Bretton v. Compass Career Management, LLC
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
COMPASS CAREER MANAGEMENT, LLC
ORDER AND REASONS
Defendant Compass Career Management, LLC moves for summary
judgment on plaintiff Dianne Bretton’s claims and on one of its
defendant’s motion as to plaintiff’s Fair Labor Standards Act
The Court declines to exercise supplemental jurisdiction
counterclaims and dismisses them without prejudice.
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
R. Doc. 21.
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.
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
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
Examiners.8 Plaintiff alleges that she observed several violations
R. Doc. 1 at 2; R. Doc. 21-2 at 2.
R. Doc. 1 at 2; R. Doc. 21-5 at 10.
R. Doc. 1 at 3.
in June 2012.9
On June 22, 2012, plaintiff allegedly called
Compass and gave two weeks notice of her resignation.10
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
Plaintiff alleges that Leslie Moore warned her about
“going to the Board of Nursing.”12
On June 28, 2012, Compass terminated plaintiff.13
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
Plaintiff now contends that she deleted only
items from the hard drive which were her personal property.16
Id. at 4.
Id. at 5.
R. Doc. 1 at 5; see R. Doc. 24, Ex. 3.
R. Doc. 1 at 5.
Id.; R. Doc. 21-2 at 2.
R. Doc. 24, Ex. 8.
Id. at Ex. 10.
R. Doc. 24-1 at 2.
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
overpayment because of her discharge.19
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
R. Doc. 24, Ex. 5.
Id. at Ex. 7.
R. Doc. 21-2 at 2.
R. Doc. 1.
interference with a business relationship, unfair trade practices,
trespass, conversion, and theft of trade secrets.23
In total, plaintiff states five claims.
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
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
R. Doc. 6.
R. Doc. 1 at 7.
Id. at 6.
Id. at 8.
Id. at 9.
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
Id. at 10.
R. Doc. 21.
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."
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
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).
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.
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
Id. § 213(a)(1).
The FLSA does not
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).
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.”
29 C.F.R. § 541.303(a).
Id. § 541.303(b).
The term teacher
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
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
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.
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
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’ . .
tutoring, instructing or lecturing in the activity of imparting
knowledge . . . .”) (emphasis added).
Plaintiff contends that she was a non-exempt employee because
Coordinator of the Practical Nursing Program.32 Plaintiff testified
that as Program Coordinator, she “[h]ad to deal with the Louisiana
everything--the other instructors had everything they needed, make
R. Doc. 24-1 at 1; R. Doc. 21-2 at 1.
R. Doc. 24 at 1.
sure clinicals were arranged.”33
Plaintiff also stated that she
performed both classroom and clinical instruction as the Program
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.
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
Id. Here, it is undisputed that “[a]t all times during
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
uncontroverted stipulation showing the opposite.
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
R. Doc. 21-6 at 7.
R. Doc. 24-1 at 1 (emphasis added); R. Doc. 21-2 at 1.
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).
establishment” within the meaning of 29 C.F.R. § 541.204(b).
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
organization for career schools.”
29 C.F.R. 541.204(b).
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
Specifically, plaintiff does not dispute that
Compass Career College “is licensed by the Louisiana State Board of
Regents and nationally accredited by the Council on Occupational
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
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,
Occupational Education is a "national accrediting agency"); United
States Department of Education List of Regional and National
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
R. Doc. 21-2 at 1; R. Doc. 24-1 at 1.
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
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.
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
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.
supplemental jurisdiction if:
(1) the claim raises a novel or complex issue of State
(2) the claim substantially predominates over the claim
or claims over which the district court has original
(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.
28 U.S.C. § 1367(c).
In addition to the statutory factors, the
convenience, fairness, and comity.
F.3d 434, 446 (5th
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).
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
Only state-law claims and counterclaims
remain, and the Court has no independent basis for jurisdiction
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
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.
For the foregoing reasons, the Court grants defendant’s motion
for summary judgment as to plaintiff’s federal claim under the
The Court dismisses without prejudice plaintiff’s state-law
claims and defendant’s state-law counterclaims.
New Orleans, Louisiana, this _____ day of January, 2015.
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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