KUHN, J.
Dr. Ralph Slaughter (Dr. Slaughter), appeals the trial court's judgment, denying his claim against the Board of Supervisors of Southern University and Agricultural and Mechanical College System (Board) for past due wages. We amend and, as amended, affirm.
Dr. Slaughter was employed as the President of the Southern University System in April 2006. In September 2007, Dr. Slaughter and the Board executed a written employment contract for a two year term, commencing on July 1, 2007 and ending on June 30, 2009. Paragraph 11 of the employment contract expressly provided that the contract was effective only upon the execution of a settlement agreement and release (and dismissal with prejudice) in a then-pending "unlawful retaliation" civil rights lawsuit filed by Dr. Slaughter against the Board and others in federal court. The pertinent compensation provisions of the employment contract are as follows:
On September 20, 2007, the Board executed two different Southern University System Personnel Action Forms indicating Dr. Slaughter's employment as System President was for the period of July 1, 2007 to June 30, 2009. One form indicates that the recommended and budgeted salary for Dr. Slaughter was $220,000 and the source of those funds was "State—General Fund Direct." The second form is almost identical, but differs in that the "salary adjustment" amount is $200,000 and the source of funds is "Restricted Funds—SUS Foundation." Copies of portions of Dr. Slaughter's employment contract (paragraph three, providing for Dr. Slaughter's earned compensation, and the signature page) were attached to each personnel action form.
A letter dated September 25, 2007, from Ernie Troy Hughes, the Executive Director of the Southern University Foundation (Foundation), to Mr. Tolor White, the Southern University System Vice President Finance, states that the Foundation "will support and make salary supplements for the extra compensation to President Ralph Slaughter, as approved by the Southern University Board of Supervisors in the amount of $200,000.00 annually from funds designated for that purpose." The Foundation's by-laws provide the Foundation shall "[o]perate principally for the benefit of the Southern University and A & M College System" and "may enter into contracts, cooperative endeavor agreements, and/or any other legally binding instruments on behalf of or for the benefit of the Southern University System." The by-laws also provide the Foundation shall "not engage in any activities, other than those which are exclusively for benevolent, charitable, scientific, literary or educational purposes [and] [n]ever allow or permit any part of the net earnings or assets of this corporation to insure in whole or in part to the benefit of any private member or individual."
When Dr. Slaughter's contract as the System President was not renewed, his employment ended on June 30, 2009. Dr. Slaughter retired as a state employee with approximately 35 years of service, effective July 1, 2009. The Louisiana State Employees Retirement System (LASERS) application form filed by Dr. Slaughter elected
On August 20, 2009, Dr. Slaughter wrote to the Board that he had not received his "earned compensation" payment for 500 hours of leave. He requested immediate payment of his wages due and immediate transfer of his "wage/compensation credits" (leave service credit) to LASERS. Dr. Slaughter indicated his request for payment of leave was acknowledged by the System on July 10, 2009, and the total amount due was $112,500.00, less applicable tax deductions, based on an hourly rate of $225 per hour times 500 hours of leave.
Dr. Slaughter filed suit on September 4, 2009, against the Board for past due wages pursuant to La. R.S. 23:632. Dr. Slaughter alleged that despite his written demands, the Board failed to pay the correct amount owed to him for the unused leave. He also sought attorney fees, penalties, and to proceed by summary proceeding, as provided in La. R.S. 23:632 and La. C.C.P. art. 2592(12).
In a letter from Interim System President Kassie Freeman on September 9, 2009, the Board responded that Dr. Slaughter's LASERS leave certification form was transmitted on August 20, 2009, and that the processing of his terminal pay was being authorized. The letter advised Dr. Slaughter that his "failure to properly complete the university check-out process delayed the processing of [his] terminal pay because terminal pay is not processed until after the check-out is completed." On September 24, 2009, the Southern University System sent a check to Dr. Slaughter in the amount of $30,885.22 for his terminal pay. The cover letter from Interim System President Freeman stated the payment represented the total annual and sick leave, less all applicable deductions, and provided a detailed calculation as follows:
1. Gross Terminal Pay 100,960.00 2. Federal Taxes 32,186.59 3. State Taxes 4,958.20 4. Disputed Amount* 30,431.85 5. Employee Pay Back (Housing) 2,723.14 6. LASERS (225.00) __________ Net Terminal Pay 30,885.22 * The total disputed amount is for property that is currently unlocatable by the offices of Louisiana Property Assistance (LPAA) and Southern University Board of Supervisors Office of Internal Audit. The LPAA has determined that four (4) of the eleven (11) items assigned directly to you cannot be located. The total cost of these four (4) items is $9,829.00. The Southern University System Foundation (Foundation) provided documentation that they reimbursed you for renovations to the President's office in the J.S. Clark Administration Building and the President's Suite in A.W. Mumford Stadium. Moreover, the Foundation reimbursed Dr. Slaughter for furniture and other items purchased for the newly renovated areas. The total amount reimbursed for renovations and purchases was $20,602.85. As of the date of this letter, the Internal Auditors are trying to determine the location and ownership of the above-mentioned property. Until that determination is made, Southern University has withheld $30,431.85 (9,829.00 + 20,602.85) from your terminal payment. It is our hope to resolve this matter as soon as possible.
The written judgment signed by the trial judge decreed, in pertinent part:
In his oral reasons for judgment, the trial judge reviewed the terms of Dr. Slaughter's employment contract and the settlement agreement and noted that the salary supplement was contingent upon
Dr. Slaughter raised nine assignments of error as follows:
Appellate review of a trial court's factual findings is governed by the manifest error-clearly wrong standard. Stobart v. State, through Dep't of Transp. and Dev., 617 So.2d 880, 882 (La.1993). Furthermore, when findings are based on determinations regarding credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings; for only the fact finder can be
To reverse a trial court's factual finding, an appellate court must find that a reasonable factual basis does not exist in the record for the finding of the trial court. If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Thus, when there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, although the appellate court may feel that its own evaluations and inferences are as reasonable. Schuyten v. Superior Systems, Inc., 2005-2358 (La. App. 1st Cir.12/28/06), 952 So.2d 98, 102-03; Cleary v. LEC Unwired, L.L.C., 2000-2532 (La.App. 1st Cir.12/28/01), 804 So.2d 916, 919.
Appellate review of legal questions simply involves a de novo determination as to whether the trial court's decision was legally correct. Hogan v. Morgan, 2006-0808 (La.App. 1st Cir.4/26/07), 960 So.2d 1024, 1027, writ denied, 2007-1122 (La.9/14/07), 963 So.2d 1000; In re Succession of Hebert, 2003-0531 (La.App. 1st Cir.9/17/04), 887 So.2d 98, 105, writ denied, 2004-2571 (La. 12/17/04), 888 So.2d 872; Sumrall v. Bickham, 2003-1252 (La.App. 1st Cir.9/8/04), 887 So.2d 73, 78, writ denied, 2004-2506 (La.1/7/05), 891 So.2d 696.
The Louisiana Wage Payment Act, La. R.S. 23:631, et seq., provides for payment of wages due after termination of employment. The main purpose of the wage payment law is to compel an employer to pay the earned wages of an employee promptly after his dismissal or resignation and to protect discharged Louisiana employees from unfair and dilatory wage practices by employers. Berard v. L-3 Communications Vertex Aerospace, LLC, 2009-1202 (La.App. 1st Cir.2/12/10), 35 So.3d 334, 342, writ denied, 2010-0715 (La.6/4/10), 38 So.3d 302.
La. R.S. 23:631 provides, in pertinent part:
La. R.S. 23:632 provides for the assessment of penalties and attorney fees for the failure to pay wages, as follows:
La. R.S. 23:635 provides that the assessment of fines against employees or the deduction of a sum as fines from wages due is unlawful, as follows:
La. R.S. 42:1111, in the Code of Governmental Ethics, governs the payment of services to public servants from nonpublic sources, in pertinent part:
La. R.S. 42:1115 prohibits public servants from receiving gifts or gratuities, in pertinent part:
La. R.S. 17:3351 provides for the general powers, duties, and functions of college and university boards, including the Southern University System Board. Under these statutes and subject to the powers of the Board of Regents specifically enumerated in Article VIII, Section 5 of the Constitution of Louisiana, and as otherwise provided by law, the Southern University Board has the authority to exercise power necessary to supervise and manage the day-to-day operations of institutions of postsecondary education under its control. Effective January 1, 2011, 2010 La. Acts 992, § 1, consolidated the numerous public retirement systems and created two categories of state systems: a state retirement system, including LASERS, and a statewide retirement system. Prior to this amendment, La. R.S. 11:231 defined average compensation for purposes of retirement benefit compensation for members of LASERS as follows, in pertinent part:
La. R.S. 11:403 providing for the meanings of words and phrases used in the Chapter governing the LASERS system provides in (5)(a)(i) and (b)(i) that "average compensation" means "the average annual earned compensation of a state employee." "Earned compensation" is defined in La. R.S. 11:403(10), in pertinent part, as:
"Base pay" is defined in La. R.S. 11:403(6), in pertinent part, as:
The trial judge reasoned the salary supplement and vehicle and housing allowances could not be included in the calculation of the wages due. Thus, the judge calculated the gross amount of the terminal pay as 500 hours at the hourly rate of $105.77 (based on the base pay of $220,000 divided by 2,080, the number of work hours per year), for a total of $52,884.62.
There is no dispute that Dr. Slaughter was entitled to payment by his employing agency, the Board, for 300 hours of unused annual leave and 200 hours of unused sick leave. The evidence shows that the payment received by Dr. Slaughter in his terminal pay was calculated using the gross sum of $100,960.00, based on an hourly rate of $201.92. The Southern University System calculated the hourly rate by dividing the sum of Dr. Slaughter's base and supplemental salary ($420,000) by 2,080 hours.
However, the parties disagree as to whether the salary supplement and the housing and vehicle allowances should be included in the determination of the hourly rate. Dr. Slaughter contends that the correct hourly rate was $225.00, based on his base pay, salary supplement provided by the Foundation, and vehicle and housing allowances. He argues that the trial judge erroneously concluded that based on the provisions of La. Const. Art. X, § 10 and the statutes enumerated in paragraph 15 of the settlement agreement, his supplemental salary should not be included in the calculation of the hourly rate. Dr. Slaughter also argues because La. R.S. 42:1111 A(1) was excluded from the statutes mentioned in paragraph 15 of his settlement agreement, the provisions of that statute, providing that a salary supplement to an employee of a public higher education board or system shall be deemed compensation and benefits to the employee, are applicable and govern this issue.
Dr. Slaughter also argues because his supplementary compensation was paid directly into the state treasury and received by him in his regular paycheck, the supplement is compensation to which he is entitled. He further contends that based on
The Board contends that an hourly rate of $107.31, based solely on the annual salary of $220,000 paid by Southern University, was proper and that Dr. Slaughter was actually overpaid for the leave, which was erroneously calculated on an annual salary of $420,000. The Board asserts because the Foundation had no obligation to pay the unused leave, the salary supplement should not be part of the calculation of the hourly rate. The Board further argues the salary supplement from the Foundation was combined with the base salary in his payroll from Southern University, instead of being paid separately by the Foundation, because Dr. Slaughter directed that he be paid in that manner. The Board asserts that based on this directive, Dr. Slaughter's state salary, retirement contributions, and hourly rate were incorrectly calculated by the Southern University human resources department.
According to the Board, Dr. Slaughter actually owes Southern University. The Board reasons that once the Foundation's salary supplement is removed from the calculation of the hourly rate and the correct hourly rate of $107.31 per hour is used, the gross amount of the leave pay (before deductions) was $53,658.34. From this sum an amount of $30,431.85 (based on $9,829.00 for the cost of four unlocated computers assigned to Dr. Slaughter, plus $20,602.85 for reimbursements to Dr. Slaughter for renovations and items, including furniture, purchased for the President's Office and the President's stadium suite) should be subtracted, for a total of $23,226.49. The Board further asserts Dr. Slaughter lost additional state property (excluding the amount of the four unlocated computers already deducted) that cost $18,772.00, and after this amount is deducted (along with the overpayment of the housing allowance and taxes) from the remaining balance, Dr. Slaughter actually received an overpayment from Southern University.
La. R.S. 23:631A(1)(a)
The phrase "whether the employment is by the hour, day, week, or month" in La. R.S. 23:631 refers to the pay period for the compensation. Boudreaux, 644 So.2d at 622. In Boudreaux, the supreme court stated:
644 So.2d at 622.
No reported cases address the particular issue of whether a salary supplement or allowances (housing and vehicle) are included in the calculation of the amount due. There is, however, jurisprudence addressing the question of whether other items are amounts due to employees under the wage payment statute. See Jeansonne v. Schmolke, 2009-1467 (La.App. 4th Cir.5/19/10), 40 So.3d 347, 358 (percentage of employer's profits to terminated at-will employee, was due under an agreement for work already performed, was analogous to commissions, was considered wages due and was not "future wages"); Boyd, 15 So.3d 268, 272 (accrued vacation and sick benefits is an "amount then due under the terms of employment" and constitutes wages; an advance is an unconditional loan with an obligation to repay and is not a payment of wages); Cliburn v. Police Jury Ass'n of Louisiana, Inc., 99-2191 (La.App. 1st Cir.11/3/00), 770 So.2d 899, 905 (accumulated retirement contributions are not wages under wage payment law); Williams v. Dolgencorp., Inc., 2004-139 (La.App. 3d Cir.9/29/04), 888 So.2d 260, 264, writ denied, 2005-0174 (La.3/24/05), 896 So.2d 1042 (bonus under employer's incentive program was considered wages); Boudreaux, 644 So.2d 619, 622-23 (severance pay due under contract is not payment for services rendered, and thus, La. R.S. 23:631 not applicable); Ward v. Tenneco Oil Co., 564 So.2d 814, 820 (La.App. 3d Cir.1990) (bonus that employer agreed to pay if employees remained with company until it was sold was not wages for purposes of wage payment law).
Although the employment contract expressly provided Dr. Slaughter's "earned compensation" shall include his salary supplement of $200,000, other provisions stated "the salary supplement is contingent upon the funds being provided by the Southern University System Foundation." The settlement agreement, paragraph 15, indicates that the salary supplement must be approved by the Foundation and that the settlement agreement was not contingent upon this approval. Thus, it is clear from these documents that the salary supplement was to be funded by and conditioned upon the actions of the Foundation, not Southern University.
In Shepherd v. City of Baton Rouge/Parish of East Baton Rouge, 588 So.2d 1210 (La.App. 1st Cir.1991), a legal stenographer in the district attorney's office brought an action against the city, the parish, and the district attorney, seeking to recover payment for unused leave as past due wages. The plaintiff argued that she was an employee of the City-Parish and was entitled under the City-Parish personnel benefits to a greater rate of accrual of leave. The City-Parish maintained that plaintiff was an employee of the District Attorney, and thus, was entitled to payment for less leave. The trial court rendered judgment in favor of the plaintiff and the City-Parish appealed. This court reversed the judgment as to the finding that the City-Parish was the plaintiffs employer. We concluded the City-Parish's contribution of funds toward the plaintiffs salary does not mandate a finding that the plaintiff is an employee of the City-Parish. In finding that the City-Parish
Shepherd, 588 So.2d at 1213-14.
Under La. R.S. 23:631, it is "the duty of the person employing such . . . employee to pay the amount then due. . . ." This law governs the obligation and liability of the employer. Herein, the entity employing Dr. Slaughter was Southern University, not the Foundation. Thus, as the trial court reasoned, Southern University was not obligated to pay the salary supplement, the Foundation was not Dr. Slaughter's employer, and the hourly rate should not include the salary supplement.
Dr. Slaughter also argues that numerous statutory provisions, including those in La. R.S. 42:1111 A and 42:1102(22)(c) in the Code of Governmental Ethics, support his argument that the hourly rate should have been based on $468,000 per year. The Code of Governmental Ethics provides the ethical standards for officials and employees of the state and its political subdivisions. The primary objective of the Governmental Ethics Code is to prevent not only the actuality of conflicts of interest, but also to prevent the occurrence of those situations that tend to create a perception of conflicts of interest. In re Ferrara Fire Apparatus, Inc., 2003-0446 (La.App. 1st Cir.12/31/03), 868 So.2d 762, 765.
La. R.S. 42:1102 provides the definitions of words and terms used in the ethics code. Section (22)(c) provides:
Under the provisions of Section 1102, supplementary compensation to employees of higher education boards or systems from organizations, such as the Southern University System Foundation, are expressly excepted from the definition of a thing of economic value and are considered salary of the employee, so as not to infer a conflict of interest and an ethical violation. Because Section 1102 expressly provides (with emphasis added) "[u]nless the context clearly indicates otherwise, the following words and terms, when used in this Chapter, shall have the following meanings," it is clear that those provisions are limited to the ethical code and are
Herein, the issue is not one of the calculation of LASERS benefits or an interpretation of the retirement statutes for purposes of determining those benefits. Our analysis on the issue of determining the amount due (and the hourly rate) is limited solely to the facts and the issues in this case and does not address Dr. Slaughter's retirement benefit calculation. Nevertheless, because there is a lack of jurisprudence addressing the method of calculating an amount due under the Wage Payment Law, the parties have presented argument based on the meaning of certain terms, such as compensation, in Louisiana's retirement statutes.
La. R.S. 11:233 B(1), applicable to several state retirement systems, including the Firefighters' Retirement System, the Sheriffs Pension and Relief Fund, the Parochial Employees Retirement System of Louisiana, and the Assessors Retirement Fund, specifically provides that "for purposes of calculation of the amount of contributions payable by an employer and employee and for computation of average compensation, earnings or earned or earnable compensation, or its equivalent, shall mean the full amount earned by an employee for a given pay period." However, that statute also expressly provides that earnings or earned or earnable compensation shall not include overtime, operating expenses, the use of automobile or motor vehicles, any allowance for expenses incurred as an incident of employment, deferred salary, bonuses, terminal pay, severance and any other type of irregular or nonrecurring payment. La. R.S. 11:233 B(2).
Retirement provisions in Title 11 of the Revised Statutes,
We further disagree with Dr. Slaughter's other arguments for including the supplemental pay and expense allowances in the calculation of the hourly rate: that the Foundation's payment and the expense allowances were included in Dr. Slaughter's paycheck from Southern University, that taxes were paid on the supplement and allowances,
Ms. Rosie Taylor, a Southern University payroll department employee, testified that she received the personnel action forms from the President's Office and used these forms to determine how to pay Dr. Slaughter. Ms. Taylor acknowledged that Dr. Slaughter's earnings, as reported to the Internal Revenue Service and the State Department of Revenue, included the supplement paid by the Foundation. The payment for accrued leave was calculated by the Human Resources department, which included the salary supplement in the calculation and sent those figures to the payroll department.
Mr. Ernie Troy Hughes, the Foundation's Executive Director during Dr. Slaughter's tenure, testified that the University and the Foundation formed a corporate endeavor to work together. The Foundation had multiple accounts, was "the closest thing to a bank" for the University, and Dr. Slaughter had control of two of the Foundation's accounts, the Bayou Classic and the System Development accounts. Mr. Hughes explained that Dr. Slaughter would obtain reimbursement checks from the Foundation through the use of the form authorizing disbursement and by attaching receipts; payment was processed and sent to Dr. Slaughter after submission of these forms. Dr. Slaughter also had the authority to transfer money from the Bayou Classic account to the Foundation and from the Foundation to himself.
Moreover, Dr. Slaughter directed the Foundation to pay his salary supplements by means of direct transfer from either the Bayou Classic account or the Foundation account into the Southern University account. Dr. Slaughter used disbursement forms to obtain these transfers of the salary supplements. Mr. Hughes testified the salary supplements could have been paid directly to Dr. Slaughter from the Foundation and that he did not know why Dr. Slaughter wanted those amounts to be paid to him through the University. At the time of these disbursements, Mr. Richard Turnley was the Foundation President, but Dr. Slaughter worked closely with the Foundation's Treasurer. Mr. Hughes further admitted he did not question Mr. Turnley about the salary supplement; nor did he receive any direction from Mr. Turnley.
Mr. Hughes also acknowledged a letter, dated September 25, 2007, that he wrote to
Mr. Hughes further admitted the Foundation assumed all requests made for disbursements were for the benefit of the University. Although he suggested changes in the policies and procedures for disbursements, Dr. Slaughter did not agree to any changes that would affect his ability to approve his own requests for disbursement of funds. In further questioning, Mr. Hughes was asked about whether it was permissible for the Foundation to pay for certain items; he concluded the Foundation was permitted to purchase a television for Dr. Slaughter's Office, but was not authorized to pay legal fees of an attorney who sued Southern University.
Based on our review of the evidence presented, we find no error in the trial court's determination that the salary supplement and housing and vehicle allowances should not be used in the leave pay calculation. The trial judge apparently believed the testimony that Dr. Slaughter's own actions were responsible for the inclusion of the salary supplement and allowances in his regular monthly payment by Southern University. The fact that taxes were paid and retirement benefits were calculated using the salary supplement and allowances are not support for Dr. Slaughter's position, given that he manipulated the system and used his position for his own benefit.
Another issue is whether the Board could deduct and offset from the terminal pay an amount attributable to the cost of property taken by Dr. Slaughter or for unlocated items that were Dr. Slaughter's responsibility.
Dr. Slaughter argues the trial judge's deduction for these items was improper because those items were actually the property of the Foundation and that the Board cannot "collect" on a debt owed to the Foundation. Dr. Slaughter also contends there was no evidence these items were placed into the statewide inventory system. According to Dr. Slaughter, he could not be charged for the unlocated items because under La. R.S. 39:330, the property manager of each agency is the custodian of and responsible for all of the agency's property, unless the manager requires the person receiving the property to sign a receipt; he contends there was no evidence that he ever signed a receipt for these items. He also contends that under La. R.S. 39:330(F), only the Commissioner of Administration could decide what action could be taken after an investigation of
The Board contends that there was uncontradicted evidence that when Dr. Slaughter left his position, he took items from the President's office and stadium suite. It argues that numerous exhibits show these items were purchased by the Foundation based on Dr. Slaughter's request and authorization and that the items were specifically assigned to Dr. Slaughter through the University property control process. The Board notes that the testimony of Mr. Floyd Rector, a supervisor in the LPAA compliance office that conducted the audit of the missing property, and Ms. Althea Basil, the Southern University System property manager, confirms all of the items were paid for using Foundation funds, belonged to the University, and were taken by Dr. Slaughter. The Board further contends the evidence shows Southern University used the tagging inventory required by the state on all items, except for those in the President's Office, that Dr. Slaughter signed the 2008 and 2009 inventories that included these items, and that as "head of the agency," Dr. Slaughter was responsible for this property. The Board further asserts that Mr. Graylin Hammond, an administrative specialist in the President's Office who handled inventory, testified that only unlocated items that were specifically assigned to Dr. Slaughter were included in the offset.
La. R.S. 23:635 provides an employer may not assess a "fine" against an employee, except when the employee willfully or negligently damages goods or property of the employer or in cases where the employee is convicted or has pled guilty to the crime of theft of employer funds. "Fines" within the meaning of the statute are pecuniary penalties imposed for violation of some law, rule, or regulation. Brown v. Navarre Chevrolet, Inc., 610 So.2d 165, 170 (La.App. 3d Cir.1992). Since this statute is coercive and penal in nature, it must be strictly construed, must not be extended beyond its clear unambiguous language, and must yield to equitable defenses. See Hays v. Louisiana Wild Life & Fisheries Commission, 165 So.2d 556, 565 (La.App. 1st Cir.1964).
A review of the jurisprudence on this issue indicates that not all deductions from an employee's pay are prohibited fines. The cases indicate that when an employee is aware of the employer's policy of authorizing deductions, the amounts deducted pursuant to that known policy have not been considered fines. See Cupp v. Banks, 25,762 (La.App.2d Cir.5/4/94), 637 So.2d 678, 679-80 (where employee admitted employer had advised the cost of the repair parts would be deducted from his wages, if he damaged any additional farm equipment and the trial court found the employee accepted this condition as term of his employment, the deduction from the employee's wages was justified and was not considered a fine). See also Stell v. Caylor, 223 So.2d 423 (La.App. 3d Cir. 1969) (contract providing the employee pay a deposit for equipment and monies issued did not constitute a fine; court found the amount was simply a sum to insure the return of any equipment or monies issued and reserved to employer the right to check all books, pay slips and reports).
In Moore v. Fleming Subway Restaurants, Inc., 28,543 (La.App.2d Cir.8/21/96), 680 So.2d 78, 80-81, the plaintiffs were discharged for failing to make hourly drops of cash, as provided in the employee handbook. In addition, the employer withheld from their wages an amount to offset the amount of money taken in a robbery. The second circuit concluded that the employee handbook introduced into evidence did not contain any specific notice that an
There is only one reported case addressing missing equipment. In Glover v. Diving Services Intern., Inc., 577 So.2d 1103 (La.App. 1st Cir.1991), this court determined the employer was not authorized to deduct the cost of missing equipment from an employee's paycheck, absent evidence that the employee willfully or negligently damaged the employer's property. The employee acknowledged signing a master service agreement that provided in the event equipment returned from a job was not washed, cleaned, properly stored, and appropriately tagged, an appropriate fee would be deducted. The trial court determined that the agreement did not authorize the disputed deduction because it was merely a safety notice and regulation from the employer to its employees. The trial court further determined that the agreement's provisions merely provided a procedure whereby deficiencies or problems in equipment could be corrected and the shop and headquarters could be kept in a clean and appropriate manner.
On appeal, this court concluded the evidence was in dispute as to whether the employee ever received the agreement and employee handbook. Moreover, we concluded La. R.S. 23:635 was inapplicable because no fine had been imposed. We determined the deduction from the employee's paycheck was for the purpose of covering a loss rather than imposing a punishment and, therefore, was not a fine. Because the agreement did not authorize the disputed deduction, we concluded the employee was entitled to recover the sum of the unpaid wages. Glover, 577 So.2d at 1107-08.
Herein, the evidence shows that Dr. Slaughter was aware of the university policy that all employees must complete the check-out process before receiving their terminal pay. Dr. Slaughter introduced the check-out form into evidence. This form, which served as the catalyst for an employee to receive his terminal pay, expressly stated the university's policy that department head signatures were necessary to certify the employee's financial responsibilities were cleared prior to release of the employee's final pay check. The form specifically states "where financial obligations are indicated above, funds will be deducted from the employees' terminal pay." Dr. Slaughter prepared his check-out form, but asked his administrative assistant, Ms. Frances Smith, to obtain the required signatures. Ms. Smith testified that after Dr. Slaughter's last day, several items were missing and all the required signatures, including that of Interim System President Freeman, had not been obtained to authorize processing of Dr. Slaughter's terminal pay.
Moreover, there was testimony of several Southern University employees and documentation
The evidence shows that Dr. Slaughter knew of the policy that an employee must complete the check-out form and that an accounting of items must be made before terminal pay is released. Thus, the deductions and offsets for the missing items were conducted in accordance with the employment policy and did not constitute a prohibited fine. Accordingly, we find no manifest error in the trial court's determination that the offsets for missing property were proper.
Dr. Slaughter contends that the trial court improperly concluded his terminal pay included an overpayment of the housing allowance for the month of July 2009, and thus, the Board properly deducted that amount from his terminal pay. Dr. Slaughter claims that no evidence was presented that he was overpaid for one month of the housing allowance. The Board counters that there was uncontradicted testimony that indicated Dr. Slaughter received an extra housing allowance payment.
Ms. Rosie Taylor, the employee who handled Dr. Slaughter's payroll, testified as to the authorization for and instructions of how housing and automobile allowances were to be paid to several Southern University System Chancellors and the System President, Dr. Slaughter. A memorandum, on Southern University System letterhead, dated May 27, 2008, from Mr. White, the Southern University Vice-President for Finance, to Mrs. Carey Clark, an account supervisor, provided, "Payments are to be made in equal monthly installments, with the appropriate amount being due and payable on the first (1st) day of each calendar month, unless otherwise directed by the Southern University Board of Supervisors." Ms. Taylor testified that she always paid the housing allowances a month in advance and that in the last payroll conducted for Dr. Slaughter he was paid a housing allowance for July 1, 2009. Ms. Taylor further testified that she had audited Dr. Slaughter's housing allowance payments and determined that although he was supposed to be paid for 39 months of the housing allowance, he actually received that allowance for 40 months. She noted that an amount equal to one month's housing allowance was accidentally included in Dr. Slaughter's last paycheck and she conveyed that information to her supervisor.
On cross-examination, Ms. Taylor agreed that Dr. Slaughter "was paid at the end of every month," "never got . . . a
Based on the testimony of Ms. Taylor, the evidence shows that Dr. Slaughter's last check on June 30, 2009, included an advance of the housing allowance for the month of July 2009. Dr. Slaughter was not entitled to a housing allowance for July 2009, because he was no longer employed as the System President. Thus, the deduction for this amount was proper. The trial court was not manifestly erroneous in finding that Dr. Slaughter was overpaid for one month housing allowance and concluding that the deduction for this amount was proper. Accordingly, this assignment of error lacks merit.
Dr. Slaughter contends that the trial court erred in issuing a ruling "effectively ordering LASERS to `recalculate' [his] retirement" based on the amount of $220,000 instead of the full earned compensation of $468,000. He argues that not only was the ruling erroneous, the issue was not before the trial court.
Herein, a review of the written judgment clearly shows that there was no ruling or order to LASERS to recalculate Dr. Slaughter's retirement benefit. The trial judge merely mentioned LASERS in his explanation for the calculation of the terminal pay. He reasoned, as we did in our discussion above, that under the Louisiana Constitution, salary supplements and vehicle and housing allowances are not included in the calculation of retirement or severance benefits by LASERS. It is difficult for us to understand how Dr. Slaughter could arrive at his interpretation that the judgment ordered LASERS to recalculate his retirement benefit.
Nevertheless, we note that the jurisprudence holds that if there is any conflict between a written judgment and written reasons, the language of the judgment controls. See Delahoussaye v. Board of Sup'rs of Community and Technical Colleges, 2004-0515 (La.App. 1st Cir.3/24/05), 906 So.2d 646, 654. The same reasoning obviously applies in the case of a conflict between a written judgment and oral reasons for judgment. Accordingly, there is no merit to this assignment of error.
After the oral judgment was rendered, Dr. Slaughter filed a motion for new trial based on the trial judge's failure to disclose that his wife, Angele Davis, was the Commissioner of Administration and directly responsible for the LPAA, the agency that conducted the inventory of the property in the President's Office. Two weeks later, Dr. Slaughter filed a supplemental and amending motion for new trial, asserting that after judgment was rendered he located "e-mails regarding his earned compensation including e-mails to him from SU Foundation Attorney, Preston Castille, and Ernie Hughes, dating from 2007, clearly showing that the SU Foundation was fully aware of and participated
Dr. Slaughter asserts that the evidence could not have been located with due diligence because it would have required several days of effort on his part. He further asserted that the importance of the evidence was not apparent and he was not in a position to discover the need for the evidence until Mr. Ernie Troy Hughes testified and the trial court issued its ruling in the wage suit. However, Dr. Slaughter admits that the evidence was obtained from Preston Castille, the Foundation's attorney, during the negotiation of his employment contract, as the Southern University System President.
The Board responds that although the evidence was known, available, and within the control of Dr. Slaughter prior to the trial, he chose not to present it at trial. The Board further contends that it was not error for the trial court to summarily deny the motion for new trial because the evidence was available and could have been discovered with due diligence.
A peremptory ground for a new trial exists "[w]hen the [moving] party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial." La. C.C.P. art. 1972(2). A new trial may also be granted in any case if there is a good ground therefor, except as provided by law. La. C.C.P. art. 1973. The standard of review of a judgment on a motion for new trial, whether on peremptory or discretionary grounds, is that of abuse of discretion. Magee v. Pittman, 98-1164 (La.App. 1st Cir.5/12/00), 761 So.2d 731, 746, writ denied, 2000-1694 (La.9/22/00), 768 So.2d 31. The breadth of the trial court's discretion to order a new trial varies with the facts and circumstances of each case. Horton v. Mayeaux, 2005-1704 (La.5/30/06), 931 So.2d 338, 344.
To meet his burden of proof on a motion for new trial based upon newly discovered evidence, the mover must show that such evidence: 1) is not merely cumulative; 2) would tend to change the result of the case; 3) was discovered after trial; and 4) could not, with due diligence, have been obtained before or during trial. Thomas v. Comfort Center of Monroe, LA, Inc., 2010-0494 (La.App. 1st Cir.10/29/10), 48 So.3d 1228, 1240-41; Couvillion v. Shelter Mut. Ins. Co., 95-1186 (La.App. 1st Cir.4/4/96), 672 So.2d 277, 282-83.
Herein, Dr. Slaughter admits that the motion for new trial was based on evidence that he already knew existed, but would take time to find. Thus, this evidence was not newly discovered and could have been obtained before the trial. Moreover, even if this evidence was newly discovered, there has been no showing that it would have changed the result.
We likewise believe that the other grounds for new trial (that Judge Kelley was biased against Dr. Slaughter and his attorney and failed to disclose his spouse was the Commissioner of Administration) lack merit. Dr. Slaughter's attorney, Ms. Craft, knew Judge Kelley was married to the Commissioner of Administration, Ms. Davis. Ms. Craft acknowledged on the record at trial that she had seen a letter from the LPAA, the state agency that
Accordingly, we find no abuse of discretion in the trial court's denial of the motion for new trial and the motion to supplement and amend the motion for new trial.
Dr. Slaughter contends that the district court erred in refusing to award penalty wages and attorney fees under La. R.S. 23:632. He asserts that the Board refused to tender the wages due, despite his written demands. He specifically notes that on July 10, 2009, the Board acknowledged receipt of the demand for payment of his accrued leave, but waited until after his lawsuit was filed to make a "tender" of any amount. Dr. Slaughter contends that the wage payment law provides in a "well-founded" lawsuit, attorney fees are not subject to equitable defenses and because he was forced to file suit to obtain payment of the wages due, he is entitled to attorney fees.
Dr. Slaughter further argues he is entitled to penalties because the off-sets were not made in good faith and were not proper under the law. He reiterates his argument that there was no evidence that the offsets were for property owned by the Board and that the offsets were actually an unauthorized "collection activity" on behalf of the Foundation.
The Board argues that because Dr. Slaughter failed to comply with the University's check-out procedure and was responsible for unaccounted items, he was not entitled to an award of penalties or attorney fees.
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. Schuyten v. Superior Systems, Inc., 2005-2358 (La.App. 1st Cir.12/28/06), 952 So.2d 98, 102. Although the statutory language provides for an award of penalty wages upon nonpayment, the jurisprudence has allowed the employer to assert equitable defenses to such a claim. Because the statute is penal, it must be strictly construed. The jurisprudence provides that penalties will not be imposed on the employer when it presents a good faith, non-arbitrary defense to its liability for unpaid wages. A trial court's determination concerning whether a defendant employer is in bad faith is a factual question subject to the manifest error/clearly wrong standard of review. Schuyten, 952 So.2d at 102-03.
Herein, based on our review of the record, we find no manifest error in the trial court's ruling denying penalties and attorney fees based on a bona fide dispute between the parties. Because a determination of the amount of the setoff required an inventory of the property, the delay caused by the inventory and audits was warranted. Moreover, since no wages were due and the lawsuit was not well-founded, Dr. Slaughter was not entitled to penalties and attorney fees.
Accordingly, this assignment of error lacks merit.
At the onset, we note that Dr. Slaughter assigns as error the district court's error "in refusing to recuse itself," but his argument actually focuses on the ruling by
Dr. Slaughter also argues that the district court erred in finding that Dr. Slaughter's counsel, and not Judge Kelley, had the obligation to inform him of the judge's relationship to the Commissioner of Administration and in finding that Judge Kelley was not biased in favor of the Board and its attorney. Dr. Slaughter further argues that the recusal motion was timely because he could not have anticipated that Ms. Davis' name would be mentioned during the testimony of the last two witnesses and that Judge Kelley would rely on Ms. Davis' order to Southern University to "tag" computers in the President's Office in rendering judgment.
In denying the motion to recuse, Judge Fields stated there were two issues presented by Dr. Slaughter: 1) the relationship of the Commissioner of Administration to Judge Kelley, and 2) bias toward Dr. Slaughter and Ms. Craft. Judge Fields concluded the recusal was not warranted based on the Judge's relationship to Ms. Davis. He reasoned that Dr. Slaughter's counsel knew of the relationship and that Ms. Davis' name was not mentioned until the last two trial witnesses. Judge Fields further concluded that based on his review of the trial record, he did not find Judge Kelley was biased.
Dr. Slaughter argues the evidence of bias in the instant case is far more substantial than the evidence presented in Succession of Ratcliff v. Fruge, 99-575 (La.App. 3d Cir.12/8/99), 755 So.2d 918, 923, where the third circuit concluded that the trial judge's words and actions demonstrated bias and prejudice sufficient for recusal and reversed the trial court's denial of motions to recuse and new trial based on a claim of judicial bias. The third circuit concluded the trial judge rejected a stipulation by all the parties, had refused to appoint an attorney for unrepresented parties, and had issued instructions that defied a prior ruling of the appellate court.
As evidence of judicial bias in the instant case, Dr. Slaughter contends the record reflects that Judge Kelley supplied objections for the Board and its counsel; openly mocked his attorney, Ms. Craft; referred to Dr. Slaughter's testimony as the "least credible" in his thirteen years as a judge; made prejudicial comments during the sanctions hearing; and ordered that LASERS recalculate Dr. Slaughter's retirement benefits.
The Board responds the motion to recuse was untimely because Dr. Slaughter's attorney had knowledge of the relationship between Judge Kelley and Ms. Davis prior to filing of the lawsuit.
A full discussion of the factual basis asserted by Dr. Slaughter for the motion to recuse Judge Kelley and the procedural history of that motion is presented in Slaughter v. Board of Sup'rs, 2010-1114 (La.App. 1st Cir.8/2/11), 76 So.3d 465, 468-69, also rendered this date. In that appeal, we noted that the motion to recuse was untimely because Dr. Slaughter's attorney knew of the grounds regarding the relationship with the Commission of Administration for over one year before the motion was filed. The knowledge of an attorney, actual or otherwise, is imputed to his or her client. See Stevison v. Charles St. Dizier, Ltd., 2008-887 (La.App. 3d Cir.3/25/09), 9 So.3d 978, 981, writ denied, 2009-1147 (La.10/2/09), 18 So.3d 116.
Moreover, we find no error in the conclusion of the district court judge,
The transcript of the recusal hearing before Judge Fields reveals the existence of an audio recording secretly made by Dr. Slaughter during the sanctions hearing before Judge Kelley. Judge Fields, who expressed concern about the recording and whether Dr. Slaughter was also recording the recusal hearing, ordered Dr. Slaughter to turn over the recording and that it be placed under seal. However, Judge Fields also noted that the recording was not a court exhibit. There is no indication that the recording was played during the recusal hearing or that Judge Fields based his ruling on that recording.
After Judge Fields denied the motion to recuse Judge Kelley, Dr. Slaughter filed a motion to supplement the record in this appeal with the transcript of the recusal hearing and "any and all evidence introduced at the proceeding on July 12, 2010, including the audio recording that was placed under seal." On August 17, 2010, Judge Fields signed an order granting the motion to supplement the record, but limited the supplement to the transcript of the proceedings, the documentary evidence, the oral reasons for judgment, and the signed judgment. The order was denied "in all other respects."
After the appeal record was lodged, Dr. Slaughter filed in this court a motion to supplement the appellate record with the audio recording. In his motion, Dr. Slaughter alleges and infers that the recording was introduced as evidence in the lower court. However, as noted above, it is clear from the transcript that although Judge Fields placed the recording under seal, it was not admitted into evidence.
In Greenfield v. Lykes Bros. S.S. Co., 2002-1377 (La.App. 1st Cir.5/09/03), 848 So.2d 30, 33-34, and Williams Law Firm v. Bd. of Sup'rs of Louisiana State University, 2003-0079 (La.App. 1st Cir.4/02/04), 878 So.2d 557, 562, this court held that it lacks jurisdiction to order evidence filed into the appellate record where it was never filed into the district court record. Accordingly, Dr. Slaughter's motion to supplement the appellate record is denied.
Having affirmed the determinations in trial court's judgment, our review reveals that the trial court failed to articulate that all Dr. Slaughter's claims were, accordingly, dismissed. Also, while the preamble to the judgment duly notes that legal representation was made on behalf of defendant "Board of Supervisors of Southern University," in its orders, reference is made to this defendant as "Southern University." Although we find neither of these deficiencies fatal to the finality of the judgment, see La. C.C.P. art. 1841, for clarity the judgment is modified to more particularly articulate the scope of the dismissal and the identity of the defendant. See La. C.C.P. art. 2164; see also Jenkins v. Recovery Technology Investors, 2002-1788 (La.App. 1st Cir.6/27/03), 858 So.2d 598, 600 (a final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied).
For these reasons, we amend the trial court's judgment to replace all references to "Southern University" with "the Board
HIGGINBOTHAM, J., concurs in part, dissents in part, and assigns reasons.
HIGGINBOTHAM, J., concurring in part and dissenting in part.
I partially disagree with the majority, because I conclude that Dr. Slaughter's "wages" were clearly defined in the two-year employment contract entered into between Dr. Slaughter and the Southern University Board. The provision regarding Dr. Slaughter's services to be rendered as President of the Southern University System unambiguously defined "earned compensation" to be a base salary of $220,000 per year, a vehicle allowance of $1,000 per month, a housing allowance of $3,000 per month, and a salary supplement of $200,000 per year to be provided by the Southern University System Foundation. It is undisputed that the Foundation provided the salary supplement for both years of the employment contract and Dr. Slaughter paid taxes on gross taxable income for both years that included the base salary, allowances, and salary supplement.
In actions to recover unpaid wages pursuant to LSA-R.S. 23:361-639, jurisprudence has held that "wages" are any amount due under the terms of employment, and which are earned during a pay period. Price v. Stranco, Inc., 03-1762 (La.App. 1st Cir.9/8/04), 887 So.2d 82, 85, writ denied, 04-2485 (La.12/17/04), 888 So.2d 867. The word "earn" is defined as "[t]o acquire by labor, service, or performance." Id., quoting Black's Law Dictionary 525 (7th ed.1999) (emphasis added). At trial, it was determined that Dr. Slaughter was paid the entire amount of his "earned compensation" on the last day of each month for his services as President of the Southern University System during the two-year pay period as defined in the employment contract. Because Dr. Slaughter's compensation—base, allowances, and supplement—was due and paid under the express terms of the employment contract for services rendered by Dr. Slaughter, I conclude that the entire amount constituted Dr. Slaughter's "wage" within the meaning and intent of LSA-R.S. 23:631 and 632.
I find the facts of this case analogous to a situation where an employee receives and relies upon an annual or monthly bonus for services rendered during a pay period, as negotiated in an employment contract. See Cochran v. American Advantage Mortgage Co., Inc., 93-1480 (La. App. 1st Cir.6/24/94), 638 So.2d 1235, 1239; Williams v. Dolgencorp, Inc., 04-139 (La. App. 3d Cir.9/29/04), 888 So.2d 260, 263-264, writ denied, 05-0174 (La.3/24/05), 896 So.2d 1042; Thomas v. Orleans Private Industry Council, Inc., 95-1577 (La.App. 4th Cir.2/15/96), 669 So.2d 1275, 1280, writ denied, 96-0686 (La.4/26/96), 672 So.2d 671. The Louisiana jurisprudence has looked beyond the label of classifying amounts due to departing employees, and recognized that regularly-paid bonuses or perks provided to and relied upon by employees under express terms in payment
The bonus—or in this case, the allowances and salary supplement—are remuneration for services provided and are relied upon by the employee as additional compensation that was expressly considered and agreed to by the parties during the employment contract negotiations. I believe the allowances and salary supplement in this case were actually negotiated perks or bonuses that were given in addition to the regular base pay for services rendered in the position of President of the Southern University System. Thus, I find that the trial court erred in failing to include the allowances and salary supplement along with Dr. Slaughter's base salary when considering Dr. Slaughter's unpaid wages claim and his claim for penalties and attorney fees. For this reason, I respectfully disagree with the majority's opinion affirming the trial court's determination of the "wages" issue and dismissal of Dr. Slaughter's claims against the Board.
Additionally, for the same reasons outlined in my dissenting opinion in Dr. Slaughter's separate appeal of the judgment ordering sanctions, I respectfully disagree with the majority's discussion of the timeliness of Dr. Slaughter's motion to recuse.
For the outlined reasons, I respectfully agree in part and dissent in part.