Craven v. Canal Barge Co Inc , 135 F. App'x 632 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 11, 2004
Charles R. Fulbruge III
Clerk
No. 04-30379
Summary Calendar
BENJAMIN L. CRAVEN, on Behalf of Himself, Individually, and on
Behalf of All Those Similarly Situated,
Plaintiff-Appellant,
versus
CANAL BARGE COMPANY, INC.,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:03-CV-536-K
--------------------
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Benjamin Craven (Craven) appeals a partial summary judgment
under FED. R. CIV. P. 54(b) dismissing Louisiana law claims
pertaining to the “Accumulated Time Off” (ATO) pay system used by
Canal Barge Company (Canal). On his own behalf, Craven alleged
violations of the Fair Labor Standards Act, 29 U.S.C. § 201, et
seq. (FLSA). On behalf of a proposed class of past and present
Canal employees, he alleged losses due to Canal’s ATO system.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-30379
-2-
Under Canal’s ATO plan, an employee may work for 30 days and
be off for 15 or 30 days, but part of his pay is deferred so that
he is paid during the time he is not working. Craven contends
that the district court erred by concluding that Canal’s ATO plan
was not illegal on its face as matter of law. Craven’s claim
rests on the proposition that he was entitled to interest on
deferred wages or that the wages should not have been deferred.
He cites to no authority, and this court has found none,
requiring that wages for persons in his occupation must be paid
within any particular time or that interest is due on deferred
wages. The only statute applicable to Craven concerns the
payment of wages after termination, an issue addressed below.
See LA. REV. STAT. ANN. § 23:631.
The legality of deferred wage plans analogous to Canal’s has
not been directly addressed but no case discussing such systems
has declared them illegal. See Morel v. Sabine Towing & Transp.
Co., 669 F.2d 345, 347 (5th Cir. 1982) (noting that an
accumulated paid leave plan is a well-recognized method of
deferred wage payment) (citing Shaw v. Ohio River Co., 526 F.2d
193, 199 (3d Cir. 1975)); Lipscomb v. Foss Maritime Co., 83 F.3d
1106, 1109-10 (9th Cir. 1996) (“ATO . . . is a way of deferring
wages so that the seaman receives compensation during the time he
is not on board ship.”); cf. also Thomas-Young v. Allen Parish
School Bd., 780 So. 2d 1273, 1278 (La. Ct. App. 2001) (noting
that “teachers are employed on a nine-month basis, although their
No. 04-30379
-3-
salaries are divided and paid out over twelve months” and that
“the teachers have no choice in the manner in which they receive
their salaries”); Brounette v. East Baton Rouge Parish School
Bd., 610 So. 2d 979, 980 (La. Ct. App. 1992) (noting that parish
school employees were classified as annual salaried employees
with the option of having their pay deferred over twelve months).
Without deciding whether or under what circumstances a deferral
of wages might be unlawful, we conclude that Craven fails to show
that Canal’s ATO plan is illegal on its face as a matter of law.
Craven contends that there are contested issues of material
fact with respect to his state-law claims of “conversion,”
“alienation of a thing not owed [sic],” “enrichment without
cause,” and “breach of duty of performance and standard of care”
(collectively “ATO claims”), in addition to the statutory claim
for late payment. Specifically, Craven argues that there are
genuine issues of facts as to whether he consented to
participation in the ATO system and whether he had was deprived
of access to the funds.
The district court determined that Craven had presented no
summary-judgment evidence to show that he or other Canal
employees did not consent to participation in the ATO pay plan.
Canal provided uncontested evidence that it explained the ATO
system to Craven and its other new employees, that Canal provides
employees with monthly print-outs of their ATO balances, and that
Craven acknowledged that he had been informed of the ATO system
No. 04-30379
-4-
and had no objections to it. It is also uncontested that, in
lieu of deferred payment, Craven withdrew ATO funds several times
while employed by Canal. Craven declares that he had incomplete
knowledge of the ATO system, but he does not explain how this
allegedly limited knowledge was material to his consent. His
conclusional allegations and improbable inferences are
insufficient to create a genuinely contested issue of fact as to
consent. See Michaels v. Avitech, Inc., 202 F.3d 746, 754-55
(5th Cir. 2000).
The district court similarly rejected Craven’s contention of
restricted access to ATO funds. Canal presented unchallenged
documentary evidence showing that Craven had withdrawn ATO funds
several times. Canal’s vice president testified by affidavit
that employees have unlimited access to deferred funds and can
even withdraw funds that they have not yet earned. Craven
offered only conclusional statements that he and other employees
did not have unrestricted access to the deferred funds. He
specifically alleged only a single instance in which another
employee’s access to funds was temporarily restricted. This is
insufficient to create a genuinely contested issue of fact to
defeat summary judgment. See Michaels, 202 F.3d at 754-55(conclusional allegation, improbable inference, or “mere
scintilla” of evidence insufficient to defeat summary judgment).
Craven’s consent and his access to ATO funds are each fatal
to his conversion claim. Based on the substance of Craven’s
No. 04-30379
-5-
allegations, we treat the “alienation of a thing not owed” claim
as merely a duplication of the conversion claim. A Louisiana
civil-law action for conversion is a tort action “grounded on the
unlawful interference with the ownership or possession of a
movable.” Dual Drilling Co. v. Mills Equipment Investments,
Inc., 721 So. 2d 853, 857 (La. 1998). Craven did not carry his
burden of showing lack of consent with respect to the claim. See
Landry v. Bellanger, 851 So. 2d 943, 954 (La. 2003) (tort
plaintiff’s burden of showing no consent). Further, Craven’s
access to his funds shows that Canal did not interfere with his
ownership or possession of the funds. See Dual Drilling, 721
So. 2d at 857.
In addition, the conversion claim is untimely, having been
filed almost a year after the one-year prescriptive period
expired. See LA. CIV. CODE ANN. ARt. 3492; Charbonnet v. Spalitta,
747 So. 2d 1155, 1158 (La. Ct. App. 1999). Craven’s vague and
unsupported assertion that he was not aware of the conversion for
“approximately one year” does not carry his burden of rebutting
the facial showing of prescription by “clear, specific and
positive” evidence. See Lake Providence Equipment Co. v.
Tallulah Production Credit Ass’n, 241 So. 2d 506, 508-09 (La.
1970).
Craven’s consent and his access to ATO funds are each also
fatal to his claim that Canal was enriched without cause by the
deferral of wage payments. “A person who has been enriched
No. 04-30379
-6-
without cause at the expense of another person is bound to
compensate that person.” LA. CIV. CODE ART. 2298. The action for
unjust enrichment rests on equitable principles in the absence of
an available contractual or other legal remedy. See Minyard v.
Curtis Products, Inc., 205 So. 2d 422, 426-27, 431-33 (1967). A
plaintiff must prove (1) enrichment; (2) impoverishment; (3) a
connection between the two; and (4) an absence of justification.
Id. at 432. The plaintiff must have no other remedy available at
law. Id. at 432-33.
Craven’s access to his funds shows that he was not
impoverished, and his consent to contract with Canal for labor in
exchange for ATO wages obviates the quasi-contractual remedy of
unjust enrichment. See Marple v. Kurzweg, 902 F.2d 397, 401 (5th
Cir. 1990) (noting that the remedy of unjust enrichment may not
supplant a contract); Morphy, Makofsky & Masson, Inc. v. Canal
Place 2000, 538 So. 2d 569, 573 (La. 1989) (contract may rest on
implied consent to contract); see also Charrier v. Bell, 496 So.
2d 601, 606-07 (La. Ct. App. 1986) (no claim for unjust
enrichment where plaintiff acted “knowingly and at his own
risk”). Summary judgment was proper on this claim.
Craven alleged that Canal breached a duty of care to
maintain its employees’ “earned wages with prudence and
diligence.” However, Craven cites to no evidence or specific
factual allegation to show that any implied or express agency
relationship was created. Further, he offers no evidence or
No. 04-30379
-7-
legal authority to show that any particular standard of care was
breached. Craven presents no genuinely contested issue of
material fact relevant to the unjust-enrichment claim.
Craven alleged that Canal failed to pay all of the final
wages due him within 15 days of the end of his employment. To
the extent this claim is not a part of the disputed FLSA overtime
claim, the only unpaid wage remaining in Craven’s ATO account was
one cent. De minimis non curat lex instructs that there is no
reasonable basis for going to trial for one cent in late-paid
wages. See United States v. Wilkes, 946 F.2d 1143, 1152 (5th
Cir. 1991). Summary judgment was proper on this claim.
The judgment of the district court is
AFFIRMED.