Nolton F. Semien v. the Geo Group, Inc.

• Court: Louisiana Court of Appeal
• Decided: December 8, 2010
• Docket: CA-0010-0642
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

10-642

NOLTON F. SEMIEN

VERSUS

THE GEO GROUP, INC.

**********

APPEAL FROM THE THIRTY-THIRD JUDICIAL DISTRICT COURT PARISH OF ALLEN, NO. C-2009-554 HONORABLE PATRICIA C. COLE, DISTRICT JUDGE

OSWALD A. DECUIR JUDGE

Court composed of Sylvia R. Cooks, Oswald A. Decuir, and Elizabeth A. Pickett, Judges.

AFFIRMED.

Samuel B. Gabb Plauche, Smith & Nieset, L.L.C. 1123 Pithon Street Lake Charles, LA 70601 (337) 436-0522 Counsel for Defendant/Appellee: The Geo Group, Inc.

Paul F. Bell Bell Law Firm, LLC 4949 Tulane Drive Baton Rouge, LA 70808 (225) 246-2325 Counsel for Plaintiff/Appellant: Nolton F. Semien DECUIR, Judge.

In this suit for payment of unused Paid Time Off and Long Term Illness time,

Nolton Semien appeals a trial court judgment relieving The GEO Group, Inc. of

liability for such payments.

FACTS

Nolton Semien (Semien) was employed by The GEO Group, Inc. (GEO) from

March 1994 through February 3, 2009. In October, 2008, GEO announced a change

in its policy regarding time off. Beginning on December 29, 2008, the GEO

Employee Handbook provided that:

PTO [paid time off] is a benefit that combines elements of the former Vacation and Sick Leave. At the beginning of each fiscal year, eligible full time employees will be granted PTO, . . . which must be used during that year or it will be forfeited[.] . . . PTO days are not paid out upon termination.

Similarly, Long Term Illness (LTI) was granted to allow additional time off “in the

event of illness that lasts more than two consecutive days.” Semien received and

acknowledged notice of these changes. Moreover, anticipating the change, in

November 2008, Semien used all of the remaining vacation hours that he had accrued

under the former vacation policy which allowed workers to accrue time based on

hours worked.

In accordance with the new policy, Semien was granted PTO and LTI benefits

on December 29, 2008. On January 27, 2009, he was terminated. Semien filed this

suit to recover payment for unused PTO and LTI. The trial court found no payment

was owed by GEO. Semien lodged this appeal.

DISCUSSION

Semien contends that the trial court erred in concluding that GEO properly

withheld wages and that La.R.S. 23:631 and La.R.S. 23:634 do not apply. Semien also contends the trial court erred in failing to award penalties, attorney fees and costs

under La.R.S. 23:632. We disagree.

An employer must pay a discharged employee “an amount due under the terms

of employment” or “wages.” La.R.S. 23:631. In addition, an employer cannot

require forfeiture of any vacation pay actually earned by an employee pursuant to the

employer’s policy. La.R.S. 23:631, La.R.S.23:634.

The key question in this case is whether Semien’s Paid Time Off (PTO) and

Long Term Illness (LTI) are “an amount due under the terms of employment” or

“wages” and more particularly were they “earned” by Semien.

“We review this matter under the manifest error standard; thus, we may not

set aside the trial court’s findings of fact in the absence of manifest error or unless

they are clearly wrong.” Kately v. Global Data Systems, Inc., 05-1227, p. 2 (La.App.

3 Cir. 4/5/06), 926 So.2d 145, 147 (citing Picard v. Vermilion Parish Sch. Bd.,

98-1933 (La.App. 3 Cir. 6/23/99), 742 So.2d 589, writ denied, 99-2197 (La.

11/19/99), 749 So.2d 675, and Fontenot v. Ryder Truck Rental, Inc., 03-1129

(La.App. 3 Cir. 3/24/04), 869 So.2d 330). Where the appeal involves a conclusion

of law, the appellate court must determine whether the trial court correctly decided

the legal issues in dispute. Senousy v. Senousy, 05-198 (La.App. 3 Cir. 6/1/05), 905

So.2d 461, writ denied, 05-2073 (La. 2/10/06), 924 So.2d 169.

In Kately, the court said:

Generally, “[v]acation pay is considered to be wages for the purposes of La.R.S. 23:631.” Picard, 742 So.2d at 591 (citations omitted). However, “where an employer has a clearly established policy that vacation time is not considered wages for the purposes of La.R.S. 23:631(D)(2), an employee is not entitled to reimbursement for unused, accrued vacation time.” Id. at 591 (citing Huddleston v. Dillard Dept. Stores, Inc., 94-53 (La.App. 5 Cir. 5/31/94), 638 So.2d 383. This court has previously held that:

2 [I]n the absence of a clear, written policy establishing that vacation time granted by an employer to an employee is nothing more than a mere gratuity and not to be considered an amount due or a wage, accrued but unused vacation time is a vested right for which an employee must be compensated upon discharge or resignation.

Id. at 595-96. Moreover, any ambiguity will be interpreted against the employer. Fontenot, 869 So.2d 330 (citing Baudoin v. Vermilion Parish Sch. Bd., 96-1604 (La.App. 3 Cir. 4/2/97), 692 So.2d 1316, writ denied, 97-1169 (La. 6/20/97), 695 So.2d 1358.

Kately, 926 So.2d 145, 148.

In this case, the trial court found that GEO’s policy clearly distinguished

between vacation and sick leave under the old policy and PTO and LTI under the new

policy. The court also found that GEO’s new policy unambiguously provided that

PTO and LTI were “granted” as a benefit by GEO and not “earned” by the employee.

Moreover, a review of Semien’s final pay stub reveals balances for PTO and LTI

consistent with the implementation of that policy. The record establishes that Semien

was aware of the change in policy and took steps to avoid losing time accrued under

the prior policy. Accordingly, the court found that Semien was not entitled to

payment for his unused PTO and LTI. Likewise, the court found that no penalties,

attorney fees or costs were due to Semien. After reviewing the record, we find no

manifest error in the trial court’s factual determination that GEO was not required to

pay Semien for the unused PTO and LTI, nor its legal conclusion that La.R.S. 23:631,

La.R.S. 23:632, and La.R.S.23:634 were inapplicable.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs

of these proceedings are taxed to appellant, Nolton Semien.