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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2004
- **Citation:** 543 U.S. 1000

## Text

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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

i
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;

(c) made a credibility determination
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

ii
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
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NI IIIUIIT 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

14

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

ee

15

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.

16

(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

17

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

18

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

19

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

20

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

ee

21

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

22

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)

23
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.

24
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,

25

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

26

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

27

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

28

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,

ee

29

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

3
30 |
Alexandria, Louisiana 71309

(318) 487-4589
Attorneys for Petitioner

la
(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).

2a

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.

3a

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

4a

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

5a

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

6a

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.

Ta

* 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

8a

home." Hamernick, however, testified that Wells
"told me he could do the task and he went to it.

9a

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

ee

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
v.

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:

l.

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.

2.

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.)

a

27a

3.

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.)

4,

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

1.

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,

(C) JOHN HAMERNICK, a resident of the full age
of majority of the Parish of Rapides.

2.

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.

4,

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.

5.

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.

6.

Petitioner shows that after his return to work in March
he continued to attend and receive physical therapy
treatment for his knee.

7.

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

8.

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."

9.

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,--

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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

ee

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1025%3A1. Public record. Not legal advice.