Craig Driesse v. National Oilwell Varco, Lp

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-125

CRAIG DRIESSE

VERSUS

NATIONAL OILWELL VARCO, LP

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 118,554
HONORABLE KEITH R. J. COMEAUX, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Elizabeth A. Pickett,
James T. Genovese, Phyllis M. Keaty, and John E. Conery, Judges.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Keaty, J., dissents and assigns written reasons.
Conery, J., concurs in part and dissents in part for the reasons assigned by
Judge Keaty.

L. Clayton Burgess
Angela B. Odinet
L. Clayton Burgess, APLC
605 West Congress Street
Lafayette, Louisiana 70501
(337) 234-7573
Counsel for Plaintiff/Appellant:
Craig Driesse

Christopher E. Moore
Christine M. White
Jacob C. Credeur
Ogletree, Deakins, Nash, Smoak, & Stewart PC
701 Poydras Street, Suite 3500
New Orleans, Louisiana 70139
(504) 648-3840
Counsel for Defendant/Appellee:
National Oilwell Varco, LP

PICKETT, Judge.

Craig Driesse appeals from the trial court’s judgment granting summary

judgment in favor of National Oilwell Varco, L.P. (NOV). NOV answered the

appeal, seeking damages for frivolous appeal. For the following reasons, we

affirm in part and reverse in part the judgment of the trial court and remand for

further proceedings.

FACTS AND PROCEDURAL BACKGROUND

The issue in this sexual harassment case is whether a genuine issue of

material fact exists as to whether an employer-employee relationship existed

between Driesse and NOV for purposes of the Louisiana Employment

Discrimination Law (LEDL), La.R.S. 23:302-303, and the Louisiana Workers’

Compensation Act (LWCA), La.R.S. 23:1031-1032. Driesse claims that he was

employed by NOV and co-employed by Lofton Industries, Inc., also known as

Lofton Staffing Services (Lofton). In April of 2010 when Driesse was working for

NOV, he was allegedly verbally harassed by his co-workers, James Latiolais and

Jason Hill.1 Driesse contends that this verbal harassment, which eventually turned

into sexual harassment, lasted for approximately four months until he was fired by

Troy Melchanon, another NOV employee, in August of 2010.

As a result, Driesse filed a lawsuit against NOV along with Latiolais and

Hill, individually, for sexual harassment pursuant to the LEDL.2 In his Petition for

Damages, Driesse also claimed that NOV was liable for negligence. On August 7,

2012, NOV filed a motion for summary judgment, arguing that NOV was not

1
Driesse refers to “Jaysun” and “Jayson” throughout his petition. In its appellate brief,
NOV asserts that the correct spelling is “Jason.”
2
Nothing in the record before us indicates that Driesse attempted to serve Latiolais
and/or Hill with the citation and petition.

Driesse’s employer as defined by La.R.S. 23:302(2). NOV further claimed that the

exclusivity provision of the LWCA, La.R.S. 23:1032, barred Driesse’s negligence

claims.

After the October 4, 2012 hearing, the trial court continued NOV’s motion

and gave Driesse ninety days to conduct discovery on the issue of NOV’s

employer status. Driesse subsequently filed a First Amending and Supplemental

Petition on November 2, 2012, naming Lofton as an additional Defendant.

The trial court heard oral argument on NOV’s motion for summary

judgment again on May 8, 2013. The trial court subsequently issued reasons for

judgment on June 28, 2013, granting NOV’s motion for summary judgment on the

issue of the viability of Driesse’s claims under the LEDL and on the issue of

negligence. The trial court entered judgment in favor of NOV and dismissed all

claims asserted by Driesse against it with prejudice.

On appeal, Driesse asserts one vague assignment of error. He contends that

the trial court manifestly erred in granting NOV’s motion for summary judgment.

Driesse alleges that “[t]he record is replete with genuine issues of material fact

regarding” NOV’s employment of Driesse, and, therefore, NOV’s motion for

summary judgment “was fatally flawed.”

DISCUSSION

Resolution of this appeal turns on whether NOV was Driesse’s employer

pursuant to the LEDL and whether dismissal of Driesse’s negligence claims

against NOV, pursuant to the exclusivity provision of the LWCA, was proper.

Louisiana Code of Civil Procedure Article 966(B)(2) provides that summary

judgment shall be granted “if the pleadings, depositions, answers to interrogatories,

and admissions, together with the affidavits, if any, admitted for purposes of the

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motion for summary judgment, show that there is no genuine issue as to material

fact, and that mover is entitled to judgment as a matter of law.” Although the

burden of proof remains with the movant, La.Code Civ.P. art. 966(C)(2) further

provides:

[I]f the movant will not bear the burden of proof at trial on the matter
that is before the court on the motion for summary judgment, the
movant’s burden on the motion does not require him to negate all
essential elements of the adverse party’s claim, action, or defense, but
rather to point out to the court that there is an absence of factual
support for one or more elements essential to the adverse party’s
claim, action, or defense. Thereafter, if the adverse party fails to
produce factual support sufficient to establish that he will be able to
satisfy his evidentiary burden of proof at trial, there is no genuine
issue of material fact.

“‘Appellate courts review a trial court’s grant or denial of a motion for

summary judgment using the de novo standard of review, under the same criteria

that govern the trial court’s consideration of whether a summary judgment is

appropriate in any given case.’” Ledet v. Campo, 12-1193, p. 6 (La.App. 3 Cir.

3/6/13), 128 So.3d 1034, 1038 (quoting Boykin v. PPG Indus., Inc., 08-117, p. 4

(La.App. 3 Cir. 6/18/08), 987 So.2d 838, 842).

I. Employer-Employee Relationship Pursuant to LEDL

An employer is defined in the LEDL, La.R.S. 23:302(2) (emphasis added),

as “a person, association, legal or commercial entity, the state, or any state agency,

board, commission, or political subdivision of the state receiving services from an

employee and, in return, giving compensation of any kind to an employee.” In

determining whether an employment relationship existed between Driesse and

NOV, Driesse contends that the right of the employer to control the work of the

employee is the most important factor. Driesse alleges that an employment

relationship existed since he reported to work every day at the instruction of NOV,

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and since NOV controlled his work location, his hours of work, and the manner

and type of work he performed. Driesse claims that NOV provided equipment and

tools and supervised his workmanship every day.

In opposition, NOV contends that it is not considered an employer under the

LEDL such that it cannot be liable to Driesse, because NOV did not give

compensation to Driesse.

In granting NOV’s motion for summary judgment on the viability of

Driesse’s claim under the LEDL, the trial court stated that Louisiana jurisprudence

“clearly requires an entity to compensate an individual to qualify as an employer,

which NOV did not do. NOV did not perform any other functions used to

determine if an entity qualifies as a compensating employer under the LEDL, such

as withholding taxes or providing benefits.”

Attached to NOV’s motion for summary judgment was the affidavit of Kisha

Adcock. Nineteen NOV invoices were attached to the affidavit as Exhibit A.

Adcock attested that she was NOV’s human resources representative in 2010 and

the custodian of the records attached to her affidavit. Adcock stated that Driesse

was Lofton’s employee and was assigned to work temporarily with NOV. Adcock

attested that Lofton supplied NOV with temporary employees, such as Driesse, to

work on NOV projects when NOV needed additional help. Adcock stated that

NOV never paid compensation to these temporary workers. Rather, NOV paid a

fee to Lofton based upon the number of hours worked by the temporary workers.

Adcock attested that NOV did not pay Driesse’s wages nor did it withhold federal,

state, unemployment, or social security taxes from his check. She stated that

Driesse was ineligible to participate in NOV’s benefit plans since he was not an

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NOV employee. Adcock attested that NOV simply verified the hours worked by

Driesse and paid the invoices Lofton submitted for its employees.

The invoices NOV received from Lofton for Driesse’s work performed from

April through August of 2010 were attached to the affidavit. These invoices were

printed on Lofton letterhead and addressed to NOV. The money paid by NOV to

compensate Driesse for his work was remitted directly to “Lofton Staffing

Services” and not to Driesse.

We find that the arrangement described in the affidavits and invoices shows

that NOV received services from Driesse and, in return, gave compensation “of

any kind” to Driesse, albeit through an intermediary, Lofton. This evidence shows

that NOV paid Lofton specifically for work done by Driesse, and Lofton then paid

Driesse after withholding taxes and social security. This is sufficient to create an

employment relationship for the purposes of the LEDL. The fact that the

compensation flowed through Lofton does not change the salient fact that the

money was ultimately paid to Driesse for services performed for NOV.

We conclude that NOV paid Driesse’s wages through Lofton. Thus, we

find that NOV is Driesse’s employer under the LEDL, and the trial court’s granting

of summary judgment in favor of NOV is reversed.

II. Exclusion of Negligence Claims Pursuant to LWCA

Our conclusion that Driesse is an employee of NOV for the purposes of the

LEDL is bolstered by the fact that NOV argues that Driesse is an employee for the

purposes of the LWCA in order to avoid liability for negligence. For public policy

purposes, we cannot countenance a situation where an employer is allowed to

disclaim its status as an employer for any purpose that avoids liability while

rushing to wrap itself in the protections afforded to an employer in the LWCA.

5

In his petition, Driesse claimed that NOV was liable for negligence,

including negligent hiring, negligent supervision, and negligent training of its

employees. In response, NOV argued in its summary judgment that despite

NOV’s lack of employer status under the LEDL, Driesse was a borrowed

employee under the LWCA. NOV further argued that as a borrowed employee,

Driesse’s negligence claims against NOV were barred by the exclusivity provision

of the LWCA, La.R.S. 23:1032.

In granting NOV’s summary judgment on this issue, the trial court agreed

with NOV that Driesse was NOV’s borrowed employee. The trial court’s holding

was based upon the exclusivity provision contained in the LWCA, La.R.S.

23:1032(A)(1)(a) (emphasis added), which provides in pertinent part: “the rights

and remedies herein granted to an employee . . . on account of an injury, or

compensable sickness or disease for which he is entitled to compensation under

this Chapter, shall be exclusive of all other rights, remedies, and claims for

damages.” With respect to a borrowed employee’s rights under the LWCA, the

court in Sanchez v. Harbor Construction Co., Inc., 07-234, p. 6 (La.App. 4 Cir.

10/3/07), 968 So.2d 783, 787, held that under the LWCA, La.R.S. 23:1031(C),3

“both the lending and borrowing employer are liable in solido for worker’s

compensation.” Thus, if Driesse is a borrowed employee, he is barred from

bringing a negligence action against NOV since under La.R.S. 23:1031(C), both

3
Louisiana Revised Statutes 23:1031(C) provides, in pertinent part:

In the case of any employee for whose injury . . . payments are due and
who is . . . employed by a borrowing employer in this Section referred to as a
“special employer”, and is under the control and direction of the special employer
in the performance of the work, both the special employer and the immediate
employer, referred to in this Section as a “general employer”, shall be liable
jointly and in solido to pay benefits as provided under this Chapter. . . . The
special and the general employers shall be entitled to the exclusive remedy
protections provided in R.S. 23:1032.

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Lofton and NOV are “entitled to the exclusive remedy protections provided in R.S.

23:1032.” We must therefore determine whether the trial court correctly found that

Driesse was a borrowed employee for purposes of the LWCA.

At the outset, we note that Lofton is in the business of loaning employees to

companies which need to hire temporary workers. “Companies in the business of

providing temporary laborers are ‘vocational lenders’.” Green v. Popeye’s Inc.,

619 So.2d 69, 73 (La.App. 3 Cir. 1993) (citations omitted). We also look at the

following ten-factor test utilized in determining whether an employee has been

borrowed from his original employer by a borrowing employer:

(1) First and foremost, who has the right of control over the employee
beyond mere suggestion of details or cooperation; (2) who selected
the employee; (3) who paid the employee’s wages; (4) who had the
right to fire the employee; (5) who furnished the tools and the place to
perform the work; (6) whether the new employment was over a
considerable length of time; (7) whose work was being done at the
time of the accident; (8) whether there was an agreement between the
borrowing and lending employers; (9) whether the employee
acquiesced in the new work situation; and (10) whether the original
employer terminated his relationship with or relinquished his control
over the employee.

Hebert v. Richard, 10-1417, p. 10 (La.App. 3 Cir. 7/6/11), 72 So.3d 892, 900.

Although no one factor is determinative, “the totality of the circumstances must be

considered.” Id. at 900.

According to Adcock’s affidavit, Lofton provided NOV with temporary

labor as requested by NOV. NOV, in return, paid Lofton a standard fee for every

hour worked by a temporary worker, including Driesse. Adcock attested that

Driesse was assigned to report to NOV for further instruction. Once Driesse

reported to NOV, Adcock attested that NOV had the right of control over Driesse,

including the power to dismiss him from the worksite. Adcock attested that while

at NOV facilities, Driesse was instructed and supervised by an NOV employee.

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Adcock stated that NOV had the authority to remove Driesse from the job.

Adcock attested that Driesse worked on NOV projects with NOV tools and worked

alongside NOV’s regular employees.

Based on the above, we find that NOV satisfies factors one, four, five, and

seven. We are unable to ascertain whether NOV or Lofton satisfies factor six. We

find that Lofton satisfies factors two and three. We find that an agreement existed

between Lofton and NOV with respect to factor eight. We find that Driesse

acquiesced in the new work situation with respect to factor nine. Finally, we find

that Lofton, as the original employer, did not terminate its relationship with

Driesse with respect to factor ten.

Our review of foregoing factors shows that Driesse was NOV’s borrowed

employee for purposes of the LWCA. Accordingly, the trial court’s judgment is

affirmed in this regard.

III. Frivolous Appeal

In its answer to the appeal, NOV requests an award of attorney fees to cover

the costs associated with defending this frivolous appeal pursuant to La.Code Civ.P.

art. 2164. The foregoing statute provides, in pertinent part, that “[t]he court may

award damages, including attorney fees, for frivolous appeal or application for

writs.” Because we find merit in Driesse’s appeal, we will not award damages for

frivolous appeal.

DECREE

The judgment of the trial court is affirmed in part, reversed in part, and

remanded. Costs of this appeal are assessed against the defendant, National

Oilwell Carco, L.P.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

8

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-125

CRAIG DRIESSE

VERSUS

NATIONAL OILWELL VARCO, LP

KEATY, Judge, dissenting.

In my view, NOV is not Driesse’s employer under the LEDL. The LEDL

defines an employer as a “legal or commercial entity, . . . receiving services from

an employee and, in return, giving compensation of any kind to an employee.”

La.R.S. 23:302(2). An employee is defined by the LEDL as “an individual

employed by an employer.” La.R.S. 23:302(1). Pursuant to the definition of an

employer under the LEDL and the jurisprudence interpreting same, NOV can only

be considered Driesse’s employer if it gave him, individually, compensation “of

any kind[.]” La.R.S. 23:302(2); see Duplessis v. Warren Petroleum, Inc., 95-1794

(La.App. 4 Cir. 3/27/96), 672 So.2d 1019 and Langley v. Pinkerton’s Inc. &

Capital City Press, L.L.C., 250 F.Supp.2d 575 (M.D. La. 2002). In this case, the

evidence shows that Lofton, and not NOV, compensated Driesse. The strict

definition of an employer under the LEDL, however, requires NOV to compensate

Driesse individually and not through “an intermediary” such as Lofton. There is

no statutory or jurisprudential authority allowing “an intermediary” to be a

substitute for an employer under the LEDL. Although unfair, I believe that the

power to change the definition of an employer under the LEDL rests with the

legislature and not this court. Accordingly, I would affirm this matter in its

entirety.