ITCAN BE.

Q. HOW ABOUT OPERATOR US? IS THERE A

DISTINCT JOB DUTY

DIFFERENCE BETWEEN AN OPERATOR 2 AND

AN OPERATOR 1?

A. YES.

Q. WHAT IS THAT?

A. AN OPERATOR 1 DOESN'T HAVE ANY

FUNCTIONS IN THE CONTROL ROOM, WHERE

THEY OPERATE ANY EQUIPMENT IN THERE.

HIS JOB IS BASICALLY TO CLEAN, CHECK

MOTORS, CHECK OILS, TAKE READINGS, MAKE

ADJUSTMENTS WHEN HE IS TOLD, THINGS OF

THAT NATURE.

Q. AND A LOT OP THAT ACTIVITY TAKES

PLACE OUTSIDE CONTROL ROOM; IS THAT

CORRECT?

A. YES.

Q. ALL RIGHT. DO YOU RECALL AN

INCIDENT WHERE MR. CHAD WELLS

COMPLAINED THAT HIS KNEE WAS GIVING

HIM PROBLEMS AFTER WORKING IN THE HOT

WELL UNIT?

A. YES.

Q. ALL RIGHT. COULD YOU TELL US WHAT

YOU RECALL ABOUT THAT?

A. WHATIRECALL ABOUT THAT IS CHAD

AND LANNIS WAS DOWNSTAIRS WORKING IN

THE CONDENSER, AND HE COMPLAINED

67a

SEVERAL TIMES ABOUT HIS KNEE GIVING

HIM PROBLEMS. HE CAME BACK UPSTAIRS

WHEN WE FINISHED THE JOB A COUPLE OF

TIMES AND SHOWED ME THAT HIS KNEE WAS

SWOLLEN, AND HE SAID THAT IT WAS

HURTING HIM.

Q. ALL RIGHT. ANYTHING ELSE ABOUT

THE HOT WELL INCIDENT THAT MR. WELLS

EITHER TOLD YOU ABOUT OR YOU LEARNED

ABOUT THAT YOU CAN RECALL?

A. IDON'T KNOW WHAT YOU ARE

REFERRING TO.

Q. THE INCIDENT ABOUT HIM SHOWING

HISKNEETO YOU. WASTHATA

ONE-TIME EVENT, OR DID THAT HAPPEN

MORE THAN ONCE?

A. IF IAM NOT MISTAKEN, I THINK IT WAS

TWICE.

Q. ALL RIGHT.

BUT I COULD BE MISTAKEN OF THE AMOUNT

OF TIMES. I AM ALMOST SURE IT WAS TWO

TIMES.

Q. ALL RIGHT. AT THAT TIME DID YOU

REPORT THE CONDITION OF MR. WELLS OR

HIS COMPLAINTS TO ANYONE?

A. YEAH. I THINK WE DID AN INJURY REPORT

ONE TIME, AND I TALKED WITH JOHN ABOUT

IT, ANDI TOLD HIM.

Q. JOHN HAMERNICK?

A. JOHN HAMERNICK.

Q. ALL RIGHT. AND DO YOU RECALL WHAT

MR. HAMERNICK SAID OR DID IN RESPONSE

TO YOU —-

68a

HE TOLD ME TO MAKE SURE THAT I DID THE

INJURY REPORT. AND YOU FILLED THAT

OUT?

A. YES.

Q. AND IAM ASSUMING THAT IS THE

EMPLOYER REPORT OF INJURY FORM FOR

WORKER'S COMP?

A. YES.

Q. WAS THAT IN RESPONSE TO ONE OF THE

COMPLAINTS MR. WELLS MADE TO YOU, OR

BOTH OF THEM?

A. ONE.

Q. WAS THERE ANOTHER COMPLAINT

MADE BY MR. WELLS?

A. YEAH .I KNOW HE SHOWED ME THAT

THE KNEE WAS SWOLLEN, BUT WE DIDN'T DO

AN INJURY ON THAT ONE.

THAT BUFFER; AND IF I AM NOT MISTAKEN,

HE SAID SOMETHING ABOUT THE HOT WELL --

I MEAN THE CONDENSER.

Q. WAS THIS BEFORE OR AFTER THE

INCIDENTS WHERE HE WORKED ON THE

CONDENSER OR WAXED THE FLOOR?

A. BEFORE.

Q. DID YOU REPORT MR. WELLS' I GUESS

LACK OF ABILITY TO ANYONE WHEN HE

TOLD YOU?

A. MY SUPERVISORS.

Q. AND THAT WOULD HAVE BEEN MR.

ALWELL AND MR. HAMERNICK? A. YES.

Q: | ALL RIGHT. WHAT DID YOU TELL MR.

ALWELL AND MR. HAMERNICK?

A. IWENT TO THE OFFICE, ANDI TOLD

THEM THAT CHAD INFORMED ME THAT HE

HAD LIMITED DISABILITIES AND THAT THEY -

—————e

69a

- IF 1 AM NOT MISTAKEN, ONE OF THEM TOLD

ME THEY HAD TALKED TO MR. SONNY CRAIG,

THE UTILITY DIRECTOR, AND THEY SAID

THEY WERE INFORMED THAT IF HE

COULDN'T PERFORM THE DUTIES, THEN HE

HAD TO GO HOME. THEN I INFORMED MR.

WELLS, I THINK, AT THAT TIME, AND TOLD

HIM THAT WAS THE GUIDELINES WE HAD TO

FOLLOW.

Q. WASTHERE EVER AN OCCASION, MR.

SIGUR, THAT YOU KNOW ABOUT WHERE MR.

WELLS I GUESS MADE A COMPLAINT 7

DIRECTLY TO MR. SONNY CRAIG ABOUT NOT

BEING ABLE TO DO PART OF HIS JOB?

A. THERE AGAIN, HE TOLD ME THAT HE

DID. LIKE I SAY, THAT WOULD bE FROM WHAT

HE TOLD ME.

Q. DOYOU REMEMBER WHAT HE SAID?

A. NOTSPECIFICALLY, BUT HE TOLD ME

THAT HE DID TALK TO MR.

* * *

MR. WELLS THAT YOU RECALL?

A. DIDIWRITE IT DOWN ANYWHERE?

Q. YES,SIR.

A. NO.

Q. JUST THAT ONE EMPLOYER REPORT OF

INJURY THAT YOU TOLD US ABOUT?

A. THATICAN RECALL.

Q. ALL RIGHT. MR. SIGUR, ARE YOU AWARE

OF THE CITY'S RETURN TO WORK POLICY

AFTER AN EMPLOYEE IS INJURED?

A. YES. YOU HAVE TO BE 90 PERCENT --

HAVE TO BE ABLE TO DO 90 PERCENT OF

YOUR JOB.

Q. AND WHAT DOES THAT MEAN TO YOU?

70a

A. YOU HAVE TOBE ABLE TO DO 90

PERCENT OF YOUR JOB.

Q. ALL RIGHT. AND OF COURSE A DOCTOR

HAS TO SPECIFY THAT? A. YES. [

Q. MR. WELLS, AFTER HE HAD HIS KNEE

SURGERY, WAS ABLE TO RETURN TO WORK,

AND I AM ASSUMING SOMEBODY SAID, "YOU

CAN DO 90 PERCENT OF YOUR JOB?"

A. 1AM ASSUMING SOMEBODY DID.

Q. DID MR. WELLS EVER DISCUSS WITH

YOU ANY LIMITATIONS THAT HIS DOCTOR

IMPOSED?

A. BENDING, STOOPING, NO CRAWLING

AROUND ON HIS KNEES, NO LONG STANDING.

Q. ANYTHING ELSE?

A. NOTTHATICAN RECALL.

* * *

OCCUR ON YOUR SHIFT, OR WAS WELLS

REPORTING TO YOU WHAT HAD OCCURRED

ON ANOTHER SHIFT?

A. NO. I THINK ON MY SHIFT.

Q. AND WHO DID YOU SPEAK WITH THAT

ABOUT?

A. I THINK IT WAS GEROD.

Q. WHAT DID YOU TELL HIM?

A. I TOLD HIM WHAT CHAD HAD TOLD ME,

THAT THE BUFFER WAS CAUSING PROBLEMS

WITH HIS LEG.

Q. WHAT DID GEROD SAY?

A. I THINK THERE AGAIN HE TOLD ME

THAT IF HE COULDN'T PERFORM HIS DUTY

DUTIES, HE COULD ALWAYS GO HOME.

Q. THAT STATEMENT CAN BE TAKEN A LOT

OF DIFFERENT WAYS. IF I COME TO YOU AND

Tla

SAY, "LOOK, I GOT IN ACAR WRECK

YESTERDAY. I THOUGHT I COULD GET MY JOB

DONE, BUT IT IS KILLING ME." ARE YOU GOING

TO TELL ME, "IF YOU CAN'T DO YOUR WORK,

GO HOME?"

A. IF YOU ARE ASKING ME A

HYPOTHETICAL QUESTION, I AM NOT GOING

TO ANSWER THAT ONE.

Q. HAS ANYBODY EVER COME TO YOU AND

SAID, "I CAN'T DO MY WORK DO DAY BECAUSE

OF" -- FILL IN THE BLANK -- ULCERS, BAD

TCES, SOME KIND OF PHYSICAL AILMENT?

A. NOT THATICAN RECALL.

Q. WHAT WAS PREVENTING CHAD FROM

GOING HOME IF HE COULDN'T DO THE WORK?

A. THERE AGAIN, I DON'T KNOW.

Q. THE MANNER IN WHICH THE

STATEMENT APPARENTLY WAS MADE, "IF

* * *

A. YES, UNLESS YOU NEED TO TAKE

CORRECTIVE ACTION OUTSIDE THE CONTROL

ROOM. LIKE I SAID, WITH ANOTHER

OPERATOR 2 THERE OR ANOTHER SENIOR

OPERATOR WOULD BE THE ONLY WAY YOU

WOULD BE ABLE TO LEAVE.

Q. WHEN THE PLANT IS RUNNING, HAVE

YOU EVER -- HOW LONG HAVE YOU WORKED

OUT THERE?

A. SINCE NOVEMBER OF '82.

Q. DURING YOUR TIME, HAVE YOU EVER

WHILE THE PLANT WAS RUNNING HAD AN

OPERATOR CALLED IN FROM THEIR DAY OFF

TO STRIP AND WAX THE FLOOR?

A. . HAVEIHAD ONE TO CALL IN --

Q. HAVE YOU EVER SEEN THAT HAPPEN?

72a

CALLED IN TO SPECIFICALLY DO THAT?

YES.

NO, NOT THAT I REMEMBER.

MR. ALWELL OR JOHN, DID YOU EVER

HAS EVER EITHER ONE OF THEM REQUEST

THAT YOU SPECIFICALLY ASSIGN DUTIES TO

MR. WELLS?

A YES.

Q. WHAT WERE THE DUTIES THAT THEY

WANTED YOU TO SPECIFICALLY ASSIGN -- OR

WHO WAS IT, AND WHAT WERE THE DUTIES?

A. THERE AGAIN, I DON'T REMEMBER

SPECIFICALLY WHAT IT WAS, BUT I KNOW I

HAVE HAD CONVERSATION WITH THEM, AND

THERE AGAIN IT WENT BACK TO THE KNEE

ISSUE, THAT HE HAD TO BE ABLE TO DO HIS

JOB.

Q. DO YOU RECALL IF THAT HAD TO DO

WITH CLEANING THE CONDENSER, OR THE

HOT WELL, OR STRIPPING AND WAXING, ANY

OF THOSE THREE?

OPop>

* * *

A. I AM SURE ONE OF THOSE PROBABLY.

Q. YOU THERE WAS SOMETHING TO DO

WITH THE KNEE INCIDENT. I WANT TO BE

SURE YOU UNDERSTAND ME. I AM ASKING

IF EITHER GEROD OR JOHN TOLD YOU

TOASSIGN CHAD TO A SPECIFIC DUTY IN ONE

OF THOSE THREE CATEGORIES THAT WE

HAVE TALKED ABOUT?

A. TLKNOW THE CONDENSER.

Q. AND THIS WAS AFTER HIS SURGERY?

A. YES.

Q. DID THEY TELL YOU WHY THEY

WANTED HIM TO DO IT?

73a

A. THEY SAID WE NEEDED T0 GET IT

DONE.

Q. AND THEY SPECIFICALLY TOLD YOU TO

USE HIM?

A. IONLY HAD TWO OPERATORS ON MY

SHIFT, AND IT WAS LANNIS DAY AND CHAD

WELLS.

Q. IUNDERSTAND, BUT DID THEY

SPECIFICALLY MENTION CHAD BY NAME,

THAT THEY WANTED HIM TO DO IT?

A. YES.

Q. WHEN YOU WERE AN OPERATOR, DID

YOU EVER CLEAN THE HOT WELL?

A. TOBE HONEST WITH YOU, DAN, I DON'T

THINK I EVER DID.

Q. HOWLONG HAVE YOU BEEN IN THE

UNION?

A. HOWLONG HAVEIBEEN INTHE

UNION?

Q. YES. ,

A. PROBABLY SINCE NOVEMBER, OF '82.

Q. ALL RIGHT. HAVE YOU EVER HAD THE

QUESTION COME UP WHERE AN EMPLOYEE

WAS TOLD, "IF YOU CAN'T DO YOUR JOB, GO

HOME, "WHILE YOU WERE IN THE UNION?

* * X*

A. HAVEIEVER HAD THAT?

Q. YES, WHERE AN EMPLOYEE WAS TOLD,

"IF YOU CAN'T DO YOUR JOB, GO HOME?"

A. IHAVE NEVER HANDLED A GRIEVANCE

LIKE THAT, NO.

Q. IN YOUR EXPERIENCE IN HANDLING

UNION GRIEVANCES AND ALSO AS A

SUPERVISOR., WHAT DOES THAT MEAN TO

74a

YOU WHEN THAT STATEMENT IS MADE, "IF

YOU CAN'T DO THE JOB, GO HOME?"

A. IF HE CAN'T PERFORM THE WORK, THEN

HE HAS A CHOICE TO GO HOME OR DO THE

WORK.

Q. ARE WE TALKING ABOUT TAKE LEAVE

AND GO HOME, OR ARE WE TALKING ABOUT --

A. YES. YOU WOULD HAVE TO TAKE YOUR

PERSONAL TIME.

Q. SO YOU WOULDN'T RECEIVE PAY WHILE

YOU WERE AT HOME?

A. IF YOU CHOSE NOT TO USE YOUR

PERSONAL TIME.

Q. WERE YOU AWARE OF THE

RESTRICTIONS THAT HE HAD AFTER HE

CAME BACK FROM SURGERY?

A. YES.IT HAVE ALREADY ANSWERED

THAT ONE.

Q. WAS JOHN AND GEROD AWARE OF

THOSE RESTRICTIONS?

A. YES.TO MY KNOWLEDGE, YES.

Q. DID YOU EVER SEE HIS LEG SWOLLEN?

A. YES.

— Q. I THINK THINK YOU SAID YOU FILLED

OUT AN ACCIDENT REPORT; IS THAT

CORRECT?

A. YES.

Q. ARE YOU AWARE OF HIM HAVING ANY

DIFFICULTY GOING TO PHYSICAL

* * OX

A. AFTER CHAD HAD THE SURGERY, CHAD

AND LANNIS DAY DID IT, AND I WOULD

RELIEVE. LIKE I SAID, I[HAAVE BEEN DOWN

THERE BEFORE AND WATCHED THE DOOR

WHEN MAINTENANCE HAS DONE IT.

75a

Q. YOU SAY YOU WORKED RELIEF. FOR

CHAD, FOR LANNIS OR WHO?

A. WHOEVER NEEDED IT AT THE TIME.

Q. DID IT APPEAR THAT THAT KIND OF

WORK IN THE CONDENSER WOULD PLAY

SOME SORT OF PART ON THE KNEE?

A. YES. YOU HAVE, TO CROUCH IN THERE,

AND GET IN THERE, AND FIT IN THERE THE

BEST WAY YOU CAN TO GET TO THE TUBES

YOU NEED TO GET TO.

Q. IT IS PRETTY CONGESTED AND TIGHT?

A. YES.

Q. HOW WOULD YOU DESCRIBE THE

RELATIONSHIP BETWEEN CHAD AND GEROD

? I WILL TAKE HIM FIRST, AND THEN I

WILL TAKE JOHN SECOND?

A. AT WHAT POINT IN TIME?

Q. FROM THE TIME HE HAD HIS SURGERY

UNTIL HE LEFT. AND THIS IS BASED ON YOUR

OWN OBSERVATION .

A. IWOULD SAY STRAINED, NOT VERY

GOOD.

Q. AND WHAT EVENTS WOULD HAPPEN

THAT BROUGHT YOU TO THAT CONCLUSION?

A. ITWASJUST CONTROVERSY ABOUT

DIFFERENT THINGS.

Q. WHAT ABOUT CHAD AND JOHN? HOW

DID THEY GET ALONG?

A. ABOUT THE SAME.

Q. DID YOU EVER SEE CHAD AND JOHN

EXCHANGE WORDS?

A. YES.

* * *

I REMEMBER HOW LONG CHAD HAS BEEN

GONE.

76a

Q. IF I TOLD YOU HE LEFT THE CITY IN

APRIL OF 2001 -- LET'S START WITH 2001

A. WE WAS WORKING TOGETHER WHEN

HE LEFT, [F THAT WILL HELP YOU.

Q. THAT WILL. WHO WAS YOUR SHIFT

SUPERVISOR?

A. I WAS WORKING IN WATER

TREATMENT, AND BARRY TYLER WAS THE

SHIFT SUPERVISOR.

Q. ALL RIGHT. NOW, DO YOU

UNDERSTAND THAT MR. WELLS HAS FILED

A LAWSUIT AGAINST THE CITY?

A. YES, I UNDERSTAND.

Q. I AM NOT TRYING TO I GUESS IMPLANT

ANYTHING IN YOUR MIND. JUST TELL ME IN

YOUR WORDS WHAT YOU UNDERSTAND THE

SUIT IS ABOUT?

A. I UNDERSTAND THAT CHAD CAME

BACK TO WORK AFTER SURGERY, AND HE

HAD TO DO JOB DUTIES THAT HURT HIS LEG.

THAT IS WHAT I HEARD ABOUT IT.

Q. ALL RIGHT. IS THERE ANYTHING ELSE

ABOUT THE SUIT THAT YOU KNOW OF?

A. NO.NOT REALLY.

Q. ALL RIGHT. DO YOU KNOW WHAT JOB

DUTIES SPECIFICALLY HURT MR. WELLS'

LEG?

77a

A. WELL, WE CLEANED OUT THE HOT

WELL, AND WORKED IN THE CONDENSER,

AND ALSO MOPPING AND WAXING FLOORS.

Q. YOU SAID "WE". DOES THAT MEAN YOU

DID THAT WORK AS WELL? A. YES.

* * *

CHECKING THE TUBES. SO ONE WOULD BE ON

ONE SIDE, AND ONE WOULD BE THE OTHER

SIDE. YOU HAVE GOT TO KEEP UP WITH WHAT

TUBE YOU WERE ON, WHICH IS NOT HARD TO

DO. ONE HAS A GAUGE AND PUTS AIR IN, AND

YOU SEE HOW LOW LONG IT HOLDS. IF IT

HOLDS AIR, IT IS NOT LEAKING. IT IS A BASIC

CHECK.

Q. AND YOU AND MR. WELLS DID THAT AT

SOME POINT AFTER HIS SURGERY?

A. RIGHT.

Q. AND DID MR. WELLS COMPLAIN TO YOU

ABOUT PROBLEMS RELATED TO THAT JOB?

A. YES. THAT IS ANOTHER JOB THAT' IS

CONFINED WHERE YOU CAN'T STAND UP. IT

IS AN AWKWARD PLACE TO WORK AT.

Q. I MAY BE CONFUSED, BUT I WAS UNDER

THE IMPRESSION THAT IN THE CONDENSER

USE, ON ONE SIDE A MAN CAN STAND UP

FULLY, BUT ON THE OTHER SIDE IT TS SHORT.

IS THAT RIGHT, OR AM I THINKING OF THE

HOT WELL?

78a

A. ONE SIDE IS DIFFERENT THAN THE

OTHER. I CAN'T REMEMBER WHICH ONE

WHETHER IT IS THE RIGHT OR THE LEFT. ON

ONE SIDE YOU HAVE MORE ROOM, BUT ON

EITHER SIDE IT IS NOT REALLY EASY.

Q. AND SPECIFICALLY WHAT DID MR. WELLS

SAY ABOUT PROBLEMS RELATED TO DOING

WORK IN THE CONDENSER UNIT?

A. WELL, HE HAD THE SAME PROBLEM

WITH HIS KNEE.

Q. KNEELING DOWN?

A. ONHISKNEE.

Q. COULDN'T KNEEL DOWN, ALL RIGHT.

HOW ABOUT MOPPING AND

* * *

Q. ALL RIGHT. AND YOUR SHIFT

SUPERVISOR WAS WHO?

A.. HIS WAS BARRY TYLER. I WAS WORKING

IN WATER TREATMENT, BUT’

YOU HAVE GOT TO REALIZE IT IS ALL IN THE

SAME AREA.

Q. ALL RIGTH. WHAT DID YOU SEE?

A. HE WAS WAXING THE FLOOR.

Q. "HE BEING MR. WELLS’,

A. RIGHT.

Q. DID MR. WELLS SAY ANYTHING TO YOU

ABOUT WHILE HE WAS WAXING THE FLOOR

ABOUT HAVING PROBLEMS WITH IT?

A. YEAH, IHEARD THERE WAS A RUCKUS

ABOUT IT. I THINK THEY CALLED CITY HALL.

Q. WHODID?

A. MR.WELLS.

Q. ALL RIGHT. DO YOU KNOW WHAT

HAPPENED AFTER THE CALL TO CITY HALL?

79a

A. MY UNDERSTANDING IS THEY TOLD HIM

EITHER DO THE JOB OR GO HOME.

Q. ALL RIGHT. AND WHAT DID THAT MEAN

TO YOU?

A. THAT HE HAD TO CONTINUE DOING THE

FLOOR OR GO HOME.

Q. NOT THAT HE WAS TERMINATED, BUT

THAT HE WOULD HAVE TO GO HOME?

A. RIGHT.

Q. WAS MR. WELLS WORKING OVERTIME

THAT DAY WHEN HE STRIPPED AND WAXED

THE FLOOR, OR DO YOU KNOW?

A. HE WAS WORKING OVERTIME. HE WAS

OILING THAT DAY.

* * *

YOU HAVE GOT TO UNDERSTAND, MR.

BROUSSARD, THAT IS MOSTLY HEARSAY. I

WAS NOT IN THE OFFICE AND DIDN'T

OVERHEAR IT.

Q. WHAT JOB ARE WE TALKING ABOUT?

A. THAT WAS -- THE THING I WAS

REFERRING TO WAS ON THE FRIDAY WHEN

THEY HAD HIM WAXING THE FLOOR.

Q. ALL RIGHT. NOW , THAT WAS AFTER HIS

SURGERY; IS THAT RIGHT? A. RIGHT.

Q. AND THE PLANT WAS RUNNING AT

THAT TIME?

A. YES,SIR.

Q. IS THAT NORMAL POLICY, TO HAVE AN

OPERATOR STRIP AND WAX THE FLOOR

WHILE THE PLANT IS RUNNING?

A. NO, SIR. IHAD NEVER SEEN IT DONE

BEFORE.

80a

Q. DID YOU TALK TO BARRY TYLER AFTER

THAT INCIDENT ABOUT CHAD BEING

ASSIGNED THAT DUTY?

A. WEHADA DISCUSSION ABOUT IT.

Q. AND WHAT WAS THE NATURE OF THAT

DISCUSSION?

A. I TOLD HIM I FIGURED THAT THE OILER

SHOULD BE DOING THE OILER'S JOB WHEN

WE WERE RUNNING.

Q. WHAT DO YOU MEAN BY THAT?

A. HE WASSUPPOSED TO BE DOING THE

OILER'S WORK, WHICH THAT IS CHECKING

THAT ALL THE EQUIPMENT IS RUNNING, AND

DOING HIS ROUNDS AND WHATEVER, NOT

MOPPING AND WAXING THE FLOOR.

Q. DO YOU KNOW WHO ASSIGNED HIM TO

MOP AND WAX THE FLOOR?

A. NO,IDON'T.

Q. DID CHAD EVER TELL YOU WHO

ASSIGNED HIM TO DO IT?

Q. DID YOU EVER HEAR JOHN SAY TO

EITHER YOU OR IN GEROD'S PRESENCE THAT

THEY WERE GO ING TO GET EVEN WITH THE

OPERATORS FOR THE INVESTIGATION?

A. I THINK ONE DAY UP THERE

MCFARLAND AND MYSELF WAS IN THE ,

CONTROL ROOM WITH CHAD -- I DIDN'T EVEN

KNOW WHAT WAS GOING ON. I TOLD

JOHN I DIDN'T KNOW WHAT WAS GOING ON. I

HONESTLY DIDN'T KNOW. AND THERE WAS

WAS GOING TO BE A TRICKLE DOWN EFFECT.

MR. CALVIT: WHOIS "HE"?

THE WITNESS: JOHN HAMERNICK.

BY MR. BROUSSARD:

8la

Q. HESAID THERE WASGOING TOBE A

TRICKLE DOWN EFFECT?

A. |YEAH.GEROD ASKED ME ONE TIME --

BEING YOU BROUGHT THAT UP -- ABOUT

THAT, AND I TOLD HIMI DIDN'T KNOW A

THING ABOUT IT. GEROD KNOWS HOW I AM. I

DON'T TAKE MUCH FROM NOBODY, AND HE

KNOWS. I WILL TELL YOU THE TRUTH

STRAIGHT UP. I TOLD GEROD," I DON' TKNOW

ANYTHING ABOUT IT, I HAD NOTHING To DO

WITH THIS AND DON'T KNOW WHAT YOU ARE

TALKING ABOUT." THEN WE WERE

INTERRUPTED BY ROY BELLAMY THAT

AFTERNOON AFTER JUST A FEW WORDS SAID.

Q. WHAT ABOUT WHEN YOU HAD THIS

CONVERSATION WITH JOHN HAMERNICK?

WAS CHAD THERE?

A. YES, CHAD WAS THERE, AND FLOYD

MCFARLAND WAS THERE.

Q. AND YOURSELF?

A. AND MYSELF'IN THE CONTROL ROOM.

Q. AND WHATIS YOUR RECOLLECTION OF

WHAT TOOK PLACE IN THAT CONVERSATION?

A. WELL,I DIDN'T UNDERSTAND WHAT

WAS GOING ON BECAUSE I DIDN'T KNOW

ANYTHING ABOUT IT.

Q. IUNDERSTAND.

A. ANDITOLD JOHN I DIDN'T KNOW WHAT

HE WAS TALKING ABOUT. HE SAID, "WELL,

WHOEVER IS INVOLVED IN IT, THERE IS

GOING TO BE A TRICKLE DOWN EFFECT, "

WHATEVER THAT MEANS, AND THAT IS

ABOUT ALL THAT WAS SAID

82a

Q. DID HE SPECIFICALLY SAY THAT HE

WAS GOING TO GET EVEN WITH THE

OPERATORS?

A. WELL, I ASSUMED THAT IS WHAT HE

MEANT.

Q. THAT WAS THE DISCUSSION ABOUT THE

INVESTIGATION?

A. YEAH.I DIDN'T KNOW ANYTHING ABOUT

IT. 1 WAS IN THE DARK.

Q. NOBODY HAD EVER TOLD YOU --

MR. BROUSSARD: STACEY, HAND HIM THAT

FIRST PICTURE.

MR. AUZENNE: (HANDING) BY MR.

BROUSSARD:

HAVE YOU EVER SEEN THESE PICTURES

BEFORE TODAY? I HAVE MARKED THEM AT

NUMBER 1.

A. (WITNESS EXAMINED EXHIBIT) NO, I

HAVEN'T SEEN THEM.

Q. HAVE YOU HEARD ABOUT THEM?

A. I HEARD ABOUT THE PICTURES.

Q. BUT THIS IS THE FIRST TIME YOU HAVE

EVER SEEN THEM?

A. I THINK THIS IS THE FIRST TIME I HAVE

SEEN THE PICTURES.

A. IWOULDN'T THNK SO, YES. THERE

SHOULD BE.

Q. AND SO THAT IS PART OF THE PROCESS,

AS YOU UNDERSTAND IT, IN COMING BACK

FROM SOME KIND OF PHYSICAL PROBLEM?

A. RIGHT. IT WAS COMMON KNOWLEDGE

THAT HE HAD KNEE SURGERY.

Q. SO YOU ARE MAKING AN ASSUMPTION

THAT GEROD AND JOHN HAD SOME

rine

83a

PAPERWORK DEALING WITH CHAD'S

PROBLEM?

A. IKNEW THEY HAD KNOWLEDGE THAT

HE HAD KNEE SURGERY.

Q. AND SO UNDER THE NORMAL PROCESS,

SOMETHING SHOULD HAVE COME ACROSS

JOHN AND GEROD'S DESK CONCERNING

CHAD?

A. RIGHT.

Q. BUT AS FAR AS _ SPECIFICALLY

KNOWING RETURN TO WORK SHEETS AND

WHAT GEROD KNEW OR DIDN'T KNOW, YOU

DON'T HAVE ANY KNOWLEDGE ABOUT THE

SPECIFICS?

A. NO,I DIDN'T READ NOTHING ABOUT

THAT.

Q. ALL RIGHT. THEN LET'S GO TO PAGE 7

NOW.

A. (WITNESS COMPLIED)

Q. I THINK: THAT WHEN MR. BROUSSARD

WAS QUESTIONING YOU ABOUT DISCUSSIONS

~ WITH GEROD, YOU ENDED UP MENTIONING

THIS CONVERSATION. IS THIS THE ONE YOU

WERE REFERRING TO WHEN YOU SPOKE

WITH MR. BROUSSARD?

A. RIGHT.GEROD ASKED ME -- HE DIDN'T

TELL ME WHAT IT WAS ABOUT. HE SAID

THERE WAS SOME KIND OF INVESTIGATION,

AND I TOLD GEROD I DIDN'T KNOW ANYTHING

ABOUT IT. I DIDN'T THINK HE BELIEVED ME,

BUT I DIDN'T. THEN JOHN ASKED ME LATER,

AND THAT IS WHEN WE WERE IN THE

CONTROL ROOM RIGHT THERE.

A. WELL, YOU JUST DID WHATEVER THEY

TOLD YOU TO DO.

84a

Q. ALL RIGHT. DO YOU RECALL

SPECIFICALLY HAVING TO CLEAN THAT

TURBINE FLOOR WHILE THE PLANT WAS

RUNNING?

A. YES,I HAVE.

Q. DID YOU DO THAT AS AN OPERATOR 2?

A. YES.

Q. ALL RIGHT. LET ME TURN YOUR

ATTENTION TO WHEN MR. WELLS WAS

WORKING FOR THE CITY, MR. SAMPRACT. DO

YOU RECALL -- ANDI AM NOT SURE OF THE

DATES - YOU MAY HAVE ALREADY BEEN

RETIRED, BUTI AM GOING TO GO AHEAD AND

ASK YOU ANYWAY . DO YOU RECALL ANY

INCIDENTS INVOLVING MR. WELLS

COMPLAINING OF KNEE PAIN RELATED TO

HIM HAVING TO GO INTO THE CONDENSER

UNITS OR HOT WELL UNITS?

A. YES, HE DID. |

Q. COULD YOU TELL US WHAT HE TOLD :

YOU OR WHAT YOU LEARNED ABOUT THAT?

A. WELL, HE HAD HAD SURGERY OR

SOMETHING ON HIS KNEE, AND WHEN HE

CAME IN TO WORK ONE DAY, HE WAS TOLD

THAT HE HAD TO DO THE COMPLETE

BUFFING THE FLOORS, AND HIS KNEE -- HE |

WAS UNDER A DOCTOR'S CARE APPARENTLY

WHERE HE WASN'T SUPPOSED TO BE REALLY

DOING ANY STRENUOUS WORK ON THE KNEE.

HOWEVER, HE DID GO ON OUT AND DO AS HE

WAS TOLD, AND THE WORK AGGRAVATED

THE KNEE, AND HE CAME BACK IN AND

COMPLAINED ABOUT IT.

85a

Q. ALL RIGHT. DO YOU KNOW IF MR.

WELLS MISSED ANY WORK AS A RESULT OF

HIS PROBLEM?

A. I DO BELIEVE HE DID.

WELLS AND MR. ALWELL?

A. IT WASN'T TOO GOOD BETWEEN THEM.

THEY DID.J'T HAVE THE BEST Or

RELATIONSHIP, I WOULD SAY.

Q. DO YOU KNOW OF ANY ONE EVENT

THAT MAY HAVE CAUSED THIS TENSION, OR

WAS THERE A SERIES OF EVENTS?

A. WELL, I REALLY COULDN'T SAY. I

WASN'T ASSIGNED TO A SHIFT WITH CHAD TO

KNOW ABOUT EVERYTHING THAT WENT ON.

MOST OF THE TIME IT WAS LIKE WHAT WAS

PASSED ON FROM THE NEXT OPERATOR THAT

TOLD YOU ABOUT -- YOU KNOW, RELIEVING

THE NEXT GUY AND HE WOULD TELL YOU

WHAT WENT ON THAT DAY, AND A LOT OF

TIMES YOU WOULD HEAR ABOUT THINGS

THAT HAD HAPPENED WITH HIM ON THE

SHIFT.

Q. DO YOU RECALL ANY SPECIFIC EVENTS

THAT HAPPENED EITHER BETWEEN MR.

ALWELL AND MR. WELLS OR MR. HAMERNICK

AND MR. WELLS THAT YOU THINK MAYBE

COULD HAVE FORMED THE BASIS FOR THIS

LAWSUIT?

A. I THINK THE BIGGEST ISSUE WAS WHEN

CHAD'S KNEE WAS MESSED UP, AND HE HAD

THERAPY. HE WAS ON SOME MEDICATION,

AND THEY HAD TOLD HIM NOT TO

APPARENTLY USE THAT -- PUT ANY WEIGHT

OR PRESSURE ON HIS KNEE. HOWEVER, THE

WAY THE CITY HAD ITS POLICIES, THEY

86a

DIDN'T HAVE ANY LIGHT DUTY POLICY SO

THAT HE EITHER WOULDN'T COME TO WORK -

- ACTUALLY HE WASN'T SUPPOSED TO COME

TO WORK -- OR YOU WOULD COME BACK AND

YOU WOULD BE ELIGIBLE TO DO WORK AT

YOUR FULL DUTY.

Q. SO IN OTHER WORDS, A MAN NEEDED TO BE

ABLE TO DO HIS FULL JOB BEFORE HE COULD

RETURN TO WORK? THAT IS GENERALLY THE

CITY'S

RIGHT.

Q. I HAVE HEARD SOMETHING THAT THE

CITY REQUIRED ALL EMPLOYEE BE ABLE TO

DO 90 PERCENT OF HIS JOB -IN ORDER TO

RETURN FROM AN INJURE. WAS THAT YOUR

UNDERSTANDING OF TT?

A. SOMEWHAT, YES.

Q. IHAVE HEARD ABOUT SEVERAL

INCIDENTS BETWEEN MR. WELLS AND

MR. ALWELL , ONE OF THEM INVOLVING A

POTATO. DID YOU KNOW ANYTHING ABOUT

THAT?

A. APOTATO?

Q. MR. WELLS GOING OUT AND PICKING UP

LUNCH AND NOT PICKING UP

MR. ALWELL'S POTATO? DID YOU KNOW

ANYTHING ABOUT THAT?

A. THEY HAD A LOT OF THAT GOING ON

AROUND THERE WHERE IF THEY DIDN'T GO

PICK UP HIS LUNCH, HE WOULD HAVE AN

ATTITUDE ABOUT IT; CHILDISH STUFF.

Q. HOW ABOUT THE NEWSPAPER; THAT

MR. WELLS WOULD THROW THE NEWSPAPER

AWAY, AND MR. ALWELL WOULD GET UPSET?

A. YES, THATIS TRUE.

87a

Q. THE OTHER ONE I HEARD ABOUT WAS

APPARENTLY INVOLVING MR. ALWELL AND

SOME ROOFING MATERIALS. DO YOU KNOW

ANYTHING ABOUT THAT?

A. THE ROOFING MATERIAL, I TOOK

PICTURES OF MR. ALWELL TAKING SOME

MATERIAL FROM THE ROOF ONE TIME.

Q. WOULD THOSE BE THE PICTURE?

(HANDING)

A. (WITNESS EXAMINED EXHIBITS) THOSE

WOULD BE THE PHOTOS

MATERIALS THAT WAS LEFT AT THE PLANT --

I AM TALKING ABOUT THE ELECTRICAL

PRODUCTION PLANT WHEN I SAY "PLANT"--

A. RIGHT.

Q. WOULD YOU TELL US ABOUT THAT?

A. WHAT DO YOU WANT TO KNOW?

Q. WELL, AS I UNDERSTAND IT, THERE

WERE SOME ALLEGATIONS THATMR. ALWELL

OR MR. HAMERNICKERNICK MAY HAVE BEEN

TAKING SOME OF THIS ROOFING MATERIAL

WITHOUT PERMISSION?

A. RIGHT.

Q. AS I UNDERSTAND IT, EITHER YOU, OR

MR. WELLS OR SOME COMBINATION

REPORTED THEIR ACTIONS TO THE STATE

POLICE?

A. RIGHT.

Q. DO YOU REMEMBER WHO YOU

REPORTED, IF IN FACT YOU REPORTED, THAT

PROBLEM TO?

A. THE NAME, NO.

Q. BUT YOU DID TALK TO SOMEBODY AT

STATE POLICE ABOUT THIS?

88a

A. YES.

Q. I ALSO UNCERSTAND THERE WERE

SOME PICTURES TAKEN OF MR. ALWELL I

BELIEVE TALKING SOME MATERIAL FROM

THE PLANT?

A. RIGHT.

Q. DO YOU REMEMBER WHO TOOK THOSE

PICTURES? A. (NO RESPONSE)

Q. WOULD JERRY SAMPRACT BE THE

PERSON?

A. I THINK IT WAS. HE MAY HAVE HAD HIS

DIGITAL CAMERA THERE. I DON'T KNOW, TO

TELL YOU THE TRUTH, THAT WE EVEN TOOK

THEM FOR

APOLOGIZE.

MR. BROUSSARD: YOU SAID THEFT.

MR. AUZENNE: ALL RIGHT. WELL, LET ME

SAY REMOVAL OF THE MATERIAL".

BY MR. BROUSSARD:

Q. DID YOU REPORT THIS REMOVAL TO

STATE POLICE ALONE, OR DID SOMEONE GO

WITH YOU?.

A. NO.SOMEBODY WENT WITH ME.

Q. WHO?

A. MEANDCHAD.

@. SO YOU ALL WENT TOGETHER? A. YES.

Q. DID YOU ALL DISCUSS THE INCIDENT

BEFORE YOU WENT TO STATE POLICE?

A. PROBABLY. WASN'T SURE, YOU KNOW IF

IT WAS -- WHAT IT WAS, HOW TO DOIT. YES, I

GUESS YOU WOULD SAY WE DISCUSSED IT.

Q. WOULD YOU TELL ME WHAT YOU

RECALL ABOUT THE DISCUSSION BETWEEN |

YOU AND MR. WELLS? :

——————

89a

A. THATIDON'T KNOW. I COULDN'T TELL

YOU WORD FOR WORD.

Q. JUSTGENERALLY?

A. YOU KNOW, IF IT WAS -- WHAT DO YOU

CALL IT --- 1 AM TRYING TO THINK OF THE

WORD ---

Q. PROPER PERHAPS?

A. NO, NOT PROPER. DID WE HAVE A CASE.

I CAN THINK OF THE WORD. CAN WE DO IT, TO

DO IT.."DO WE HAVE A CASE TO DOIT OR

YOU TOLD HIM? IF ISTART SUGGESTING

THINGS, YOU COULD SAY, "OH, YES, THAT IS

IT," AND I DON'T WANT TO DO THAT. I WANT TO

KNOW WHAT YOU REMEMBER ABOUT WHAT

YOU TOLD GEROD ABOUT YOUR ROLE IN THE

INVESTIGATION?

A. WELL, HE WAS MAD, BUTI TOLD HIM

WHY, AND I TOLD HIM --

Q. WELL, TELL ME WHY?

A. OVER AN INCIDENT, PRIOR TO THAT, HE

HAD MORE OR LESS GOT ME UP TO CITY HALL

OVER SOMETHING I THOUGHT WAS NOT

RIGHT. I MIGHT HAVE BEEN WRONG IN IT

MYSELF, BUT THE WAY IT WAS DONE, I

DIDN'T THINK 1T WAS RIGHT.

Q. DID YOU HARBOR A GRUDGE ABOUT

THAT?

A. DEFINITELY.I TOLD HIM THAT.

Q. AND THEN THIS STATE POLICE THING,

WHEN IT CAME UP, IN YOUR MIND DID IT

COME TO YOUR. ATTENTION THAT THIS MAY

BE A WAY TO GET THE GRUDGE EVEN?

A. THE WAY HE TREATED ME, ANDI

DIDN'T THINK THAT WAS GOING ON AND HE

SHOULD BE DOING 'THAT, YES.

90a

Q. ALL RIGHT. AND YOU OWNED UP TO

THAT TO GEROD; DIDN'T YOU?

A. ISUREDID.

Q. AND WHAT HAPPENED AFTER THAT?

A. WE ARE ALL HUNKY -DORY NOW AS FAR

AS I KNOW. IT IS OVER WITH ME.

Q. DIDGEROD DO ANYTHING TO YOU

AFTER YOU OWNED UP TO WHAT PART YOU

PLAYED IN THE EVENT?

A. NO, NOTTHATIKNOW OF, UNLESS HE

DID SOMETHING I DIDN'T KNOW OF.

A. WELL, YOU WOULD FIND OUT ABOUT IT

IF HE CHANGED YOUR SHIFT OR MAD YOU

WORK NIGHTS?

A. RIGHT. NOTHING OF THAT NATURE.

Q. DO YOU FEEL THAT CLEARING THE AIR

WITH HIM ON THE OCCASION THAT YOU DID

RESOLVED THE MATTER?

A. ASFAR ASIT SEEMS RIGHT NOW, YES.

Q. HOWLONG AGO WAS THAT?

A. I DON'T KNOW. IT HAS BEEN YEARS.

Q. SO IN THE TIME SINCE THEN, NOTHING

HAS OCCURRED TO YOU THAT YOU RELATE

TO ANY KIND OF

RETALIATION AGAINST YOU FOR SPEAKING

YOUR MIND?

A. NO.

Q. EXCUSE ME?

A. NO.

Q. YOU HAD MENTIONED THAT YOU HAD

SPOKEN WITH SOMEONE ON THE PHONE THAT

YOU UNDERSTOOD TO BE WORKING FOR OR

WITH CHAD'S ATTORNEY?

A. YES. HE WAS THE FIRST CONTACT, I

BELIEVE, EVER OF ANYTHING.

9la

Q. DIDCHAD OR SOMEONE WITH -- CHAD

OR THE ATTORNEY -- GET IN TOUCH WITH

YOU IN ADVANCE AND SAY, "HEY, SOMEONE

IS GOING TO TALK TO YOU ABOUT THE DEAL?"

A. IAMNOTSURE. THEY MAY HAVE. I AM

TRYING TO THINK- IT MAY HAVE. I DON'T

KNOW. THIS GUY JUST CALLED ME ONE DAY

AND

Q. YES.

A. IDON'TKNOWTHE DATE. IT HAS BEEN A

YEAR OR BETTER.

Q. WASITBEFOREOR AFTER AUGUSTOF __

2001, WHICH WOULD BE ABOUT A YEAR AND A 7

HALF AGO?

A. TOTELL YOU THE TRUTH, I COULDN'T

ANSWER YOU.

Q. AND HOW DID THAT MEETING COME

ABOUT?

A. 1 DON'T KNOW IF HE JUST CALLED ME

OVER THERE OR IF I HAPPENED TO BE -- I

THINK HE CALLED ME OVER THERE TO TALK

TO ME ABOUT IT,I BELIEVE.IT WAS JUST HIM

AND GEROD.

Q. YOU SAY "HE". HE CALLED YOU OVER

THERE. YOU ARE TALKING ABOUT MR.

ALWELL CALLED YOU WHERE?

A. TOHISOFFICE.

Q. YOU WERE ON DUTY AT THE TIME?

A. YES.

Q. AND WHAT WAS DISCUSSED AT THAT

TIME WHERE YOU ALL ALLEGEDLY MADE

UP?

A. IMEAN WE DIDN'T KISS AND MAKE UP.

Q. I WAS WONDERING. I DIDN'T KNOW WHAT

WAS GOING ON.

92a

A. |WEJUST DISCUSSED IT, AND I GUESS I

JUST FINALLY COME OUT

AND TOLD HIM MY PART IN IT,WHY I DIDIT,

AND THAT WAS IT.I MEAN I DIDN'T HAVE

NOTHING - - IT HAD KIND OF ALL WORKED UP

OVER THE YEARS, AND HE PROBABLY KNOWS

TOO, BECAUSE I THINK HE SAID SOMETHING

TO THE FACT BEFORE THAT JUST THE WAY

THINGS WERE GOING, THE WAY THINGS

WERE DONE, A LOT OF PEOPLE WERE MAD. I

DON'T KNOW THE EXACT REASON WHY, WHAT

WOULD CAUSE IT AND ALL, BUT THERE WAS

EVEN BROUGHT ANYTHING UP -- IF IT WAS,

HE NEVER BROUGHT ANYTHING UP IN

RELATION TOIT.

Q. . HAD YOU GIVEN THAT STATEMENT AT

THE TIME YOU MET WITH GEROD AND JOHN?

A. HADIGIVEN THIS? (INDICATING)

Q. YES.

A. IBELIEVE SO.

Q. ANDIN THAT MEETING DID YOU TELL

HIM THAT MR. WELLS WAS INVOLVED IN

THE INVESTIGATION, THE COMPLAINT THAT

LED TO THE INVESTIGATION?

A. SAY THAT AGAIN?

Q. DID YOU MENTION CHAD'S NAME AS

BEING INVOLVED IN THE INVESTIGATION?

A. IDON'T KNOW IFI DID OR NOT. I MEAN

THEY WERE WANTING TO KNOW WHO WAS

INVOLVED. THEY HAD IDEAS ALREADY ON

WHO WAS INVOLVED, BUTI DON'T KNOW IF I

-- I SPECIFICALLY TOLD HIM I WAS INVOLVED

FOR SURE.

93a

Q. DID YOU MENTION CHAD WELLS' NAME

AT ALL DURING THAT MEETING?

A. TOTELL YOU THE TRUTH, I CAN'T

REMEMBER. HE DID.

(INDICATING) THEY HAD AN IDEA IT WAS ME,

CHAD AND JERRY SAMPRACT, IS WHAT THEY

TOLD ME.

Q. WHAT DID THEY TELL YOU ABOUT

CHAD'S PARTICIPATION?

A. THEY DIDN'T KNOW. THEY DIDN'T KNOW

ANYTHING ABOUT HIS PARTICIPATION, THEY

JUST THOUGHT HE MIGHT HAVE BEEN

BEHIND IT.

Q. ALL RIGHT. AND YOU SAID MR. ALWELL

WAS PRETTY UPSET ABOUT THE

INVESTIGATION?

A. YEAH, I WOULD SAY SO. PRETTY UPSET

WITH ME.

Q. WELL I UNDERSTAND THAT, BUT YOU

MADE THE STATEMENT THAT HE WAS UPSET,

AND I WANT TO KNOW WHAT MADE YOU SAY

THAT?

A. HIS REACTION, YOU KNOW, HE WAS

MAD, FROM WHAT I WAS LOOKING AT, HE WAS

MAD.

Q. WHAT DID HE DO OR SAY TO INDICAT TO

YOU THAT HE WAS MAD?

A. MAINLY IT WAS,"DO YOU KNOW I COULD

HAVE GOT FIRED OVER THAT," AND MAINLY

JUST HIS REACTION.

Q. WHAT ABOUT MR. HAMERNICK? DID HE

HAVE ANY REACTION?

A. HE WAS JUST KIND OF LIKE

FLABBERGASTED THAT I WOULD EVEN DOIT.

94a

Q. DOYOU RECALL AN INCIDENT

INVOLVING A LUNCH ORDER ABOUT SOME

WORKERS REFUSING TO PICK UP A LUNCH

ORDER FOR GEROD?

A. YES.

Q. TELL ME ABOUT THAT, SIR?

A. SUPPOSEDLY HE ORDERED A BAKED

POTATO, I THINK, AND IT DIDN'T GET PICKED

UP. THEY DIDN'T BRING IT BACK.

Q. DO YOU HAVE ANY PERSONAL

KNOWLEDGE OF THAT INCIDENT, OR JUST

WHAT PEOPLE HAVE TOLD YOU?

A. THINKIITWASJUST WHAT PEOPLE

TOLD ME. I WASN'T THERE.

Q. DIDIT HAPPEN ON YOUR SHIFT?

A. _1))ON'T THINK SO, NO. I WASN'T THERE.

Q. DO YOU KNOW IF THIS WAS BEFORE OR

AFTER CHAD'S OPERATION ON

KIND OF ASKED ME WHO WAS INVOLVED. I

SAID, "WELL, I AM NOT GOING TO TELL YOU."

THEY KIND OF SAID, "WE KIND OF HAVE AN

IDEA WHO IT IS."

Q. AND THEY TOLD YOU CHAD AND JERRY

SAMPRACT?

A. YES. THEY HAD NOT A CLUE THAT I WAS

INVOLVED IN IT.

MR. BROUSSARD: LET'S GO OFF THE RECORD A

SECOND. I AM GOING TO REVIEW MY NOTES,

AND I THINK I WILL BE THROUGH IN A

SECOND.

(DISCUSSION OFF THE RECORD)

MR. BROUSSARD: I DON'T HAVE ANY OTHER

QUESTIONS.

BY MR. AUZENNE:

95a

Q. MR.WHITE, JUST ONE FOLLOW-UP. DO

YOU KNOW THE REASON WHY MR. WELLS

LEFT EMPLOYMENT WITH THE CITY?

A. NO,NOT REALLY. I MEAN I KNOW

HE GOT ANOTHER JOB IN ALABAMA, BUT I

DON'T KNOW IF HE WAS SEEKING ONE

BEFOREHAND OR WHAT. I DON'T KNOW. I

MEAN I KNEW HE WASN'T HAPPY WHERE HE

WAS AT, AT THE PLANT.

Q. DID HE TELL YOU WHY??

A. MAINLY JUST THE FRICTION ON

BETWEEN HIM AND JOHN.

Q. DID HE TALK ABOUT ANY FRICTION

BETWEEN ANYONE ELSE WITH THE CITY,

WHETHER IT BE A SUPERVISOR OR ANYBODY

WITH THE CITY OF ALEXANDRIA?

A. NOTTHATI KNOW OF.

Q. DID HE DETAIL WHAT THE FRICTION

BETWEEN HE AND JOHN

HAMERNICK WAS? DID HE EVER TELL YOU

ABOUT IT?

A. OTHER THAN HAVING TO DO WITH THINGS

WITH HIS KNEE --

Q. TALKING ABOUT THE PHYSICAL THERAPY

TRIP?

A. YES, THAT AND STRIPPING AND WAXING

THE FLOORS OR WHATEVER, WHOEVER TOLD

HIM. BUT JUST -- 1 AM TRYING TO THINK OF

OTHER INCIDENCES. I KNOW HE -- MAYBE

JUST THE WAY THEY ACT, I GUESS. I DON'T

KNOW. TO REMEMBER NOW EXACTLY WHAT

HE SAID, I HAVE NOT A CLUE.

Q. WHOIS’ "THEY",TOBE CLEAR? A.

JOHN AND GEROD.

96a

Q. ANY DETAILS AS TO WHAT YOU MEAN

BY THAT, "HOW THEY ACTED"?

A. NO,NO DETAILS.

Q. MR. WHITE, I MCURIOUS. WHEN YOU

REPORTED THE TAKING OF THE MATERIAL

TO THE STATE POLICE, DID YOU EVER TALK

TO ANYBODY, SONNY CRAIG, PAM SAURAGE

OR ANYBODY WITH THE CITY OF

ALEXANDRIA ABOUT THIS?

A. NO.

MR. AUZENNE: ONE OTHER THING. I WOULD

LIKE TO ATTACH THE STATEMENT MR. WHITE

REFERRED TO IN SOME OF HIS ANSWERS TO

THE DEPOSITION. I DON'T KNOW WHAT

NUMBER WE ARE AT. THAT IS THE ONLY

THING. THAT WOULD BE KEITH WHITE

NUMBER 5.

MR. CALVIT: NOTHING FURTHER.

MR. D'ALBOR: :I DON'T HAVE ANYTHING.

MR .AUZENNE: :WOULD YOU LIKE TO READ

AND SIGN

YOUR DEPOSITION OR WAIVE THAT RIGHT? IT

IS ENTIRELY UP TO YOU.

DEPOSITION OF DAVID REED

Q. WELL, DID IT INVOLVE ROOFING M.

MATERIAL?

YES, SIR,IT DID.

Q. WAS MR. ALLWELL AND MR.

HAMERNICK INVOLVED OR - OR ACCUSED IN

THAT MATTER AS FAR AS - IN THAT

INVESTIGATION AS FAR AS YOU KNOW?

A. YES, SIR.

Q. DO YOU KNOW IF THEY GOT ANY OF THE

ROOFING MATERIAL?

A. DON'T KNOW FOR SURE.

iat anil

97a

Q. OKAY. DID YOU GET ANY OF THE

ROOFING MATERIAL? NO, SIR.

Q. DID MR. ALWELL EVER TALK TO YOU

ABOUT THAT

INVESTIGATION?

A. HE HAD ASKED ME IF - IF I HAD SEEN

SOME PICTURES THAT WERE CIRCULATING

AROUND OF HIM LOADING SOME OF THE

MATERIAL UP, WHICH I DID. I DID SEE THE

PICTURES.

Q. WHO HAD SHOWED YOU THE PICTURES?

A. IT SEEMED - IF I REMEMBER RIGHT, I

THINK IT WAS JERRY SAMPRACT.

Q. DID YOU TELL MR. ALWELL THAT?

A. I TOLD HIM THAT I HAD SEEN THE

PICTURES. I DIDN'T TELL HIM WHO SHOWED

THEM TO ME OR WHAT, BUT I DID TELL HIM I

DID SEE THE PICTURES.

Q. DID MR. HAMERNICK ASK YOU

ANYTHING ABOUT THE INVESTIGATION?

A. NOTTHATI REMEMBER. NO, SIR

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