Bretton v. Compass Career Management, LLC

Filing 27

ORDER AND REASONS - the Court grants defendants motion 21 for summary judgment as to plaintiffs federal claim under the FLSA. The Court dismisses without prejudice plaintiffs state-law claims and defendants state-law counterclaims.. Signed by Chief Judge Sarah S. Vance on 1/26/15. (jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DIANNE B. BRETTON

CIVIL ACTION

VERSUS

NO: 13-663

COMPASS CAREER MANAGEMENT, LLC

SECTION: R(5)

ORDER AND REASONS
Defendant Compass Career Management, LLC moves for summary
judgment on plaintiff Dianne Bretton’s claims and on one of its
counterclaims.1

For

the

following

reasons,

the

Court

grants

defendant’s motion as to plaintiff’s Fair Labor Standards Act
claim.
over

The Court declines to exercise supplemental jurisdiction

plaintiff’s

state-law

claims

and

defendant’s

state-law

counterclaims and dismisses them without prejudice.

I. Background
This case arises from plaintiff Diane Bretton’s employment
with defendant Compass Career Management, LLC.
Defendant operates Compass Career College, a state approved
proprietary school of vocational learning that concentrates on the
fields of allied health, practical nursing, and cosmetology.2
Compass is licensed by the Louisiana State Board of Regents and

1

R. Doc. 21.

2

R. Doc. 21-2 at 1.

nationally accredited by the Council on Occupational Education.3
Plaintiff is a registered nurse.4

Compass employed plaintiff

as a Practical Nurse Instructor beginning on July 1, 2009.
March

28,

2011,

plaintiff

became

Program

Coordinator

of

On
the

Practical Nursing program. At all times during her employment with
Compass, plaintiff was employed as an instructor with a primary
duty of teaching and instructing with regard to Compass’s nursing
program.5
As a condition of plaintiff’s employment, defendant required
plaintiff to sign a confidentiality and non-competition agreement.6
The non-competition agreement provided that plaintiff could not
accept employment with another school for a period of one year
following termination of plaintiff’s employment.7
According to plaintiff’s complaint, plaintiff believed Compass
was not in compliance with various requirements for instruction
promulgated

by

the

Louisiana

State

Board

of

Practical

Nurse

Examiners.8 Plaintiff alleges that she observed several violations

3

Id.

4

Id.

5

Id.

6

R. Doc. 1 at 2; R. Doc. 21-2 at 2.

7

R. Doc. 1 at 2; R. Doc. 21-5 at 10.

8

R. Doc. 1 at 3.
2

in June 2012.9

On June 22, 2012, plaintiff allegedly called

Compass and gave two weeks notice of her resignation.10

Plaintiff

further alleges that she hand-delivered her letter of resignation
to Sara Moore Dugas and Leslie Moore, Compass employees, on June
25, 2012, and that her letter specified an effective date of July
6, 2012.11

Plaintiff alleges that Leslie Moore warned her about

“going to the Board of Nursing.”12
On June 28, 2012, Compass terminated plaintiff.13

Compass's

notification to the Louisiana Workforce Commission provided the
following reason for termination: plaintiff “was not following
instructions and refused to implement agreed changes to paperwork
[and] teaching documents.”14

The notification further stated:

“employee entered building after hours and wiped out hard drive on
company computer.”15

Plaintiff now contends that she deleted only

items from the hard drive which were her personal property.16

9

Id. at 4.

10

Id. at 5.

11

R. Doc. 1 at 5; see R. Doc. 24, Ex. 3.

12

R. Doc. 1 at 5.

13

Id.; R. Doc. 21-2 at 2.

14

R. Doc. 24, Ex. 8.

15

Id. at Ex. 10.

16

R. Doc. 24-1 at 2.
3

On the same day Compass terminated plaintiff, plaintiff sent
a letter via fax to Compass demanding outstanding pay from June 16
through July 6, 2012, and for thirty-two hours of vacation pay.17
In a letter dated June 29, 2012, Compass denied plaintiff’s request
for vacation pay, stating that Compass owed plaintiff no vacation
pay per its company vacation policy.18
On July 5, 2012, Compass issued plaintiff a refund check in
the amount of $137.07 for money she had paid via payroll deduction
for

her

August

health

insurance

premium,

overpayment because of her discharge.19

which

became

an

On July 10, 2012, Compass

issued plaintiff a paycheck in the amount of $1237.37 for 50.28
hours worked for the period of June 16-30, 2012.20 Also on July 10,
2012, Compass issued plaintiff a paycheck in the amount of $133.77
for nine hours worked for the period of June 16-30, 2012.21
Plaintiff filed this action against defendant on April 10,
2013, claiming violations of the Fair Labor Standards Act (FLSA)
and various state laws.22

Defendant answered plaintiff’s complaint

on July 2, 2013, and also asserted state-law counterclaims against

17

R. Doc. 24, Ex. 5.

18

Id. at Ex. 7.

19

R. Doc. 21-2 at 2.

20

Id.

21

Id.

22

R. Doc. 1.
4

plaintiff

and

her

husband,

John

Bretton,

for

defamation,

interference with a business relationship, unfair trade practices,
trespass, conversion, and theft of trade secrets.23
In total, plaintiff states five claims.

First, plaintiff

alleges that defendant violated the FLSA by failing to pay her at
the rate of time and one-half for the overtime hours she worked.24
Plaintiff alleges that she worked at least three hours of overtime
per day, five days per week, but was not paid time and one-half for
the overtime hours.25

Second, plaintiff alleges defendant violated

the Louisiana Whistleblower Law, La. R.S. 23:967(a), by retaliating
against her for threatening to disclose a workplace act or practice
in

violation

of

state

law.26

Third,

plaintiff

alleges

that

defendant violated La. R.S. 23:631 by failing to pay unpaid wages.27
Fourth, plaintiff alleges that defendant engaged in unfair and
deceptive acts affecting trade or commerce by enforcing a legally
insufficient

non-competition

23

R. Doc. 6.

24

R. Doc. 1 at 7.

25

Id. at 6.

26

Id. at 8.

27

agreement

Id. at 9.
5

in

violation

of

the

Louisiana Unfair Trade Practices Act, La. R.S. 51:1401, et seq.28
Fifth, plaintiff alleges that defendant is liable for defamation.29
Defendant now moves for summary judgment on all claims raised
by plaintiff and on its counterclaim for conversion.30

II. Legal Standard
Summary judgment is warranted when "the movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law."

Fed. R. Civ. P.

56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
When assessing whether a dispute as to any material fact exists,
the Court considers "all of the evidence in the record but refrains
from making credibility determinations or weighing the evidence."
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d
395, 398-399 (5th Cir. 2008).

The Court must draw reasonable

inferences in favor of the nonmoving party, but "unsupported
allegations or affidavits setting forth 'ultimate or conclusory
facts and conclusions of law' are insufficient to either support or
defeat a motion for summary judgment."

Galindo v. Precision Am.

Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting 10B Charles

28

Id.

29

Id. at 10.

30

R. Doc. 21.
6

Alan Wright & Arthur R. Miller, Federal Practice and Procedure:
Civil § 2738 (2d ed. 1983)).
If the dispositive issue is one on which the moving party will
bear the burden of proof at trial, the moving party "must come
forward with evidence that would entitle it to a directed verdict
if the evidence went uncontroverted at trial."

Int'l Shortstop,

Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991)
(quotation marks removed). The nonmoving party can then defeat the
motion by either countering with sufficient evidence of its own, or
"showing that the moving party's evidence is so sheer that it may
not persuade the reasonable fact-finder to return a verdict in
favor of the moving party."

Id. at 1265.

If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in the
record is insufficient with respect to an essential element of the
nonmoving party's claim.

See Celotex, 477 U.S. at 325. The burden

then shifts to the nonmoving party, who must, by submitting or
referring to evidence, set out specific facts showing that a
genuine issue exists.

See id. at 324.

The nonmovant may not rest upon the pleadings but must
identify specific facts that establish a genuine issue for trial.
Id.; see also Little, 37 F.3d at 1075 ("Rule 56 'mandates the entry
of summary judgment, after adequate time for discovery and upon

7

motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at
trial.'") (quoting Celotex, 477 U.S. at 322).

III. Discussion
A. Fair Labor Standards Act Claim
The FLSA requires that employers pay their employees at a rate
of at least one and one-half times their regular rate for the hours
an employee works in excess of a forty-hour workweek.
207(a)(1).

29 U.S.C. §

But employers do not have to pay time-and-a-half to

individuals “employed in a bona fide executive, administrative, or
professional capacity.”
further

define

these

Id. § 213(a)(1).

“white-collar”

The FLSA does not

exemptions.

Instead,

it

delegates authority to the Secretary of Labor to promulgate rules
that define these exemptions. Id. The white-collar exemptions are
affirmative defenses to overtime pay claims.

The employer bears

the burden of proving that a plaintiff is properly classified as an
exempt employee. See Corning Glass Works v. Brennan, 417 U.S. 188,
196-97 (1974); Idaho Sheet Metal Works, Inc. v. Wirtz, 383 U.S.
190, 209 (1966); Dalheim v. KDFW-TV, 918 F.2d 1220, 1224 (5th Cir.
1990); Kastor v. Sam’s Wholesale Club, 131 F. Supp. 2d 862, 865
(N.D. Tex. 2001).

8

The Secretary of Labor has promulgated regulations specifying
that “[t]he term ‘employee employed in a bona fide professional
capacity’ . . . also means any employee with a primary duty of
teaching, tutoring, instructing or lecturing in the activity of
imparting knowledge and who is employed and engaged in this
activity as a teacher in an educational establishment by which the
employee is employed.”
includes

“teachers

occupations.”

of

29 C.F.R. § 541.303(a).
skilled

Id. § 541.303(b).

and

The term teacher

semi-skilled

trades

and

The salary requirements of §

541.300 do not apply to teaching professionals.

Id. § 541.303(d).

Whether an exemption applies rests on the nature of the employee's
primary duty.

An employee's "primary duty" is "the principal,

main, major or most important duty that the employee performs."
Id. § 541.700.
The term “educational establishment” includes “an institution
of higher education.”

Id. § 541.204(b).

“Factors relevant in

determining whether post-secondary career programs are educational
institutions include whether the school is licensed by a state
agency responsible for the state’s educational system or accredited
by a nationally recognized accrediting organization for career
schools."

Id.

The Court must examine (1) whether plaintiff was a teacher or
instructor and, therefore, an exempt professional employee, and (2)
whether Compass Career College was an educational establishment.

9

See Escobedo v. Constr. Laborers’ Educ., Training & Apprenticeship
Fund of Minnesota & N. Dakota, No. CIV. 11-3653, 2012 WL 4838880,
at *2 (D. Minn. Oct. 11, 2012).
The Court finds that plaintiff was a teacher and, therefore,
an exempt professional employee.

Importantly, the parties have

stipulated: “At all times during her employment with Compass,
[plaintiff] was employed as an instructor with a primary duty of
teaching

and

nursing.”31

instructing
Thus,

with

there

is

regard
no

to

the

dispute

occupation

that

of

plaintiff’s

responsibilities consisted primarily of teaching and instructing.
This alone is sufficient to find that plaintiff was “employed in a
bona fide professional capacity.” See 29 C.F.R. § 541.303(a) (“The
term ‘employee employed in a bona fide professional capacity’ . .
.

also

means

any

employee

with

a

primary

duty

of

teaching,

tutoring, instructing or lecturing in the activity of imparting
knowledge . . . .”) (emphasis added).
Plaintiff contends that she was a non-exempt employee because
she

also

engaged

in

“administrative

duties”

as

the

Program

Coordinator of the Practical Nursing Program.32 Plaintiff testified
that as Program Coordinator, she “[h]ad to deal with the Louisiana
Board

of

Practical

nurses,

lesson

plans,

tests,

making

sure

everything--the other instructors had everything they needed, make

31

R. Doc. 24-1 at 1; R. Doc. 21-2 at 1.

32

R. Doc. 24 at 1.
10

sure clinicals were arranged.”33

Plaintiff also stated that she

performed both classroom and clinical instruction as the Program
Coordinator.34
That plaintiff also performed administrative work related to
her position as Program Coordinator does not demonstrate that she
was not an exempt employee.

When an employee performs multiple

functions, courts must ascertain the employee's "primary duty" to
determine whether she qualifies for exempt status.
541.700.

29. C.F.R. §

An employee's primary duty is teaching if it is "the

principal, main, major or most important duty that the employee
performs."
her

Id. Here, it is undisputed that “[a]t all times during

employment

with

Compass,

[plaintiff]

was

employed

as

an

instructor with a primary duty of teaching and instructing with
regard to the occupation of nursing.”35

Plaintiff's assertion that

she "also had administrative duties" does not demonstrate that
these

were

her

primary

duties,

especially

in

uncontroverted stipulation showing the opposite.

light

of

the

Plaintiff does

not even attempt to show that her primary duty was not teaching.
Plaintiff has therefore failed to demonstrate a genuine issue of
material fact regarding whether teaching and instructing was her
primary responsibility.

33

R. Doc. 21-6 at 7.

34

Id.

35

R. Doc. 24-1 at 1 (emphasis added); R. Doc. 21-2 at 1.
11

Plaintiff presents additional evidence to demonstrate that she
was a non-exempt employee: (1) she was paid on an hourly basis; (2)
on at least two occasions in 2012 she was paid overtime wages; (3)
she was required to punch a time clock; and (4) defendant had a
stated policy that plaintiff could work only thirty-two hours per
week when she was an instructor and thirty-six hours per week when
she was a Program Coordinator.

These facts, however, have no

bearing on whether plaintiff was exempt from overtime pay under the
FLSA teacher exemption because the teacher exemption does not
contain a salary test.

See 29 C.F.R. § 541.303(d); Tongring v.

Bronx Cmty. Coll. of City Univ. of New York Sys., No. 12 Civ. 6854,
2014 WL 463616, at *2 (S.D.N.Y. Feb. 4, 2014).
The

Court

also

finds

that

Compass

is

an

“educational

establishment” within the meaning of 29 C.F.R. § 541.204(b).

As

stated, the term includes “an institution of higher education,” and
“[f]actors relevant in determining whether post-secondary career
programs are educational institutions include whether the school is
licensed by a state agency responsible for the state’s educational
system

or

accredited

by

a

nationally

organization for career schools.”

recognized

accrediting

29 C.F.R. 541.204(b).

Here, it

is undisputed that Compass Career College is both licensed by a
state agency responsible for the state’s educational system and
accredited by a nationally recognized accrediting organization for
career schools.

Specifically, plaintiff does not dispute that

12

Compass Career College “is licensed by the Louisiana State Board of
Regents and nationally accredited by the Council on Occupational
Education.”36

The Louisiana State Board of Regents is a state

agency responsible for Louisiana's educational system, see La.
Const. art. VIII, §5, and the Council on Occupational Education is
a

nationally

recognized

accrediting

organization

for

career

schools, see In re Decker College, Inc., 578 Fed. Appx. 579, 580
(6th Cir. 2014) (noting that the Council on Occupational Education
is a United States Department of Education-recognized accrediting
agency); United States v. Lekhtman, No. 08-CR-508, 2009 WL 5095379,
at

*6

(E.D.N.Y.

Dec.

15,

2009)

(noting

that

the

Council

on

Occupational Education is a "national accrediting agency"); United
States Department of Education List of Regional and National
Institutional

Accrediting

Agencies,

available

at

http://www2.ed.gov/admins/finaid/accred/accreditation_pg6.html.
Therefore, the record demonstrates that Compass is both licensed by
a state agency responsible for the state's educational system and
accredited by a nationally recognized accrediting organization for
career schools. Accordingly, there is no genuine issue of material
fact that defendant operates an “educational establishment” within
the meaning 29 C.F.R. 541.204(b).
Because there is no genuine issue of material fact that
plaintiff

36

was

employed

as

a

teacher

in

R. Doc. 21-2 at 1; R. Doc. 24-1 at 1.
13

an

educational

establishment, plaintiff was exempt from overtime pay under the
FLSA teacher exemption. Plaintiff therefore cannot sustain a claim
for violation of the FLSA based on defendant’s failure to pay her
overtime

wages.

Accordingly,

defendant’s

motion

for

summary

judgment seeking dismissal of plaintiff’s FLSA claim is granted.
B. State-Law Claims
The Court has determined that defendant is entitled to summary
judgment on the sole claim arising under federal law in this case.
Defendant,

however,

seeks

summary

judgment

on

a

number

of

plaintiff’s claims arising under state law and on its counterclaim
arising under state law.

Defendant has also asserted additional

state-law counterclaims not at issue in its motion for summary
judgment.

Thus, the Court must consider whether to continue to

exercise supplemental jurisdiction over plaintiff’s and defendant’s
remaining state-law claims and state-law counterclaims.
U.S.C.

§

1367.

A

district

court

may

decline

to

See 28
exercise

supplemental jurisdiction if:
(1) the claim raises a novel or complex issue of State
law,
(2) the claim substantially predominates over the claim
or claims over which the district court has original
jurisdiction,
(3) the district court has dismissed all claims over
which it has original jurisdiction, or
(4) in exceptional circumstances, there are
compelling reasons for declining jurisdiction.

14

other

28 U.S.C. § 1367(c).
Court

must

also

In addition to the statutory factors, the

balance

the

factors

convenience, fairness, and comity.
F.3d 434, 446 (5th

Cir. 2002).

of

judicial

economy,

Smith v. Amedisys, Inc., 298

The Court has “wide discretion in

determining whether to retain supplemental jurisdiction over a
state law claim once all federal claims are dismissed.”
White, 996 F.2d 797, 799 (5th Cir. 1993).

Noble v.

Still, the “general

rule” is to decline to exercise jurisdiction over pendent state-law
claims when all federal claims have been eliminated prior to trial.
Brookshire Bros. Holding, Inc. v. Dayco Products, Inc., 554 F.3d
595, 602 (5th Cir. 2009).
Here, the Court has dismissed the only claim over which it had
original jurisdiction.

Only state-law claims and counterclaims

remain, and the Court has no independent basis for jurisdiction
over them.

The Court has not yet addressed the merits of these

claims, and as they exclusively involve issues of state law,
principles of comity weigh in favor of allowing a state forum to
adjudicate

them.

The

Court

therefore

finds

that

the

rule

counseling against the exercise of supplemental jurisdiction over
state-law claims when no federal claims remain applies in this
case, and it dismisses plaintiff’s state-law claims and defendant’s
state-law counterclaims without prejudice.

15

IV. Conclusion
For the foregoing reasons, the Court grants defendant’s motion
for summary judgment as to plaintiff’s federal claim under the
FLSA.

The Court dismisses without prejudice plaintiff’s state-law

claims and defendant’s state-law counterclaims.

New Orleans, Louisiana, this _____ day of January, 2015.
26th
____________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

16