Opposition Brief — Wells v. City of Alexandria

No. 04-249

Supreme Court

IN THE hare

uf the United States

CHADWICK FE.

CITY OF ALEXANDRIA;

GERA

WELLS, PETITIONER

JOHN HAMERNICK; WILLIAM

RD ALWELL

ON PETITION FOR

A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE

FIFTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

H. BRADFORD CALVIT

PROVOSTY, SADLER,

de,LAUNEY, FIORENZA &

SOBEL

934Third Street, Suite 800

Post Office Drawer 1791

Alexandria, Louisiana 71309

Telephone: (318) 445-3631

Attorneys for Respondent

William Gerard Alwell

RICHARD A. ROZANSKI

WHEELIS & ROZANSKI

P.O. Box 13199

2312S. MacArthur Drive

Alexandria, LA 71315

Telephone: (318) 445-5600

Attorneys for Respondent

John Hamernick

STACY C. AUZENNE

KEISER & AUZENNE, LLC

Attorneys at Law

3700 Jackson Street, Suite 102

P.O. Box 12358

Alexandria, LA 71315

Telephone: (818) 443-6168

Attorneys for Respondent

City of Alerandria

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

i

QUESTIONS PRESENTED

I. The Court of Appeals correctly affirmed the District

Court’s grant of summary judgment in favor of the CITY OF

ALEXANDRIA, WILLIAM GERARD ALWELL, and

JOHN HAMERNICK when no evidence existed to support

WELLS’ claim regarding an alleged Louisiana state

intentional tort claim.

Il. The Court of Appeals correctly noted that the record

references submitted in support of the CITY, ALWELL, and

HAMERNICK’S motion for summary judgment contained

the medical records of WELLS?’ treating physician Dr. Pope,

and as such, no new evidence was submitted at oral argument

which prejudiced WELLS.

il

TABLE OF CONTENTS

OE FOIE sss scsincnstsnnxacendercniabeaenindmaataaeanaiiae 1

Tee Oe CII ccicsiicinstitaniessncieneciminiianieageamiamaalaaaal il

TR OF AMIOIOING osspenisinccnscncneneaaaaaiaae IV

I. Summary of Argument ................::csccccsseeeeees l

II Stmtoeent OF TO CMG aceisssssrcicessrecsasinrcrcsen 2

Ill Clarification Of The Record .......................... 4

ili

Wells’ Misstatements of Fact ...................008 6

No Constructive Discharge Occurred When

Wells Voluntarily Left Employment With the

COT sxnansinrsescnsssnssescnssnsnssosennnsvasessnsnnssasonensnaszecs 8

Reasons For Denying The Writ

I.

II.

Il.

Conclusion

Wells Has Not Articulated A Compelling

Reason To Justify Discretionary Review By

MN IIS snicssncccsnnasstsnssercancenscsversssesanccenes 11

The Lower Courts Did Not Err In Deciding

TIO iisssevnsssssecnsassaneressexrensssoncnsossanssonencs 19

No New Factual Issue Was Presented By

Defendants On Appeal ...........::c:ceseeeeeeeeeees 21

iv

TABLE OF AUTHORITIES

CASES

ANDERSON V. LIBERTY LOBBY, INC., 477 U.S. 242, 106 S. CT.

DEMING {Ai cchieccuth thehaodaneate omeaiiseaadiaa dds suskeacuaaamauiaieands 17, 18, 26

ARLINGTON HEIGHTS V. METROPOLITAN HOUSING

DEVELOPMENT CorpP. 429 U.S. 252, 97 S. Cr. 555, 50 L.

Se AN BA WB ress cciinessaceasaasnccenenaciacuaaetiaeadaiincen 15

BENOIT V. CAPITOL MANUFACTURING CoO., 617 SO. 2D 477

sis Wy Pe Deca navtassacemitaancenaaiaaadgeentuteasada Mand cegnnsaeeppneiaaudaeees 12

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

Riih, SUE ciecicccnientesdaad Seicla etcatedose eaolas biadsasioeaceain mabraaadedamanalanaes 16

CAPITAL CONCEPTS PROPS. 85-1 V. MUTUAL FIRST, INC., 35 F.

ee UT 8 Pe Cr a, Ci rela 22

CAUDLE V. BETTS, 512 SO. 2D 389, (LA. 1987) ..............0008 12

CELOTEX CORPORATION V. CATRETT, 106 S. CT. 2548, 477

U.S. 317, 106 S. CT. 2548, 91 L. Ep. 2D 265 (1986)......... 18

CITIES SERVICE, SUPRA, 391 U.S., AT 289, 88 S. CT., AT 1592

COURT IN THE MATSUSHITA ELECTRIC INDUSTRIAL CO.,V.

ZENITH RADIO CORPORATION, ET AL 475 U.S. 574, 106 S.

Ce, Ea Oe hae. es ee Ce Evecare sthicntateeesoncsbianns 18

DELUCA V. ATLANTIC REFINING CO., 176 F. 2D 421, 423 (CA2

SPIE osjinkincadiaanisictimacipedinansusicadda deebasecg aida aniaacshinmansdumhcledae 19

ELSENSOHN V. FARRINGTON PRODUCTIONS, INC., 840 So. 2D

a aa

Vv

611, 619-620 (LA. APP. 4 CIR. 2003)...............ssssecreeees 9,11

FDIC v. LAGUARTA, 939 F 2D 1231 (STH Cir. 1991)........... 17

HUNT V. CROMARTIE, 526 U.S. 541 , 119 S. CT. 1545, 143 L.

Beh, DER F317 CUD D cescesivnsvasisnsvnnsesiiesiaiceininsasnnnannnannsnenas 14,15

IN RE: COMBUSTION, INC., 960 F. Supp. 1076, 960 F. Supp.

BO7G, 1060 CBD. LA. TOG TD a vicircccsssiciccsscatscssnsceinsncecarnenss 15

INTERNATIONAL SHORTSTOP, INV. V. RALLYS INC., 939 F. 2D

1257, 1265-66 (5TH Cir. 1991), CERT DEN. 502 U.S. 1059,

112 S. Cr. 936, 1177 L. ED. 2B 107 C1992) an ccscccsensssrcseneseees 15

REEVES V. SANDERSON PLUMBING PROD., INC., 530 U.S. 133,

120 S. Cr. 2097, 147 L. Eb. 2D 105 (2000)....................e 14

REEVES V. STRUCTURAL PRESERVATION SYSTEMS, 731 SO.2D

POR CLA. 1DDD) aiivcrsrcsssssissacassccuserssonsascsasscvansnnsnonasesrevanntesia 13

SWOPE V. COLUMBIAN CHEMS Co., 281 F 3D 185 (STH Cir.

WDE) vvvcrnsiesisvssnvinnnesnssvnssniiasinnnseiioesidevnpnatainainnumcmanasiheneenin 17

‘TOPALIAN V. EHRMAN., 954 F 2p 1125, 1131, N. 10 (STH Cir.

1992), REH. DEN., 961 F. 2D 215 (STH Cir. 1992), CERT

DEN., 506 U.S. 825, 113 S. CT. 82 (1992) .......cccseecsevaesess 20

MISC.

FR BE). SRC TION ETS GE ) ccensccscnenassivessersxsnasanescossiassntnyesemsons 4

th BE sie chiteietincnccseonicnmcioiecinicatiannnaaaaons 8

WorRKERS' COMPENSATION ACT La. R.S. 23:1032............. 21

Re ee I NE ns scicnsxccsnsaanenineiacatnts seeanienanideniiineiinds 19

a UR on a a on

l

SUMMARY OF ARGUMENT

WELLS’ claims of constructive discharge cannot be

sustained when he voluntarily left employment with the

CITY, and sought employment in Alabama one (1) year prior

to his knee surgery. WELLS was never restricted from

performing maintenance work at the CITY power plant until

he complained to his treating physician that he did not want

to do the work in August 2000. HAMERNICK and

ALWELL’s collective knowledge of WELLS jumping

from boats, running down stairs, and performing his job

duties without restriction after his February 2000 knee

surgery, led them to believe that he could perform his job.

WELLS first complained that he could not strip and wax the

turbine floor after he had been assigned this duty, along with

the other plant operators in August 2000. Because WELLS

never complained or showed any sign of disability, and had a

full duty work release from his treating physician in March

2000, neither HAMERNICK or ALWELL had any reason

to believe that he could not perform his job.

No intentional tort occurred when HAMERNICK

and ALWELL required WELLS to do his job. Neither

HAMERNICK or ALWELL expressed any “conscious

desire” to injure WELLS, through direct or circumstantial

evidence. Despite seventeen (17) depositions being taken of

current and former employees and co-workers of WELLS,

none of them expressed any firsthand knowledge of ill will

directed from HAMERNICK and ALWELL towards

WELLS. _ The evidence that WELLS was released to

perform all of his job duties by his treating physician was

properly considered by the district judge when he granted the

defendants’ motion for summary judgment. As such, the

court of appeal properly upheld the district judge’s decision,

and WELLS’ claims should be dismissed, and _ his

application for writ not considered.

2

STATEMENT

On August 16, 2001, plaintiff-appellant Chadwick E. —

Wells (hereinafter “WELLS”), a former Operator II

employee at the City of Alexandria (hereinafter “CITY”)

Electrical Power Plant, filed a Petition for Damages in the

Ninth Judicial District Court, Parish of Rapides, State of

Louisiana, alleging claims under the Americans with

Disabilities Act (hereinafter “ADA”), the Civil Rights Act,

Louisiana State intentional tort law and a violation of the

State whistleblower act. WELLS also demanded attorneys

fees. Since WELLS’ “Petition for Damages” revealed

diversity of citizenship, and made federal claims, it was

timely removed to the United States District Court for the

Western District of Louisiana-Alexandria Division.

WELLS’ Petition alleged that William Gerard Alwell

(hereinafter “ALWELL”) Plant Superintendent at the City

Power Plant, and John MHamernick (hereinafter

“HAMERNICK’”) Plant Chief Operator, engaged in acts that

created a hostile work environment. WELLS alleged that

workplace harassment occurred when he returned to work

after undergoing knee surgery, in retaliation for Wells’

reporting ALWELL’s alleged unlawful conduct of stealing

CITY roofing material to the Louisiana State Police.

WELLS claimed that the harassment caused him to miss a

physical therapy appointment. WELLS further alleged that

he suffered pain from being forced to perform physically

demanding work assignments, such as stripping and waxing

floors, cleaning the “het-well” area of the plant, and checking

for air leaks in the condenser units. WELLS alleged that

HAMERNICK and ALWELL’s acts caused him to re-injure

his knee, and experience additional pain and suffering.

The CITY, HAMERNICK and ALWELL, filed

Motions for Summary Judgment, contending that WELLS’

ciaims had no merit. Attached to defendants’ Motions were

a aN ia le

3

the depositions of WELLS; ALWELL; HAMERNICK;

Kenneth Michael Ellison, WELLS’ City of Tuscaloosa,

Alabama, Supervisor; Pamela Saurage, City Personnel

Director (“Saurage”); and A.E. “Sonny” Craig, City Director

of Utilities (“Craig”). Additionally, excerpts from both

WELLS’ City Personnel File and his City of Tuscaloosa

Personnel File were included with the defendants’ Motions

for Summary Judgment. Finally, the CITY attached the

depositions of WELLS’ co-workers David A. Reed, Larry

McGuirt, Keith White and Floyd McFarland to its Reply

Brief filed in response to WELLS’ opposition to the

defendants’ Motions for Summary Judgment. These

additional depositions were also adopted by ALWELL in

reply to WELLS’ argument.

On July 15, 2003, United States District Judge F.A.

Little, Jr. granted defendants’ Motions for Summary

Judgment, dismissing all of WELLS’ claims. Judge Little, in

his Reasons for Judgment, held that WELLS had abandoned

his ADA claim and any alleged state law disability claims.

Judge Little dismissed WELLS’ retaliation claims since he

did not follow state law requirements for reporting the

alleged violation. Judge Little also dismissed WELLS’

intentional tort claims made under Louisiana law, finding that

the intentional tort exception to the Louisiana Workers’

Compensation Act did not apply. Judge Little further denied

WELLS’ claims for constructive discharge, because the

complained of incidents occurred over a six (6) month time

period, and were not so intolerable that a reasonable

employee would feel compelled to resign.

Finally, Judge Little held that because

HAMERNICK and ALWELL did not commit any tortious

act, that the CITY was not vicariously liable for their actions.

WELLS filed a Notice of Appeal of Judge Little’s

ruling on July 30, 2003. After oral argument was granted and

4

heard on April 6, 2004, by the United States Court of Appeal

for the Fifth Circuit, a decision affirming the District Court’s

grant of summary judgment was rendered on April 19, 2004.

WELLS’ petition for rehearing was denied on May 24, 2004.

WELLS now seeks a writ of certiorari from this Court

pursuant to 28 U.S.C. Section 1254(1).

CLARIFICATION OF THE RECORD

The record evidence considered by the district court

clearly showed that no intentional conduct could reasonably

be attributed to ALWELL, HAMERNICK or the CITY.

DAVID A, REED

David Reed, friend and co-worker of WELLS,

testified that approximately one year prior to WELLS’

surgery in February of 2000, he sought employment in

Alabama, where his wife’s family lived. Reed further

testified that after WELLS’ surgery, but prior to the alleged

intentional acts performed by HAMERNICK and

ALWELL, WELLS continued seeking employment in

Alabama. Reed further testified that he personally knew that

City Plant Operators, including WELLS, expressed opinions

to HAMERNICK and ALWELL that they should not be

forced to perform maintenance type work at the Power Plant.

Reed further testified that WELLS never told him that his

knee was injured before the surgery, or told supervisors that

his injured knee prevented him from performing maintenance

work at the Plant in Reed’s presence.

Reed further testified that when he got sick at work he

was allowed to go home and was not fired by HAMERNICK

and ALWELL. Reed testified that he had personally seen

other Plant Operators, including Jerome Woods and Lloyd

5

Fuqua, strip and wax the turbine floors at the Plant. Reed

testified that the turbine floor needed to be stripped and

waxed on a periodic basis, and when the Plant janitor,

Charles Smith worked for the CITY, he would perform these

tasks. Reed further testified that when Janitor Smith retired,

the janitor position at the City Power Plant was not filled, and

Plant Operators helped perform maintenance work.

KEITH WHITE

Keith White, Shift Supervisor of City Plant Operators,

admitted in deposition that he reported ALWELL to the

Louisiana State Police for the alleged theft of roofing

material, and that the investigation proved that the charges

were unfounded. White further testified that there was

nothing wrong with Operators performing maintenance at the

City Power Plant, and in fact all the Operators had performed

it at some point or another. White also testified that he told

ALWELL that he had been the person who reported the

alleged thefts to the Louisiana State Police and that he

suffered no retaliation from anyone thereafter.

LARRY MCGUIRT

Larry McGuirt, Instrument Technician at the City

Power Plant, testified that he did not know anything about

WELLS getting off work to go to physical therapy. McGuirt

also knew nothing about WELLS being required to work in

the hot wells. McGuirt testified that he knew nothing about

WELLS’ inspecting or cleaning the condenser units.

McGuirt further testified that he never heard HAMERNICK

and ALWELL make derogatory comments about WELLS in

his presence or in anyone elses presence at the Plant.

McGuirt further testified that WELLS never showed him a

swollen leg.

FLOYD MCFARLAND

Floyd McFarland, CITY Power Plant Operator and

friend of WELLS, testified that he deer hunted with WELLS

in a “box stand” two or three times after his surgery, that

WELLS killed a deer on one of those hunts, and suffered no

perceived ill effects. McFarland stated that he never heard

ALWELL or HAMERNICK make derogatory comments

about WELLS. McFarland testified that as an Operator I, he

waxed the turbine floor, although he had never stripped it.

McFarland testified that maintenance personnel cleaned the

hot well, but that the Operators were asked to help them at

‘times. McFarland testified that when WELLS killed the

deer, McFarland loaded it onto his four-wheeler rack and

cleaned the deer, because Wells was too lazy to clean it.

McFarland testified that he painted at the Power Plant

using a brush and rollers, and that no one was trying to

punish him when he drew that duty. McFarland testified that

when an operator drew hot well cleaning and condenser

check duty, it was purely luck of the draw. McFarland

testified that rules at the City Power Plant did not allow an

Operator to leave the Plant at lunch time, and when the

supervisors allowed Operators to leave for lunch, that that

was a “nice thing”.

WELLS’ MISSTATEMENTS OF FACT

While petitioner makes much of the one occasion

where he was not allowed to leave the Plant and attend

physical therapy, he does not mention the numerous

occasions where HAMERNICK and ALWELL

accommodated his requests to attend physical therapy, and

did not deduct sick or annual leave time from WELLS when

he attended those appointments. WELLS fails to inform the

Court that on the only day that he was denied a request to

attend physical therapy on 15 minutes notice, that no Plant

7

Operator was present or available to replace him in the

Control Room, where “million of dollars” of equipment

required monitoring. ALWELL further testified that until

this litigation was initiated and he saw the State Police

investigation file, he did not know that WELLS had

instigated the State Police investigation. WELLS’

allegations of threatened termination for refusal to strip and

wax the turbine floor, inspect the condenser tubes, and clean

out the hot wells is without any factual support from any

other Power Plant employee.

In fact, WELLS worked overtime as an Operator |

when ordered by his Shift Supervisor to strip and wax the

turbine floor. When WELLS declined the assignment,

HAMERNICK and Utilities Superintendent A.E. “Sonny”

Craig, told WELLS to do the work or go home. At no time

was WELLS ever threatened with termination. WELLS was

only being told that if he could not do the work, the CITY

did not want WELLS to stay at work, as he was on overtime

and being paid time and one half. Regarding the other

maintenance chores of inspecting the condenser tubes and

cleaning the hot well area of the plant, WELLS’ co-worker

Floyd McFarland testified that when an operator drew this

duty, it was purely “luck of the draw” and not punishment.

Further, WELLS unsuccessfully attempted to bring a

whistleblower action against HAMERNICK and ALWELL

for their removal of scrap roofing material from the City

Power Plant. Plaintiff cited La. R.S. 42:1115(B) for support

that a prohibition only exists for the acceptance of gifts which

amount to “anything of economic value”. The scrapped

roofing materials that had been left at the Plant had no

economic value. More importantly ALWELL and other

power plant employees had been told by the roofing

contractor to remove any of the roofing material, otherwise it

would be thrown out. The Louisiana State Police did not find

a violation of the law, and the Rapides Parish District

8

Attorney never brought any criminal charges against

HAMERNICK and ALWELL. The allegation that if

Director of Utilities, Sonny Craig, had been contacted about

this alleged theft that nothing would have occurred, is simply

without any factual support in the record. The facts to which

all witnesses have testified defeat the plaintiff's claim.

HAMERNICK and ALWELL asked Shift

Supervisors to have WELLS and other Plant Operators

perform maintenance work, which were duties contained in

their Operator II job description. Other Operator II’s have

testified that they performed similar work without complaint.

On the occasion that WELLS stripped and waxed the turbine

floor, the work had already been started by Jerome Woods,

current Shift Supervisor and Operator II at the time. On that

occasion, WELLS worked overtime as an Operator I, which

required him to perform the maintenance work six (6) months

post knee surgery, of which he now complains.

No improper conduct was proved on the part of the

defendants, HAMERNICK and ALWELL, and _ no

vicarious liability against the CITY could be maintained. If

any retaliation existed in this case, it would be the retaliatory

lawsuit filed by WELLS after he voluntarily left

employment with the CITY for a job with the City of

Tuscaloosa, Alabama, that he sought one year before his knee

surgery and before the alleged retaliatory acts of

HAMERNICK and ALWELL. The testimony of his former

supervisor in Alabama, Mr. Kenny Ellison, put it best when

he stated that “Chad Wells wanted to be the boss”.

NO CONSTRUCTIVE DISCHARGE

OCCURRED WHEN WELLS VOLUNTARILY LEFT

EMPLOYMENT WITH THE CITY

WELLS indicated in his separation paperwork with

the CITY that he was relocating to Alabama for a better job.

9

No allegation that HAMERNICK and ALWELL did

anything improper was made at or before April, 2001, when

WELLS left the CITY’s employment. Cases have held that

when an employee is simply required to perform his clearly

enumerated job duties, and either refuses to do them, or

voluntarily resigns, then no constructive discharge has taken

place. Elsensohn v. Farrington Productions, Inc., 840 So. 2d

611, 619-620 (La. App. 4 Cir. 2003). Support for this factual

conclusion is found in the testimony of WELLS’ friend and

co-worker David Reed, who testified that WELLS began

looking for employment in Alabama one year prior to his

surgery in February, 2000, and prior to the first alleged

retaliatory act taken by HAMERNICK and ALWELL in

August 2000.

The CITY’s personnel policy required that an

employee be able to perform ninety (90%) percent of the

duties outlined in his or her job description, “without

limitations” before returning to work. The November 25,

1997, Memorandum from Mayor Randolph and City

Attorney Charles Nunnally further requires that a doctor

review the employee’s job description and provide written

confirmation that he is able to perform the enumerated duties.

The Memorandum further provides that “there are no

exceptions in this policy”. Additionally, it requires as an

essential function that an Operator I “paints and cleans

equipment in plant to maintain plant appearance and

operation” and perform maintenance tasks and assist the

maintenance crew in the inspection, overhaul, and repair of

turbine generators and auxiliary equipment.” Physical

requirements of the job of an Operator I enumerated by

OSHA/ADA Code 4 are defined as follows:

“4. Task involves the regular, and at times

sustained, performance of heavier physical

tasks such as walking over rough or uneven

surfaces, bending, stooping, working in

10

confined spaces, and lifting or carrying

moderately heavy (20-50 pound) items and

occasionally very heavy (100 pounds or over)

items; or may involve the complex operation

of gasoline, electric, or diesel-powered

machinery or shop equipment requiring the

manipulation of multiple controls, fine

adjustments or both: or the sustained

operation, on a production basis, of such

devises as offset presses with associated

equipment.”

When Dr. Pope released WELLS to return to work on

or about February 28, 2000, he wrote on the bottom of the

letter from Pam Saurage as follows:

“Patient, Chad WELLS is able to return to

work @ City of Alex. As an Operator II @

90% of Pt’s job duties.”

Only after WELLS decided that he did not want to

strip and wax the turbine floor did he go back to Dr. Pope in

August of 2000, and obtain the additional restrictions

contained therein. Dr. Pope wrote on the bottom of his

“Treatment/Restriction Report” dated August 16, 2000,

“Okay for normal Operator II avoid constant maintenance,

prolonged standing & janitorial duties.” This alleged

restriction clearly came at WELLS’ insistence that he did not

want to perform maintenance work, but had not been an issue

since his release to return to work in late February 2000, after

his surgery, through August of 2000.

Petitioner does not mention that HAMERNICK’s

comment that he should go home if he didn’t strip and wax

the floor came when WELLS was working overtime as an

Operator I, which required such maintenance duties. Some

CITY employees, including Darren Sigur, expressed their

11

“opinion” that maintenance duties were not part of an

Operator II’s job. However, none of these employees brought

a union or civil service grievance to correct this alleged

discrepancy, nor could they deny that the phrase contained in

the job description of an Operator II, required them to

“perform other work as requested”.

REASONS FOR DENYING THE WRIT

I. WELLS HAS NOT ARTICULATED A

COMPELLING REASON TO _ JUSTIFY

DISCRETIONARY REVIEW BY THIS COURT

“Review on a writ of certiorari is not a matter of right,

but of judicial discretion.” Sup. Ct. R. 10. “A petition for a

writ of certiorari will be granted only for compelling

reasons.” /d. WELLS has not presented any compelling

reason for this Court to exercise its discretionary jurisdiction

over the dismissal of his claim. Indeed, his key complaint,

that the courts failed to give any weight to petitioner’s

contradictory evidence, was squarely addressed and

dismissed by both the District Court and the United States

Fifth Circuit Court of Appeal.

WELLS’ attorney cites Bazley v. Tortorich 397 So.

3d 475, 481 (La. 1981) to discuss Louisiana law on intent.

The Bazley case involved an employee who was struck by an

automobile as he was mounting the back of a garbage truck

during the course of employment. The plaintiff alleged that

the accident was caused by his co-employee’s intentional acts

in operating a garbage truck without a working horn.

Ultimately, the Supreme Court defined “intent” as follows:

“that person who acts either (1) consciously

desires physical result of his act, whatever

likelihood of that result happening from his

12

conduct, or (2) knows that result is

substantially certain to follow from _ his

conduct, whatever his desire may be as to that

result.”

In Bazley the Supreme Court held that failure to blow

a horn did not rise to the level of an intentional act. WELL’s

interpretation of Bazley is misplaced because it does not

differentiate between intentional acts and the failure to

perform an affirmative act. WELLS interpretation of Bazley

also ignores the Louisiana intentional act exclusion from

Worker’s Compensation matters. | WELLS?’ attorney cites

Benoit v. Capitol Manufacturing Co., 617 So. 2d 477 (La.

1993) and Caudle v. Betts, 512 So. 2d 389, (La. 1987)

attempting to address cases where an employer was held to

have consciously desired the physical harm resulting from his

conduct. The standard enunciated by the Louisiana Supreme

Court involved a “conscious desire” for the physical result to

follow the act, or knowing that the result is “substantially

certain” to follow from the conduct. Reeves v. Structural

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

two employees were involved in a fight while at work. An

employee brought suit against the co-employee and employer

seeking to recover for co-employee’s alleged intentional tort.

The plaintiff was intentionally injured by his co-employee in

the course and scope of his employment and the employer

was held vicariously liable for that intentional tort . In the

case at bar, WELLS was not involved in a workplace fight.

The evidence showed that WELLS was not intentionally

injured by HAMERNICK or ALWELL when they merely

instructed him to do his job, and the CITY was not held

vicariously liable because no improper conduct occurred. In

Caudle an employee sued his employer and its chief

executive officer for injuries sustained when the CEO

administered an electrical shock to the employee as a

practical joke. This case is significantly different from

————

13

WELLS because no practical joke was played on WELLS,

resulting in his injury. WELLS was simply required to

perform his job, and did not want to do it.

WELLS’ attorney offers the Reeves case for the

proposition that “an employee may sue his employer in tort

for injuries that result from an intentional act.” In Reeves the

plaintiff sued his employer and co-worker, alleging that

injuries sustained from moving a 400 pound sandblasting pot

were caused by his employer’s intentional acts. In the case at

bar, WELLS?’ supervisors ordered him to perform his job.

WELLS’ took issue with the scope of his job duties which

should have been taken up in the form of a Civil Service

grievance. In Reeves, the employer allegedly committed an

intentional act within the meaning of the Workers

Compensation intentional act exception by directing an

employee to manually perform a procedure normally

prohibited by OSHA safety regulations, and which the

employee’s supervisor feared would eventually lead to his

injury. WELLS produced no testimony or evidence that

ALWELL or HAMERNICK directly participated in any of

the acts which allegedly caused his physical injury, and

pursuant to the reasoning in Reeves, even if they did, there is

no liability.

WELLS’ attorney also cites Reeves v. Sanderson

Plumbing Prod., Inc., 530 U.S. 133, 120 S. Ct. 2097, 147 L.

Ed. 2d 105 (2000) for the proposition that lower courts

should not make credibility determinations and weigh the

evidence when ruling on Rule 50 motions or motions for

summary judgment. In Reeves, a discharged employee sued

his former employer, alleging age discrimination in violation

of Age Discrimination in Employment Act. This case is

distinguishable from the case at bar because credibility was

never the issue. The actions and evidence never showed that

two different opinions on a relevant issue entered the

summary judgment consideration. WELLS was released to

perform full duty work on March 17, 2000, by his treating

14

Orthopaedic surgeon, Dr. Pope. WELLS was assigned the

stripping and waxing of the turbine floor on August 2000.

Not until WELLS drew the less desirable duty of stripping

and waxing did he return to Dr. Pope seeking additional job

restrictions. Clearly, no intent inquiry was necessary by the

trial court.

WELLS’ attorney cites Hunt v. Cromartie, 526 U.S.

541 , 119 S. Ct. 1545, 143 L. Ed. 2d 731 (1999), for the

proposition that a disputed fact concerning motivation cannot

be resolved at the summary judgment stage. In Hunt, North

Carolina residents sued various state officials challenging

North Carolina’s congressional redistricting plan as being

racially motivated in violation of the Equal Protection clause.

The Court in Hunt held that the issue of racial

gerrymandering could not be decided on a motion for

summary judgment.

The tack of assessing a jurisdictions

motivation, however, is not a simple matter;

on the contrary, it is an inherently complex

endeavor, one requiring the trial court to

perform a “sensitive inquiry into such

circumstantial and direct evidence of intent as

may be available.” Hunt 526 U.S. 541, 546

quoting Arlington Heights v. Metropolitan

Housing Development Corp. 429 U.S. 252, 97

S. Ct. 555, 50 L. Ed. 2d 450 (1977).

Surely, this Court distinguishes between a disgruntled

plant operator and State Legislators intentionally

gerrymandering Congressional election districts.

WELLS’ attorney relied on the case of /nternational

Shortstop, Inv. v. Rallys Inc., 939 F. 2d 1257, 1265-66 ee

Cir. 1991), Cert Den. 502 U.S. 1059, 112 S. Ct. 936, 117 L.

Ed. 2d 107 (1992) for the proposition of why summary

judgment is usually inappropriate concerning issues of state

15

of mind. In /nternational Shortstop the owner of a fast food

restaurant sued a competitor in Texas state court alleging that

the competitor’s trade-dress infringement action brought

against the corporation was filed in bad faith and constituted

tortious infringement. The issue in /nternational Shortstop

was whether discovery had been completed prior to the

hearing of the motion. In the case at bar, WELLS

participated in seventeen (17) depositions before the motion

for summary judgments were filed. Surely he cannot argue

that discovery was not complete prior to the hearing on the

motion.

WELLS’ attorney cites the Jn Re: Combustion, Inc.,

960 F. Supp. 1076, 960 F. Supp. 1076, 1081 (W.D. LA. 1997)

decision for the proposition that intent is a fact-sensitive

determination not appropriately determined in a motion for

summary judgment. In the Combustion case, summary

judgment was denied because a fact issue existed about

whether the insureds’ pollution damage was caused by the

intentional acts of the alleged polluters. That “fact” sensitive

issue could not be determined on a motion for summary

judgment. In the case at bar, the District Court had the

benefit of reviewing seventeen (17) depositions to determine

all parties actions, regardless of their intent. Clearly the

actions of ALWELL and HAMERNICK in requiring

WELLS to perform his job did not rise to the level of an

intentional tort.

WELLS’ attorney also relied on Bruce vy. Cleggett-

Lucas, M.D., 2003 WL 1733530 (E.D. La. 2003) , for the

proposition that summary judgment is seldom appropriate for

determinations based on subjective facts, such as motive,

intent, good faith, knowledge and malice. In Bruce, a

plaintiff filed suit alleging that he sustained injuries as a

result of the ingestion of and addiction to OxyContin, a

narcotic prescription medication. The defendant doctors

motion for summary judgment was denied because other

issues raised implicated factual questions which could not be

16

determined on a motion for summary judgment. This case

does not apply to WELLS because it dealt with material

issues of fact in dispute with respect to when the plaintiffs

medical malpractice claim accrued. In such circumstances,

summary judgment may well be inappropriate. In the case at

bar however, no such accrual of a cause of action was at

issue. WELLS’ shifting theories of liability including the

Americans with Disabilities act, the Civil Rights Act, a

violation of the Louisiana Civil Code of Ethics and the

Whistleblower Act, all failed to raise any genuine issue of

fact that would have precluded the grant of a summary

judgment.

WELLS’ attorney also cites Swope v. Columbian

Chems Co., 281 F 3d 185 (5" Cir. 2002), in which the Fifth

Circuit reversed a summary judgment in favor of the

employer in a Louisiana intentional tort case in light of

competent evidence of intent. In Swope, a maintenance

worker and his wife sued the employer-chemical company

and brought a products liability claim agamst a successor

manufacturer of the employer’s ozone generators, for lung

damage allegedly sustained during inhalation of ozone. The

genuine issue for trial was whether a purchaser already knew

or reasonably should have known of the product’s dangerous

characteristics and whether [an adequate] warning was

provided. In the case at bar, no evidence existed that

HAMERNICK and ALWELL knew to a substantial

certainty that they were causing WELLS to re-injure his knee

simply by requiring him to perform his job.

The FDIC v. Laguarta, 939 F 2d 1231 (5" Cir. 1991),

discussion involved an interpleader action removed to federal

court where the FSLIC asserted a counterclaim against a

borrower, and the FDIC was substituted as a party. In the

FDIC case, summary judgment was denied because of the

lack of evidence demonstrating that Liberty did not default

by failing to advance requested funds. Similarly in the case at

bar, WELLS did not present any evidence that ALWELL or

17

HAMERNICK intended to harm him by merely assigning

him tasks that were part of his job duties.

Further, WELLS’ attorney misstates this Court’s

holding in Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

106 S. Ct. 2505, L. Ed. 2d 202 (1986), in which this Court

held:

“By its very terms this standard provides that

the mere existence of some alleged factual

dispute between the parties will not defeat an

otherwise properly supported motion for

summary judgment; the requirement is that

there be no genuine issue of material fact.” _

“The substantive law will identify which facts

are material. Only disputes over facts that

might affect the outcome of the suit under the

governing law will properly preclude the entry

of summary judgment. Factual disputes that

are irrelevant or unnecessary will not be

counted.”

“It is the substantive law’s identification of

which facts are critical and which facts are

irrelevant that governs.”

“A party opposing a_ properly supported

motion for summary judgment may not rest

upon the mere allegations or denials of his

pleading, but... must set forth specific facts

showing that there is a genuine issue for trial.”

In addition, this Court in Celotex Corporation y.

Catrett, 106 S. Ct. 2548, 477 U.S. 317, 106 S. Ct. 2548, 91 L.

Ed. 2d 265 (1986) held:

If the nonmoving party cannot muster

sufficient evidence to make out its claim, a

trial would be useless and the moving party is

entitled to summary judgment as a matter of

18

law. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202

(1986).

Furthermore, this Court in the Matsushita Electric Industrial

Co.,v. Zenith Radio Corporation, et al 475 U.S. 574, 106 S.

Ct. 1348, 89 L. Ed. 2d 538 (1986), case held:

“When the moving party has carried its burden

under Rule 56 (c), the opponent must do more

than simply show that there is some

metaphysical doubt as to the material facts.

Deluca v. Atlantic Refining Co., 176 F. 2d

421, 423 (CA2 1949).

In the language of the Rule, the nonmoving

party must come forward with ‘specific facts

showing that there is a genuine issue for trial.’

Fed. Rule Civ. Proc. 56 (e).

The purpose of summary judgment is to

‘pierce the pleadings and to assess the proof in

order to see whether there is a genuine need

for trial’. Where the record taken as a whole

could not lead a rational trier of fact to find for

the non-moving party, there is no ‘genuine

issue for trial.’ Cities Service, supra, 391

U.S., at 289, 88 S. Ct., at 1592.

WELLS’ evidence in opposition to the defendants’

motions for summary judgment should raise more than a

“metaphysical doubt” about a material fact. Seventeen

depositions of parties and fact witnesses dispelled any doubt

that a genuine issue of fact existed which would have

precluded the grant of summary judgment. The cases cited

by WELLS are inapplicable in the case at bar, since the facts

in those cases are not analogous. In the Anderson case, a libel

action was brought against a magazine company. This Court

19

denied Summary judgment in Anderson because actual

malice issues require the trial judge to weigh the actual

quantum and quality of proof necessary to support liability.

No such weighing of proof was necessary in the case at bar

because WELLS could produce proof of malicious intent

from any party after taking seventeen (17) depositions.

WELLS’ attorney also cites 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) which 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 7opalian investors in an oil and gas limited

partnership sued its general partners under federal securities

statutes and RICO. Summary judgment was denied because

the investors’ securities claims were barred by limitations ,

and their allegations were insufficient to support RICO

claims. No such RICO claims or federal securities issues

existed in WELLS.

In summary, WELLS cites numerous cases out of

context involving issues so complex that no judge would

grant summary judgment on them. The easiest way to

distinguish the case at bar from WELLS’ cited cases is to

consider that WELLS was simply trying to get out of doing

his job, and that no evidence exists from which any judge

could conclude that HAMERNICK and ALWELL

committed any state law tort.

Il. THE LOWER COURTS DID NOT ERR IN

DECIDING THIS CASE

Summary judgment was properly maintained against

WELLS. He failed to submit any evidence of any improper

conduct on the part of the defendants, HAMERNICK and

ALWELL, and hence no vicarious liability against the CITY

can be maintained.

20

In addition, WELLS alleged a retaliation claim for

reporting that HAMERNICK and ALWELL had taken

roofing material for personal use. The U.S. Fifth Circuit

agreed with the District Court that summary judgment on this

claim was warranted. La. R.S. 23:967 by its terms requires

the employee to advise the employer of a violation of law

before reporting it to outside authorities. No evidence existed

that WELLS advised any official at the CITY of

ALWELLS’ alleged theft of roofing material.

WELLS’ knee injury claim is governed strictly by

Workers’ Compensation Act La. R.S. 23:1032. No direct

evidence existed that the CITY, ALWELL and

HAMERNICK consciously desired that WELLS reinjure

his knee or knew that this result was substantially certain to

follow. WELLS was assigned unpleasant cleaning and

maintenance assignments, and his request to leave the plant

for a physical therapy appointment on fifteen (15) minutes

notice was insufficient for a reasonable trier of fact to find

that the CITY, ALWELL and HAMERNICK intentionally

tried to re-injure WELLS’ knee, or knew that an injury was

substantially certain to follow from their conduct.

The CITY, ALWELL and HAMERNICK offered

evidence that WELLS’ job duties included cleaning the

plant. The District Court noted that the three specific

cleaning and maintenance assignments about which WELLS

complained occurred during periods where his doctor’s

treatment/restriction reports state that his activities were

unrestricted. ' Evidence that HAMERNICK and ALWELL

Wells complained 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 and janitorial duties,” but a

September 6, 2000 report states that these restrictions are only in effect

until October 18, 2000.

21

were angry at WELLS or were motivated by a general

desire to retaliate against him is not proof of a desire to

physically injure WELLS. If the record as a whole could not

lead a rational jury to find for the nonmoving party, there is

no genuine issue for trial and summary judgment is

warranted. Capital Concepts Props. 85-1 v. Mutual First,

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

lil, NO NEW FACTUAL ISSUE WAS PRESENTED

BY DEFENDANTS ON APPEAL

In paragraph 2 of WELLS’ Questions Presented for

Review, he argues that the Court of Appeal erred in deciding

a factual issue raised for the first time at oral argument of the

appeal, when it was not presented to the district court.

Specifically, WELLS argued:

The Court of Appeals erred by:

(a) allowing counsel for defendants to

raise a new issue at oral argument that

was not previously argued to the

District Court;

(b) denying petitioner the opportunity to

offer evidence in response to that

issue; and,

(c) making a factual determination on that

issue in support of its decision

sustaining the District Courts’ granting

of respondents’ motions for summary

judgment.

Initially, it must be noted that this argument is

apparently addressed to the Fifth Circuit’s conclusion that:

“We further note that the three specific

22

cleaning and maintenance assignments about

which Wells complains occurred during the

period where his doctor’s treatment/restriction

reports state that his activities were

unrestricted. [FN2]

Footnote 2 states that:

“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’s report limits his activities to ‘light

duty at 90' but states that his restrictions only

in effect until March 15, 2000. An August 16,

2000, report states that he should avoid

“constant maintenance, prolonged standing &

janitorial duties,”, but a September 6, 2000,

report states that these restrictions are only in

effect until October 18, 2000.”

It is important to note that the Fifth Circuit Court

reached this conclusion on these facts taken directly from the

Statement of the Facts submitted by the CITY and

ALWELL in the brief submitted to the Court of Appeal.

(See page 5 of ALWELL’S brief.) Further, the Statement of

the Facts is drawn exclusively from exhibits submitted to the

District Court jointly by the CITY, ALWELL and

HAMERNICK , which were identified and cited as Exhibit

C, WELLS’ Personnel File with the CITY, page 133, and

Exhibit F, Deposition of Pamela L. Saurage. Contrary to

WELLS’ argument, the record is replete with references

made to these exhibits in pleadings and argument to both the

lower courts. For example, in the CITY’s reply brief to

WELLS’ Opposition to the Motion for Summary Judgment,

at pp. 8-9, reference is made to the reports of Dr. Pope, the

23

restrictions, and the dates of the reports and/or restrictions.

Additionally, in the CITY’s original Motion for Summary

Judgment reference is made to Dr. Pope’s records,

restrictions and the dates thereof. (See pp. 12, 24, 26 and 37

of the CITY’s Motion for Summary Judgment.) Further, in

the Statement of Uncontested Facts submitted by ALWELL,

at page 2, reference is made to Dr. Pope’s report of February

28, 2000, which stated that WELLS was to return to work as

an Operator II on March 8, 2000. (See pp. 2 and 5 of the

Statement of Uncontested Facts.) | Furthermore, specific

reference is made to Dr. Pope, his reports and restrictions in

ALWELL’s Memorandum in Support of Motion for

Summary Judgment. (See pp. 6, 16, 18 and 27 of

ALWELL’s Motion for Summary Judgment.)

In contrast to WELLS’ bold argument that new

questions of fact were raised on appeal, even a cursory review

of WELLS’ own deposition, the CITY, ALWELL and

HAMERNICK’s pleadings, and WELLS’ Opposition to the

Motion for Summary Judgment reveal extensive briefing and

discussion of Dr. Pope’s reports and restrictions. (See also

Plaintiff's Opposition to Motion for Summary Judgment, pp.

5 & 26.) Additionally, WELLS filed the office notes of Dr.

Pope as Exhibit S and the questionnaire of Dr. Pope,

changing limitations, dated August 16, 2000, as Exhibit T.

Thus WELLS’ claim that this was a “new” factual issue not

previously raised until oral argument before the Court of

Appeals is disingenuous and utterly contradicted by the

record.

Finally, during the course of WELLS’ oral argument,

WELLS’ counsel made factual assertions that the

instructions given by ALWELL and/or HAMERNICK

violated Dr. Pope’s restrictions. In response to WELLS’

incorrect factual argument that Dr. Pope’s restrictions were

violated, the panel of judges for the Fifth Circuit were

informed that these statements were erroneous and their

24

attention was directed to the exhibits referenced in the

Statement of the Facts contained in the Briefs of the CITY

and ALWELL and attached as brief appendices. (See pp. 5-6

of the Statement of the Facts and the specific exhibits

referenced therein.)

In summary, WELLS’ argument at the Fifth Circuit

was contradicted by the exhibits in evidence. When this

contradiction was brought to the Fifth Circuit panel’s

attention, it was apparently deemed significant, as indicated

in the April 29, 2004, per curiam denial of WELLS’ appeal.

The Fifth Circuit’s reference to the undisputed evidence

submitted by CITY, ALWELL and HAMERNICK and

WELLS is nothing more than a refutation of WELLS’

argument that Dr. Pope’s restrictions were somehow violated

by the actions of ALWELL and/or HAMERNICK. In

other words, WELLS is now seeking a reversal on an issue

his attorney raised at oral argument and which was resolved

adversely to WELLS by the Fifth Circuit’s review of the

evidence submitted by all parties in the District Court. This

should not be allowed.

CONCLUSION

No evidence existed that the CITY, HAMERNICK or

ALWELL understood the exertion required to cause

WELLS to re-injure his knee. WELLS did not specifically

tell the officials of the CITY or HAMERNICK or

ALWELL that the assignments would cause him to re-injure

his knee. Both ALWELL and HAMERNICK testified that

they thought WELLS could perform the assignments because

WELLS had told him he could do the work and

HAMERNICK had seen WELLS jump from the back of

boats and run up stairs prior to making the work assignments.

Under modern summary judgment practice, “there is

no issue for trial unless there is sufficient evidence favoring

25

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, 106 S.

Ct. 2505, 91 L. Ed. 2d 202 (1986).

The lower courts appropriately ruled that WELLS

failed to meet his burden of proof. WELLS presents no

reason to reevaluate this decision. Moreover, his Petition

cites no contrary or more recent authority to discredit the

holdings of the lower courts.

For the foregoing reasons, the Petition for Writ of

Certiorari should be denied.

Respectfully Submitted,

Stacy C. Auzenne (#21995)

KEISER & AUZENNE, L.L.C.

Attorneys at Law

3700 Jackson Street,

Suite #102

P.O. Box 12358

Alexandria, Louisiana 71315

Telephone: (318)443-6168

Facsimile: (318) 443-6211

A Professional Law

Corporation

ATTORNEYS FOR

RESPONDENT, THE CITY

OF ALEXANDRIA

H. BRADFORD CALVIT

PROVOSTY, SADLER,

DELAUNEY, FIORENZA &

SOBEL, A P.L.C.

34 Third Street, Suite 800

Post Office Drawer 1791

Alexandria, Louisiana 71309

26

Telephone: (318) 445-3631

Facsimile: (318) 445-9377

ATTORNEYS FOR

RESPONDENT WILLIAM

GERARD ALWELL

RICHARD A. ROZANSKI

WHEELIS & ROZANSKI, A

PLA.

P.O. Box 13199

2312 S.MacArthur Drive

Alexandria, LA 71315

Telephone: (318) 445-5600

Facsimile: (318) 445-5710

ATTORNEYS FOR

RESPONDENT

JOHN HAMERNICK