Constance Ferrell filed this action alleging among other things sexual harassment and intentional infliction of emotional distress at her workplace. Defendants are her employer Shell Oil Company ("Shell") and five Shell employees Barry Roussel William Walls Tim Chauff Bruce T. Hotard and Clyde Hymel (the "Individual Defendants"). This matter was referred to the undersigned Magistrate Court for all proceedings and entry of judgment in accordance with 28 U.S.C. SEC. 636(c) upon written consent of all parties. Record Doc. No. 32.

Ms. Ferrell works as a furnace operator at Shell's Norco plant. Roussel is her supervisor and the other Individual Defendants are her coworkers. Ms. Ferrell contends that she was sexually harassed by the Individual Defendants throughout her employment with Shell beginning in May 1991 and continuing into and escalating in 1994. She also claims that the harassing conduct amounted to intentional infliction of emotional distress upon her and that Shell is vicariously liable for that intentional harm.

Currently before Court are three motions. First Shell and Roussel moved for partial summary judgment on plaintiff's claim of intentional infliction of emotional distress. They argue that there is no evidence in the record to establish either that Roussel participated in any conduct that amounts to intentional infliction of emotional distress or that Shell is vicariously liable for the intentional acts of the Individual Defendants.

Plaintiff filed a timely opposition memorandum. She contends that Roussel failed to correct the ongoing harassment and intentional infliction of emotional distress against her by employees under his supervision. She also alleges that he personally participated in the offensive conduct by displaying her confidential employment records to other employees including other Individual Defendants and by catering to the other Individual Defendants. Ferrell further argues that the Individual Defendants' intentional conduct was undertaken within the course and scope of their employment which makes Shell vicariously liable. She supports her opposition with deposition excerpts and exhibits from Shell's personnel files concerning its investigation of her complaints.

The second pending motion is plaintiff's motion to compel production of drug test results. The third is plaintiff's motion for protective order and for sanctions.

Having considered the complaint and amended complaint the record the memoranda of the parties the exhibits and the applicable law defendants' Motion for Partial Summary Judgment is hereby DENIED. Plaintiff's Motion to Compel Production of Drug Test Results is hereby GRANTED subject to Court's protective order described below. Plaintiff's motion for protective order and for sanctions is GRANTED IN PART AND DENIED IN PART as set forth in detail below.

I. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

A. Standard of Review

Summary judgment shall be granted when the pleadings depositions answers to interrogatories admissions of fact and affidavits if any show that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The movant must initially show that there is no genuine issue of material fact for trial by pointing out the absence of evidence to support the nonmoving party's case. The nonmoving party who bears the burden of proof at trial must then come forward with evidence to support the essential elements of her claim. Celotex Corp. v. Catrett 477 U.S. 317 321-23 91 L. Ed. 2d 265 106 S. Ct.2548 (1986); Burfield v. Brown Moore & Flint Inc. 51 F.3d 583 588 (5th Cir.1995).

A fact is material if its resolution in favor of one party might affect the outcome of the action under governing law. Anderson v. Liberty Lobby 477 U.S. 242 248 91 L. Ed. 2d 202 106 S. Ct.2505 (1986); Burfield 51 F.3d at 588. No genuine issue of material fact exists if a rational trier of fact could not find for the nonmoving party based on the evidence presented. Id. Factual controversies are resolved in favor of the nonmoving party but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts. Little v. Liquid Air Corp. 37 F.3d 1069 1075 (5th Cir.1994) (en banc).

B. Genuine Issues of Material Fact Exist as to Roussel's Conduct

In his motion Roussel recites the allegations of the complaint and states that there is no evidence that he personally engaged in intentionally tortious conduct. Ferrell has met her burden to come forward with evidence to support her claim that Roussel intentionally inflicted emotional distress upon her.

Construing the facts in the light most favorable to plaintiff her exhibits demonstrate that she complained to Roussel about sexual harassment on the job in 1992. He then spoke to the crew members about her complaint. The other Individual Defendants responded by ostracizing her and by urging other crew members to do the same. This retaliatory conduct persisted and she again complained about it. She alleges that Roussel catered to the other Individual Defendants and did not quash their retaliatory conduct. This allegation is supported by various statements of non-party witnesses contained in Shell's investigation file. Plaintiff's Exh. A.

In February 1994 Shell investigated Ferrell's complaints. As a result of that investigation Roussel was Counseled and reprimanded in writing for his failure "to take appropriate action to correct or notify management of an offensive work environment involving a female on your shift." The letter of reprimand documented that Roussel was "aware of certain unacceptable actions by some operators on [his] shift but neglected to confront the individuals responsible or take remedial action." Plaintiff's Exh. B.

Ferrell also alleges that Roussel actively participated in the pattern of harassment in 1994 by showing her absenteeism records to other employees including at least one of the Individual Defendants in violation of both her privacy rights and company policy. That allegation is supported by the deposition testimony of a non-party witness Mo Champagne. Plaintiff's Exh. C. Roussel denied that he displayed Ferrell's records. Plaintiff's Exh. D.

It thus appears that genuine issues of material fact exist to be resolved at trial. These include the factual disputes surrounding whether Roussel's failure to correct the ongoing situation was intentional whether he displayed Ferrell's absentee records to other employees whether his conduct as a whole encouraged or inflamed the situation and whether his conduct was "extreme and outrageous" as required to prove intentional infliction of emotional distress. White v. Monsanto Co. 585 So. 2d 1205 1209 (La. 1991). Because. these issues necessarily involve credibility assessments summary judgment is not available at this time.

C. Genuine Issues of Material Fact Exist as to Shell's Vicarious Liability

Shell argues that it cannot be vicariously liable for any intentional infliction of emotional distress by the Individual Defendants because there is no evidence that any of the acts were done within the course and scope of their employment.

Whether an employer is vicariously liable for the intentionally tortious acts of its employees is a highly fact-based question. Massey v. Decca Drilling Co. 647 So. 2d 1196 1202 (La. App. 2d Cir.1994) writs denied 653 So. 2d 563 564 (La. 1995) (citing LeBrane v. Lewis 292 So. 2d 216 (La. 1974)).

The pertinent inquiry is whether the employee's tortious conduct was so closely connected in time place and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer's business as compared with conduct motivated by purely personal considerations entirely extraneous to the employer's interest.

Id. (citing LeBrane (emphasis added).

Court generally consider four factors in determining an employer's vicarious liability: "whether the tortious act was: (1) primarily employment rooted; (2) reasonably incidental to the performance of the employee's duties; (3) occurred on the employer's premises; and (4) occurred during hours of employment." Samuels v. Southern Baptist Hosp. 594 So. 2d 571 573 (La. App. 4th Cir.1992) (citing LeBrane 292 So. 2d at 218); accord Manale v. City of New Orleans 673 F.2d 122 126 (5th Cir.1982); Emoakemeh v. Southern Univ. 654 So. 2d 474 476 (La. App. 1st Cir.1995). All four factors need not be present to find liability. Id.; Samuels 594 So. 2d at 573.

In the instant case the conduct of the Individual Defendants occurred on Shell's premises during working hours. Shell's primary contention is that the Individual Defendants' job duties do not include sexual harassment or intentional infliction of emotional distress and such conduct cannot be attributable to Shell's business of refining petrochemicals. Shell relies on Bennett v. Corroon & Black Corp. 517 So. 2d 1245 1248 (La. App. 4th Cir.1987) writ denied 520 So. 2d 425 (La. 1988) which affirmed the dismissal of plaintiff's claim against her employer for vicarious liability for sexual harassment and defamation by other employees. The tortious conduct consisted of obscene cartoons of the female plaintiff and male employees posted on the walls of a men's restroom at her workplace. When she discovered the cartoons the plaintiff immediately quit her job. Court held that the plaintiff failed to demonstrate that the employees who posted the cartoon were acting within the course and scope of their employment because the conduct was not "included among the duties of an employee of the defendant insurance brokerage firm nor was it attributable to the business." Id. Court also found that the employer neither authorized nor ratified the defamatory conduct and that it took immediate remedial measures including firing the company's chief executive officer once it found out about the offensive situation. Id.

However Bennett does not mandate summary judgment in Shell's favor. Aside from the factual distinctions from Ferrell's case other opinions have held employers liable for intentional or negligent torts by employees even though the particular tortuous acts were not undertaken for the employer's specific benefit. "The fact that the predominant motive of the employee is to benefit himself or a third person does not prevent the act from being within the scope of employment. The act may be found to be in the service of the employer if not only the manner of acting but the act itself is done largely for the servant's purposes." Massey 647 So. 2d at 1202 (citing Ermert v. Hartford Ins. Co. 559 So. 2d 467 (La. 1990)); accord Samuels 594 So. 2d at 573.

The focus of the vicarious liability inquiry cannot be on the tortuous act itself. If it were employers could evade liability in most cases since employers obviously do not include violating company policy or harming one's coworkers among their employees' job duties. Rather Court must determine whether the employee's general activities at the time of the tortuous conduct were within the scope of his employment. The fact that the act is forbidden or is done in a forbidden manner does not remove it from the scope of employment as long as the duty undertaken was designed to promote the interest and welfare of the employer. Emoakemeh 654 So. 2d at 477; accord Manale 673 F.2d at 126.

Under these standards Ferrell has produced evidence to show that the Individual Defendants were acting within the course and scope of their employment when they allegedly committed the acts of intentional infliction of emotional distress. Roussel's failure to act to correct the alleged ongoing harassment and his alleged display to Ferrell's coworkers of her absentee records were undertaken within the course of his employment as supervisor. The other Individual Defendants who were assigned to work with Ferrell also committed their alleged acts of retaliation at the workplace in response to her complaints of on-the-job harassment. Their actions allegedly affected her ability to perform her job.

Ferrell has met her burden to show that the Individual Defendants' actions were closely connected in time place and causation to their employment duties as her coworkers at Shell. Therefore genuine issues of material fact remain for trial concerning Shell's vicarious liability.

II. PLAINTIFF'S MOTION TO COMPEL PRODUCTION OF DRUG TEST RESULTS

Plaintiff's motion to compel production of drug test results is GRANTED subject however to production of the test results pursuant only to the protective order contained in this section.

Court notes preliminarily that plaintiff's motion is addressed only to drug test results concerning defendant Hotard. *fn1 The confidentiality statutes cited by defendants in their opposition memoranda all contain exceptions for disclosure of employee drug test results in any civil litigation where drug use by the tested individual is relevant. Plaintiff has met her burden to show the relevance of the requested information to the subject matter of this litigation particularly as the information relates to impeachment of defendant his credibility his job performance and application of Shell employee policies. Whether the evidence will be admissible at trial is specifically reserved to trial and in any event does not control its discoverability. Fed. R. Civ. P. 26(b)(1).

Accordingly Shell is HEREBY ORDERED to produce the requested information concerning Bruce Hotard to plaintiff within ten days of entry of this order. All parties are directed to maintain the confidentiality of the information and to use it only for purposes of this litigation. Access to the information shall be limited to parties to this litigation their Counsel and experts consulted or retained in connection with this litigation. No mention of the information may be made to any other person. Any person granted access to the information must sign an affidavit which must be filed with Court agreeing to abide by this protective order and submitting to this Court's jurisdiction for purposes of enforcement.

III. PLAINTIFF'S MOTION FOR PROTECTIVE ORDER AND FOR SANCTIONS

Plaintiff has submitted a motion for protective order and for sanctions. The motion arises out of certain objections made by plaintiff's Counsel during the deposition of plaintiff's husband. During that deposition the parties contacted the undersigned Magistrate Court by telephone and on the record of the deposition I directed the parties to attempt to reach agreement on the terms of an appropriate protective order and submit it to Court when agreement was reached or to file a motion if it became apparent that no agreement could be reached.

It appears from the motion and the opposition that most of the defendants lodged no objection to the draft protective order circulated by plaintiff's Counsel in response to my oral order during the deposition and that agreement was reached on the terms of a protective order with at least some of the defendants. Since none of the other defendants objected to the protective order drafted by Counsel for defendant Walls Court interprets their silence as tacit agreement.

It appears that this motion has been prompted only because signatures could not be obtained on the agreed protective order before submission to Court. However in her motion plaintiff has requested that Court enter the initial version of the protective order that she circulated rather than the version on which the parties ultimately agreed. Court declines to grant plaintiff's request in this regard.

Accordingly plaintiff's motion for protective order is GRANTED but Court will enter only the last version of the protective order circulated among the parties. As soon as that version is submitted by plaintiff it will be signed and made the order of this Court. Under the circumstances plaintiff's motion for sanctions is DENIED.

CONCLUSION

Accordingly IT IS HEREBY ORDERED that the motion of Shell and Roussel for partial summary judgment is DENIED. IT IS FURTHER ORDERED that plaintiff's motion to compel production of drug test results is GRANTED subject to the protective order described in section II above. Plaintiff's motion for protective order is GRANTED subject to the modification described above. The motion for sanctions is DENIED.

New Orleans Louisiana this 15th day of February 1996.

JOSEPH C. WILKINSON JR.

UNITED STATES MAGISTRATE Court