DAVID M. BODENHEIMER
CARROLLTON PEST CONTROL & TERMITE COMPANY
FROM FIRST CITY COURT OF NEW ORLEANS NO. 2016-08223, SECTION
"C" Honorable Veronica E Henry, Judge
A. Venezia Julie O'Shesky VENEZIA & ASSOCIATES,
COUNSEL FOR PLAINTIFF/APPELLANT
E. Collins BRIGID COLLINS, LLC COUNSEL FOR DEFENDANT/APPELLEE
composed of Judge Roland L. Belsome, Judge Sandra Cabrina
Jenkins, Judge Regina Bartholomew-Woods)
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
AND PROCEDURAL BACKGROUND
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 and 23:632 for unpaid vacation wages of $2,
974.02 plus interest, costs, and attorney's fees, as well
as penalty wages.
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.
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.
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.
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,
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
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.
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.
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.
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
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 ...