Kingsbery v. David Paddison, Attorney-at-Law LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MARJORIE E. KINGSBERY CIVIL ACTION

v. NO. 20-3192

DAVID PADDISON, SECTION "F"

ATTORNEY-AT-LAW LLC, ET AL.

ORDER AND REASONS

Before the Court is the defendants’ motion for summary

judgment. For the reasons that follow, the motion is DENIED.

Background

This lawsuit arises from a paralegal and law office manager’s

allegations that her former employer failed to pay her overtime,

wages earned, and vacation days accrued before she stopped working

for the law office over a disagreement regarding whether she would

be permitted to work from home during the COVID-19 pandemic.

Few background facts are undisputed.1 Marjorie Kingsbery

worked for nine years at David Paddison’s law office, David R.

1 The Court assumes familiarity with prior proceedings and

incorporates its May 12, 2021 Order and Reasons, which summarized

the facts as alleged in the complaint. Likewise, the Court

incorporates its Order and Reasons denying the plaintiff’s motion

for partial summary judgment. See Order and Reasons dtd. 8/18/21.

Paddison, Attorney-at-Law, LLC. Her precise title is disputed,2

as are the timing and circumstances of her departure from

employment, as well as whether she was an hourly or salaried

employee.3 Kingsbery was employed by the law office until March

23, 2020 (says Paddison, when Kingsbery abruptly left the office

after she received her paycheck for wages owed through March 23,

2020) or sometime in April 2020 (says Kingsbery, after completing

10 hours’ worth of billing work from home). As a result of the

COVID-19 shutdown, Paddison believed Kingsbery wanted to quit and

As the Court observed on August 18, certain facts are now of

record. And most are disputed. See id. (noting that “[c]lear

factual disputes preclude summary judgment” and “[p]artial summary

judgment is wholly inappropriate on this limited and disputed

record”).

2 The parties’ descriptions of Kingsbery’s job description conflict

both with each other and internally. Kingsbery claimed in her

complaint that she was a “qualified paralegal” but now states in

her opposition that she was a “personal secretary and her duties

included performing work for his law practice.” Paddison states

that Kingsbery “ran the law office,” “exercised a great deal of

autonomy,” and “served as a paralegal and legal assistant.”

3 In her complaint, Kingsbery states that she was an hourly

employee, received a weekly salary, and had a daily pay rate. In

her sworn statement attached to her opposition, Kingsbery now

contends she was never paid a salary and was paid $24 an hour. In

his own sworn declaration and motion for summary judgment, Paddison

maintains that Kingsbery was a salaried employee and that they

agreed the law firm would pay her at least $50,000 per year.

Paddison also submits that she was periodically given additional

compensation in the form of profit-sharing. Paddison states that

Kingsbery was responsible for the payroll and she was permitted to

use whatever method she chose to get to her $50,000 per year

salary. According to Paddison, Kingsbery kept her own hours,

coming and going as she chose.

Kingsbery believed she was going to continue to work for the law

office from her house.

Paddison paid Kingsbery on March 23, 2020 for work completed

through that day. On April 14, 2020, Kingsbery twice emailed

Paddison, requesting payment for unpaid wages for 10 hours she

says she spent on billing work after March 23, 2020 as well as

unused vacation days. Months later on August 5, 2020, Kingsbery

sent Paddison a certified letter seeking unpaid wages and vacation

time. Paddison responded by stating that he disputed that she was

owed additional wages and that she failed to produce any

corroborating evidence that she had worked any hours after her

departure at 10:00 a.m. on March 23, 2020.4 As for the request

that she be paid for vacation days she had accrued but not used,

Paddison claims that the law firm has a policy in which it does

not pay employees for vacation time, a policy Paddison submits

Kingsbery knew well.5

A few months after Paddison failed to comply with Kingsbery’s

certified demand letter, Kingsbery sued David Paddison and his law

4 The parties dispute the circumstances of Kingbery’s departure;

whether she was paid hourly or whether she was salaried; whether

the law office had a policy of paying its employees while on

vacation; whether Kingsbery worked “overtime;” whether Kingsbery

worked 10 hours after she left the office on March 23, 2020.

5 Nevertheless, at paragraph 39 of in his 15-page affidavit,

Paddison admits that a Payroll Audit “reveal[ed] several occasions

when the weekly salary paid by Kingsbery to herself overlapped

into dates while she was away from the office, on vacation, and

office, David Paddison, Attorney-at-Law LLC, alleging that (i) the

defendants failed to compensate her for regularly working overtime

and failed to pay her at all for hours worked in April 2020, in

violation of the Fair Labor Standards Act; and (ii) the defendants’

failure and refusal to pay her unpaid wages, benefits, penalty

wages, and attorney’s fees violated the Louisiana Wage Payment

Act. The defendants initially moved to dismiss for insufficient

service of process and for failure to state a claim. Addressing

only insufficient service of process, on February 22, 2021, the

Court granted the motion to dismiss without prejudice to the

plaintiff’s ability to correct the service deficiencies, which her

counsel has since done. The Court reinstated the case and the

original complaint once service was properly effected.6

The defendants then moved to dismiss the complaint under Rule

12(b)(6). On May 12, 2021, the Court granted in part and denied

in part the motion. The motion was granted as to any prescribed

Fair Labor Standards Act claims; the motion was denied as to any

timely FLSA unpaid overtime claim and as to any Louisiana Wage

Payment Act claim for unpaid wages and accrued vacation time.

not working. Thus, ... it is possible that she may have paid

herself [unauthorized] vacation pay[.]” No written vacation policy

is of record.

6 When the plaintiff requested that the Court set aside its February

22 Order and Reasons dismissing without prejudice her claims, the

Court construed the motion as a request to restore the case to the

active docket and granted the request.

Then, on July 12, 2021, the plaintiff filed a motion for partial

summary judgment on her LWPA claims. Finding clear fact issues

precluding summary judgment, the motion was denied. See Order and

Reasons dtd. 8/18/21 (noting that “[c]lear factual disputes

preclude summary judgment” and “[p]artial summary judgment is

wholly inappropriate on this limited and disputed record”).

Despite the Court’s request that counsel shall be mindful of 28

U.S.C. § 1927, the defendants now move for summary judgment,

primarily on the ground that the plaintiff failed to respond to

requests for admissions and therefore has admitted facts that

undermine each of her claims; the defendants’ predicate for summary

judgment has since been proven false.7

I.

Summary judgment is proper if the record discloses no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(a). A dispute is

genuine if “the evidence is such that a reasonable jury could

return a verdict for the non-moving party.” Anderson v. Liberty

7 Plaintiff’s counsel did indeed timely submit responses to

requests for admission; to which counsel for defendants responds

that no one was in his office to receive them and defendants’

counsel appears to continue to attempt to blame plaintiff’s counsel

for defendants’ counsel’s failure to go to his office to discover

that responses were indeed timely served there. Despite basing

the summary judgment motion on the plaintiff’s purported deemed

admissions, the defendants now say in a reply paper that summary

judgment remains appropriate, despite dueling affidavits.

Lobby, 477 U.S. 242, 248 (1986). A fact is material if it “might

affect the outcome of the suit.” Id. at 248.

If the non-movant will bear the burden of proof at trial, the

movant “may merely point to an absence of evidence, thus shifting

to the non-movant the burden of demonstrating by competent summary

judgment proof that there is an issue of material fact warranting

trial.” In re La. Crawfish Producers, 852 F.3d 456, 462 (5th Cir.

2017)(citation omitted).

The mere argued existence of a factual dispute does not defeat

an otherwise properly supported motion. See Anderson, 477 U.S. at

248. Nor do “[u]nsubstantiated assertions, improbable inferences,

and unsupported speculation[.]” Brown v. City of Houston, Tex.,

337 F.3d 539, 541 (5th Cir. 2003); Hathaway v. Bazany, 507 F.3d

312, 319 (5th Cir. 2007)("[T]he nonmoving party cannot defeat

summary judgment with conclusory allegations, unsubstantiated

assertions, or only a scintilla of evidence."). The non-moving

party must come forward with competent evidence, such as affidavits

or depositions, to buttress his claims. Donaghey v. Ocean Drilling

& Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). Hearsay

evidence and unsworn documents that cannot be presented in a form

that would be admissible in evidence at trial do not qualify as

competent opposing evidence. Martin v. John W. Stone Oil Distrib.,

Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed. R. Civ. P. 56(c)(2).

Ultimately, to avoid summary judgment, the non-movant “must go

beyond the pleadings and come forward with specific facts

indicating a genuine issue for trial.” LeMaire v. La. Dep’t of

Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007).

In deciding whether a fact issue exists, the Court views the

facts and draws all reasonable inferences in the light most

favorable to the non-movant. See Midwest Feeders, Inc. v. Bank of

Franklin, 886 F.3d 507, 513 (5th Cir. 2018). And the Court

“resolve[s] factual controversies in favor of the nonmoving

party,” but “only where there is an actual controversy, that is,

when both parties have submitted evidence of contradictory facts.”

Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013)

(citation omitted).

The Court must not evaluate the credibility of witnesses on

a paper record, nor may it weigh evidence. When considering summary

judgment motions prior to a bench trial, however, the Court in

non-jury cases “has somewhat greater discretion to consider what

weight it will accord the evidence” and “to decide that the same

evidence, presented to him . . . as a trier of fact in a plenary

trial, could not possibly lead to a different result.” Jones v.

United States, 936 F.3d 318, 321-22 (5th Cir. 2019)(citations,

internal quotations omitted).

II.

The defendants seek summary relief dismissing each of the

plaintiff’s claims. The Court considers each in turn.

A.

The defendants first submit that summary judgment is

appropriate on the plaintiff’s claims to recover overtime pay,

under the Fair Labor Standards Act, 29 U.S.C. § 207. The plaintiff

counters that the defendants have not carried their burden of

demonstrating that there are no genuine disputes of material fact

or that they are entitled to judgment as a matter of law on the

FLSA claims. In other words, fact issues preclude summary

judgment. The Court agrees.

The plaintiff alleges that the defendants violated the Fair

Labor Standard Act’s overtime provision. The FLSA requires that

employers pay their hourly employees one and a half times their

regular rate of pay for all hours worked in excess of 40 hours per

week. 29 U.S.C. § 207(a)(1). Certain types of employees are

exempt from this rule and thus ineligible to recover overtime.

The defendants contend that two exemptions are triggered; that the

plaintiff is exempt from receiving overtime pay because she was

both an administrative and professional employee. 29 C.F.R. §

541.0 sets out an exemption to the FLSA overtime requirements for

any employee employed in a “bona fide executive, administrative or

professional capacity.” To qualify as a bona fide administrative

employee, three factors must be met. The employee 1) must be

compensated on a salary or fee basis of at least $684 per week, 2)

must perform office or non-manual work directly related to

management or general business operations of the employer, and 3)

exercises discretion and independent judgment on significant

matters in the performance of her primary duty. 29 C.F.R. §

541.200. 29 C.F.R. § 541.602 defines “salary basis.” The general

rule is that

[a]n employee will be considered to be paid on a “salary

basis” ... if the employee regularly receives each pay

period on a weekly, or less frequent basis, a

predetermined amount constituting all or part of the

employee’s compensation, which amount is not subject to

reduction because of variations in the quality or

quantity of the work performed.

To qualify as an exempt professional employee, this same salary

basis test applies. Specifically, an employee 1) must be

compensated on a salary or fee basis of more than $683 per week

and 2) must engage in primary duties that require advanced

knowledge in a field acquired by prolonged intellectual

instruction or requiring invention, imagination, originality, or

talent in an artistic or creative endeavor. 29 C.F.R. § 541.300.

Neither side acknowledges that the Fifth Circuit, en banc,

recently examined the salary basis test in Hewitt v. Helix Energy

Solutions Group, Incorporated, --- F.4th ---, 2021 WL 4099598 (5th

Cir. Sept. 9, 2021); see also Adams v. All Coast, L.L.C., --- 4th

---, 2021 WL 4470027 (5th Cir. Sept. 30, 2021)(Jones, J. and Elrod,

J., dissenting)(“For the second time in two months, this court

flouts Encino Motorcars, L.L.C. v. Navarro, U.S. , 138 S. Ct. 1134,

200 L.Ed. 2d 433 (2018).... Recently, this court [in Hewitt]

misinterpreted the executive, administrative, and professional

exemption...and its accompanying regulations...to award overtime

to an offshore oil toolpusher who managed at least a dozen

employees and earned over $200,000 annually.”). In Hewitt, Helix

Energy claimed that the plaintiff, a toolpusher, was exempt from

overtime as a highly compensated employee despite his pay being

computed on a daily basis. The Fifth Circuit disagreed, holding

that in order for an employee compensated on an hourly or daily

rate basis to satisfy the salary basis test, the two regulatory

requirements of § 541.604(b) must be met: there must be an

arrangement that contains at least a minimum weekly guarantee of

pay and a reasonable relationship between the guaranteed amount

and the amount actually earned. Helix Energy failed to comply

with either prong.

Notably, “both the Secretary of Labor and the Supreme Court”

as well as the Fifth Circuit “have observed that ‘employees are

not to be deprived of the benefits of the [FLSA] simply because

they are well paid.’” See Hewitt, 2021 WL 4099598, at *1

(citations omitted). In other words, “earning a certain level of

income is necessary, but insufficient on its own, to avoid the

overtime protections of the FLSA.” Id. Defendants in particular

ignore this instruction.

Here, the parties dispute whether Kingsbery was paid on an

hourly or weekly basis to the exclusion of being “salaried” ... as

defined not by the regulations, but ... by the defendants. Neither

attempts to navigate the salary basis test and the applicable

regulations. Even if the parties could agree that Kingsbery’s

earnings were computed on an hourly basis, as the Fifth Circuit

recently observed, “[t]here are multiple components to the salary-

basis test [including] the general rule [as well as] various

exceptions and provisos to that general rule.” Hewitt, 2021 WL

4099598, at *3, *7 (“There is no principled basis for applying or

ignoring § 541.604(b) based on how much the employee is paid”).

The defendants fail to contend with the case law, the salary basis

test, or the regulations. For this reason alone, the defendants

have failed to carry their burden to show that they are entitled

to judgment as a matter of law dismissing Kingsbery’s FLSA claims.

Any future motion practice or briefing directed to the FLSA claims

shall address the salary basis test generally and the Hewitt case

specifically in the context of the facts of this case. Counsel’s

failure to educate themselves on the substantive law applicable to

the plaintiff’s FLSA claim and failure to submit competent evidence

relevant to this governing standard is wholly unacceptable. See

28 U.S.C. § 1927.

In addition to the legal shortcomings of the motion for

summary judgment, clear factual disputes preclude summary judgment

on the plaintiff’s FLSA overtime claims. Essentially every fact

is disputed as to the plaintiff’s FLSA claims. These facts

include:

•

Whether Kingsbery worked overtime, whether the

defendants knew that she worked overtime, whether she

complained about not receiving overtime pay; whether

overtime was paid;

•

Whether in addition to being employed by the law firm,

Kingsbery could be considered to be employed by Paddison

in his individual capacity as well, considering some of

her alleged job duties;

•

The plaintiff’s job responsibilities;

•

The plaintiff’s job title;

•

Whether Kingsbery exercised autonomy in her job without

the approval of the defendants;

• Whether the plaintiff was paid hourly;8

8 To be fair, it is unclear if the defendants genuinely dispute

this fact (Paddison states under oath that “Kingsberry paid herself

(sic) weekly basis” and “Kingsbery ... was permitted to use

whatever method she chose to get to the agreed upon salary of at

least $50,000.00 per year, whether it was $X per week, per month

or per hour. That was totally within her discretion, but she was

salaried.”). The defendants appear singularly focused on how much

Kingsbery was compensated annually, assuming (wrongly) that their

view of the term “salary” comports with the FLSA’s regulatory

salary basis test. Regardless, this focus demonstrates a

misapprehension of the FLSA, its regulations, and the salary basis

test, which at best distracts from whether the defendants genuinely

dispute that Kingsbery was, in fact, paid hourly. Again, the Court

•

Whether the parties agreed in advance that Kingsbery

would be paid $50,000 per year;

•

Whether the plaintiff frequently left the office for

personal reasons and was allowed to keep her own hours.

Because there are genuine disputes as to these facts and other

material facts which the parties do not address due to their

failure to be informed about the applicable salary basis test,

summary judgment dismissing the plaintiff’s FLSA claims is wholly

inappropriate on this record.

B

Second, the defendants submit that summary judgment is

appropriate on the plaintiff’s claims to recover actual unpaid

wages, including unpaid vacation, under the Louisiana Wage Payment

Act, La.R.S. § 23:631. The plaintiff counters that the defendants

have not carried their burden of demonstrating that there are no

genuine disputes of material fact or that they are entitled to

judgment as a matter of law on the Louisiana Wage Payment Act

claims. In other words, fact issues preclude summary judgment.

The Court agrees.

underscores that reading the applicable regulations along with the

Hewitt case will disabuse counsel of the notion that Kingsbery

being paid more than $50,000 each year renders her ineligible for

overtime pay under the FLSA.

The Louisiana Wage Payment Act9 obliges an employer promptly

to pay an employee earned wages due upon the employee’s discharge

or resignation. See La.R.S. § 23:631; see also Newton v. St.

Tammany Fire District No. 12, 20-0797 (La.App. 1 Cir. 2/19/21),

318 So.3d 206, 211 (“The main purpose of the wage payment law is

to compel an employer to pay the earned wages of an employee

promptly after [her] dismissal or resignation and to protect

discharged Louisiana employees from unfair and dilatory wage

practices by employers.”).10 Vacation pay is considered an amount

then due in accordance with the employer’s vacation policy if the

employee is eligible, has accrued vacation time with pay and the

employee has not been compensated or taken the vacation time as of

the date the employment terminates. See § 23:631(D)(1). The LWPA

punishes employers who fail to promptly pay their former employees

whatever amount is indisputably due; in addition to penalty wages,

the LWPA provides for an award of reasonable attorney fees,

provided that certain conditions are met. Bergeron v. Ochsner

9 La.R.S. § 23:631, et seq., is also known as the Louisiana “Last

Paycheck Law.”

10 The LWPA “provides that contracted-for wages -- ‘the amount then

due under the terms of employment’ -- must be paid to an employee

within a certain time frame after termination or resignation.” See

Bennett v. McDermott International, Incorporated, 855 Fed.Appx.

932, 935 (5th Cir.)(unpublished, per curiam, citation

omitted)(“Unlike the FLSA[,] the Louisiana statute at issue, the

LWPA, does not establish a minimum wage or overtime protection.”).

“To prove ‘terms of employment,’ a plaintiff need not show a

written agreement existed; a ‘normal procedure’ or ‘internal

policy’ will suffice.” Id. at 939 (citation omitted).

Health System, No. 17-519, 2017 WL 3648451, at *3 (E.D. La. Aug.

24, 2017)(citation omitted).

To recover on a claim for unpaid wages under the LWPA, an

employee must show “[1] that [the defendant] was her employer, [2]

that the employee/employer relationship ceased to exist, [3] that

at the time that the employee/employer relationship ended she was

owed wages, and [4] that [the defendant] failed to submit the owed

wages within the statutorily mandated 15 days.” See Bergeron, No.

17-519, 2017 WL 3648451, at *2 (citation omitted). To recover

penalty wages, the plaintiff must establish three things: (1) wages

were due and owing; (2) demand for payment was made where the

employee was customarily paid; and (3) the employer did not pay

upon demand. See Rodriguez v. Green, 2012-0098 (La. App. 4 Cir.

06/20/12), 111 So. 3d 1, 5 (citations omitted).

When the plaintiff moved for partial summary judgment on her

LWPA claims, the motion was denied because clear factual disputes

precluded summary judgment. Nothing has changed and, yet, now

defendants move for summary judgment with the same factual

controversies obstructing summary relief. Yet again, clear

factual disputes preclude summary judgment on the plaintiff’s LWPA

unpaid wage, unpaid vacation, and penalty wage claims. Essentially

every fact is disputed as to the plaintiff’s LWPA claims. These

facts include:

•

Whether the defendants owe plaintiff the amount she is

claiming;

•

Whether the plaintiff in fact worked additional hours

after March 23, 2020 and, if so, what she worked on and

how she was able to accomplish any work when Paddison

swears he limited her access to files and that she had

no access to the law firm computer system after March

23;11

•

The circumstances of the plaintiff’s departure on March

23, 2020;

• Whether the law firm had a paid vacation policy12 or

whether, in practice, law firm employees were paid for

vacation days;

11 Kingsbery submits that Paddison did not change the passwords on

the accounts and that the billing records should corroborate her

telling of how she accomplished billing work post-March 23.

12 Paddison and Lori Manville, who does accounting work for the law

office, state that there was no vacation policy. Kingsbery

disputes this fact: “I was paid vacation pay for every year since

2014” and “[T]he audit showed me being paid for times I was not at

work because I was being paid for vacation, which Mr. Paddison

surely knew.” Kingsbery’s sister, who also worked for the law

office, likewise swears that she took paid vacation. Even more

confounding, Paddison seems to agree that it appears that Kingsbery

indeed was paid for some time off while on vacation. Yet Paddison

characterizes his law office’s “no-vacation-policy” as an

undisputed fact with no regard for the case law Kingsbery cites in

support of her contention that, in Louisiana, absent an established

written policy, an employee is entitled to vacation accrued but

not taken. See Picard v. Vermilion Parish Sch. Bd., 742 So. 2d

589, 591-93 (La.App. 3 Cir. 6/23/99).

•

Whether the plaintiff or the defendants requested

furlough for the plaintiff under the CARES Act.

There being no written employment agreement or employment policies

of record, when the employment arrangement deteriorated, it became

vulnerable to misunderstanding and abuse by both sides ... it is

no surprise that most of the evidence submitted is contained in

contradictory self-serving affidavits offered by Kingsbery and

Paddison. With their combative tit-for-tat, each essentially

calls the other a liar.13 On summary judgment, the Court is not

permitted to make credibility determinations. Because there are

genuine disputes as to almost, if not all, material facts, summary

judgment on the plaintiff’s LWPA claims is wholly inappropriate.

***

Counsel shall once again be mindful of 28 U.S.C. § 1927.

Counsel shall at all times discharge their professional

responsibilities and refrain from internalizing their client’s

disagreements and apparent ill-will.14 The parties and their

13 For example, the plaintiff suggests that “[t]he entirety of Mr.

Paddison’s paragraph 14 [of his sworn statement] is a fabrication.”

If it becomes apparent that either party, or both, has lied under

oath, the Court will not hesitate to refer the matter for

investigation and prosecution by the United States Attorney.

14 Portions of the parties’ sworn statements digress sharply from

the relevant issues, which detracts from the Court’s ability to

resolve any issues presented in this case. For example, at

paragraph 13 of his most recent sworn statement, Paddison describes

how the quality of Kingsbery’s job performance began to slip in

attorneys would do well to consider participating in mediation

with the magistrate judge or a private mediation: parties and

attorneys would benefit from neutral objectivity in sorting

through the he-said/she-said pervading the motion practice in this

case.

IT IS ORDERED: that the defendants’ motion for summary

judgment is DENIED. IT IS FURTHER ORDERED: that counsel for each

side shall serve on their respective clients a copy of this Order

and Reasons and, not later than five days from entry of this Order

and Reasons, both shall certify in the record that service has

been accomplished.

New Orleans, Louisiana, October 26, 2021

UNITED STAMHS DISTRICT JUDGE

2019. Apropos of which issue in this case, it is not clear. And,

for her part, Kingsbery offers under oath that Paddison “would

often raise his voice at me in the most unpleasant way when I

attempted to exercise independent judgment.”

18