Burg

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

DANIEL J. BURG CIVIL ACTION NO.

VERSUS

25-427-BAJ-EWD

THE RECREATION AND PARK

COMMISSION FOR THE PARISH

OF EAST BATON ROUGE (BREC)

NOTICE

Please take notice that the attached Magistrate Judge’s Report and Recommendation has

been filed with the Clerk of the U.S. District Court.

In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the

attached report to file written objections to the proposed findings of fact, conclusions of law, and

recommendations set forth therein. Failure to file written objections to the proposed findings,

conclusions and recommendations within 14 days after being served will bar you, except upon

grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and

legal conclusions accepted by the District Court.

ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE

WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE’S REPORT.

Signed in Baton Rouge, Louisiana, on March 11, 2026.

ERIN WILDER-DOOMES

UNITED STATES MAGISTRATE JUDGE

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

DANIEL J. BURG CIVIL ACTION NO.

VERSUS

25-427-BAJ-EWD

THE RECREATION AND PARK

COMMISSION FOR THE PARISH

OF EAST BATON ROUGE (BREC)

MAGISTRATE JUDGE’S REPORT, RECOMMENDATION,1AND ORDER

Before the Court is the Motion for Summary Judgment (“Motion”),2 filed by The

Recreation and Park Commission for the Parish of East Baton Rouge (“BREC” or “Defendant”),

which is opposed by Daniel J. Burg, (“Burg” or “Plaintiff”), who is representing himself.3 Because

there is no genuine issue of material fact that Plaintiff’s unpaid suspension did not result in the

loss of his exempt status, and that BREC did not unlawfully retaliate against Plaintiff, it is

recommended that the Motion be granted, dismissing Plaintiff’s claims with prejudice. It is

recommended that BREC’s argument under 29 C.F.R. § 541.602(a)(1), raised for the first time in

reply, be disregarded, and that Plaintiff’s Motion for Leave to File Sur-Reply, which primarily

seeks to address BREC’s argument under 29 C.F.R. § 541.602(a)(1), be denied.4 Considering the

recommendation for the dismissal of Plaintiff’s claims in this case, it will be ordered that all other

1 A motion for summary judgment is excepted from the motions a magistrate judge may rule on directly under 28

U.S.C. § 636(b)(1)(A). Therefore, this Report and Recommendation is issued under 28 U.S.C. § 636(b)(1)(B).

2 R Doc. 13. Documents filed in the record are referred to as “R. Doc. __.” See also, R. Doc. 20 (Defendant’s Reply

Memorandum in Support of Motion for Summary Judgment) (“First Reply”); R. Doc. 56 (Defendant’s Memorandum

in Reply to Plaintiff’s Amended Memorandum in Opposition to Defendant’s Motion for Summary Judgment)

(“Second Reply”). Defendant’s Second Reply incorporates part of the First Reply.

3 R. Doc. 40 (Plaintiff’s Amended Memorandum in Opposition to Defendant’s Motion for Summary Judgment)

(“Opposition”).

4 R. Doc. 54; R. Doc. 56, p. 2.

pending motions5 be terminated without prejudice to reurging, if the case is not dismissed. It will

also be ordered that Defendant’s Reply to Plaintiff’s Amended Statement of Disputed Material

Facts6 be filed in the record.

I. BACKGROUND

The pertinent facts are as follows, which are undisputed, unless otherwise noted.7 BREC

is a political subdivision of the state of Louisiana.8 From March 5, 2018 through April 21, 2025,

Plaintiff was BREC’s salaried Aquatics Manager.9 According to BREC’s Aquatics Manager job

description, upon which Plaintiff relies, the Aquatics Manager “[p]erforms administrative,

supervisory, and professional work in operation and maintenance of [BREC] swimming pools,

spray pads, and Liberty Lagoon water park”…. As Aquatics Manager, Plaintiff’s job

specifications included the ability to supervise and train lifeguards and establish and maintain

effective working relationships with employees, as well as knowledge of BREC’s Rules and

Regulations for properties and activities. Plaintiff’s job duties included, “oversee[ing] and

coordinat[ing] the day to day operation [,] including but not limited to: … training, scheduling,

certification and performance of employees…in compliance with all federal state and local

5 R. Docs. 45, 48.

6 R. Doc. 49-3. Defendant’s Motion for Leave to File Reply Memorandum In Response to Plaintiff’s Amended

Memorandum (R. Doc. 40) and Amended Statement of Disputed Material Facts (R. Doc. 40-1) in Opposition to

Defendant’s Motion for Summary Judgment was previously granted by the Court. R. Docs. 49, 50, 56. However,

Defendant’s Reply to Plaintiff’s Amended Statement of Disputed Material Facts was inadvertently not entered into

the record at that time.

7 The facts are taken from R. Doc. 13-3 (Defendant’s Statement of Uncontested Material Facts In Support of Motion

for Summary Judgment (“Defendant’s Statement”)), R. Doc. 40-1 (Plaintiff’s Amended Statement of Disputed

Material Facts in Opposition to Defendant’s Motion for Summary Judgment (“Plaintiff’s Statement”) as well as R.

Doc. 1 (Complaint) and R. Doc. 40-2 (Plaintiff’s Sworn Affidavit). Defendant did not challenge Plaintiff’s Affidavit.

Plaintiff also filed another statement of Undisputed and Disputed Material Facts within the body of his Amended

Opposition. R. Doc. 40, pp. 2-4.

8 R. Doc. 13-3, ¶ 1; R. Doc. 40-1, p. 1; R. Doc. 1, ¶ 3.

9 R. Doc. 13-3, ¶¶ 2-3; R. Doc. 40-1, p. 2; R. Doc. 1, ¶¶ 2, 6; and R. Doc. 40-2, ¶ 2.

regulations for the operation of public swimming pools.”10 BREC has Rules and Regulations that

govern disciplinary actions,11 among other matters, and Plaintiff signed a form acknowledging

BREC’s Rules and Regulations in 2018.12

BREC’s Internal Audit team conducted an internal process review of Plaintiff and two

employees reporting to Plaintiff at Liberty Lagoon: Assistant Aquatics Manager, Bryson Barrett

(“Barrett”), and Head Lifeguard, Olivia Durand (“Durand”).13 Plaintiff was responsible for the

supervision of these employees.14 In the September 23, 2024 Final Report of the investigation

(the “Final Report”), Internal Audit found instances in which Barrett and Durand clocked in to

work, and then left work to engage in non-work-related personal activities without clocking out.

The Final Report concluded that Barrett’s actions resulted in payroll fraud.15 Plaintiff does not

challenge the payroll fraud findings regarding Barrett and all parties acknowledge that, prior to

his suspension, Plaintiff conducted his own investigation of Barrett’s timekeeping practices, and

similarly found that Barrett was not accurately reporting his time, for which Plaintiff suspended

Barrett.16 Plaintiff says he used BREC’s camera surveillance system to conduct his investigation

10 R. Doc. 40-2, ¶ 5 and R. Doc. 40-3, pp. 58-59.

11 R. Doc. 13-3, ¶ 4, citing R. Doc. 13-2, p. ¶ 5 (Affidavit of BREC Chief Administrative Officer and General Counsel

Aneatra Boykin (“Boykin”)) (attaching R. Doc. 13-2, Chapter 10 of BREC’s Rules and Regulations, “Disciplinary

Actions, Separation and Appeals” (“Chapter 10”)). Plaintiff did not challenge Boykin’s Affidavit statements. See also

R. Doc. 40-1, p. 2 (Plaintiff’s admission of awareness of an employee handbook and admission of signing an

acknowledgement form, but disputing awareness of the current version of the handbook) and R. Doc. 40-2, ¶ 12

(Plaintiff’s Affidavit stating that BREC emailed him an incomplete version of the Rules and Regulations and also

referencing another version of them) and R. Doc. 40-3, pp. 44-46 (Plaintiff’s Affidavit attaching portions of the same

Chapter 10 relied on by BREC).

12 R. Doc. 13-3, ¶ 4, citing R. Doc. 13-2, p. 2, ¶ 8, which has attached R. Doc. 13-2, p. 19 (Plaintiff’s acknowledgment

signed 2/8/2018).

13 R. Doc. 13-2, p. 2, ¶ 10, citing R. Doc. 13-2, pp. 26-31.

14 R. Doc. 40-3, pp. 33, 59.

15 R. Doc. 13-2, pp. 27-31.

16 R. Doc. 1, ¶ 7 (“In October 2024, Plaintiff suspended a Facility Manager with pay pending an internal investigation

into payroll fraud” ….) (emphasis in original) and see R. Doc. 40-3, p. 9 (‘This situation follows my decision to

suspend an employee for stealing time….”).

of Barrett, but BREC took away Plaintiff’s camera access, removed Plaintiff from his

investigation, and turned the investigation over to Internal Audit. Plaintiff further contends that

BREC reinstated Barrett without consulting Plaintiff, and Barrett filed a grievance against

Plaintiff.17

The Final Report also found that, while Barrett retained receipts for work-related purchases

made on his BREC-issued purchasing card (“P-card),” Barrett did not upload his P-card receipts

as required because he did not have access to the applicable program, and thus the purchases were

not reported; accurate P-card statements were not presented to Plaintiff for review, as required;

and the transactions were excluded from accurate reporting and reconciliation by BREC’s Finance

Department.18 Plaintiff also does not dispute, in his Complaint or Opposition, Internal Audit’s

findings regarding his lack of review of Barrett’s P-card purchases.19 The Final Report also found

that Plaintiff’s “limited presence at Liberty Lagoon, combined with the lack of adequate training

for young managerial staff, contributed to payroll fraud and timekeeping violations.”20 Plaintiff

does not dispute that his presence at Liberty Lagoon was limited, that Barrett and Durand lacked

sufficient training, or that payroll fraud and timekeeping violations were found.21

17 R. Doc. 1, ¶¶ 7-10.

18 R. Doc. 13-2, p. 29.

19 On this point, Plaintiff attached to his Affidavit what he alleges is a transcript of a January 14, 2025 meeting between

he and one of his superiors, Superintendent Corey Wilson (“Wilson”), during which the findings underlying Plaintiff’s

suspension were discussed. R. Doc. 40-3, pp. 12-22. As noted below, however, the transcript, which claims to be

“Transcribed by TurboScribe.ai,” is unreliable and unauthenticated, and will not be considered.

20 R. Doc. 13-2, p. 29. Both the Internal Audit timeline and the Motion also allege that, in October 2024, Plaintiff

improperly applied a 92% discount on a pavilion rental for an employee, which violated BREC’s rental policy. R.

Doc. 13-2, p. 31 (Internal Audit timeline), R. Doc. 13-1, p. 3, R. Doc. 13-3, p. 2, ¶ 6, and R. Doc. 13-2, p. 2, ¶ 8,

attaching R. Doc. 13-2, pp. 20-21 (BREC policy regarding facility rentals). Although BREC includes the discounted

facility rental as part of its argument regarding the grounds for Burg’s suspension (R. Doc. 13-1, p. 3), this policy

violation is not specifically listed as a basis for his suspension in the December 9, 2024 letter Burg was provided. R.

Doc. 13-2, p. 26.

21 Rather, in his post-suspension emails, Plaintiff repeatedly asserted objections to BREC not following its policies in

connection with his suspension; whether the violations were “professional action items rather than safety concerns”

such that unpaid suspension was inappropriate; Internal Audit conducting the investigation; Internal Audit’s failure to

question Plaintiff; Barrett’s reinstatement to work; Plaintiff’s camera access being taken away; and Plaintiff not being

According to Plaintiff, BREC’s Human Resources Director, Darlene Jarvis (“Jarvis”),

contacted Plaintiff to report for a meeting on December 6, 2024; however, Plaintiff was on

personal leave that day, so the meeting was rescheduled for December 9, 2024 to accommodate

Plaintiff.22 Jarvis met with Plaintiff on December 9, 2024 and advised him that BREC was

suspending him for five days without pay effective immediately, pending final investigation and

disciplinary action for “P-Card Mismanagement and Lack of Oversight” and “Inadequate

Supervisory Oversight of designated area.”23 Plaintiff’s suspension letter instructed him to return

to work on December 16, 2024.24 Plaintiff alleges that when he reported back to work “no

investigation findings were available and Plaintiff was told to return to work.”25 On December

19, 2024, Plaintiff received his full paycheck; however, on his January 9, 2025 paycheck,

Plaintiff’s wages were reduced to reflect the five-day suspension without pay.26

Exhibits attached to Plaintiff’s Affidavit, unobjected to by Defendant, reflect that after

Plaintiff returned to work from the suspension, but prior to his ultimate departure from BREC,

Plaintiff sent emails to Jarvis, Wilson, Boykin and/or the BREC Commissioners regarding his

suspension without pay, the Internal Audit investigation, and BREC’s policies.27 On March 25,

given access to the audit findings and report. See, e.g., R. Doc. 40, pp. 3-4 and R. Doc. 40-3, pp. 9-10, 26-28, 35-36

(emails from Plaintiff that are described in more detail, below).

22 R. Doc. 1, ¶ 11.

23 R. Doc. 13-3, ¶¶ 6-7, citing R. Doc. 13-2, p. 2, ¶ 10, which has attached R. Doc. 13-2, p. 26 (December 9, 2024

suspension letter to Plaintiff) and pp. 27-31 (Final Report and Internal Audit Timeline). See R. Doc. 40, p. 2; R. Doc.

40-2, ¶ 3; R. Doc. 40-3, p. 2 (December 9, 2024 suspension letter to Plaintiff).

24 R. Doc. 13-2, p. 26 and R. Doc. 40-3, p. 2.

25 R. Doc. 1, ¶ 13 (Plaintiff actually says he returned to work on December 15, 2024, but that appears to be a

typographical error).

26 R. Doc. 40-3, p. 67 (Plaintiff’s January 9, 2025 BREC paystub for the pay period ending January 3, 2025 (with an

incorrectly labeled date of April 2025)).

27 R. Doc. 40-2, ¶¶ 8-11 and see R. Doc. 40-3, p. 10 (December 9, 2024 email from Plaintiff to Wilson); p. 9 (December

17, 2024 email from Plaintiff to Wilson); p. 23 (January 14, 2025 email from Plaintiff to Wilson, recapping their

meeting of the same day); and, pp. 26-27 (March 24, 2025 email from Plaintiff to the BREC Commissioners). See

also R. Doc. 1, ¶¶ 14, 16-17.

2025, Plaintiff received Boykin’s email response to Plaintiff’s email from the prior day.28

Boykin’s email informed Plaintiff that his five-day suspension was upheld, and that, pursuant to

Section 8 of Chapter 10, disciplinary matters other than termination and demotion are not subject

to appeal.29 On April 21, 2025, BREC received a letter from Plaintiff, dated April 16, 2025, with

the subject line “Constructive Resignation,” in which Plaintiff stated his “formal resignation”

from employment.30

On May 20, 2025, Plaintiff filed suit in this Court alleging BREC violated the Fair Labor

Standards Act (“FLSA”), 29 U.S.C. 201, et seq.,31 when it deducted from his wages for the five-

day suspension and failed to consistently apply its policies, which “undermined the integrity of

Plaintiff’s exempt status,” and additionally, when it engaged in retaliation, which resulted in

Plaintiff’s constructive discharge.32 On July 2, 2025, BREC filed its Answer and the Motion,

seeking dismissal of all Plaintiff’s claims, with prejudice.33 After a flurry of filings by Plaintiff in

response (many of which are duplicative, including two Opposition memoranda),34 a conference

was conducted with the parties to discuss, among other things, Plaintiff’s request to file an

28 R. Doc. 1, ¶¶ 16-18.

29 R. Doc. 40-3, p. 33 (March 25, 2025 email from Boykin to Plaintiff, which appears to have Chapter 10 attached)

and see id. at pp. 35-36 (March 25, 2025 Plaintiff’s email response sent to the BREC commissioners, Wilson, Jarvis

and Boykin).

30 R. Doc. 13-3, ¶ 8, citing R. Doc. 13-2, p. 2, ¶ 11 (attaching R. Doc. 13-2, pp. 32-33 (Plaintiff’s resignation letter)),

and see same at R. Doc. 40-3, pp. 47-48 and R. Doc. 40-2, ¶ 14.

31 The Court has federal question subject matter jurisdiction over Plaintiff’s claims. Plaintiff paid the filing fee. R.

Doc. 1. A Limited Scheduling Order for FLSA cases was issued, ordering Plaintiff to answer the Court’s

interrogatories, and the parties to exchange certain information and discuss settlement. Discovery was otherwise

stayed until the filing of the parties’ Status Report. R. Doc. 10.

32 R. Doc. 1, pp. 4-5. Plaintiff’s Affidavit also attached a March 31, 2025 letter from the Wage and Hour Division of

the United States Department of Labor (“DOL”), declining to investigate Plaintiff’s claims. R. Doc. 40-3, pp. 24-25.

33 R. Doc. 13 and see R. Doc. 20 (First Reply).

34 See, e.g., R. Docs. 14-17, 22.

amended Opposition, which was granted.35 Accordingly, Plaintiff filed his amended Opposition,36

along with his Amended Statement of Disputed Material Facts and his Affidavit and exhibits.37

BREC was granted leave to file its Second Reply, in response to Plaintiff’s amended Opposition.38

BREC also sought leave to file its Reply to Plaintiff’s Amended Statement of Disputed Material

Facts, which will be granted.39

35 R. Docs. 38-39. Plaintiff sought to file the amended pleadings to address deficiencies raised by BREC. R. Doc. 22.

The Court also addressed Plaintiff’s claim that he had not been properly served with BREC’s filings (see, e.g., R.

Docs. 25, 27, 30-34), which BREC resolved before the conference.

36 Plaintiff’s arguments regarding BREC’s claim that Plaintiff was grossly negligence in relation to sand filters, kitchen

cleanliness and system maintenance, and duties that he did not owe post-resignation, are not considered because they

relate to allegations in BREC’s lawsuit against Plaintiff in state court, which are not before this Court. R. Doc. 40, pp.

9-10. Furthermore, six days after filing his amended Opposition (R. Doc. 40), Plaintiff filed another amended

Opposition (R. Doc. 44), without seeking leave of Court, that is nearly the same as the one filed six days before.

Plaintiff’s second-filed amended Opposition (R. Doc. 44) will not be considered because Plaintiff was granted leave

to file only one amended Opposition.

37 R. Doc. 40, et seq. BREC did not lodge specific objections to any of Plaintiff’s Affidavit exhibits, some of which

are also referenced in the “Statement of Undisputed and Disputed Material Facts” in Plaintiff’s Opposition. Rather,

(and aside from noting that Plaintiff’s introduction of certain documents may be in violation of BREC’s

Technical/Information Policy ((see R. Doc. 56, p. 1, n.1), which violation is not at issue in this proceeding and

therefore not addressed), BREC admits that Plaintiff’s facts “rely on documents [the Affidavit exhibits] which are

themselves the best evidence of their content.” R. Doc. 56, p. 1. The majority of Plaintiff’s Affidavit exhibits, (as well

as Boykin’s Affidavit exhibits), including but not limited to, BREC job descriptions, policies, and paystubs, and

correspondence exchanged between the parties, will be considered as the exhibits appear reliable, and are authenticated

and admissible under Federal Rules of Evidence (“FRE”) 803(5), (6), (8) as recorded recollections, business records

and/or public records. However, two exhibits will not be considered, which are, according to Plaintiff, two purported

transcripts of meetings between Plaintiff and Jarvis and Plaintiff and Wilson. Both transcripts state that they were

“Transcribed by TurboScribe.ai.” R. Doc. 40-3, pp. 3-8, 12-22. These transcripts are hearsay per FRE 801 and are

unreliable and unauthenticated per FRE 901 because it is not clear how the meetings were recorded and how and

where the transcripts were generated. See King Fisher Marine Serv., Inc. v. M/V SOCOL 2, No. 00-2439, 2001 WL

1911437, at *3 (S.D. Tex. Sept. 26, 2001) (“Evidence raised in support of, or attacking, a motion for summary

judgment is subject to the same rules that govern the admissibility of evidence at trial. Rushing v. Kansas City Southern

Railway Co., 185 F.3d 496, 504 (5th Cir. 1999). ‘Material that is inadmissible will not be considered on a motion for

summary judgment because it would not establish a genuine issue of material fact if offered at trial and continuing the

action would be useless.” Geiserman v. MacDonald, 893 F.2d 787, 793 (5th Cir. 1990) (quoting Wright & Miller,

Federal Practice And Procedure § 2727 (1983)).”). The transcripts are particularly problematic because they were

generated by artificial intelligence, with no indication of independent verification, circumstances which have been

recognized to result in unreliable information. See e.g., In re Snowflake, Inc., Data Sec. Breach Litig., No. 3126, 2026

WL 318355, at *2 (U.S. Jud. Pan. Mult. Lit. Feb. 5, 2026) (“Artificial intelligence is known to result in ... fictional or

hallucinatory citations .... [B]ecause artificial intelligence synthesizes many sources with varying degrees of

trustworthiness, reliance on artificial intelligence without independent verification renders litigants unable to represent

to the Court that the information in their filings is truthful.”) (citing See Reilly v. Connecticut Interlocal Risk Mgmt.

Agency, No. 25-630 [sic, 25-640], 2025 WL 1726366, at *2-3 (D. Conn. June 20, 2025)) (internal quotation marks

and citation omitted).

38 R. Doc. 56.

39 R. Doc. 49-3. See n.6, supra.

Plaintiff then filed his Motion for Leave to File Sur-Reply,40 seeking to respond to an

argument that Plaintiff asserted was raised for the first time in BREC’s Second Reply, i.e., that

the five-day deduction from Plaintiff’s pay was permitted pursuant to 29 C.F.R. § 541.602(a)(1)

because Plaintiff performed no work the entire week of December 9, 2024.41 BREC actually

raised this argument in its First Reply, and therefore, it could have been addressed by Plaintiff in

his amended Opposition.42 Setting that aside, because it is recommended that BREC’s 29 C.F.R.

§ 541.602(a)(1) argument not be considered as it was asserted for the first time in reply,43 it is

further recommended that Plaintiff’s Motion for Leave to File Sur-Reply be denied because the

rest of the Sur-Reply reiterates prior arguments or addresses matters that are not pertinent to the

resolution of the instant Motion.44 The matter is fully briefed and oral argument is not necessary.

40 R. Doc. 54.

41 R. Doc. 56, p. 2.

42 In the Motion, BREC asserted that the five-day deduction was permitted pursuant to 29 C.F.R. § 541.602(b)(5),

which allows deductions for unpaid disciplinary suspensions. R. Doc. 13-1, pp. 3-4. Then, it its First Reply, BREC

newly asserted the 29 C.F.R. § 541.602(a)(1) argument. R. Doc. 20, p. 4 (“In fact, because the suspension was for a

full workweek, Plaintiff was not entitled to any pay, regardless of the reasons for the suspension. This is because,

‘Exempt employees need not be paid for any workweek in which they perform no work.’ 541.602(a)(1).”).

Defendant’s argument regarding 29 C.F.R. § 541.602(a)(1) was raised before Plaintiff filed his amended Opposition,

and Plaintiff had the opportunity to address it there. BREC simply re-asserts the 29 C.F.R. § 541.602(a)(1) argument

in its Second Reply. R. Doc. 56, p. 2.

43 R. Doc. 56, see the middle of p. 2, and the bottom of p. 4 to the middle of p. 5. See Georgia Firefighters’ Pension

Fund v. Anadarko Petroleum Corp., 99 F.4th 770, 774 (5th Cir. 2024) (“Ordinarily, sur-replies are ‘heavily

disfavored,’ and the decision to allow a sur-reply lies within the district court’s discretion. Butler v. S. Porter, 999

F.3d 287, 297 (5th Cir. 2021) (internal quotation omitted). But when a party raises new arguments or evidence for

the first time in a reply, the district court must either give the other party an opportunity to respond or decline to rely

on the new arguments and evidence.”) (emphasis added).

44 Plaintiff’s request in the Sur-Reply for discovery pursuant to Fed. R. Civ. P. (“Rule”) 56(d) of payroll and

disciplinary information for other BREC employees is not properly asserted because the request was not made in

Plaintiff’s Affidavit or via subsequent affidavit or declaration as required by the Rule. The request is also not warranted

because, as explained below, Plaintiff has not shown that he was personally subjected to an improper deduction

resulting in the loss of his exempt status. See n.89.

II. LAW AND ANALYSIS

A. Legal Standards for Summary Judgment and the FLSA

Summary Judgment

Pursuant to well-established legal principles, summary judgment is appropriate where there

is no genuine disputed issue as to any material fact, such that the moving party is entitled to

judgment as a matter of law.45 “A ‘material’ fact is one that might affect the outcome of the suit

under governing law,’ and a fact issue is ‘genuine’ if the evidence is such that a reasonable jury

could return a verdict for the non-moving party.”46 A party moving for summary judgment must

explain the basis for the motion and identify those portions of the pleadings, depositions, answers

to interrogatories and admissions on file, together with affidavits, if any, that show there is no

genuine issue of material fact.47 If the moving party carries its burden of proof, the opposing party

must direct the court’s attention to specific evidence in the record which demonstrates that the

non-moving party can satisfy a reasonable jury that it is entitled to a verdict in its favor, i.e., “there

is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to

return a verdict for that party.”48 This burden is not satisfied by some metaphysical doubt as to

alleged material facts, by unsworn and unsubstantiated assertions, by conclusory allegations, or by

a mere scintilla of evidence.49 Rather, Rule 56 mandates that summary judgment be entered against

a party who fails to make a showing sufficient to establish the existence of an element essential to

45 Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 247 (1986).

46 McCullough v. Wright, 824 Fed.Appx. 281, 284 (5th Cir. Sept. 9, 2020), quoting Renwick v. PNK Lake Charles,

L.L.C., 901 F.3d 605, 611 (5th Cir. 2018) (some internal quotations omitted).

47 Celotex Corp., 477 U.S. at 322-23.

48 Anderson, 477 U.S. at 249 (citation omitted).

49 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted).

that party’s case and on which that party will bear the burden of proof at trial.50 Summary judgment

is appropriate in any case where the evidence is so weak or tenuous on essential facts that the

evidence could not support a judgment in favor of the non-moving party.51 In resolving a motion

for summary judgment, the court must review the facts and inferences in the light most favorable

to the non-moving party, and the court may not evaluate the credibility of witnesses, weigh the

evidence, or resolve factual disputes.52

The FLSA

“The FLSA provides that employees shall not work more than forty hours per work week

unless they are compensated at one and a half-time their regular rate of employment.”53 “The FLSA

also exempts workers from its overtime-pay guarantee protection, such as employees that are

employed ‘in a bona fide executive, administrative, or professional capacity.’”54 The Department

of Labor has been delegated the authority of defining those terms, and “[u]nder that authority, the

Department … considers duties, method of payment, and salary.”55 With regard to the salary basis

component, which is relevant here,56 “[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.”57

Subject to certain exceptions, “an exempt employee must receive the full salary for any week in

50 Celotex Corp., 477 U.S. at 322-23.

51 Little, 37 F.3d at 1075 (citation omitted).

52 International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).

53 Venable v. Smith Int’l, Inc., 117 F.4th 295, 299 (5th Cir. 2024), citing 29 U.S.C. § 207(a)(1).

54 Venable, 117 F.4th at 299 (5th Cir. 2024) citing 29 U.S.C. § 213(a)(1).

55 Texas v. United States Dep’t of Labor, 756 F.Supp.3d 361, 382 (E.D. Tex. 2024).

56 Plaintiff does not challenge his exempt status on the basis of his weekly rate of pay or his duties.

57 29 C.F.R. § 541.602(a)(1).

which the employee performs any work without regard to the number of days or hours worked.”

However, “[e]xempt employees need not be paid for any workweek in which they perform no

work.58 One such exception is found at 29 C.F.R. § 541.602(b)(5), which provides:

Deductions from pay of exempt employees may be made for unpaid

disciplinary suspensions of one or more full days imposed in good

faith for infractions of workplace conduct rules. Such suspensions

must be imposed pursuant to a written policy applicable to all

employees. Thus, for example, an employer may suspend an exempt

employee without pay for three days for violating a generally

applicable written policy prohibiting sexual harassment. Similarly,

an employer may suspend an exempt employee without pay for

twelve days for violating a generally applicable written policy

prohibiting workplace violence.

29 C.F.R. § 541.603 explains the effect of improper deductions. Subsection (a) provides that “[a]n

employer who makes improper deductions from salary shall lose the exemption if the facts

demonstrate that the employer did not intend to pay employees on a salary basis. An actual practice

of making improper deductions demonstrates that the employer did not intend to pay employees

on a salary basis.” That provision sets out factors to consider when determining whether an

employer has an actual practice of making improper deductions.59

B. There is No Genuine Issue of Material Fact that Plaintiff Did Not Lose His Exempt

Status When He Was Suspended for Five Days Without Pay

In his Complaint, Plaintiff alleged that he was a full-time, salaried, exempt employee, and

the five-day deduction of pay from his January 9, 2025 paycheck, for the week that he was on

suspension beginning on December 9, 2024, violated the salary basis test under 29 C.F.R. §

541.602(a)-(b) and constituted an unlawful pay practice under 29 U.S.C. § 206.60 Plaintiff also

58 Id.

59 29 C.F.R. § 541.603(b) provides that, if the facts demonstrate that the employer has an actual practice of making

improper deductions, the exemption is lost during the time period in which the improper deductions were made for

employees in the same job classification working for the same managers responsible for the actual improper

deductions.

60 R. Doc. 1, ¶ 24.

alleged that BREC failed to consistently enforce its disciplinary policies, including Chapter 10,

by refusing to permit Plaintiff to file a complaint and/or appeal. Plaintiff asserted that BREC’s

failure to consistently enforce its disciplinary policies is a factor to be considered under 29 C.F.R.

§ 541.603(a) in determining if BREC has an actual practice of making improper deductions, and

therefore, has bearing on whether Plaintiff lost his exempt status.61

In the Motion, BREC asserts that Plaintiff was suspended for five days without pay for

failing to sufficiently supervise his subordinate employees to prevent them from violating

timekeeping policies and committing payroll fraud, and for failing to review and approve P-card

statements. BREC contends that the deduction was permitted pursuant to 29 C.F.R.

§541.602(b)(5) as an unpaid disciplinary suspension of one or more full days imposed in good

faith for Plaintiff’s infractions of workplace conduct rules, pursuant to a written policy applicable

to all employees; here, Chapter 10, paragraphs 1 and 2, which provide, in pertinent part:

Disciplinary Actions.

All BREC employees are employed “at will” and may be terminated

at any time with or without cause. The employee handbook and

disciplinary actions are established as guidelines for employee

performance. A supervisor may take any appropriate action(s) to

discharge, suspend, demote, reduce in pay, reassign or reprimand an

employee for cause.

Suspensions. (rev. 11/03)

a) Any employee who is suspended without pay shall be so notified

by their supervisor on or before the effective date of the

suspension. The Human Resources Department will be notified,

and a record shall be made of such suspension.62

BREC further contends that Plaintiff cannot show that BREC has an actual practice of making

improper deductions under 29 C.F.R. § 541.603(a).63

61 R. Doc. 1, ¶ 25, citing 29 C.F.R. § 541.603(a) (see definition, above).

62 R. Doc. 13-1, pp. 3-4 citing, R. Doc. 13-2, p. 4.

63 R. Doc. 13-1, p. 4.

Plaintiff contends that there is a genuine issue of material fact as to whether the reasons for

his suspension were based on performance issues rather than violations of workplace conduct

rules. Plaintiff relies on the Eleventh Circuit Court of Appeal’s Watkins v. City of Montgomery,

Alabama opinion, which relied on the DOL’s preamble to the regulations, when finding that

“workplace conduct” in 29 C.F.R. § 541.602(b)(5) “is not to be construed expansively” and covers

only “serious workplace misconduct like sexual harassment, violence, drug or alcohol violations,

or violations of state or federal laws…[] Critically, it ‘was not meant to apply to performance or

attendance issues.”64 Plaintiff alleges that there is a genuine issue of material fact as to whether

lack of oversight resulting in payroll fraud is serious misconduct, or rather, a performance or

mismanagement issue, which is excluded from permissible unpaid suspensions.65 Plaintiff

contends that his actions involved performance issues because Jarvis allegedly told him during

his suspension meeting that “PCARD mismanagement and lack of oversight is not a specific

policy. It’s an action that you perform, and inadequate supervisory oversight, again, that’s an

action you perform. It’s not a policy violation, but it is dereliction in the job performance of your

duties.”66

Plaintiff further contends that the retroactive deduction, while not specifically addressed in

the FLSA, is a practice that has been found to undermine the salary basis test if it demonstrates

an employer’s intent to not pay its employees on a salary basis, which is a question of material

fact.67 Plaintiff additionally argues that whether BREC has an actual practice of making improper

64 R. Doc. 40, p. 5, citing Watkins v. City of Montgomery, Ala., 775 F.3d 1280, 1284 (11th Cir. 2014) (relying on the

DOL’s preamble regarding the implementation of this provision in 29 C.F.R. § 541.602(b)(5). See Defining and

Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees, 69

Fed. Reg. 22122-01 (April 23, 2004)).

65 R. Doc. 40, p. 6.

66 R. Doc. 40, pp. 2-3, ¶ 4.

67 R. Doc. 40, p. 6, citing Balgowan v. State of New Jersey, 115 F.3d 214 (3rd Cir. 1997).

deductions is also a question of material fact. Plaintiff alleges that he submitted a public records

request for similar disciplinary actions against other exempt employees, but BREC denied the

request, contending that the requested information is confidential.68

BREC replies that Plaintiff’s suspension was based on serious misconduct, rather than mere

performance issues, and thus came within the ambit of 29 C.F.R. § 541.602(b)(5).69 Further,

BREC contends that courts in this Circuit hold that the focus is on how employees are actually

paid, not what employer policies require regarding deductions. BREC argues that Plaintiff has

not provided any support for the allegation that a single instance of an improper deduction can

establish an actual practice under 29 C.F.R. § 541.603(a). However, BREC’s First Reply cites

several cases holding otherwise.70

Plaintiff’s FLSA claim centers entirely around whether his five-day unpaid suspension

violated the salary basis test such that he lost his exempt status. Here, there is no genuine issue of

material fact to dispute that Plaintiff’s employment satisfied the “salary basis” component of an

FLSA exemption, which was not lost based on his unpaid suspension. As all parties recognize,

29 C.F.R. § 541.602(b)(5) permits unpaid suspensions, of one or more full days, imposed in good

faith pursuant to a workplace policy71 applicable to all employees for infractions of workplace

conduct rules, which applies to serious misconduct, per the DOL.72 Here, BREC suspended

68 R. Doc. 40, p. 6 and see R.Doc. 40-3, pp. 49-53 (Plaintiff’s public records request and BREC’s response).

69 R. Doc. 56, p. 3.

70 R. Doc. 56, pp. 3-4, citing R. Doc. 20, pp. 6-7.

71 The DOL explained that, “the written policy need not include an exhaustive list of specific violations that could

result in a suspension, or a definitive declaration of when a suspension will be imposed. The written policy should be

sufficient to put employees on notice that they could be subject to an unpaid disciplinary suspension.” 69 Fed. Reg. at

22178.

72 The parties did not cite to a Fifth Circuit decision interpreting “serious misconduct” in 29 C.F.R. § 541.602(b)(5),

nor was one found.

Plaintiff for five days without pay73 pursuant to Chapter 10,74 which provides that employees can

be suspended without pay for cause.75 BREC found cause to suspend Plaintiff without pay

because Plaintiff’s supervision over two subordinate employees was deficient, resulting in payroll

fraud and timekeeping violations, and additionally, Plaintiff failed to review Barrett’s P-card

statements, as required. Plaintiff does not dispute either of these findings. Instead, Plaintiff argues

that his deficiencies were not “conduct” issues, but rather “performance” issues, based on Jarvis’s

alleged statements, but Jarvis’s characterization, even if true, is not controlling. Internal Audit’s

investigation revealed payroll fraud by Barrett, and timekeeping violations by Durand. Plaintiff

was responsible for supervising these employees.76 Internal Audit also found that Plaintiff failed

to review Barrett’s P-Card statements as required by the P-Card policy.77 As BREC is a political

subdivision of the State, employee payroll fraud and an agency’s failure to conduct required

financial reconciliations are concerning misuses of public funds. The payroll fraud and

73 While this issue need not be decided in light of the discussion, below, Plaintiff’s attendance at a short meeting on

the morning of his first day of suspension to tell him he was suspended should not be considered work from a common

sense standpoint or under Plaintiff’s particular circumstances, because the purpose of the meeting was to notify

Plaintiff of his suspension and instruct him to not work, and the meeting only took place that day because Plaintiff

was on personal leave the day the meeting was supposed to take place.

74 Plaintiff challenges the version of Chapter 10 relied on by BREC by contending that an undated and incomplete

version of it was emailed to him, “indicating potential inaccessibility of the current employee handbook on the

employer intranet.” R. Doc. 40-2, ¶ 12. “Potentially inaccessible” is speculative, and Plaintiff was a supervisor who

was, per his job description, responsible for having knowledge of BREC Rules and Regulations, and who had already

been told in 2018 that he was held to a higher standard because of his responsibility for enforcing policies and

procedures. R. Doc. 40-3, p. 58; R. Doc. 13-2, p. 22. Plaintiff also contends that he was informed he could not appeal

the suspension per the current Chapter 10 because only terminations and demotions are subject to appeal. R. Doc. 13-

2, p. 7 and see R. Doc. 40-3, p. 33. Plaintiff argues that the denial of appeal rights contradicts another version of

Chapter 10, which would permit an appeal, as well as his suspension letter, which also referenced an appeal, and both

these issues raise a factual dispute about his appeal rights and due process. R. Doc. 40-1, p. 5, R. Doc. 40-3, pp. 39-

43, and R. Doc. 13-2, p. 26. Plaintiff’s dispute regarding his appeal rights, including his allegation that his suspension

letter mistakenly advised that he did not have the right to an appeal, does not have bearing on the propriety of his

unpaid suspension under the FLSA, and Plaintiff did not assert a claim for denial of due process in his Complaint.

Plaintiff also states that he did appeal. R. Doc. 40, ¶ 9; R. Doc. 40-2, ¶ 11.

75 R. Doc. 13-2, p. 4; R. Doc. 40-3, p. 39. Both versions of Chapter 10 submitted by the parties have the same provisions

regarding Disciplinary Actions and Suspensions.

76 R. Doc. 13-2, pp. 27-31 and R. Doc. 40-3, p. 59 (listing of Plaintiff’s job duties as “oversees… the day to day

operation including but not limited to…. performance of employees”).

77 R. Doc. 40-3, p. 57 (P-Card policy, which although unsigned, was introduced by Plaintiff, and states: “I agree to

review and reconcile transactions timely….”).

unreviewed P-Card statements resulting from Plaintiff’s lack of supervision could be fairly

characterized as “gross inefficiency,” and/or involvement in “abuse or misuse of BREC property,”

both listed under BREC’s Rules and Regulations, signed by Plaintiff, as “Forbidden Conduct.”78

BREC has provided evidence that it suspended Plaintiff with a good faith belief in his failure to

comply with its Rules and Regulations, applicable to all employees.79 Thus, the unpaid suspension

was permissible per 29 C.F.R. § 541.602(b)(5) and did not result in loss of Plaintiff’s exempt

status.80 As noted in Watkins, the DOL also stated that the addition of the unpaid suspension

exception “will permit employers to hold exempt employees to the same standards of conduct as

that required of their nonexempt workforce,”81 and the exception “also takes into account…that

a growing number of laws governing the workplace have placed increased responsibility and risk

of liability on employers for their exempt employees’ conduct,”82 which seems particularly

applicable to misconduct involving payroll fraud occurring in a public agency.

However, even if there is a fact question as to whether Plaintiff was suspended for serious

misconduct, that does not create a genuine issue of material fact that Plaintiff lost his salaried

78 R. Doc. 13-2, p. 19 (emphasis added).

79 R. Doc. 13-2, ¶¶ 4, 10; R. Doc. 13-2, pp. 26-31.

80 See Richardson v. Regeis Care Center, LLC, No. 16-3538, 2017 WL 432806, at *3 (S.D.N.Y. 2017) (affirming

summary judgment for employer, finding no issue of material fact that employee was suspended without pay for

violation of workplace conduct rules per the employer’s policies such that the suspension did not result in loss of

exempt status); Wetzel v. Town of Orangetown, No. 06 -15190, 2013 WL 1120026, at *6 (S.D.N.Y. Mar. 18, 2013)

(affirming summary judgment for employer, finding that the docking of the employee’s vacation days during the

disciplinary hearing process per employer’s policy was permissible and did not result in loss of exempt status); Parmar

v. Safeway, Inc., No. 10–421, 2011 WL 888238, at *5 (W.D. Wash. Mar. 14, 2011) (affirming summary judgment,

finding that the employee/pharmacy manager’s suspension without pay, pursuant to employer’s policy, for failing to

notify a customer of her subordinate’s mistake in filling a prescription was permissible and did not defeat salaried

status); Abramo v. City of New York, 54 Fed.Appx. 708 (2nd Cir. 2003), and aff’d sub nom, Abramo v. City of New

York, 54 Fed.Appx. 708 (2nd Cir. 2003) (granting summary judgment to the employer, finding that conduct resulted

in an infraction of a safety rule of major significance, which permitted deductions under 29 C.F.R. § 541.602(4)).

Furthermore, the fact that the deduction was retroactive is not precluded by 29 C.F.R. § 541.602(b)(5). Plaintiff’s

reliance on Balgowan, 115 F.3d 214, to the contrary fails because Balgowan does not address retroactive deductions

(as BREC points out). R. Doc. 56, p. 4.

81 775 F.3d at 1284, citing 69 Fed. Reg. at 22177.

82 69 Fed. Reg. at 22177.

exemption, as Plaintiff contends, because a five-day suspension without pay83 over the course of

Plaintiff’s seven year period of employment is isolated, and not an “actual practice” of improperly

making deductions.84

29 C.F.R. § 541.603(a) provides, in pertinent part: “An employer who makes improper

deductions from salary shall lose the exemption if the facts demonstrate that the employer did not

intend to pay employees on a salary basis. An actual practice of making improper deductions

demonstrates that the employer did not intend to pay employees on a salary basis.”85 The factors

to consider when determining whether an employer has an actual practice of making improper

deductions include, but are not limited to: the number of improper deductions, particularly as

compared to the number of employee infractions warranting discipline; the time period during

which the employer made improper deductions; the number and geographic location of employees

whose salary was improperly reduced; the number and geographic location of managers

responsible for taking the improper deductions; and whether the employer has a clearly

communicated policy permitting or prohibiting improper deductions.86 However, the “section shall

not be construed in an unduly technical manner so as to defeat the exemption.”87

Plaintiff alleges one instance of an improper deduction that affected one pay period in

January 2025. As set forth in BREC’s First Reply, multiple courts have squarely held that isolated

83 Plaintiff received a three-day suspension without pay in 2018 for violating BREC’s policies by making inappropriate

comments and inappropriate contact with female staff. R. Doc. 13-1, p. 1 and R. Doc. 13-2. However, Plaintiff does

not complain about this suspension and acknowledges that it is not relevant to his claims. R. Doc. 40-1, p. 3. Notably,

and as referenced above, Plaintif’s 2018 disciplinary letter explicitly stated: “As a supervisor [] with BREC you are

held to a higher standard for following and enforcing policies and procedures provided.” R. Doc. 13-2, p. 22.

84 Kennedy v. Commonwealth Edison Co., 410 F.3d 365, 372 (7th Cir. 2005) (“Identifying a few random, isolated, and

negligible deductions is not enough to show an actual practice or policy of treating as hourly the theoretically

salaried.”).

85 29 C.F.R. § 541.603(a).

86 29 C.F.R. § 541.603(a).

87 29 C.F.R. § 541.603(e).

deductions, such as the one in this case, do not result in an employee losing his exempt status, even

if the deductions are improper.88 For example, in Ellis v. J.R.’s Country Stores, Inc.,89 the court

held:

[t]he Company’s one-time improper deduction from Ms. Ellis’s pay,

‘taken under unusual circumstances [, would] not defeat [Ms.

Ellis’s] salaried status.’ … (citing Auer, 519 U.S. at 460–61, 117

S.Ct. 905 [one improper deduction not a practice] [full citation

below]). This is hardly an unusual conclusion in FLSA

jurisprudence, and it is the correct result here. See, e.g., Carpenter

v. City & Cnty. of Denver, Colorado, 115 F.3d 765, 767 (10th Cir.

1997) (noting with approval that ‘although there were two cases of

alleged deductions, the [district] [c]ourt specifically recognized that

such one time deductions under unusual circumstances will not oust

exempt status and may be remedied’); see also Kennedy v.

Commonwealth Edison Co., 410 F.3d 365, 372 (7th Cir. 2005)

(discussing subsection (a) and its predecessor regulation, and

concluding that ‘[i]dentifying a few random, isolated, and negligible

deductions is not enough to show an actual practice or policy of

treating as hourly the theoretically salaried.... This means that these

isolated instances of deductions do not create a genuine issue of fact

about the proper characterization of the plaintiffs’ positions.’);

Block v. City of Los Angeles, 253 F.3d 410, 415 (9th Cir. 2001) (‘In

some cases, the number of [employer] suspensions alone may be

sufficient indicia of the employer’s intent to resolve the ‘actual

practice’ determination. For example, the number may be so small

that there would be no way to say that the employer meant to treat

an entire class of employees as hourly rather than salaried by virtue

of one or two isolated suspensions.’); Aiken v. City of Memphis,

Tennessee, 190 F.3d 753, 762 (6th Cir. 1999) (‘The evidence shows

that only one captain ever faced a deduction in pay. Thus, plaintiffs

cannot demonstrate an actual practice of applying such deductions

to captains.’”).90

The Eastern District of Missouri has recently held similarly:

88 See R. Doc. 20, p. 6.

89 779 F.3d 1184, 1195 (10th Cir. 2015)

90 See also Martinez v. Hilton Hotels Corp., 930 F. Supp. 2d 508, 522 (S.D.N.Y. 2013) (“Even allowing for disputes

of fact as to whether the suspensions were made in good faith, three suspensions among five employees over a period

of four years is, in this case, too isolated an occurrence to suggest Defendants had an ‘actual practice’ of making

unlawful deductions from the Plaintiffs’ salaries.”); Karropoulos v. Soup du Jour, Ltd., 128 F.Supp.3d 518, 529

(E.D.N.Y. 2015) (finding three exemptions isolated and not an actual practice, and holding: “Thus, a plaintiff asserting

that his salary was ‘subject to reduction’ must allege more than isolated incidents of deductions in order to create a

genuine issue of material fact as to whether his employer intended him to be an hourly employee.”).

Conners’ claim fails because he has presented evidence at most of

isolated improper deductions [in three pay periods] affecting only

him for a period of less than one month. Federal regulations require

more. They require systemic or widespread deductions in pay. As

the Tenth Circuit has explained, the relevant regulations speak in the

‘plural’ rather than the singular (“deductions” and “employees”);

they require an “actual practice”—that is, “habitual[ ]” or “repeated”

conduct.”91

The remaining factors are not reached, because Plaintiff lacks a viable claim where he

complains of only one deduction affecting one pay period.92 Here, there is no genuine issue of

material fact that Plaintiff’s receipt of one allegedly improper deduction did not result in an “actual

practice” by BREC of making improper deductions.

As the unpaid suspension was permissible per 29 C.F.R. § 541.602(b)(5), and as Plaintiff

cannot show that one deduction affecting one pay period is an actual practice of improper

deductions, Plaintiff did not lose his exempt status when he was suspended for five days without

pay and Plaintiff’s FLSA claim on this ground fails, such that summary judgment in favor of BREC

on this claim is proper.

91 Conners v. Env’t Operations, Inc., No. 23-1096, 2025 WL 2996256, at *3 (E.D. Mo. Oct. 24, 2025) (citing Ellis,

779 F.3d at 1196). See also, Cash v. Cycle Craft Co., Inc., 508 F.3d 680, 684 (1st Cir. 2007) (affirming summary

judgment for employer, concluding that “two aberrant paychecks out of the approximately 50 that [the plaintiff]

received do not amount to an actual practice.”); Mathews v. Bronger Masonry, Inc., 772 F.Supp.2d 1004, 1013 (S.D.

Ind. Feb. 18, 2011) (“Given that [the plaintiff] has identified only a single incident that followed as least one infraction

on the part of [the plaintiff] arguably warranting discipline, there is surely no basis for a finding that [the employer]

had ‘[a]n actual practice of making improper deductions demonstrate[ing] that [the employer] did not intend to pay

[the plaintiff] on a salary basis,’ pursuant to 29 C.F.R. § 541.603(a).”).

92 See, e.g., Ellis, 779 F.3d at 1194 (affirming the district court’s holding regarding the third and fourth factors, and

finding, “[W]ith respect to the number and geographic location of additional employees whose salary was improperly

reduced, the Court stayed proceedings on that issue because, having experienced only one allegedly improper

deduction, Ellis appeared to lack a viable claim, which could not be salvaged by recourse to evidence relating to other

individuals.... [F]or substantially the same reason, the number and geographic location of managers responsible for

taking the improper deductions does not support Ellis’s position. No such ‘deductions’ (plural), occurred—only the

singular deduction that Ellis acknowledges.”). The Ellis court went on to note that other courts have examined as few

as one of the five factors with particular focus on the first factor. Id. at 1195 (collecting cases). Plaintiff’s request for

information regarding suspensions of other employees, either via public records requests or discovery, is not

warranted. The Ellis court found no error with the district court’s denial of the plaintiff’s 56(d) motion on the third

and fourth factors because her claim of only one improper deduction “could not be salvaged by recourse to evidence

related to other individuals.”

C. There is No Genuine Issue of Material Fact that Plaintiff Was Not Retaliated

Against For Engaging in Conduct Protected Under the FLSA

The Complaint alleged that BREC retaliated against Plaintiff in violation of 29 U.S.C. §

215(a)(3) through the following actions: taking away Plaintiff’s access to the camera surveillance

system; failing to support Plaintiff’s investigation of Barrett’s payroll fraud; subjecting Plaintiff to

Barrett’s grievance; denying Plaintiff procedural fairness in connection with Internal Audit’s

investigation of Plaintiff, including in reprimanding and suspending Plaintiff; and, failing to allow

Plaintiff to file complaints and internal grievances, “including his attempt to invoke federal wage

protections.” Plaintiff alleged that, through the foregoing, he was subjected to a retaliatory and

hostile work environment, which culminated in his forced resignation, i.e., constructive

discharge.93

The Motion contends that, aside from the constructive discharge, none of the above actions

is a demotion, reduction in pay, or a transfer, i.e., a materially adverse action, so Plaintiff cannot

assert a claim for retaliation as to those acts. Defendant argues that the constructive discharge

claim also fails because the facts do not show “working conditions [] so intolerable that a

reasonable person in [Plaintiff’s] position would have felt compelled to resign.”94 Defendant

alleges that consideration of the following factors are relevant, singly or in combination:

(1) [D]emotion; (2) reduction in salary; (3) reduction in job

responsibilities; (4) reassignment to menial or degrading work; (5)

reassignment to work under a younger [or less

experienced/qualified] supervisor; (6) badgering, harassment, or

humiliation by the employer calculated to encourage the employee’s

resignation; or (7) offers of early retirement [or continued

employment on terms less favorable than the employee’s former

status].95

93 R. Doc. 1, pp. 4-5; R. Doc. 13-1, p. 4.

94 R. Doc. 13-1, p. 5, citing Pennsylvania State Police v. Suders, 542 U.S. 129, 141 (2004).

95 R. Doc. 13-1, p. 5, citing Haley v. Alliance Compressor LLC, 391 F.3d 644, 649 (5th Cir. 2004) (citing Brown v.

Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001)).

According to BREC, Plaintiff fails to satisfy the objective test for constructive discharge because

the actions that Plaintiff alleges BREC committed would not have made a reasonable employee in

Plaintiff’s position resign. In support, BREC relies on Brown v. Bunge (affirming summary

judgment for the employer, finding that employee’s demotion and lessened job responsibilities did

not lead to constructive discharge)96 and Boze v. Branstetter (poor performance evaluation, failure

to promote and loss of responsibilities like a demotion did not lead to a constructive discharge).97

Plaintiff argues that he engaged in protected activity when he complained about the unpaid

suspension to BREC both verbally and in writing,98 and further contends that his unpaid

suspension, and a state court lawsuit filed by BREC after this case was filed, were adverse

employment actions because they would dissuade a reasonable worker from pursuing their rights.99

Plaintiff alleges that there was a close temporal proximity between his protected activities in

raising FLSA concerns post-suspension, his unpaid suspension in December 2024, BREC’s

affirmance of the suspension, and BREC’s filing of the state court lawsuit, which establishes a

prima facie case of retaliation.100 Plaintiff also alleges that BREC’s inconsistent application of its

96 R. Doc. 13-1, p. 6, citing Brown v. Bunge Corp., 207 F.3d 776, 782 (5th Cir. 2000).

97 R. Doc. 13-1, pp. 6-7, citing Boze v. Branstetter, 912 F.2d 801, 805-06 (5th Cir. 1990). BREC also asserts that, as

a political subdivision of the State per La. R.S. § 33:4570.4, La. R.S. § 33:4570.3(B) provides for its discretionary

functions, including that its superintendent “has the power to assign duties, to direct and control, transfer, promote,

demote, and otherwise change the status of all employees of the commission….” BREC contends that Plaintiff’s

suspension without pay falls within these discretionary functions and is within BREC’s lawful powers and duties. As

such, La. R.S. § 9:2798.1 prohibits BREC from bearing any liability for Plaintiff’s suspension without pay, which was

an employment decision within the exercise of its policymaking or discretionary functions. R. Doc. 13-1, p. 7. While

La. R.S. § 9:2798.1 applies to BREC as a political subdivision of the State, and La. R.S. § 9:2798.1(B) provides:

“Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance

or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and

scope of their lawful powers and duties,” BREC has not provided any argument or authority as to how this state law

statute applies to and/or is determinative of BREC’s liability under the federal FLSA.

98 Plaintiff asserts that the DOL’s right to sue letter “affirmed Plaintiff’s ‘private right under the Act to bring an

independent suit’”; however, BREC does not dispute that Plaintiff had a right to file suit and is correct that the letter

has no bearing on the retaliation claim. R. Doc. 56, p. 2.

99 R. Doc. 40, pp. 7-8.

100 R. Doc. 40, p. 8, citing Shirley v. Chrysler First, Inc., 970 F.2d 39 (5th Cir. 1992) (temporal proximity can establish

causation).

policies and denial of appeals suggests pretext, because Jarvis informed Plaintiff that his

suspension was for “dereliction of job performance,” which contradicts the “serious misconduct”

standard, and Plaintiff was denied the right to appeal his suspension pursuant to Chapter 10.101

Finally, Plaintiff contends that he was forced to resign due to intolerable working conditions,

which arose due to his unpaid suspension, denial of appeal rights, a hostile work environment, a

“witch hunt,” and “the lack of accountability for executive decisions.”102

BREC reiterates that the facts do not establish an adverse action, including Plaintiff’s claim

of constructive discharge. BREC asserts that employee claims of retaliatory lawsuits are allowed

only “under relatively narrow circumstances,” and the employee must allege “facts allowing for

the reasonable inference that the former employer’s legal action is maintained in bad faith and

motivated by retaliation,” which is required to ensure that the employer is not penalized for

exercising its right to seek redress.103 BREC contends that its suit against Plaintiff has a reasonable

basis, as BREC alleges that Plaintiff was grossly negligent in failing to perform essential

preventative maintenance, which led to major equipment failures, and grossly negligent in

supervision, which led to payroll fraud.104 BREC also alleges that, while temporal proximity may

support an inference of retaliation, the timing of BREC’s lawsuit does not reasonably support an

inference of retaliation here because “[a] party with a colorable legal grievance may legitimately

choose to wait and see whether the other side will sue first, perhaps in the hope that a settlement

can be reached before the expense and friction of litigation come into play. But once one side sues,

101 R. Doc. 40, p. 8.

102 R. Doc. 40, pp. 8-9, citing Haley, 391 F.3d 644.

103 R. Doc. 56, pp. 5-6, citing Green v. HCTec Partners, LLC, No. 22-2559, 2024 WL 250787, at *3 (S.D. Tex. Jan.

23, 2024) (citing Ortiguerra v. Grand Isle Shipyard, LLC, No. 22-309, 2023 WL 3676793, *4-5 [674 F.Supp.3d 349,

355-56] (E.D. La. May 25, 2023)) (other internal citations omitted).

104 R. Doc. 56, p. 6.

there is nothing suspicious about the other side filing counterclaims.”105 BREC contends that

Plaintiff cannot show that BREC’s state court lawsuit lacks a reasonable basis in fact or law.106

BREC alleges that the denial of an appeal was in accordance with Chapter 10, and Plaintiff has

not shown that he was singled out in the application of Chapter 10’s allowance for appeals of only

terminations and demotions; Plaintiff’s unpaid suspension was not unlawful; BREC is not

responsible for Plaintiff’s belief in a witch hunt; Plaintiff has not shown a retaliatory hostile work

environment; “lack of accountability for executive decisions” is merely something that was

conveyed to Plaintiff by an attorney; and finally, none of the foregoing, individually or in

combination, rises to the level of a constructive discharge.107

“The FLSA makes it unlawful to ‘discharge or in any other manner discriminate against

any employee because such employee has filed any complaint or instituted or caused to be

instituted any proceeding under or related to this chapter.’”108 “A retaliation claim under the FLSA

is subject to the McDonnell Douglas analytical framework.”109 “Under the FLSA, ‘a plaintiff must

make a prima facie showing of: (1) participation in protected activity under the FLSA; (2) an

adverse employment action; and (3) a causal link between the activity and the adverse action.’”

When the plaintiff ‘meets this burden, the defendant must then articulate a legitimate, non-

retaliatory reason for its decision. The burden then shifts to the plaintiff to demonstrate that the

proffered reason is a pretext for discrimination.110

105 R. Doc. 65, p. 6, citing Green, 2024 WL 250787, at *4 (internal citation omitted).

106 R. Doc. 56, p. 6.

107 R. Doc. 56, p. 7.

108 Lasater v. Texas A & M Univ.-Commerce, 495 Fed.Appx. 458, 461 (5th Cir. 2012), citing 29 U.S.C. § 215(a)(3).

109 Lasater, 495 Fed. Appx. at 461, citing Kanida v. Gulf Coast Med. Pers. LP, 363 F.3d 568, 577 (5th Cir. 2004).

110 Starnes v. Wallace, 849 F.3d 627, 631-32 (5th Cir. 2017), citing Hagan v. Echostar Satellite, LLC, 529 F.3d 617,

624 (5th Cir. 2008).

Plaintiff alleges retaliation before his suspension; post-suspension retaliation leading to his

constructive discharge; and post-employment retaliation; however, Plaintiff’s FLSA retaliation

claims either fail one of the three prongs required to establish a prima facie case, or because BREC

had a legitimate non-retaliatory reason to take the complained-of actions.

The allegations of retaliation that pre-date Plaintiff’s unpaid suspension, i.e., stripping

Platiniff of surveillance access, failing to support his investigation of Barrett for payroll fraud,

subjecting Plaintiff to Barrett’s grievance, and that Internal Audit did not interview Plaintiff during

the investigation that led to his suspension, fail to allege participation in any FLSA-protected

activities. Even if Plaintiff complained to BREC about these issues, none of these allegations

involve an activity that could have reasonably put BREC on notice of a FLSA violation.111 Rather,

they consist of Plaintiff’s disagreements with how BREC handled Barrett’s situation112 and how

BREC handled its investigation of Plaintiff’s supervision of these employees, none of which

implicate the FLSA. BREC’s revocation of Plaintiff’s access to camera surveillance footage also

was not an adverse employment action,113 as that action would not dissuade a reasonable employee

111 See Lasater 495 Fed.Appx. at 461 (“To demonstrate that she participated in an FLSA protected activity, Lasater

must first demonstrate that she filed a complaint. In order for an employee’s communication to constitute a

‘complaint,’ the ‘employer must have fair notice that an employee is making a complaint that could subject the

employer to a later claim of retaliation’ and the ‘complaint must be sufficiently clear and detailed for a reasonable

employer to understand it, in light of both content and context, as an assertion of rights protected by the [FLSA]

and a call for their protection.’ Kasten v. Saint–Gobain Performance Plastics Corp., ––– U.S. ––––, [563 U.S. 1]

131 S.Ct. 1325, 1334–35, 179 L.Ed.2d 379 (2011).”)(emphasis added).

112 Regarding Plaintiff’s claim that BREC fails to support his investigation of Barrett’s payroll fraud, that is not entirely

correct. Although Plaintiff suspended Barrett and Barrett was permitted to return to work, the Final Report concluded

that Barrett engaged in payroll fraud and required repayment of the funds Barrett was improperly paid. R. Doc. 13-2,

p. 30.

113 See, e.g., Stewart v. Mississippi Transp. Comm’n, 586 F.3d 321, 332 (5th Cir. 2009) (holding that an employee’s

complaints of personal items being taken from her desk, the locks on her office being changed and not being allowed

to close her office door, and being chastised by superiors and ostracized by co-workers, did not, as a matter of law,

rise to the level of material adversity, but instead fell into the category of “petty slights, minor annoyances, and simple

lack of good manners” that the Supreme Court has recognized are not actionable retaliatory conduct).

from making or supporting a complaint of discrimination.114 Further, BREC’s Surveillance

Camera Use Policy restricts access to camera surveillance to certain authorized personnel, and

requires that requests to review footage be made in writing on a form, or through email to a

designated person.115 While Plaintiff disputes the revocation of his access, he has not provided

evidence that he properly requested or was granted access.116

Next, Plaintiff’s inability to formally appeal his suspension was in accordance with

BREC’s policy applicable to all employees,117 which was a legitimate, nondiscriminatory reason

for denying Plaintiff an appeal, even if there were prior conflicting statements by human resources

regarding the availability of an appeal.118 Further, as BREC points out, Plaintiff has not shown that

114 See Mora v. Affiliated Customs Brokers USA, Inc., No. 13-367, 2015 WL 12551108, at *7 (W.D. Tex. Mar. 16,

2015) (“Almost ten years ago, the Supreme Court explicitly addressed the governing legal standard for an adverse

employment action in the context of a retaliation claim. In Burlington Northern & Santa Fe Railway Co. v. White,

548 U.S. 53 (2006) (‘Burlington’), the Court rejected the very argument that Defendant embraces here: that is, that an

employer’s retaliatory act must affect a plaintiff’s ‘compensation, terms, conditions, or privileges of employment’ in

order to form the basis of an actionable retaliation claim. Id. at 61. Instead, consistent with the underlying purpose of

Title VII’s anti-retaliation provision, the Court held that an ‘adverse employment action’ in the retaliation context is

any act that ‘well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’

Id. at 68 (internal quotation marks and citations omitted); see also Grice v. FMC Techs. Inc., 216 Fed.Appx. 401, 407

(5th Cir. 2007) (‘In Burlington Northern, the Court rejected the approach taken by several circuits, including this one,

that required plaintiffs to demonstrate an ‘ultimate employment decision’ to satisfy the ‘adverse employment action’

element of a retaliation claim.’); accord McCoy v. City of Shreveport, 492 F.3d 551, 560 (5th Cir. 2007). The

Burlington standard is objective in the sense that it does not render actionable the sorts of ‘petty slights, minor

annoyances, and simple lack of good manners’ that a reasonable worker would deem trivial. Burlington, 548 U.S. at

68. … Although the Supreme Court's decision in Burlington was decided under Title VII’s antiretaliation provision,

the Fifth Circuit has joined numerous other courts in holding that the Burlington standard applies with equal force to

retaliation claims brought under the FLSA. See Noack v. YMCA of Greater Hous. Area, 418 Fed.Appx. 347, 353 (5th

Cir. 2011)….”).

115 R. Doc. 13-2, p. 2, ¶ 7; R. Doc. 13-2, pp. 14-18 (Surveillance Camera Use Policy).

116 See, e.g., R. Doc. 40-3, pp. 9, 27.

117 R. Doc. 13-2, p. 7. Plaintiff was not dissuaded from raising his concerns several times by email and he also filed

a complaint with the DOL. R. Doc. 40-3 p. 24.

118 Though there appears to be some dispute between the parties regarding which version of the Rules and Regulations

is controlling, that dispute is not material to this issue. The version of the Rules and Regulations BREC says are

controlling did not permit “appeals,” other than for demotions or terminations, but did provide for a grievance

procedure to resolve other kinds of employee dissatisfaction. Plaintiff does not allege that he attempted to invoke that

procedure, or that he was precluded from invoking it. R. Doc. 13-2, p. 6. Additionally, the appeals procedure Plaintiff

claims controls would have started with an appeal to the Superintendent. Plaintiff sent Wilson an email complaining

of the suspension and also sent an email to the Board of Commissioners. The suspension was affirmed by Boykin,

BREC Chief Administrative Officer and General Counsel. R. Doc. 40-3, p. 33. Plaintiff also states that he did appeal.

R. Doc. 40, ¶ 9; R. Doc. 40-2, ¶ 11. It does not appear from these facts that Plaintiff was actually denied review of his

suspension.

he was singled out, that anyone else was treated more favorably, or that the no-appeal policy for

suspensions was applied to him in a retaliatory manner.119

As to the third prong, Plaintiff fails to show a causal connection between his FLSA

complaints and the suspension because all of Plaintiff’s oral and written complaints of FLSA

violations to BREC arose after Plaintiff’s suspension.120

Plaintiff’s claim of constructive discharge fails because Plaintiff has not established that

he was subjected to an intolerable working environment. Constructive discharge requires a

showing of a greater degree of harassment than what must be shown for a hostile work

environment,121 but Plaintiff has not provided any evidence of a hostile work environment. Setting

aside whether a five-day unpaid suspension would cause a reasonable employee to resign, the

suspension itself was justified by BREC’s investigation, concluding that one of employees for

which Plaintiff had supervisory responsibility committed payroll fraud, which Plaintiff does not

dispute.122 This is a legitimate non-retaliatory reason for the suspension.123 Plaintiff does not refute

119 While discovery was stayed until the parties filed their Status Report (R. Doc. 10), Plaintiff did not seek Rule 56(d)

relief until he requested leave to file his sur-reply, which is not being considered. Further, his request for 56(d) relief

in the sur-reply is not related to the retaliation claim. R. Doc. 54-2, p. 6 (“If the Court concludes that any of these

issues could be dispositive, Rule 56(d) relief is appropriate to allow targeted discovery in Defendant’s possession: (1)

payroll/time records and deduction logs for Plaintiff and similarly situated exempt employees; (2) disciplinary files

reflecting unpaid suspensions and the policies invoked; and (3) the operative written “workplace conduct” policies

during 2024-2025 and any safe-harbor policy under § 541.603.”) The request is otherwise unwarranted, as noted,

above. See n. 89.

120 R. Doc. 40-3, pp. 9, 23, 26, 35.

121 See Garvin v. Southwestern Correctional, L.L.C., 391 F. Supp. 3d 640, 654 (N.D. Tex. 2019) (“…the Fifth Circuit

has also stated that in general, constructive discharge requires a greater degree of harassment than that sufficient for a

hostile-work-environment claim….”) (citing Brown, 237 F.3d at 566 and Landgraf v. USI Film Prods., 968 F.2d 427,

430 (5th Cir. 1992), aff'd, 511 U.S. 244 (1994) (assuming without deciding that the Fifth Circuit had correctly decided

this issue) (other citation omitted).

122 Compare 13-2, p. 29 (“Bryson’s actions constitute payroll fraud by inflating his work hours.”) with R. Doc. 1, ¶ 6

(“In October 2024, Plaintiff suspended a Facility Manager with pay pending an internal investigation into payroll

fraud. This action was taken after Plaintiff … identified a pattern of suspicious ‘worked hours entries ….”) and R.

Doc. 40-1 (although P disputes that his actions warrant an exempt salary deduction, he does not challenge the

conclusion that his lack of oversight facilitated payroll fraud).

123 See, e.g., Brooks v. Houston Indep. Sch. Dist., 86 F. Supp. 3d 577, 589 (S.D. Tex. 2015) (“Even if Brooks’s

suspension was an adverse employment action, she has not raised a factual dispute as to whether HISD’s legitimate

nondiscriminatory reason for her suspension—her extensive disciplinary history and recent write-ups—was a pretext

Internal Audit’s findings regarding payroll fraud and the lack of adequate financial reporting, and

therefore has not shown that the suspension was a pretext for retaliation, which is his burden.124

Following his suspension, Plaintiff was reinstated to work in his same job title, with the

same job duties and responsibilities, at the same rate of pay, despite his emails raising complaints

of FLSA violations. There is no evidence that Plaintiff was treated harshly by anyone upon his

return to work, other than the allegation that, in one conversation, Jarvis asked Plaintiff about the

basis for Plaintiff’s request for leave without pay, in a hostile way.125 However, one hostile

conversation does not rise to the level of a hostile work environment.126 Rather, Plaintiff admits

that he sent several post-suspension emails lodging complaints, which were met with silence, not

actively hostile behavior.127

Plaintiff’s subjective belief of hostile behavior in the form of a “witch hunt” because his

camera access was taken away, Internal Audit handled his investigation, and BREC reinstated

Barrett, as well as Plaintiff’s inability to appeal, fail to show intolerable working conditions; rather,

for retaliation. The summary judgment evidence shows that Brooks was written up for violating work rules….”). See

also Guadalajara v. Honeywell Int’l, Inc., 224 F.Supp.3d 488, 509 (W.D. Tex. 2016) (“An employer produces a

legitimate, non-retaliatory reason for the purposes of the second stage of the McDonnell Douglas when it articulates

that an employee was terminated for violation of a company policy. See Crisp v. Sears Roebuck & Co., 628 Fed.Appx.

220, 224 (5th Cir. 2015); Irons v. Aircraft Serv. Int’l, Inc., 392 Fed.Appx. 305, 308–09, 312–13 (5th Cir.

2010)….”)(other citations omitted).

124 Saketkoo v. Administrators of Tulane Educational Fund, 31 F.4th 990, 1000 (5th Cir. 2022) (“If the plaintiff

establishes a prima facie case, then the employer has the burden of production to provide ‘a legitimate, non-

discriminatory reason’ for the adverse employment action.” Id. (quoting Patrick v. Ridge, 394 F.3d 311, 315 (5th Cir.

2004)). If the employer meets this burden, then the plaintiff has the burden to prove that the proffered reason is

pretextual.” Id. Again, the burden of persuasion remains with the employee throughout. See id.”).

125 R. Doc. 40-3, p. 9.

126 See Brown, 207 F.3d at 782 and Boze, 912 F.2d at 805-06, and see Pennsylvania State Police, 542 U.S. at 131

(“For an atmosphere of harassment or hostility to be actionable, the offending behavior must be sufficiently severe or

pervasive to alter the victim’s employment conditions and create an abusive working environment. Meritor Savings

Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49. A hostile-environment constructive discharge

claim entails something more: working conditions so intolerable that a reasonable person would have felt compelled

to resign.”).

127 Plaintiff states in the Complaint that, despite his multiple, post-suspension emails, his requests were “unreturned,”

and “not responded to,” and the substance was not addressed, until Plaintiff received Boykin’s March 25, 2025 email.

R. Doc. 1, ¶¶ 16-18.

they were all policy decisions.128 Similarly, Plaintiff’s subjective belief, or that of the attorney he

consulted, of a perceived lack of accountability by BREC for its executives’ decisions is Plaintiff’s

opinion, not evidence of a hostile work environment or retaliation. None of the foregoing actions

show an invidious intent to create intolerable working conditions so as to compel Plaintiff’s

resignation.

Finally, Plaintiff’s retaliation claim involving BREC’s state court lawsuit filed against

Plaintiff, which occurred post-employment and after Plaintiff filed his Complaint in this Court,

fails because Plaintiff never asserted this allegation in an amended Complaint. While Plaintiff filed

a “Notice” on August 1, 2025 regarding this issue, the Notice specifically states: “Plaintiff has

filed a Motion to Stay or Dismiss the state court proceedings on the grounds of abuse of process,

lis pendens, and preemption by federal claims. Plaintiff also reserves the right to seek leave to

amend the federal complaint to include this retaliatory conduct as an additional claim.”129

Although Plaintiff acknowledged the need to file an amended complaint and reserved the right to

seek leave to do so to assert the state court action as an additional claim of retaliation, Plaintiff

never sought leave to amend. Instead, Plaintiff chose to challenge BREC’s suit in state court.

Furthermore, and per his own acknowledgement, this is not a situation where Plaintiff was unaware

of the need to file an amended pleading or was unable to do so. Plaintiff is a prolific filer, and has

filed, and sought leave to file, several motions, oppositions, and replies.130 Thus, the issue of

128 Williams v. Lakeview Loan Servicing LLC, 694 F. Supp. 3d 874, 884 (S.D. Tex. 2023)(“…[c]onclu[sory]

allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation

do not adequately substitute for specific facts showing a genuine issue for trial.” U.S. ex rel. Farmer v. City of Houston,

523 F.3d 333, 337 (5th Cir. 2008) (citation omitted).”). Plaintiff also references a denial of due process (R. Doc. 40-

1, p. 5), but Plaintiff did not allege a cause of action for denial of due process in his Complaint.

129 R. Doc. 24, p. 3, ¶ 7.

130 R. Docs. 14, 16, 22, 25, 30, 33, 40, 44, and 52-55.

whether BREC’s state court lawsuit constitutes retaliation is not properly before the Court.131 Even

if it were, the Notice states that, in the state court suit, BREC seeks relief from Plaintiff for some

of the same actions underlying Plaintiff’s suspension.132 As such, BREC had an objectively

reasonable basis to bring the suit, at least on the suspension-related grounds, because Plaintiff was

found to have engaged in misconduct, involving misuse of public funds, following an

investigation.133 Again, Plaintiff does not deny the finding that an employee under his supervision

committed payroll fraud.

Because Plaintiff cannot establish a prima facie showing of a retaliation claim and/or

because there is no issue of fact that BREC had a legitimate, non-retaliatory reason for its actions,

Plaintiff’s retaliation claim also fails and summary judgment on this claims is also proper.

III. RECOMMENDATION AND ORDER

There is no genuine issue of material fact that Plaintiff’s unpaid suspension did not result

in the loss of his FLSA-exempt status. Additionally, there is no genuine issue of material fact that

Plaintiff was not subjected to unlawful retaliation by BREC.

Accordingly,

131 Santos v. Coleman World Grp., LLC, No. 16-195, 2017 WL 5474061, at *4 (W.D. Tex. Nov. 13, 2017) (“Ms.

Santos failed to plead any of the elements to an overtime or travel time claim in her complaint; indeed, her complaint

contains no explicit mentions of overtime or travel time compensation to put Coleman on notice that she was alleging

those claims. Accordingly, the Court finds that Ms. Santos is not entitled to relief on the overtime and travel time

claims she now asserts. See Cutrera v. Board of Sup’rs of Louisiana State University, 429 F.3d 108, 113 (5th Cir.

2005) (‘A claim which is not raised in the complaint but, rather, is raised only in response to a motion for summary

judgment is not properly before the court.’).”).

132 R. Doc. 24, p. 1, ¶ 2. The state court Petition is not in the record.

133 See Green, 2024 WL 250787 at *3 (to plead a claim of retaliation based on an employer’s lawsuit, “the court must

find (1) the employer acted with retaliatory motive and (2) that the employer’s counterclaims lack a reasonable basis

in fact or law”) (citing Ortiguerra, 2023 WL 3676793, at *5), and see Green at id., citing Aday v. Westfield Ins. Co.,

No. 21-3115, 2022 WL 203327, at *13 (6th Cir. Jan. 24, 2022) (“[A]n employer is not barred from filing a well-

grounded, objectively based action against an employee who has engaged in a protected activity.”) (other citation

omitted).

IT IS RECOMMENDED that the Motion for Summary Judgment,134 filed by Defendant

the Recreation and Park Commission for the Parish of East Baton Rouge, be GRANTED, and all

claims of Plaintiff Daniel J. Burg in this case be DISMISSED WITH PREJUDICE.

IT IS FURTHER RECOMMENDED that Defendant’s 29 C.F.R. § 541.602(a)(1)

argument in its Second Reply135 not be considered, and therefore, that the Motion for Leave to File

Sur-Reply,136 filed by Plaintiff Daniel J. Burg, which primarily seeks to address it, be DENIED.

Considering the recommendation for the dismissal of Plaintiff Daniel J. Burg’s claims, IT

IS ORDERED that all other pending Motions137 be TERMINATED without prejudice to

reurging, if the case is not dismissed.

IT IS FURTHER ORDERED that the Clerk of Court is directed to docket BREC’s Reply

to Plaintiff’s Amended Statement of Disputed Material Facts138 into the record of this matter.

IT IS FURTHER ORDERED that a copy of this Report and Recommendation be mailed

to Plaintiff Daniel J. Burg to his address of record on PACER by regular mail and certified mail,

return receipt requested.

Signed in Baton Rouge, Louisiana on March 11, 2026.

S

ERIN WILDER-DOOMES

UNITED STATES MAGISTRATE JUDGE

134 R. Doc. 13.

135 R. Doc. 56, the middle of p. 2, and the bottom of p. 4 to the middle of p. 5.

136 R. Doc. 54.

137 R. Docs. 45, 48.

138 R. Doc. 49-3.