Gartman v. Housing Authority of Jefferson Parish

Filing 27

ORDER AND REASONS: ORDERED that the plaintiff's 21 Motion for Partial Summary Judgment is GRANTED in part, as to her claims for vacation and sick time, statutory penalty wages, and reasonable attorneys' fees, and DENIED in part, as to her claims for improper termination and compensatory pay. Signed by Judge Martin L.C. Feldman on 9/20/2018. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ELIZABETH GARTMAN

CIVIL ACTION

v.

NO. 17-12375

HOUSING AUTHORITY OF
JEFFERSON PARISH

SECTION "F"

ORDER AND REASONS
Before the Court is the plaintiff’s motion for partial summary
judgment

that

HAJP:

(1)

terminated

her

in

violation

of

the

employment agreement, (2) failed to compensate her for her accrued,
unused vacation and sick time as required by the agreement, (3)
owes

her

compensatory

pay,

and

(4)

is

subject

to

statutory

penalties and attorneys’ fees pursuant to La. R.S. § 23:632.

For

the following reasons, the plaintiff’s motion for partial summary
judgment is GRANTED in part, as to her claims for vacation and
sick time, statutory penalty wages, and reasonable attorneys’
fees, and DENIED in part, as to her claims for improper termination
and compensatory pay.
Background
This lawsuit arises out of the termination of a long-term
employee of the Housing Authority of Jefferson Parish (“HAJP”).
HAJP is a public body that provides housing assistance to low
income

residents

in

Jefferson

Parish,

administration of various programs.

Louisiana

through

On June 2, 2009, HAJP hired

Elizabeth Gartman to serve as its Office Manager.
1

the

Upon the

expiration of Gartman’s initial employment agreement, Gartman and
HAJP executed another employment agreement with a term extending
from June 2, 2012 through June 2, 2017.

Article 12.01(b) of this

agreement provides that “[t]he Office Manager shall be an at-will
employee, and may be terminated with or without cause, with or
without notice by the Executive Director.”

Moreover, Article 7.02

stipulates that, “[u]pon voluntary resignation or termination, the
Office Manager shall be compensated for all accrued unused vacation
and sick leave without restriction or penalty, with a 30 day
notice, according to Civil Service guidelines.”

As of April 2016,

Gartman’s contractual rate of pay was $33.15 per hour.
In early 2016, HAJP did not to renew its employment contract
with the Executive Director.

Gartman was appointed Acting/Interim

Executive Director by a resolution of the Board of Commissioners
on April 12, 2016.

Although this appointment was intended to last

for ninety days, it was extended indefinitely until a permanent
Executive Director was hired.

Indeed, Gartman retained this role

for the remainder of her tenure with HAJP, which came to an end on
February 21, 2017 when the Board of Commissioners terminated her
employment.

At

the

time

of

Gartman’s

termination,

she

had

accumulated 463.73 hours of unused vacation time and 550.24 hours
of sick time.
Following her termination, Gartman’s attorney sent demand
letters via email to two members of the Board on March 15, 2017,
2

and

to

HAJP’s

General

Counsel

on

April

12,

2017,

demanding

compensation allegedly due under her employment agreement for the
full term of the contract.

Specifically, the letters sought

$19,359.60 in unpaid wages from the date of her termination through
the

expiration

of

date

of

the

contract,

$33,613.11

worth

of

accumulated vacation and sick time, the value of other employmentrelated benefits through the end of the employment agreement,
statutory penalty wages and attorneys’ fees, and other employment
related sums.
Then, on November 13, 2017, Gartman brought this lawsuit
against HAJP, alleging that she was retaliated against in violation
of the False Claims Act, 31 U.S.C. § 3730(h), and in violation of
her federal due process rights. 1

She also alleged several claims

under state law, including breach of the employment agreement,
slander

and

defamation,

detrimental

reliance,

intentional

interference with contractual relations, intentional infliction of
emotion

distress

in

the

workplace,

improper

termination

of

benefits, and unfair trade practices.

1

On January 18, 2018, HAJP moved to dismiss the complaint for
failure to state a claim, pursuant to Fed. Rule of Civ. Proc.
12(b)(6); this motion was directed solely at Gartman’s federal law
claims. In its Order and Reasons dated February 22, 2018, this
Court granted in part the defendant’s motion to dismiss for failure
to state a claim, as to the federal due process claim, and denied
in part the motion, as to the retaliation claim under the False
Claims Act.
3

Specifically, Gartman’s complaint submits that because the
employment

agreement

states

that

her

employment

could

be

terminated only by the Executive Director of HAJP, by terminating
her employment by the HAJP Board of Commissioners on February 21,
2017, prior to the agreement’s end date of June 2, 2017, HAJP
breached the agreement.

Accordingly, Gartman alleges that HAJP

owes her $19,359.60 in unpaid wages for the period between her
termination
agreement

on

on

February

June

2,

21,

2017,

2017
as

and

well

the
as

expiration

the

value

of

of

the

other

employment-related benefits to which she was allegedly entitled.
Gartman further contends that because HAJP failed to pay her for
the 463.73 hours of unused vacation time and 550.24 hours of unused
sick time that she had accumulated as of her termination in
contravention of the agreement, HAJP owes her $33,613.11 for the
value of her accrued vacation and sick time. 2

Moreover, she seeks

$49,725 in compensatory pay that she allegedly accumulated during
her employment. Finally, Gartman asserts that because she was not
compensated for her accrued, unused vacation and sick time within
15 days of her termination, she is entitled to statutory penalty
wages pursuant to La. R.S. § 23:632, and since written demand for
this claim was made to HAJP more than three days prior to the

2

Gartman submits that a total of 1013.97 hours of unused
vacation and sick time multiplied by her hourly wage of $33.15
equals $33,613.11.
4

filing of this suit, she is entitled to an award of reasonable
attorneys’ fees.
Gartman now moves for partial summary judgment on her claims
that HAJP: (1) terminated her in violation of the employment
agreement, (2) failed to compensate her for her accrued, unused
vacation and sick time as required by the agreement, (3) owes her
compensatory pay, and (4) is liable for statutory penalty wages
and reasonable attorneys’ fees pursuant to La. R.S. § 23:632.
I.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as
to any material fact such that the moving party is entitled to
judgment as a matter of law.

No genuine dispute of fact exists if

the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

A genuine

dispute of fact exists only "if the evidence is such that a
reasonable jury could return a verdict for the non-moving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The mere argued existence of a factual dispute does not defeat
an otherwise properly supported motion.

See id.

In this regard,

the non-moving party must do more than simply deny the allegations
raised by the moving party.

See Donaghey v. Ocean Drilling &

Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992).
5

Rather, he

must come forward with competent evidence, such as affidavits or
depositions, to buttress his claims.

Id.

Hearsay evidence and

unsworn documents that cannot be presented in a form that would be
admissible

in

evidence

opposing evidence.

at

trial

do

not

qualify

as

competent

Martin v. John W. Stone Oil Distrib., Inc.,

819 F.2d 547, 549 (5th Cir. 1987); Fed. R. Civ. P. 56(c)(2).
"[T]he

nonmoving

conclusory

party

allegations,

scintilla of evidence."

cannot

defeat

unsubstantiated

summary

judgment

assertions,

or

with

only

a

Hathaway v. Bazany, 507 F.3d 312, 319

(5th Cir. 2007)(internal quotation marks and citation omitted).
Ultimately, "[i]f the evidence is merely colorable . . . or is not
significantly

probative,"

summary

judgment

is

appropriate.

Anderson, 477 U.S. at 249 (citations omitted); King v. Dogan, 31
F.3d 344, 346 (5th Cir. 1994) (“Unauthenticated documents are
improper as summary judgment evidence.”).
II.
Gartman seeks partial summary judgment that HAJP breached the
employment agreement in the following two ways: (1) terminating
her by the Board of Commissioners, rather than the Executive
Director, and (2) failing to compensate her for her accrued, unused
vacation and sick time upon her termination.
Louisiana law provides that “the essential elements of a
breach of contract claim are the existence of a contract, the
party's breach thereof, and resulting damages.
6

The party claiming

the rights under the contract bears the burden of proof.”

1100 S.

Jefferson Davis Parkway, LLC v. Williams, 2014-1326 (La. App. 4
Cir. 5/20/15); 165 So. 3d 1211, 1216.

Accordingly, to succeed on

each aforementioned claim, Gartman must show that there has been
a breach of the terms of her employment agreement.
A.
Gartman

first

seeks

partial

summary

judgment

that

HAJP

breached the employment agreement by terminating her by the Board
of Commissioners, rather than the Executive Director.

As such,

the Court turns to Article 12.01(b), the relevant provision of the
agreement regarding termination.

This provision provides:

The Office Manager shall be an at-will
employee, and may be terminated with or
without cause, with or without notice by the
Executive Director.
In its Order and Reasons dated February 22, 2018, this Court
recognized that Gartman was an at-will employee: 3

3

Pursuant to Louisiana law,
[E]mployment contracts are either limited term
or terminable at will. Under a limited term
contract the parties agree to be bound for a
certain period during which the employee is
not free to depart without assigning cause nor
is the employer at liberty to dismiss the
employee without cause. When a contract does
not provide for a limited term, an employer
can dismiss the employee at any time and for
any reason without incurring liability.

Read v. Willwoods Cmty., 14-1475 (La. 3/14/15), 165 So. 3d 883,
887.
7

Gartman’s employment agreement provides that
she is an at-will, not a for-cause, employee.
In her complaint and again in her opposition,
she concedes that she is an unclassified
employee . . . . Because Gartman herself
alleged
that
she
is
an
at-will
and
unclassified employee, she does not have a
property interest in employment and her
employment may be terminated without due
process.
Gartman

v.

Hous.

Auth.

Of

Jefferson

Par.,

17-12375,

2018

WL

1010194, *10 (E.D. La. Feb. 22, 2018).
Moreover, Gartman concedes in her deposition testimony that
HAJP could terminate her for no reason.
Q: And you've worked in Louisiana for a long
time.
Are
you
familiar
with
at
will
employment?
A. They can fire you for no reason at all.
Q.
Right.
Okay.
And
was
that
your
understanding of your employment at the
Housing Authority?
A. Yes.
Interestingly, Gartman acknowledges that she was an at-will
employee

but

nonetheless

contends

in

her

motion

for

summary

judgment that “HAJP must still adhere to the provisions of the
Agreement that covered her employment; otherwise, the Agreement
would be rendered meaningless.”

However, she directs the Court to

no case law to support this proposition. 4

4

In her reply papers, Gartman emphasizes that “individual terms
contained in a written employment contract are not magically
rendered moot when the same contract designates at-will
8

Since Gartman could be terminated at any time, that she was
not terminated by the Executive Director (i.e., herself) is of no
moment to her breach of contract claim. Her argument defies common
sense.

Indeed,

Acting/Interim

the

plaintiff’s

Executive

Director,

suggestion
had

to

that

terminate

she,

as

her

own

employment, or the HAJP Board of Commissioners had to hire another
Executive Director in order to terminate her employment is patently
absurd.
Because Gartman has not satisfied her burden of establishing,
as a matter of law, that HAJP violated the employment agreement in
terminating her, summary judgment in her favor is inappropriate.
As a result, Gartman likewise is not entitled to summary judgment
as to her claims for unpaid salary and other employment-related
benefits for the period between February 21, 2017 and June 2, 2017.

employment.”
Moreover, to support her argument that “written
employment contracts and at-will employment can co-exist,” she
invokes Reyes-Silva v. Drillchem Drilling Sols., LLC, 2010-1017
(La. App. 3 Cir. 2/2/11), 56 So. 3d 1173, 1178-79.
It is unclear how the plaintiff has extrapolated this proposition
from Reyes-Silva. In that case, the Louisiana Third Circuit held
that the trial court erred in granting summary judgment in favor
of the employer by finding that the employment relationship was
at-will but nonetheless asking the parties to prepare for trial on
the issue of whether the plaintiff was terminated for “cause.”
Id. at 1177-78. The Third Circuit reasoned that “if the employment
was truly at will, then there would be no need for a trial on
cause.” Id. at 1178.
9

B.
Gartman next seeks partial judgment as a matter of law that
HAJP breached the employment agreement by failing to compensate
her for accrued, unused vacation and sick time, as required by the
agreement.

To evaluate this claim, the Court must turn to the

relevant provisions of the agreement regarding accrual of and
compensation for leave.
Article 7.01 of the agreement, entitled “Accrual of Vacation
and Sick Leave,” provides:
The Office Manager will accrue Vacation and
Sick
leave
according
to
civil
service
guidelines.
Moreover, Article 7.02, entitled “Availability upon Resignation or
Termination,” states:
Upon voluntary resignation or termination, the
Office Manager shall be compensated for all
accrued unused vacation and sick leave without
restriction or penalty, with a 30 day notice,
according to Civil Service guidelines.
Because the Louisiana Civil Service Rules govern Gartman’s
entitlement to vacation and sick leave, the Court now turns to the
relevant provisions of those rules regarding vacation and sick
leave.

Rule 11.10 of the Louisiana Civil Service Rules, entitled

“Payment for Annual Leave Upon Separation,” provides:
(a) Subject to Rule 11.18(a) and sub-section
(b)
of
this
rule,
each
employee
upon
separation from the classified service shall
be paid the value of his accrued annual leave
in a lump sum disregarding any final fraction
10

of an hour; . . . The payment for such leave
shall be computed as follows:
1. When an employee is paid wages on an
hourly basis, multiply his regular
hourly rate by the number of hours of
accrued annual leave.
2. When an employee is paid on other than
an hourly basis, determine his hourly
rate by converting his salary in
accordance with provisions in the
uniform pay plan for conversion to a
working hourly rate. Multiply his
converted hourly rate by the number
of hours of accrued annual leave.
(b) No terminal payment for annual leave
earned under these Rules shall exceed the
value of 300 hours, computed on the basis of
the employee's hourly rate of pay (includes
base
supplement)
at
the
time
of
his
separation.
Moreover,

Rule

11.18(a),

which

qualifies

Rule

11.10,

stipulates:
When an employee separates from the state
classified service, all accrued annual leave
except that which must be paid and all accrued
sick leave except that which must be paid
under Rule 11.10.1 shall be cancelled . . . . 5
When read together, these Rules provide that the terminal
payment for annual leave of a classified employee shall not exceed

5

Rule 11.10.1 provides that, upon the removal of an employee who
has less than eight days of sick leave and is unable to perform
the essential functions of his job due to illness or mental
disability, “he shall be paid the value of his accrued sick leave
in a lump sum, based on his regular hourly rate of pay, unless he
is reemployed in probational status in the classified state service
or is reemployed in the unclassified service, without a break in
service of one or more working days, in which cases the sick leave
will transfer to the employing agency.”
11

the value of 300 hours, computed on the basis of the employee’s
hourly rate of pay at the time of the employee’s separation, and
that a classified employee accumulates sick leave but is not
compensated for unused sick leave upon resignation or termination.
Notably, these rules refer only to employees who separate from the
“classified service,” and it is undisputed that Gartman is an
unclassified employee. 6
Gartman

contends

that,

as

an

unclassified

employee,

she

accumulates leave at the same rate as a classified civil service
employee but is not subject to the limits set forth in the Civil
Service

Rules. 7

Furthermore,

she

submits

that

the

“without

restriction or penalty” language in her agreement removes the
applicability of the 300 hour limit on annual leave and the
forfeiture of sick leave upon termination.
In response, HAJP explains that it follows Louisiana Civil
Service Rules for the accumulation and compensation of annual and
sick leave for its classified and unclassified employees.

HAJP

points to provisions in its employee handbook that allegedly mirror

6

In responding to the plaintiff’s Request for Admission No. 3,
HAJP admitted that “in conjunction with its Motion to Dismiss,
HAJP classified Gartman as an unclassified employee.”
7 Specifically, Gartman submits in her motion for summary judgment
that the “references to the civil service guidelines within the
Agreement . . . serve the function of, inter alia, setting forth
the tiered system by which her vacation and sick time accrued” and
that “a limit for accrued vacation and sick leave applies only to
classified civil service employees.”
12

the Civil Service rules and provide that, upon discharge, fulltime and seasonal employees “will be paid for accrued but unused
vacation.

Leave shall not exceed the value of 300 hours computed

on the basis of the employee’s hourly rate of pay . . . . Employees
are not paid for earned but unused sick days upon discharge.”
Anticipating this argument, Gartman contends that because
Article 7.02 of the agreement is unambiguous, extrinsic evidence,
such as the employee handbook, is inadmissible to explain or
contradict its terms.

She further avers that any limit as to the

number of hours she is to be compensated “would contradict the
plain words of that unambiguous contractual provision.” 8 The Court
agrees that Gartman’s interpretation of Article 7.02 is reasonable
and that HAJP’s is not.

Gartman’s interpretation reconciles the

“without restriction or penalty” and “according to civil service
guidelines” clauses, while HAJP’s construction fails to address
the former clause.

8

"When the words of a contract are clear and explicit and lead to
no absurd consequences, no further interpretation may be made in
search of the parties' intent" (La. Civ. Code art. 2046), and the
agreement must be enforced as written. Hebert v. Webre, 982 So.
2d 770, 773-74 (La. 2008). The issue of ambiguity of a contract
is a legal question. Dore Energy Corp. v. Prospective Inv. &
Trading Co., Ltd., 570 F.3d 219, 225 (5th Cir. 2009). The Court
may consider extrinsic evidence as to the parties' intent only if
the contract is ambiguous. Campbell v. Melton, 817 So.2d 69, 75
(La. 2002).
13

Moreover, HAJP does not address Gartman’s contention that the
plain language of Article 7.02 is unambiguous, precluding the
consideration of extrinsic evidence. Instead, it attempts to frame
the employee handbook as part of the employment agreement by
pointing to Section to 3.01 of the agreement.

This provision,

entitled “Supervision of Staff,” provides:
The Office Manager shall supervise such
Housing
Authority
staff
and
employees,
permanent and temporary, as direct[ed] by the
Executive Director.
In carrying out her
functions and responsibilities, the Office
Manager shall be subject to applicable civil
service laws, rules and regulations, and the
policies and procedures of the HAJP.
Because the employment agreement provides that Gartman is
“subject to . . . the policies and procedures of the HAJP,” and
the employee handbook existed when Gartman executed her agreement
in June of 2012, HAJP contends that the provisions of the handbook
apply to Gartman via the employment agreement.
This

argument,

although

creative,

is

unpersuasive.

The

employment agreement does not directly refer to the employee
handbook or otherwise incorporate language from the handbook as a
qualification of Gartman’s contractual right to be “compensated
for all accrued unused vacation and sick leave without restriction
or

penalty

.

.

.

according

to

Civil

Service

guidelines.”

Additionally, Section 14.01 of the agreement expressly provides

14

that “[t]he text herein shall constitute the entire agreement
between the parties,” which further undermines HAJP’s position.
Louisiana courts have recognized that “[i]n the event of any
conflict between the employment contract and the Policy Manual,
the

employment

Contract

is

the

law

between

the

parties

determines their respective rights and obligations.”

and

Amer v.

Roberts, 15-0599 (La. App. 1 Cir. 11/09/15), 184 So. 3d 123, 133;
Baldwin v. Bd. of Supervisors for Univ. of La. Sys., 14–0827 (La.
10/15/14), 156 So. 3d 33, 37; Mix v. Univ. of New Orleans, 609 So.
2d 958, 963-64 (La. App. 4 Cir. 1992).

Because HAJP’s employee

handbook is not part of the employment agreement, it is of no
moment that two provisions of the handbook contradict the plain
language of Article 7.02 of the agreement.
at 133.

See Amer, 184 So. 2d

Although it might be that HAJP intended to limit Gartman’s

recovery of vacation and sick leave upon her termination, the plain
language of the agreement compels a different result.
Because no genuine dispute of material fact exists with
respect to Gartman’s entitlement to compensation for all of her
accrued, unused vacation and sick time as of her termination date,
and it is undisputed that HAJP has failed to compensate her for
such time, the Court finds summary judgment in favor of the
plaintiff on her claim for vacation and sick time appropriate. 9

9

To substantiate her contention that she had accumulated 463.73
hours of unused vacation time and 550.24 hours of unused sick time
15

III.
Gartman next seeks partial judgment as a matter of law that
HAJP owes her $49,725 in compensatory pay.

Interestingly, Gartman

bases her entitlement to compensatory pay on the Louisiana Civil
Service Rules but seeks such compensation as damages in connection
with her breach of contract claim.

Specifically, Gartman contends

as of her termination, Gartman submits an affidavit in which she
attests that, as Office Manager, she kept a record of her own
vacation and sick time, as well as that of all other employees, in
the ordinary course of HAJP’s business. Moreover, she attaches to
her affidavit a “vacation and sick time” spreadsheet that reflects
her accrued vacation and sick time.
Although HAJP attempts to create a factual dispute regarding the
quantum of Gartman’s accrued vacation and sick time, its efforts
are unsuccessful. In responding to an interrogatory submitted by
Gartman, which requested HAJP to “list the numerical amount of
unused vacation [and sick] hours that HAJP’s records reflect for
Ms. Gartman,” HAJP objected. In particular, HAJP stated:
HAJP is forced to rely on the numbers provided
by Ms. Gartman as Ms. Gartman unilaterally
decided to discontinue use of a third-party
payroll administrator for tracking employee
time.
According to Ms. Gartman’s personal
records she is accrued 463.73 hours of
vacation time [and 550.24 hours of sick time]
. . . .
Notably, HAJP does not present records that conflict with those
kept by Gartman or provide evidence indicating that her records
were fabricated. As such, there is no factual dispute regarding
the quantum of Gartman’s accrued vacation and sick time.
Because HAJP failed to pay Gartman for the 463.73 hours of unused
vacation time and 550.24 hours of unused sick time that she had
accumulated as of her termination, HAJP owes her $33,613.11 for
unused vacation and sick time. A total of 1013.97 hours of unused
vacation and sick time multiplied by her hourly wage of $33.15
equals $33,613.11.
16

that “the measure of damages recoverable for breach of a contract
of employment is . . . the loss of the value of the contract” and
that the value of her employment agreement includes compensatory
pay. Because Gartman seeks compensatory pay as part of the damages
related to her claim that HAJP violated the employment agreement
by terminating her by the Board, summary judgment in her favor is
inappropriate

because

the

Court

has

determined

that

summary

judgement as to this breach of contract claim is unsupported.
IV.
Finally, Gartman seeks partial judgment as a matter of law
that she is entitled to an award of statutory penalty wages and
reasonable attorneys’ fees pursuant to La. R.S. § 23:632 because
of HAJP’s failure to pay her the unused vacation and sick time it
owes her.
A.
The Louisiana Wage Payment Act imposes a duty on an employer,
upon discharge of an employee, “to pay the amount then due under
the terms of employment . . . on or before the next regular payday
or no later than fifteen days following the date of discharge,
whichever occurs first.” La. R.S. § 23:631(A)(1)(a). This statute
also provides:
In the event of a dispute as to the amount due
under this Section, the employer shall pay the
undisputed portion of the amount due as
provided for in Subsection A of this Section.
The employee shall have the right to file an
17

action to enforce such a wage claim and
proceed pursuant to Code of Civil Procedure
Article 2592.
La. R.S. § 23:631(B).
An employer who fails to comply with the provisions of La.
R.S. § 23:631 may be liable for penalty wages.

Pursuant to La.

R.S. § 23:632(A), the penalty is the lesser of “ninety days wages
at the employee’s daily rate of pay, or else [] full wages from
the time the employee's demand for payment is made until the
employer shall pay or tender the amount of unpaid wages due to
such employee.”

However, penalty wages “should not be imposed on

the employer when it presents a good[-]faith non-arbitrary defense
to its liability for unpaid wages.”

Hanks v. La. Cos., 16 334

(La. App. 3 Cir. 12/14/16), 205 So. 3d 1048, 1064 (internal
citations omitted).

In particular, La. R.S. § 23:632(B) provides

as follows:
When the court finds that an employer’s
dispute over the amount of wages due was in
good faith, but the employer is subsequently
found by the court to owe the amount in
dispute, the employer shall be liable only for
the amount of wages in dispute plus judicial
interest incurred from the date that the suit
is filed. If the court determines that the
employer’s failure or refusal to pay the
amount of wages owed was not in good faith,
then the employer shall be subject to the
penalty provided for in Subsection A of this
Section.

18

Accordingly, to recover penalty wages under La. R.S. § 23:632,
the plaintiff must show that “(1) wages were due and owing; (2)
demand

for

payment

thereof

was

made

where

the

employee

was

customarily paid; and (3) the employer did not pay upon demand.”
Hebert v. Ins. Center, Inc., 97-298, p. 9 (La. App. 3 Cir. 1/7/98),
706 So. 2d 1007, 1013.

However, the employer can avoid penalty

wages by “present[ing] a good[-]faith non-arbitrary defense to its
liability for unpaid wages.”

Hanks, 205 So. 3d at 1064.

For

example, “[w]here there is a bona fide dispute over the amount of
wages due, courts will not consider failure to pay as arbitrary
refusal and generally will refuse to award penalties."
706 So. 2d at 1013.

Herbert,

Nonetheless, when the employer does not

dispute that the employee is owed at least some amount of unpaid
wages, failure to timely pay the undisputed amount warrants an
award of penalty wages.

See Hattaway v. Health Paradigm, LLC,

45,047 (La. App. 2 Cir. 3/3/10), 31 So.3d 1176, 1180.
In this case, there is no factual dispute in the summary
judgment record regarding Gartman’s entitlement to an award of
penalty wages.

First, wages were “due and owing,” as this Court

has determined that summary judgment in favor of Gartman on her
claim for accrued, unused vacation and sick time is appropriate.
Notably,

accrued

vacation

and

sick

time

pursuant to La. R.S. 23:631 and 23:632.”

“constitute[]

wages

Wall v. Ascension Credit

Union, 2016-0487 (La. App. 1 Cir. 6/29/16), 2016 WL 6473021 at *1.
19

Second, demand was made to HAJP, as required by La. R.S. § 23:632,
because Gartman’s attorney emailed demand letters to two Board
members and an attorney for the Board. 10

To satisfy her summary

judgment burden on this prong, Gartman points to the deposition of
Wayne Woods, the former General Counsel and current Executive
Director of HAJP.

In his deposition testimony, Woods acknowledges

that Gary Gambel, Gartman’s attorney, sent demand letters to Lawson
and Martinez on March 15, 2017, and to Woods, himself, on April
12,

2017,

demanding

compensation

vacation and sick time.

for

and

itemizing

Gartman’s

Third, it is undisputed that HAJP did not

pay Gartman upon demand, as it had not compensated her for any
accrued vacation or sick time as of September 4, 2018. 11
Moreover, the “good faith” exception to liability for penalty
wages does not apply to HAJP.

In its opposition papers, HAJP

contends that penalties are not proper in this case because “HAJP
believes

in

good

faith

that

Ms.

10

Gartman

is

not

entitled

to

The Louisiana Second Circuit Court of Appeal has held that the
demand requirement under La. R.S. § 23:632 is satisfied where
written demand is made by plaintiff’s counsel to defendant’s
counsel. Webb v. Roofing Analytics, LLC, 48,248 (La. App. 2 Cir.
7/24/13), 121 So. 3d 756, 768.
Moreover, the Louisiana Fourth
Circuit has affirmed an award of penalty wages where the plaintiff
made a demand for unpaid wages in an email sent to the company’s
manager. Kaplon v. Rimkus Consulting Grp., Inc. of Louisiana, 091275 (La. App. 4 Cir. 4/28/10), 39 So. 3d 725.
11
HAJP admits in its Response to Plaintiff’s Statement of
Uncontested Facts that, as of September 4, 2018, it had not paid
Gartman for her accrued unused vacation time or accrued unused
sick time.
20

compensation for wages or benefits for the remaining term of her
Employment Agreement, for any accrued sick time or any vacation
time over 300 hours, or any compensatory time.”

However, Gartman

submits in her summary judgment motion that HAJP cannot avail
itself

of

the

“good

faith”

exception

because

it

failed

to

compensate her for the amount of vacation time that it did not
contest she was owed.

In support of this contention, Gartman

points to the deposition of Wayne Woods taken on August 21, 2018,
in which he testified that, “I think she’s owed up to the 300 hours
-- 300 hours of -- up to 300 hours in accordance with Civil Service
Rules.”

Because HAJP failed to pay Gartman within 15 days of her

termination

the

undisputed

amount

of

wages

to

which

she

was

entitled – 300 hours of vacation time – she contends that it was
not in good faith and is subject to penalty wages.
The Court agrees with Gartman, as this result is consistent
with the Louisiana Second Circuit Court of Appeal’s holding in
Hattaway v. Health Paradigm, LLC, 45,047 (La. App. 2 Cir. 3/3/10),
31 So. 3d 1176, 1180.

In that case, the Louisiana Second Circuit

found that the trial court committed legal error in failing to
impose penalty wages because the employer did not dispute that the
employee was owed some vacation pay but failed to compensate her
for any of this time until five months after her termination.

Id.

The court reasoned that because the employer’s payroll records
indicated that the employee was owed at least 4.44 hours of
21

vacation pay, its failure to timely pay this undisputed amount
warranted penalty wages.
Because

the

summary

Id.
judgment

record

reveals

no

factual

dispute as to Gartman’s entitlement to penalty wages, partial
judgment as a matter of law in her favor is appropriate as to this
claim.

Specifically, Gartman is entitled to 90 days’ wages at her

daily rate of pay as a penalty against HAJP for its failure to pay
her accrued, unused vacation and sick time within 15 days of her
termination, as required by La. R.S. § 23:631.

Because more than

90 days have elapsed since March 15, 2017, when she first made
demand for payment, 90 days’ wages constitutes the appropriate
measure of damages pursuant to La. R.S. § 23:632(A).

As such, she

is entitled to $23,868 in penalty wages. 12
B.
Gartman also seeks partial judgment as a matter of law on her
claim for reasonable attorneys’ fees.
Pursuant to La. R.S. § 23:632(C), an employee is entitled to
reasonable attorneys’ fees, “which shall be taxed as costs to be
paid by the employer, in the event a well-founded suit for any
unpaid wages whatsoever be filed . . . after three days shall have
elapsed from time of making the first demand following discharge

12

Gartman submits in her verified complaint that $33.15/hour x 8
hours/day x 90 days is equal to $23,868.
22

or resignation.” Louisiana courts have held that “[a] well-founded
suit is one in which the employee prevails in the award of unpaid
wages.”

Fahed, 211 So. 3d at 1187; see also Beard v. Summit Inst.

for Pulmonary Med. & Rehab., Inc., 97-1784 (La. 3/4/98), 707 So.
2d 1233, 1237.

This suit is “well-founded” because this Court has

determined that summary judgment in favor of Gartman’s claim for
vacation and sick time is appropriate.

Moreover, it is undisputed

that written demand for her accrued unused vacation and sick time
was made to HAJP more than three days prior to the filing of this
suit, as Gartman made her initial written demand for wages on March
15, 2017 and filed this suit on November 13, 2017.

Accordingly,

Gartman is also entitled to partial judgment as a matter of law
with respect to her claim for reasonable attorneys’ fees.
Accordingly, IT IS ORDERED: that the plaintiff’s motion for
partial summary judgment is GRANTED in part, as to her claims for
vacation and sick time, statutory penalty wages, and reasonable
attorneys’ fees, and DENIED in part, as to her claims for improper
termination and compensatory pay. 13
New Orleans, Louisiana, September 20, 2018

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

13

Should the parties fail to agree on an amount for attorneys’
fees, the Court, on proper and timely motion, will refer the issue
of quantum to the Magistrate Judge to resolve.
23