FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA,
NO. 00130132-E HONORABLE KEITH COMEAUX, DISTRICT JUDGE
J. Abraham Attorney at Law COUNSEL FOR PLAINTIFF/APPELLANT:
H. Myers Breaud & Myers COUNSEL FOR DEFENDANT/APPELLEE:
American Pollution Control Corporation
composed of Elizabeth A. Pickett, Shannon J. Gremillion, and
John E. Conery, Judges.
SHANNON J. GREMILLION JUDGE
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.
AND PROCEDURAL BACKGROUND
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
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.
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
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.
of Error One/Fair Labor Standards Act/29 U.S.C.
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
of Errors Two and Three/Overtime Pay, Penalties
The supreme court summarized the manifest error standard of
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
Lobell v. Rosenberg, 15-247, p. 10 (La. 10/14/15),
186 So.3d 83, 90.
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.