Yolunda Davis VS St. Francisville Country Manor, L.L.C.

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STAI OF LOUISL NA CQURT C APPEAL F I FIRS CIRCL IT YIBEI2 NU 2013 CA 0190 J A Li1NI D Y S I y VERSLTS ST FRANCISVIL COL VIA L LE NTRY VOR C ntReneiered November 1 2013 Judgm Appealed from the Twentieth Judieial District Court In and for the Parish of West Feliciana Louiseana t Doek Number 21448 Aonorable William G Carmochael Jadge Presiding x Paul H Benoist intiffOAppellane P1 Natchez MS Yolunda Davi Charles S Norris Jr Jill R Carter Vidalia LA Jeremy D Goux Martha D Bowden Caunsel for Defen Appellee ant St Fraueisville Cc Ianor LeL untry C Covington LA kickikxi t aFkic Yk BEFORE WffiPPLE C WELCF AND CRAIN JJ J WHIPPLE C J Yolunda Davis appeals a summary judgment granted in favor of her former employer St Francisville Country Manoi L St Francisville which C dismissed Ms Davis petition for unpaid wages Far the following reasons we s reverse the judgment of the trial ceurt and remand the matter to the trial court for further proceedings FACTS AND PROCEDURAL HISTORY Ms Davis was employed as a licensed practical nurse by St Francisville until August 23 2010 when she signed a letter of resignation and left her employment on the same day Ms Davis received her final paycheck from St Francisville on September 7 201Q in the amount of 347 Several days later 14 Ms Davis sent written conespondence to St Franc notifying it that she was sville still due payment for outstanding unpaid benefits and demanding payment within three days Ms Davis eventually filed a tawsuit on November 18 2011 seeking unpaid wages Ms Davis petition alleged that St Francisvilie had failed to pay s her approximately 1 f her accrued and earned paid days off PDO 00 008 or despite amicable written demand Ms Davis sought payrnent of these unpaid wages plus ninety days penalty wages attorr sfees and court costs ey In response St Francisville filed a motion far summary judgment seeking a dismissal of Ms Davis lawsuit St Francisville argued that no additional s amounts were owed to Ms Davis because 1 the PDO accumulated by Ms Davis did not constitute wages ar pay far which compensation was owed vacation and 2 St Francisville employee benefit schedule specifically provides that s compensation for PDO is not paid to employees such as Ms Davis who quit without proper notice After a hearing on the matter the trial court granted St Francisvilie motion s for summary judgment and dismissed Ms Davis lawsuit s 2 Ms Davis now appeals asserting the following assignments of error 1 The trial court erred when it failed to find that genuine issues of material fact existed reg whether the PDO benefit was a rding wage or a mere gratuity 2 The trial court erred when it failed to find that genuine issues of material fact existed regarding whether St Francisville owed Ms Davis any unpaid wages 3 The trial court erred when it fa3led to find that genuine issues of material fact existed regarding whether St Francisville could require Ms Davis an at employee to forfeit her wages will 4 The trial court erred when it failed to find that genuine issues of material fact existed regarding whether St Francisville set forth a good faith non defense or should be subjected to arbitrary penalties 5 The trial court erred when it failed to find that genuine issues of fact existed regarding whether Ms Davis was entitled to penalties and attorney sfees STANDARD OF REVIEW A motion far summary judgment is properly granted if the pleadings depositions answers to interrogatories and admissions together with affidavits if any show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law LSA art 966 The summary P C B judgment procedure is expressly favored in the law and is designed to secure the just speedy and inexpensive detenmination of non civil actions LSA domestic P C art 966 2 A The mover bears the burden of proving that he is entitled to summary judgment LSA art 966 However if the mover wall not bear the P C 2 C burden of proof at trial on the subject matter of the motion he need only demonstrate the absence of factual support for one ar mare essential elements of his opponent claim action or defense LSt art 966 If the moving s P C 2 C party points out that there is an absence of factual support for one ox rnore elements essential to the adverse party claim action or defense then the nonmoviz s gparty must produce factual support sufficient to satisfy his evidentiary burden at trial P C LSA art 966 If the mover has put forth supporting proof through 2 C 3 affidavits or otherwise the adverse party may not res on the mere allegations or denials of his pleadings but his response by affidavits or otherwise must set forth specific facts showing that there is a genuine issue for trial LSA art P C B 967 In determining whether summary judgment is appropriate appellate courts review evidence de novo under the same criteria that govern the trial court s determination of whether summary judgment is appropriate East Tan ipahoa Development Company LLC v Bedico Junction LLC 2008 La App lst 1262 Cir 12 5 So 3d 238 243 writ denied 2009 La 3 5 So 08 23 244 0166 09 27 3d 146 DISCUSSION Characterization of the PDO Provision Wages or Gratuitv Assignments of Error Nos 1 and 2 The Louisiana Wage Payment Act LSA 23 se is designed to S R 631et c compel prompt payment of earned wages upon an employee discharge or s resignation hter Slau v Board of Supervisors of Southern University and Agricultural and Mechanical College 2010 La App l Cir 876 So 1049 ll 2 3d 438 446 Specifically LSA 23 provides that upon S A R 631 b 1 resignation of an employee the employer shall pay the employee the amount then due under the terms of employment on or before the earlier of the next regular pay day or fifteen days following the employee discharge Far purposes of LSA s S R A 631 23 wages are equivalent to the amount then due under the terms of employment i wages or compensation earned during a pay period e Boudreaux v Hamilton Medical Group Inc 94 La 10 644 So 2d 0879 94 17 619 622 Slaughter 76 So 3d at 450 451 In seeking summary judgment St Francisville contended that no additional compensation was due to Ms Davis because the accumulated paid days off do not 4 I constitute vacation for purposes of LSA 23o531 In support of this S RD argument St Francisville introduce it mplc benefit schedule which states e y the following in regard to paid days off All employees who have compieted the probationary period and r work for at least 35 hours per week are entitled to 10 PDO annually These accrue at the rate of 333 ours er nayroll period These days are provid in lieu af acatior or holidays In other words if d you take off Chrzstmas day ar vvar be paid for that day you must d tto request to use one of you P U PDO are equal to 8 hours tizx yowr pay raxe PDO are paid for days es that you take off not for days you wark PDO can be requested the pay period before you want it paid from February l to November 15 For the t period November 1 S to January 31 PDO must be tme PDO accruals are requested and approved 45 dav in advance accrued in one year to be nanked and used in the following year You can carry ove up tq three 3 PDO past y anniversary date ur All days over three 31 will be paid ta you the pay period after your anniversary date This benefit is paid to acxive employees If you quit without proper notice you forfeit this benefit Emphasis added St Francisville argued th sum judgmen was p because the t nary oper I accumulated paid days off are granted tio empl in the nature of a mere oyees gratuity and t1 do not cortstitute racation for purposes af LSA us S R D 631 23 The trial court agre that the PDO wer not earned and thus were d not wages due In determining wheYher the trial court conrectly granted summary judgment on this basis we mast cons whether as a matter of law the der compensation sought by Ms Davis in Yier petition for the accumulated but unused Louisiana 1Revised Statute 23 provides as follows D 631 1 For purposes of this Section vacation pay will be considered an amount then due only if in accordance wiTh the stated vacation policy of the person employing such laborer or other employee both of the following apply a The laborer or other employee is aeemes3 eligibie for and has accrued the right to take vacation time with pay b The laborer or other employee has not taken or been compensated for the vacation time as of the date of the discharge or resignation 2 The provisions of this Subsection shall not be Inte to allow the preted forfeiture of any vacation pay actually earned by an employee pursuant to the employers policy 5 PDO bene tconstitutes a gratuitous benefit for which no cormpen could be sation due as opposed to an amount then due under the tenns of employment pursuant to LSA 23 The jurisprudence recognizes tl vacation benefits that S R 631 at have accrued to an emp c the course of his or her employment are e oy ver encompassed within the ambi4 of th statute s an amount then due under the terms of men2 employ See Beard rnzt Stam Institute for Pulrzzonary Medicine and Rehabilitation Inc 97 La 3 707 S 2d 1233 1235 and 184 9 4 Barrilleaux v Franklin Foundation Hospital 96 La App l Cir 11 a343 96 8 683 So 2d 348 353 writ denied 96 La 1 686 So 2d 864 2885 97 24 Subsection D of LSA 23 S R 631 specifically addresses payment for accumulated vacatic ntime stating that vacation pay will be considered an amount due only if in accordance with the stafed vacation policy the exnployee is eligible and has accrued the rigl 1 take vacation ime an has not been otherwise t l compensated for the vacation time Likewise unused paid time off that an employee has accrued during the course of artd based on work under the terms of his or her employment cor wages earned during a pay period due under stitutes the Louisiana Wage Payment Act Bcudreaux 644 So 2d at 6i9 When an employer promises a benefit to employees and ereZployees accept by their actions in meeting the conditions the resuit is not a mere gratuity or illusory promise but a vested right in the employee to the romised benefit In z addressing this issue we note that Ms Davis did not file a cross for sammazy motion judgment Thus oux analysis in this appeal is limited to whether St Prancisville has demonstrated as a matter of law that he benefit at issue constitutes a iawfui gratuitous benefit fox which no compensation is due and therefare has demonsh that Ms Davis would be unable ated to establish the essential element of her claim that her accaamulated but unused PDO benefit was an amount due wnder the terms of employment pursuant to LSA 23 S R631 In 3 Beard the Louisiana Supreme Court held as foi lows When an employer agrees t pay employees for unused vaca time as z ion condition of their employment that accrued vacation pay is compensation that is earned during a pay period undex Boudreazar 644 So Zd at 621 As such 622 accrued vacation time is an then due under the term of employmenY amount and constitutes wages under La R 23 S6 sl Beazd 707 So 2d at 1235 6 Knecht v Board of Trustees for State Colleges and Universities and Northwestern State University 591 So 2d 690 695 La 1991 4 Applying this principle the court in Macrellis v Southwest Louisiana Independence Center 94 La App ll55 3rd Cir 5 657 So 2d 135 137 recognized that earned annual leave was an 95 3 amount then due within the zneaning oF LSA 23 noting that S R 631 lthough a the right to enjoy the annual leave was prospective it became the property of the employee as it was earned during the first year of employment Thus the earned annual leave was an then due under LSA amount S R A 631 23 See a1 Beard 707 So 2d at 1235 Based on onr review of th law and the record we conclude that St Francisville failed to demonstrate the absence of factual support for an element of Ms Davis claim that the unused accnnnulated PDO benefit constituted earned s wages for which compensatior was due Specifically St Francisville failed to demonstrate that Ms Davis would be unable to establish that she had a vested right in her accumulated paid days off and that compensation for such accrued paid days off was owed to her as an amount then due under the terms of employment St Francisville promised its employees including Ms Davis that they could accrue paid days off during the cours of their employ if certain conditions ment were met Specifically the employee benefit schedule states that employees who have completed their probationa ryperiod and w work at least thirty hours o five per week are entitled to ten paid days off annually which accrue at the rate of 3333 hours per payroll period There is no dispute that Ms Davis met these stated In Knecht the Louisiana Supreme C found that employees were entitled to receive urt accumulated but unused compensatory leave hat was accrued pursuant to the empioyer policy s of compensating for unpaid overtime by granting paid leave The court rejected the employer s argument that the ability to accrue leave was a privilege which could be revoked finding that the employer failed to recognize that the employees had a contractual right and a property interest in the accwnulated leave Knecht 591 So 2d at 696 7 conditions There is also no dispute that Ms Davis had accumulated certain unused paid days off at the time ofher resignation Any purported difference between paid days off and vacation time with pay is a distinction without substance and is simp a matter of semantics The y right to compensation vests as an eligib eemployee accrues the paid time off in accordance with the employee benefit schedule The accrual of the right to be compensated while not at wark whether labeled vacation paid days off or any other similar label is the triggering event that renders Subsection D 631 applicable The compensation owed for the unused paid time off is an amount then due under Subsection 631 and must be timely paid in accordance with D Subsection 631 See LSA 23 Beard 707 So 2d at 1235 Barrilleaux A S R 631 683 So 2d at 343 We recognize that other appellate courts have found that where an employer has a clearly established policy that vacation time is not considered wages for the purposes of La 23 an employee is not enritled to SD R 631 2 reimbursement for unused accrued vacation time on the theory that in such a situation vacation time is a mere gratuity Semien v The Geo Group 2010 642 La App 3rd Cir 12 52 So 3d 1019 1020 writ denied 2011 La 10 8 0083 11 25 2 58 So 3d 458 citing Kately v Global Data Systems Inc OS La 1227 App 3rd Cir 4 926 So 2d 145 However as acknowledged in both Semien 06 5 and Kately and as noted by this court in Alumbau v Global Data Svstems Inc h 1281 2008 La App 1st Cir 12 unpublished opinion in the absence of a 08 23 clear written policy establishing that vacation time granted by an employer is nothing more than a mere gratuity and not to be considered an amount due ar a wage accrued but unused vacation time is a vested right for which an employee must be compensated or paid upon discharge or resignation 8 I St Francisville relies on Semien in support of its argument that the language of its policy provides a mere gratuity In Semien the employer leave policy s provided that employees were granted paid time off PTO at the beginning of each fiscal year such that it was not earned or accrued over the course of any pay period The PTO days had to be used during tlaat year or forfeited and would not be paid out upon termination The courY found the employer was not required to pay an employee for unused PTO because the employer policy clearly provided s that PTO was granted as a benefit and not earned by the employee Semien 52 So 3d at 1019 In contrast St Francisville employee benefit schedule does s not clearly establish that paid days off are not considered wages for the purposes of LSA 23 The benefit schedule does not expressly state S D R 631 that paid days off are a gift a donation or unearned Instead St Francisville s benefit schedule speaks in terms of the employee being entitled to paid days off which accrue at a related specified work rate during each pay period See hv Alumbau Global Data Svstems Inc 2008 La App lst Cir 12 1281 08 23 unpublished opinion Thus under St Francisville benefit schedule an s employee who has completed the probationary period and who works at least five thirty hours per week is entitled to earn PDO which accrues at the rate of 3333 hours per payroll period the employee works Accordingly we conclude that St Francisville failed to demonstrate that it was entitled as a matter of law to judgment in its favor dismissing Ms Davis s claims on the basis that the amount at issue was a gift and a gratuity and that Ms In S Alumbaueh the employer azgued that its vacation policy clearly established that vacation time was gratuitous and not to be considered an amount due under LSA 23 S R 631 The employer relied on provisions in its vacation policy providing that u termination of pon employment all unused vacaYion time will be farfeited and not paid and that financial compensation will not be provided in lieu of unused vacation This court disagreed with the s employer argument stating that Global employee vacation policy does not expressly state s that paid vacation time was a gift a donatlon or unearned Rather Global employee vacation s policy speaks in terms of eligibility for and accrual of vacation time and specifically provides that all vacation rime will be based on actual continuous fizll time work at Global Emphasis added 9 Davis would be unable to establish that the earned but unused PDO benefit is an amount then due under the terms of employment pu to LSA 23 suant R 631 S The trial court erred in holding otherwise rfeiture F Assignment of Error No We next address whether St Francisvi established that as a matter of law lle Ms Davis can be held to have forfeited paym or compensation for her ent accumulated PDO by leaving her emplovrnent with St Prancisville without proper notice As noted above the employ benefit scl at issue herein states that ea eduie if you quit without proper notice yoa f thzs benefit rfeit Because we conclud that St Francisville benefit schedule entitles an s employee who has completed the probationary period and who works at least five thirty hours per week to earn PDO which accru at the rate of 3 hours s 333 per payroll period the employee works we likewise conclude that the forfeiture clause in the benefit schedule is invaPid under LSA 23 which prohibits S R 634 an employer fronr requiring an emplqyee tc forfeit wages upon xesignation or Yermination In Beard the empioyer argued Yhat since its pexsonnel policy provided that vacation pay is forfeited when an employe abandons his or her position which the eznploz ee did cor for sach vacation p was not due pensation y under the terms of employrra The Louisiana Supreme Cou reiected the ent sargument stating employer La R 23 strictly forbids an employer from requiring an S 634 employee to forfeit her wages upon resignation and provides that the err shall be entitled to the wages actually earned up to the ployee time of their discharge or resignation The terans of Beard s 6 Louisiana Revised Statute 23 provides in pertinent part 634 Contract forfeiting wages on discharge unlawful A No person acting either for himself or as agent or o shall require any hez of his employees to sign contraets bv which tYxe employees shail forfeit their wages if discharged before the contract is completed or if the employees resign their employment before the contract is completed but in all such cases the ployees em shall be entitled to the wages actually earned up to the tir of tkieir e discfiarge or resignation 10 t oula Ic tha she employment were be comp ensated for an y unused vacation time Because accrued acation tim is wages La RS 634 23 prohibits an employznert poli or a si employment y ned contract which requires its torfaiture Beard 707 So 2d at 1235 1236 Similarly in tl instant case compensatic for an accumu but unused ie n ated I PDO benefit is an atziount then due under h tenns of employment and constitutes wages under LSA 23 such that LSA 23 strictly S R 631 S R 634 prohibits the provision i St Francisville ben schedule that mandates s efzt forfeiture of these wages whe an emplo such as Ms Dsvis Guits without z ee proper notice Thus on the record before us we likewice conciude that St Francisville failed to establish that it was enntled as a makter of law to judgment in its favor dismissing Ms Davis claims l s ased on its assertion that s forfeited the e compensation owed for her accumnlate PD benefit by quitting without proper J notice Accordingly the judgment of t traal c granting St Francisville urt s motion for suanmary an dismissi Ms llavis ciaim for an wages must be dg s aid reversed and the matter is remanded f fi proceedings r rther CONCLUSION For the aboce reasors we revers the Nov 5 2012 judgment in favor mber of St Francisville Countr Manor L and remand this case to the tria caurt for C further proceedings consistent with the ciews expressed herein All costs are assessed to defendant St Francisvill ountry Manor L C REVERSED AND REMANDF D This is particularly appropriate iven tt Louisiana is an at employment state at will In 8 light of our reversal of the suenixiary judgment and remand of ihe matter to the trial court through our resolution of assignments of error one through three we preYermit discussion of assignments of error four and five 11 I

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