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Acosta v. American Pollution Control Corp.

Court of Appeals of Louisiana, Third Circuit

December 28, 2018

GABRIEL ACOSTA
v.
AMERICAN POLLUTION CONTROL CORPORATION

          APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 00130132-E HONORABLE KEITH COMEAUX, DISTRICT JUDGE

          Grady J. Abraham Attorney at Law COUNSEL FOR PLAINTIFF/APPELLANT: Gabriel Acosta

          Andrew H. Myers Breaud & Myers COUNSEL FOR DEFENDANT/APPELLEE: American Pollution Control Corporation

          Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and John E. Conery, Judges.

          SHANNON J. GREMILLION JUDGE

         The plaintiff-appellant, Gabriel Acosta, appeals the trial court's judgment dismissing his claims with prejudice for overtime wages against his former employer, the defendant-appellee, American Pollution Control Corporation (AMPOL). For the following reasons, we affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         Acosta was employed at AMPOL from April 2015 until his termination on January 9, 2017. In April 2017, Acosta filed a Rule to Show Cause via a summary proceeding why AMPOL should not be ordered to pay him $27, 057.75 in overtime wages that he claimed to have earned over a five-month period from July 16, 2016 through December 31, 2016, in violation of La.R.S. 23:631. In 2016, Acosta earned $176, 533.50 in wages, of which $119, 723.30 was paid for overtime. Acosta alleged that his supervisor, Brooks Tastet, told him to fabricate time cards so that he was not showing that he worked over 100 hours per week regardless of how much time he actually worked.

         Following a two-day hearing on the rule, the trial court issued a judgment in favor of AMPOL, dismissing Acosta's claims with prejudice. Thereafter, Acosta filed a Motion to Re-open the Record relating to attorney fees, which the trial court denied. Acosta now appeals.

         ASSIGNMENTS OF ERROR

         Acosta assigns as error:

1.The Trial Court erred when it failed to apply the Fair Labor Standards Act 29 U.S.C. §207 to the Plaintiff's claim for unpaid overtime wages.
2.The Trial Court erred when it denied the plaintiff's claim for unpaid overtime wages pursuant to 29 U.S.C. §207 and/or La.R.S. 23:631 where the Trial Court found that the employee worked the hours he claimed with his employer's knowledge and consent but the work was performed in violation of his employer's illegal company policy.
3. The Trial Court erred when it denied the plaintiff['s] claim for penalty wages and costs, including attorney fees, pursuant to 29 U.S.C. §216 and/or La.R.S. 23:632, where the employer-defendant did not have a good faith defense for refusing to pay the wages owed.

         DISCUSSION

         Assignment of Error One/Fair Labor Standards Act/29 U.S.C. §207

         Acosta's claims pursuant to 29 U.S.C. §207 (the Fair Labor Standards Act/FLSA) are being raised for the first time on appeal. The FLSA was neither mentioned in his pleadings nor at the hearing on the Rule to Show Cause. Acosta cannot now assert claims under the FLSA. See La.Code Civ.P. arts. 425 and 891. Accordingly, assignment of error one is without merit.

         Assignment of Errors Two and Three/Overtime Pay, Penalties

         Manifest Error Review

The supreme court summarized the manifest error standard of review:
This court has announced a two-part test for the reversal of a factfinder's determinations: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). See Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). This test dictates that a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court's findings. See id. The reviewing court must review the record in its entirety to determine whether the trial court's finding was clearly wrong or manifestly erroneous. See id.

Lobell v. Rosenberg, 15-247, p. 10 (La. 10/14/15), 186 So.3d 83, 90.

         A trial court is in a better position to make credibility determinations as it has the benefit of examining the nuances of a witness's testimony and demeanor. Lopez v. ...


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