England v. Administrators of the Tulane Educational Fund

Filing 37

ORDER AND REASONS. It is ORDERED that Tulane's Motion for Summary Judgment (Rec. Doc. 29 ) is GRANTED. It is FURTHER ORDERED that Plaintiff's FLSA claims are DISMISSED WITH PREJUDICE. It is FURTHER ORDERED that Plaintiff's state law claims are DISMISSED WITH PREJUDICE. Signed by Judge Carl Barbier. (gec)

Case 2:16-cv-03184-CJB-JCW Document 37 Filed 08/17/17 Page 1 of 12

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHRISTOPHER ENGLAND

CIVIL ACTION

VERSUS

NO: 16-3184

ADMINISTRATORS OF THE TULANE
EDUCATIONAL FUND

SECTION: “J” (2)

ORDER AND REASONS
Before the Court is a Motion for Summary Judgment (Rec. Doc.
29)

filed

by

Defendant,

The

Administrators

of

the

Tulane

Educational Fund d/b/a Tulane University (“Tulane”). Plaintiff,
Christopher England, filed an opposition to the motion, (Rec. Doc.
33,) and Tulane filed a reply. (Rec. Doc. 35.) Having considered
the motion and legal memoranda, the record, and the applicable
law, the Court finds that the motion should be GRANTED.
FACTS AND PROCEDURAL BACKGROUND
This
writing

litigation

tutor

with

arises
Tulane’s

from
A.B.

Plaintiff’s
Freeman

employment

School

of

as

a

Business

(“Business School”) from the fall of 2013 through the fall of 2014.
As a writing tutor, Plaintiff earned $19 an hour for a predetermined number of hours per semester. According to Plaintiff,
Tulane defined a full-time work week as thirty-seven and one-half
hours per seven days.

Therefore, Plaintiff claims that Tulane’s

own rules require it to provide employees overtime pay for any
hours exceeding thirty-seven and one-half in a given work week.
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Case 2:16-cv-03184-CJB-JCW Document 37 Filed 08/17/17 Page 2 of 12

On April 14, 2016, Plaintiff filed suit alleging that Tulane
failed to pay him “overtime” under the Fair Labor and Standards
Act (“FLSA”) and failed to pay him certain benefits under the
Louisiana Wage Payment statute. 1 Tulane filed a motion to dismiss
pursuant

to

Rule

12(b)(6)

on

June

20,

2016,

alleging

Plaintiff’s complaint failed to state a claim under the FLSA.

that
On

July 19, 2016, this Court granted that motion and ordered Plaintiff
to file an amended complaint within 21 days or the Court would
dismiss his claims with prejudice.

(Rec. Doc. 6 at 14.)

filed an amended complaint on August 9, 2016.

Plaintiff

(Rec. Doc. 7.) In

response, Tulane filed another motion to dismiss pursuant to Rule
12(b)(6), which the Court granted in part and denied in part on
November 3, 2016. (Rec. Doc. 13.) Specifically, the Court dismissed
with prejudice all of Plaintiff’s claims for “overtime” hours
worked in excess of thirty-seven and one-half hours but less than
forty

per

week.

The

Court

also

dismissed

without

prejudice

Plaintiff’s claims for retirement plan contributions and health
insurance.
Tulane filed a motion for summary judgment on July 3, 2017
arguing for the dismissal of Plaintiffs claims under the FLSA and
any state law claims. (Rec. Doc. 29.) Plaintiff filed an opposition

1

La. Rev. Stat. § 23:631, et seq.

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Case 2:16-cv-03184-CJB-JCW Document 37 Filed 08/17/17 Page 3 of 12

to the motion on July 19, 2017, (Rec. Doc. 33,) and Tulane filed
a reply. (Rec. Doc. 35.) The motions are before the Court on the
briefs and without oral argument.
PARTIES’ ARGUMENTS
Tulane argues that the Court should grant summary judgment
because there are no genuine issues of material fact and it is
entitled to judgment as a matter of law. Specifically, Tulane
argues that Plaintiff was an exempt employee under the FLSA’s
teaching exemption, and therefore, is not entitled to overtime
pay. Tulane also argues that Plaintiff’s state law claims should
be dismissed because Plaintiff was not eligible for benefits during
his employment with Tulane according to its policies and practices.
Plaintiff

does

not

oppose

Tulane’s

Motion

for

Summary

Judgment on the issue of unpaid overtime under the FLSA. However,
Plaintiff argues that genuine issues of material fact exist as to
whether Plaintiff should have been paid vacation and holiday pay
benefits under Louisiana law. Plaintiff argues that his employment
was continuous and that he was eligible for vacation after six
months of employment. Plaintiff also argues that although he was
designated as a regular part-time employee, he was actually a fulltime employee due to the number of hours he worked per week and
was therefore eligible for benefits.

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Case 2:16-cv-03184-CJB-JCW Document 37 Filed 08/17/17 Page 4 of 12

LEGAL STANDARD
Summary

judgment

is

appropriate

where

the

pleadings,

depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law. Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994) (citing Fed. R. Civ. Proc. 56(c)).
The moving party bears the initial burden of demonstrating to the
court that there is an absence of genuine factual issues. Id. Once
the moving party meets that burden, the non-moving party must go
beyond the pleadings and designate facts showing that there is a
genuine issue of material fact in dispute. Id. “A factual dispute
is ‘genuine’ where a reasonable jury could return a verdict for
the non-moving party. If the record, taken as a whole, could not
lead a rational trier of fact to find for the non-moving party,
then there is no genuine issue for trial and summary judgment is
proper.” Weber v. Roadway Exp., Inc., 199 F.3d 270, 272 (5th Cir.
2000) (citations omitted). The non-moving party's burden “is not
satisfied with ‘some metaphysical doubt as to the material facts,’
by ‘conclusory allegations,’ by ‘unsubstantiated assertions,’ or
by only a ‘scintilla’ of evidence. [The courts] resolve factual
controversies 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. [The courts] do not, however, in
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Case 2:16-cv-03184-CJB-JCW Document 37 Filed 08/17/17 Page 5 of 12

the absence of any proof, assume that the nonmoving party could or
would prove the necessary facts.” Little, 37 F.3d at 1075 (emphasis
in original) (citations omitted).
DISCUSSION
(A)

FLSA Claims

Tulane argues that Plaintiff was an exempt employee under the
FLSA’s teaching exemption and therefore not entitled to unpaid
overtime. 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. § 207(a)(1). However, employers do not have to pay timeand-a-half to individuals “employed in a bona fide executive,
administrative, or professional capacity.” 29 U.S.C. § 213(a)(1).
The term “employee employed in a bona fide professional capacity”
includes any employee “with a primary duty of teaching, tutoring,
instructing, or lecturing in the activity of imparting knowledge”
and who is employed by an “educational establishment.” 29 C.F.R.
§ 541.303(a).
Plaintiff does not dispute that his primary job duties, which
included

teaching,

tutoring,

and

instructing,

qualify

him

an

exempt employee, nor does he dispute that Tulane is an “institution
of higher education” for purposes of coverage under the FLSA.
Furthermore, it appears to the Court that Tulane’s motion on these

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Case 2:16-cv-03184-CJB-JCW Document 37 Filed 08/17/17 Page 6 of 12

claims has merit. Accordingly, Plaintiff’s claims under the FLSA
are dismissed with prejudice.
(B)

Supplemental Jurisdiction

Plaintiff notes in his opposition that his only federal claim
is for unpaid overtime under the FLSA. (Rec. Doc. 33 at 1.) Having
dismissed Plaintiff’s FLSA claim, the Court considers whether to
exercise supplemental jurisdiction over Plaintiff’s Louisiana law
claims. A district court may decline to 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
other
compelling reasons for declining jurisdiction.
28 U.S.C. § 1367(c). The Court must also balance the factors of
judicial economy, convenience, fairness, and comity. Smith v.
Amedisys, Inc., 298 F.3d 434, 446 (5th Cir. 2002). The “general
rule” is to decline to exercise jurisdiction when all federal
claims are dismissed or otherwise eliminated from a case prior to
trial; however, this rule is neither mandatory nor absolute. Id.
at 446-47. The Court has “wide discretion in determining whether
to retain supplemental jurisdiction over a state law claim once
all federal claims are dismissed.” Noble v. White, 996 F.2d 797,
799 (9th Cir. 1993).
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Although the Court has dismissed all of Plaintiff’s FLSA
claims that initially gave the Court original jurisdiction, the
Court

exercises

its

“wide

discretion”

to

retain

supplemental

jurisdiction over the remaining state law claims. These claims
raise neither complex nor novel issues and the Court finds no
exceptional circumstances for declining jurisdiction. The factors
of judicial economy, convenience, fairness, and comity also weigh
in favor of retaining supplemental jurisdiction. This litigation
has been pending for well over a year and trial is set to commence
in

less

than

a

month.

The

Court

has

issued

orders

on

two

dispositive motions and is familiar with the specifics of this
matter. (Rec. Docs. 6, 13.) Moreover, while both parties recognize
that the Court may decline to exercise supplemental jurisdiction,
neither party has articulated any reason as to why the Court should
not exercise supplemental jurisdiction over the remaining state
law claims. Accordingly, the Court finds that it is appropriate to
exercise

supplemental

jurisdiction

over

Plaintiff’s

remaining

Louisiana law claims.
(C)

State Law Claims under Louisiana’s Wage Payment Statute

The Louisiana Wage Payment statute requires employers to pay
their employees “the amount then due under the terms of employment”
upon the employee’s discharge. La. Rev. Stat. § 23:631(A)(1)(a).
The language “is unambiguously broad in scope; it mandates that an
employer pay any amount that an employee justifiably earns under
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Case 2:16-cv-03184-CJB-JCW Document 37 Filed 08/17/17 Page 8 of 12

the terms of his employment.” Tillman v. Louisiana Children's Med.
Ctr., 16-14291, 2017 WL 1399619, at *3 (E.D. La. Apr. 19, 2017)
(citing Kidder v. Statewide Transp., Inc., 13-594 (La. App. 3 Cir.
12/18/2013), 129 So. 3d 875, 881). Thus, the issue before the Court
is whether Plaintiff is entitled to any benefits under the terms
of his employment as a writing tutor.
Plaintiff argues that he was entitled to vacation pay and
holiday pay under the terms of his employment. 2 Tulane argues that
it

has

presented

uncontroverted

evidence

that

Tulane

has

discretion to determine employment categories and that writing
tutors were not categorized as a “benefits eligible” position.
During the time of Plaintiff’s employment, Tulane’s Staff
Handbook

stated

that

eligibility

to

participate

in

Tulane’s

benefit program depended on a position’s employment category. The
Handbook further stated that a position has to be categorized as
“regular full-time” or “regular part-time with benefits” to be
eligible for benefits, “unless eligibility is otherwise required
by federal or state law.” (Rec. Doc. 29-3 at 135.) Tulane’s
Director of Compensation and Records, Cheryl Bush, states in her

2 Plaintiff initially claimed that his position as a writing tutor entitled him
to benefits in the form of vacation, paid time off, sick days, and paid holidays
as “unpaid wages” under Louisiana law. Tulane argues that only accrued vacation
can possibly constitute “unpaid wages” upon termination within the meaning of
Louisiana’s Wage Payment statute. Plaintiff in his opposition concedes this in
part by claiming only vacation pay and holiday pay are due under the terms of
his employment with Tulane. (Rec. Doc. 33 at 1.) The Court assumes arguendo
that holiday pay constitutes “unpaid wages” under Louisiana Wage Payment
statute.

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Case 2:16-cv-03184-CJB-JCW Document 37 Filed 08/17/17 Page 9 of 12

declaration that the designation of these categories was within
Tulane’s sole discretion. (Rec. Doc. 29-3 at 27.) A particular
position’s employment category was determined by, inter alia, the
number of consecutive months that employees were expected to work.
Id.

During

Plaintiff’s

employment,

Tulane’s

practice

was

to

designate job positions expected to work at least seven consecutive
months out of the school year as “regular part-time with benefits.”
Id.
Plaintiff argues that he was eligible for benefits because
his employment was continuous. (Rec. Doc. 33 at 2.) Plaintiff,
however,

did

not

submit

any

evidence

to

support

his

broad

conclusion. Tulane has demonstrated that the position of writing
tutor was designated as “regular part-time without benefits” due
in part to the fact that the tutors were hired for one semester at
a time, which is a period less than seven consecutive months. Id.
Cheryl Bush states that writing tutors were hired for a particular
semester depending on the class sizes. Id.

Finally, if tutors

were hired for two consecutive semesters, they were not employed
for the time period between the semesters when there were no
classes. Id.
Plaintiff also contends that he was a full-time employee based
on the number of hours that he worked per semester, and therefore,

9

Case 2:16-cv-03184-CJB-JCW Document 37 Filed 08/17/17 Page 10 of 12

he was eligible for benefits. 3

(Rec. Doc. 33 at 2, 3.) Assuming

that the number of hours per week worked is true, Plaintiff has
failed to present any evidence that his position was designated as
“regular full-time” or “regular part-time with benefits” and thus
benefits eligible. Tulane has presented evidence that the number
of hours an employee works did not determine whether they were
eligible for benefits. 4 In fact, Tulane has demonstrated that the
number of hours that a writing tutor worked was irrelevant. For
example,

Plaintiff

compensation

before

was
the

hired
start

for
of

a

pre-determined

each

semester

amount

based

on

of
the

particular class sizes. (Rec. Doc. 29-4 at 1, 79.) Plaintiff was
also not expected to keep track of his hours, and he received full
compensation irrespective of the amount of hours that he actually
worked. (Rec. Doc. 29-3 at 27; Rec. Doc. 29-4 at 1.) Furthermore,
Plaintiff

admits

in

his

deposition

that

he

was

not

promised

benefits during his employment. (Rec. Doc. 29-3 at 19.)

3

Plaintiff claims that in the fall semester of 2013, he was engaged to work
694 hours at $19 per hour which required Plaintiff to work over 43 hours per
week. In the spring semester of 2014, Plaintiff claims he was engaged to work
646 hours at $19 per hour which required Plaintiff to work at least 38 hours
per week. For summer session 1 in 2014, Plaintiff was engaged to work 192 hours
at $19 per hour which required him to work 38 hours per week. For summer session
2 in 2014, Plaintiff was engaged to work 300 hours at $19 per hour which required
him to work 60 hours per week.
4 Cheryl Bush states in her declaration, “It was Tulane’s practice to provide
these benefits eligible designations (i.e., regular full time” or “regular part
time with benefits”) to staff employees who, among other criteria, were to be
employed for a period of at least seven (7) consecutive months.” (Rec. Doc. 293 at 28.)

10

Case 2:16-cv-03184-CJB-JCW Document 37 Filed 08/17/17 Page 11 of 12

Finally, Plaintiff argues that vacation accrual starts on the
date of hire, that it is eligible for use after the completion of
six months employment, and that paid holiday is available as of
the date of hire.

Plaintiff has correctly pointed out the dates

of availability and use for these benefits, however, Plaintiff has
not presented any evidence that he was designated by Tulane as
“benefits eligible.” Tulane has demonstrated that it designated
positions in its sole discretion as “benefits eligible” or “not
benefits eligible” based on, among other criteria, the number of
consecutive months that a certain position was scheduled to work.
Plaintiff’s position as a writing tutor was designated as “regular
part-time,” but not with benefits. (Rec. Doc. 29-3 at 28.)
Tulane has presented a properly supported motion. The Court
finds there is no genuine issue of material fact as to whether
Plaintiff

was

eligible

for

benefits

employment with Tulane.

11

under

the

terms

of

his

Case 2:16-cv-03184-CJB-JCW Document 37 Filed 08/17/17 Page 12 of 12

CONCLUSION
Accordingly,
IT IS ORDERED that Tulane’s Motion for Summary Judgment (Rec.
Doc. 29) is GRANTED.
IT

IS

FURTHER

ORDERED

that

Plaintiff’s

FLSA

claims

are

DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff’s state law claims are
DISMISSED WITH PREJUDICE.
New Orleans, Louisiana this 17th day of August, 2017.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

12