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Bodenheimer v. Carrollton Pest Control & Termite Co.

Court of Appeals of Louisiana, Fourth Circuit

February 14, 2018


         APPEAL FROM FIRST CITY COURT OF NEW ORLEANS NO. 2016-08223, SECTION "C" Honorable Veronica E Henry, Judge



          Court composed of Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods

          Regina Bartholomew-Woods Judge.

         Plaintiff-Appellant, David M. Bodenheimer, appeals the April 5, 2017 judgment of the Orleans Parish First City Court, rendered after bench trial. For the reasons that follow, we reverse the judgment of the trial court, and remand this matter for further proceedings.


         Appellant filed a petition in the First City Court of New Orleans on November 18, 2016. Therein, Appellant stated he worked for Carrollton Pest Control and Termite Company (hereinafter "CPC"), owned by Francis Fasone ("Mr. Fasone"), for twenty-three years prior to his resignation on May 20, 2016. Appellant earned $20.37 an hour and accrued 1.25 vacation days (the equivalent of ten hours based on an eight-hour workday) per month at CPC. At the time of his resignation from CPC on May 20, 2016, Appellant asserted he had used only three of his fifteen accrued vacation days from 2015, in addition to the 6.25 days accrued in 2016, for a total of 18.25 days. Despite Appellant's assertions, CPC paid Appellant for 3.25 days of vacation upon his departure, taking the position that Appellant was only entitled to twenty-six (3.25 days) of the fifty hours (6.25 days) he had accrued in 2016. Appellant sent CPC a written demand for the full 18.25 vacation days to which he believed he was entitled, but CPC maintained that it owed Appellant nothing in addition to the 3.25 days already paid. Accordingly, Appellant filed suit pursuant to La.R.S. 23:631[1] and 23:632[2] for unpaid vacation wages of $2, 974.02 plus interest, costs, and attorney's fees, as well as penalty wages.

         Pursuant to La.R.S. 23:631(B) and La.C.C.P. art. 2592, the matter was heard by summary proceeding. Only two witnesses testified at trial, Appellant and Mr. Fasone.

         Appellant testified regarding his extensive work experience at CPC. He stated that when he first interviewed with Mr. Fasone, he was told he would not receive vacation time in his first year. Instead, he understood that he "would earn vacation the first year to be used in the second year." However, he did not recall signing any document to that effect. He recalled that Mr. Fasone would usually come to him at the end of the year asking which days he would like off for the following year, so that Mr. Fasone could plan the schedule.

         Plaintiff's exhibit P-1 was entered into evidence, which Appellant explained was a letter he sent to Mr. Fasone via certified mail. The letter was intended to inform Mr. Fasone that he had not paid Appellant his full outstanding vacation wages upon Appellant's resignation. Mr. Fasone responded via letter, entered into evidence as Plaintiff's exhibit P-2, which set forth Mr. Fasone's position that Appellant received payment for those vacation days to which he was entitled. It also referred Appellant to the CPC Policy Manual. Appellant testified he was not aware of any such manual. Another letter, Plaintiff's exhibit P-3, was entered into evidence, wherein Appellant disputed Mr. Fasone's position; Appellant submitted that his vacation days were earned in one year, and used the next. Since he took three days in 2016 prior to his resignation, he believed he was entitled to twelve of the fifteen earned the previous year, plus the time accrued in 2016. He additionally requested a copy of the referenced policy manual via letter, but Mr. Fasone did not respond. Mr. Fasone ultimately sent a letter to the Louisiana Workforce Commission, entered as Plaintiff's exhibit P-5, which acknowledged receipt of Appellant's letters. Lastly, apparently in response to a request from Mr. Fasone in October, 2015, Appellant provided a letter which he entitled "Fifteen vacation days and sick days earned in 2014 to be used in 2015." This letter was admitted as Plaintiff's exhibit P-6.

         On cross-examination, Appellant again stated he was never given a copy of the manual, but did acknowledge his signature on a copy of a manual, though he only remembered seeing the last page. The manual, entered as a defense exhibit, [3]provided in relevant part as follows:

6. Vacation may be taken in any one calendar year to the full extent that it has been accumulated provided this does not pose an imposition on C.P.C.
7. At the end of each calendar year, the amount of earned but unused vacation cannot exceed one time the maximum amount per the employee's longevity bracket amount if not used before the end of the calendar year as herein defined will be lost.
8. [U]nearned vacation may not be advanced. Unpaid time off may be granted to the mutual convenience of C.P.C. and the employee per the policy on Leave Without Pay.

         Appellant also disputed counsel's suggestion that his vacation day request letters were informal. He emphasized that he made sure they were clear to Mr. Fasone in order to avoid scheduling issues. He also denied starting his own competing company while working for Mr. Fasone.

         The defense proceeded to present its case through the testimony of Mr. Fasone, the owner of CPC for nearly forty-one years. He explained that Appellant resigned suddenly on May 19, 2016, informing Mr. Fasone that his last day would be the next, May 20th, though Appellant did not show up on that last day. He also described how Appellant's final paycheck was tabulated, as well as an additional check for what he described as "PDOs" or "paid days off, " previously known as vacation and sick days. He stated that for those PDOs, he tabulated ten hours (1.25 days) per each of the five months Appellant had worked in his last year at CPC. He then subtracted twenty-four hours (3 days) of time Appellant had already used in that same year, resulting in a remainder of twenty-six hours (3.25 days) to be paid.

         Appellant's payroll records were admitted as Defense exhibit D-3, indicating PDOs taken by Appellant in 2013, 2014, 2015, and 2016. For each PDO taken in a given year, Mr. Fasone asserted they were earned within the same year. Mr. Fasone was also shown exhibit P-6, which he claimed to have never seen prior to his testimony. He also disputed Appellant's contention that Appellant would submit his PDO requests in such a form as that presented in P-6, or that Appellant had not received CPC's policy manual. He explained that the page with Appellant's signature had a different font from other pages because he used a template provided by his wife from a nursing home where she worked. Mr. Fasone also noted that his dispute with Appellant was the first of its kind since he began his company in 1976. He asserted his policy was always to earn vacation time in one year, and to use it in that same year. He described the letters received by Appellant as harassing, which is why he wrote to the Louisiana Workforce Commission.

         On cross-examination, counsel for Appellant asked Mr. Fasone about exhibit D-4, wherein CPCs vacation policy was explained. Specifically, counsel asked about clause seven. Mr. Fasone explained that according to Appellant's "longevity bracket, " Appellant was entitled to earn up to fifteen days of vacation per year. Mr. Fasone went on to ...

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