Lassalle v. State , 307 Neb. 221 ( 2020 )


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    Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    LASSALLE v. STATE
    Cite as 
    307 Neb. 221
    Brian Lassalle, and all others similarly situated,
    appellant, v. State of Nebraska and State of
    Nebraska, acting through the Nebraska
    Department of Health and Human
    Services, et al., appellees.
    ___ N.W.2d ___
    Filed September 18, 2020.   No. S-19-810.
    1. Summary Judgment: Appeal and Error. An appellate court affirms a
    lower court’s grant of summary judgment if the pleadings and admitted
    evidence show that there is no genuine issue as to any material facts or
    as to the ultimate inferences that may be drawn from the facts and that
    the moving party is entitled to judgment as a matter of law.
    2. ____: ____. An appellate court reviews the district court’s grant of sum-
    mary judgment de novo, viewing the record in the light most favorable
    to the nonmoving party and drawing all reasonable inferences in that
    party’s favor.
    3. Contracts. The interpretation of a contract and whether the contract is
    ambiguous are questions of law.
    4. Judgments: Appeal and Error. An appellate court independently
    reviews questions of law decided by a lower court.
    5. Employer and Employee: Employment Contracts: Wages. A pay-
    ment will be considered a wage subject to the Nebraska Wage Payment
    and Collection Act if (1) it is compensation for labor or services, (2)
    it was previously agreed to, and (3) all the conditions stipulated have
    been met.
    6. Contracts. When the terms of a contract are clear, a court may not
    resort to rules of construction, and the terms are to be accorded their
    plain and ordinary meaning as an ordinary or reasonable person would
    understand them.
    7. ____. A contract must receive a reasonable construction and must be
    construed as a whole, and if possible, effect must be given to every part
    of the contract.
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    8. ____. A court is not free to rewrite a contract or to speculate as to terms
    of the contract which the parties have not seen fit to include.
    9. Contracts: Intent. A court should avoid interpreting contract provisions
    in a manner that leads to unreasonable or absurd results that are obvi-
    ously inconsistent with the parties’ intent.
    10. Contracts. Extrinsic evidence is not permitted to explain the terms of a
    contract that is unambiguous.
    11. Moot Question. A case becomes moot when the issues initially pre-
    sented in the litigation cease to exist, when the litigants lack a legally
    cognizable interest in the outcome of litigation, or when the litigants
    seek to determine a question which does not rest upon existing facts or
    rights, in which the issues presented are no longer alive.
    Appeal from the District Court for Lancaster County: John
    A. Colborn, Judge. Affirmed.
    Kathleen M. Neary and Vincent M. Powers, of Powers Law,
    and R. Joseph Barton and Vincent Cheng, of Block & Leviton,
    L.L.P., for appellant.
    Douglas J. Peterson, Attorney General, and Stephanie
    Caldwell for appellees.
    Heavican, C.J., Miller-Lerman, Stacy, Funke, Papik, and
    Freudenberg, JJ.
    Papik, J.
    On several occasions between 2016 and 2019, Brian
    Lassalle, an employee of the Nebraska Department of Health
    and Human Services (DHHS), sought to take and be paid for
    leave hours during pay periods in which he also worked his
    full complement of hours. When DHHS did not allow him to
    do so, he brought an action against the State alleging various
    claims, including a violation of the Nebraska Wage Payment
    and Collection Act (NWPCA), see Neb. Rev. Stat. §§ 48-1228
    to 48-1234 (Reissue 2010, Cum. Supp. 2018 & Supp. 2019).
    He also filed a motion for class certification in which he asked
    to represent a class of similarly situated DHHS employees.
    The district court entered summary judgment in favor of
    the State and denied Lassalle’s motion for class certification
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    LASSALLE v. STATE
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    as moot. Finding no error on the part of the district court,
    we affirm.
    BACKGROUND
    Lassalle’s Allegations.
    Since 1993, Lassalle has worked for DHHS as a security
    specialist and medication aide at the Lincoln Regional Center.
    Lassalle receives pay every 2 weeks and is paid by the hour.
    As a term of his employment, Lassalle receives paid vacation,
    sick, and bereavement leave.
    In this case, Lassalle sought to bring an action on behalf
    of himself and other DHHS employees against the State of
    Nebraska. He alleged that beginning in July 2016, DHHS
    refused to pay him and other employees for certain vacation,
    sick, and bereavement leave hours that were approved by
    supervisors and recorded by the employees. Lassalle asserted
    that this happened because in July 2016, DHHS began prohib-
    iting employees from taking and being paid for leave hours to
    the extent that use would cause the employee to exceed more
    than 40 hours per week if paid weekly or more than 80 hours
    every 2 weeks if paid on that basis. According to Lassalle, he
    had previously been paid for leave time during pay periods in
    which he recorded more than 80 hours of work and leave time.
    Lassalle alleged that the refusal to pay him for the leave hours
    at issue violated the NWPCA; the State Tort Claims Act, see
    Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2014, Cum.
    Supp. 2018 & Supp. 2019); and the State Contract Claims Act,
    Neb. Rev. Stat. §§ 81-8,302 to 81-8,306 (Reissue 2014).
    Motions for Class Certification.
    Early in the case, Lassalle filed a motion for class certifica-
    tion. Lassalle defined the class as:
    All current and former full-time non-exempt employ-
    ees of [DHHS]
    (a) who work at one or more of the following facili-
    ties: the Lincoln Regional Center, Norfolk Regional
    Center, Hastings Regional Center, Whitehall Psychiatric
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    LASSALLE v. STATE
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    Residential Treatment Facility, Kearn[e]y Youth Reha­
    bilitation & Treatment Center, Geneva Youth Rehabilita­
    tion & Treatment Center, and Beatrice State Department
    Center (collectively “the Facilities”); or
    (b) who took paid vacation or sick leave on or after
    June 27, 2016[,] while they worked at any of the Facilities
    and have not been compensated for all the hours corre-
    sponding to such leave.
    The district court overruled Lassalle’s motion for class
    certification. The court reasoned that although the class was
    sufficiently numerous, a potential conflict of interest existed
    between class members, because if Lassalle prevailed, cer-
    tain class members who might prefer to keep rather than use
    accrued leave would lose the chance to do so. Alternatively,
    the district court found that class certification should be denied
    because whether and to what extent any class member would
    be entitled to recover would be subject to varying proof.
    Lassalle filed a second amended complaint in which he
    attempted to address the potential conflict of interest found
    by the district court. The second amended complaint asked
    that the district court order that class members be allowed to
    elect whether they wished to receive back wages or to retain
    their accrued leave. Lassalle later filed a renewed motion for
    class certification.
    Summary Judgment.
    Prior to the district court’s ruling on Lassalle’s renewed
    motion for class certification, the State filed a motion for sum-
    mary judgment. The district court held one hearing in which
    it received evidence and heard argument on both motions. We
    summarize certain evidence offered in support of and in oppo-
    sition to the State’s motion for summary judgment below.
    The district court received two labor contracts between the
    State and the union representing the bargaining unit to which
    Lassalle belonged. The first labor contract applied between
    July 1, 2015, and June 30, 2017, and the second applied
    between July 1, 2017, and June 30, 2019. There was no dispute
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    that these contracts set forth the terms and conditions of
    Lassalle’s employment.
    The relevant provisions of the labor contracts were substan-
    tially the same. Each labor contract stated that it “supersedes
    and cancels all prior practices and agreements, whether written
    or oral, unless expressly stated to the contrary,” and “­constitutes
    the complete and entire agreement between the parties.”
    In both labor contracts, the State reserved the right “to oper-
    ate and direct the employees of the State . . . to the extent that
    such rights do not violate its legal authority, and to the extent
    such rights are not modified by [the contracts].” The labor con-
    tracts provided that those rights included “[t]he right to adopt,
    modify, change, enforce, or discontinue any existing rules,
    regulations, procedures or policies.”
    The labor contracts also contained provisions concerning
    employees’ right to paid leave. Under the labor contracts,
    employees earned vacation and sick leave according to the
    duration of their employment. Another provision stated that
    employees may be granted up to 5 days of bereavement leave
    in the event of a death in the employee’s immediate family. A
    provision of the labor contracts pertaining to overtime work
    provided that, with an exception not relevant to Lassalle, “holi-
    days shall be considered as work hours for overtime purposes,”
    but that “[l]eave time (vacation, sick, etc.) shall not be consid-
    ered as hours worked.”
    Under the labor contracts, employees received a lump-sum
    payment for any unused vacation leave upon separation of
    employment. The labor contracts also provided, however, that
    employees forfeit any accumulated vacation time in excess
    of 35 days at the end of each year. The contracts provided
    that “[v]acation leave should be applied for in advance by the
    employee and may be used only when approved by the Agency
    Head and/or his/her Designee. Vacation leave may not be unrea-
    sonably denied or deferred so that the employee is deprived of
    vacation rights.” The labor contract in effect between July 1,
    2017, and June 30, 2019, contained an additional provision
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    obligating the employing agency “to provide reasonable oppor-
    tunity for a State employee to use rather than forfeit accumu-
    lated vacation leave.” Under that provision, if an employee
    made a reasonable request to use vacation leave before the
    leave must be forfeited and that request was denied, the State
    was obligated to pay the employee the cash equivalent of the
    forfeited and denied vacation leave.
    Both labor contracts provided that all sick leave was for-
    feited upon separation from employment, except that employ-
    ees age 55 and older and certain other employees were entitled,
    upon separation, to a payment equivalent to one-quarter of
    their accumulated sick leave not to exceed 480 hours. The
    labor contracts contained no provision regarding payouts for
    unused bereavement leave, and the parties agree that unused
    bereavement leave was forfeited at the end of each year. The
    labor contracts provided that bereavement leave “will not be
    unreasonably denied.”
    In addition to the labor contracts, the district court received
    evidence regarding a DHHS policy concerning the use of
    leave. The district court received an affidavit of DHHS’ chief
    of staff, in which she stated the following:
    Since at least 2013, it has been the policy of the DHHS
    that employees are only allowed to report more than 40
    hours of time in a single work period (or more than 80
    hours in a two-week work period) when actually work-
    ing overtime. DHHS hourly employees are not allowed to
    use leave time to exceed 40 hours in a single work period
    or 80 hours in a two-week work period. For example, an
    employee that works a 40 hour work week cannot report
    35 hours of work and 8 hours of leave time. Only 5 hours
    of leave time may be used in this situation.
    Other employees of DHHS also testified as to this policy.
    Additionally, the policy was reflected in a document received
    by the district court entitled “KRONOS Quick Start Guide for
    Employees” (KRONOS guide). KRONOS is a time and attend­
    ance software used by DHHS to track employees’ worktime
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    LASSALLE v. STATE
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    and leave usage. The KRONOS guide, which indicated it was
    updated in 2013, provided:
    Employees are only allowed to report more than 40
    hours of time in a single week when working overtime.
    Employees are not allowed to use leave time to exceed
    40 hours in the week. For example, an employee cannot
    report 35 hours of work and 8 hours of vacation. Only 5
    hours of vacation may be used in this situation.
    The district court also received evidence that it came to
    the attention of DHHS in 2016 that at some DHHS facilities,
    including the Lincoln Regional Center, some employees were
    recording and being paid for leave time in excess of the total
    hours allowed in the employees’ pay periods. In response to
    that information, on June 8, 2016, the deputy human resources
    director at DHHS emailed a memorandum to all DHHS super-
    visors. The memorandum stated that “[e]mployees cannot have
    more than 40 hours in any work week unless they have physi-
    cally worked more than 40 hours.” (Emphasis in original.)
    It went on to provide a similar example to the one noted in
    the KRONOS guide: “If an employee works 34 hours in a
    week, and submits a leave request for 8 hours—the supervi-
    sor should only approve 6 hours.” The district court also
    received as an exhibit a document indicating that on July 13,
    Lassalle, along with others, was forwarded an email from
    human resources staff at the Lincoln Regional Center stating
    that if a full-time employee actually worked 80 hours, paid
    leave was unavailable.
    The district court also received at the summary judgment
    hearing interrogatory answers of Lassalle in which he identi-
    fied 11 different days between September 2016 and January
    2019 on which he claimed that his supervisor approved and
    he took and recorded vacation, sick, or bereavement leave but
    was denied pay. According to Lassalle, he was denied approxi-
    mately $1,300 as a result of DHHS’ refusal to allow him to
    take and be paid for the leave at issue.
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    District Court Order on Summary Judgment
    and Class Certification.
    The district court issued an order in which it sustained the
    State’s motion for summary judgment and overruled Lassalle’s
    motion for class certification. The district court addressed the
    State’s summary judgment motion first. In analyzing Lassalle’s
    NWPCA claim, the district court considered the labor contracts
    and found that they contained no agreement to pay Lassalle
    for leave time exceeding 80 hours in a pay period. Without
    evidence of such an agreement, the district court concluded
    the State was entitled to judgment as a matter of law on his
    NWPCA claim. The district court also found the State was
    entitled to summary judgment on Lassalle’s claims under the
    State Tort Claims Act and the State Contract Claims Act.
    In light of its finding that the State was entitled to summary
    judgment, the district court determined that Lassalle’s renewed
    motion for class certification was moot. Even so, the district
    court, “for the sake of judicial efficiency,” went on to explain
    why it would overrule the motion for class certification even
    if it had not entered summary judgment against Lassalle. It
    stated that although Lassalle had attempted to remedy the
    issues the district court identified when it denied his initial
    motion for class certification, Lassalle did not explain why the
    evidence and argument he relied upon were not offered at the
    time of the first motion. The district court also noted that it
    believed class certification at that point would result in unac-
    ceptable delay.
    ASSIGNMENTS OF ERROR
    Lassalle assigns 12 errors on appeal, all of which relate to
    the entry of summary judgment in favor of the State and the
    denial of his motion for class certification. He assigns, consoli-
    dated and restated, that the district court erred in (1) sustain-
    ing the State’s motion for summary judgment on his NWPCA
    claim and (2) denying his motions for class certification.
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    LASSALLE v. STATE
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    STANDARD OF REVIEW
    [1,2] An appellate court affirms a lower court’s grant of
    summary judgment if the pleadings and admitted evidence
    show that there is no genuine issue as to any material facts or
    as to the ultimate inferences that may be drawn from the facts
    and that the moving party is entitled to judgment as a matter of
    law. Drought v. Marsh, 
    304 Neb. 860
    , 
    937 N.W.2d 229
    (2020).
    An appellate court reviews the district court’s grant of sum-
    mary judgment de novo, viewing the record in the light most
    favorable to the nonmoving party and drawing all reasonable
    inferences in that party’s favor. Pitts v. Genie Indus., 
    302 Neb. 88
    , 
    921 N.W.2d 597
    (2019).
    [3,4] The interpretation of a contract and whether the con-
    tract is ambiguous are questions of law. Timberlake v. Douglas
    County, 
    291 Neb. 387
    , 
    865 N.W.2d 788
    (2015). An appellate
    court independently reviews questions of law decided by a
    lower court. Fisher v. PayFlex Systems USA, 
    285 Neb. 808
    ,
    
    829 N.W.2d 703
    (2013).
    ANALYSIS
    NWPCA Claim.
    As mentioned above, Lassalle asserted multiple theories of
    recovery in the district court. On appeal, however, Lassalle
    challenges only the entry of summary judgment in favor of
    the State on his NWPCA claim. We thus limit our analysis to
    that claim.
    Before turning to the NWPCA itself, however, we pause to
    clarify the basis of Lassalle’s claim and to identify the issues
    that are in dispute. As explained above, Lassalle contends that
    during several pay periods between 2016 and 2019, he sought
    to take and be paid for leave time even though the combined
    total of his work and leave hours exceeded 80. This apparently
    came about as a result of Lassalle’s receiving approval to take
    time off on days he was scheduled to work, but also agree-
    ing to work additional hours at other times during the same
    pay period. Lassalle would then record both a full 80 hours
    of work and the additional leave hours. The State does not
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    dispute that it did not pay Lassalle for leave hours to the extent
    they exceeded 80 hours on those occasions.
    Lassalle makes a number of concessions as well. He does
    not dispute that DHHS never denied him pay for hours he
    worked and that in each of the instances in which DHHS did
    not permit him to take or be paid for leave, it did not deduct
    those hours from his leave balances. Lassalle also admits that
    he had never lost or forfeited any vacation or sick leave under
    the labor contracts. The issue in this case is thus whether the
    State violated the NWPCA when it refused to permit Lassalle
    to take and be paid for leave hours when doing so would cause
    him to exceed 80 hours of work and leave during a pay period.
    With that background established, we turn to the NWPCA.
    [5] The NWPCA essentially permits an employee to sue his
    or her employer if the employer fails to pay the employee’s
    wages as they become due. Pick v. Norfolk Anesthesia, 
    276 Neb. 511
    , 
    755 N.W.2d 382
    (2008). “Wages” are defined as
    “compensation for labor or services rendered by an employee,
    including fringe benefits, when previously agreed to and con-
    ditions stipulated have been met by the employee, whether the
    amount is determined on a time, task, fee, commission, or other
    basis.” § 48-1229(6). On the basis of this statutory language,
    we have held that a payment will be considered a wage subject
    to the NWPCA if (1) it is compensation for labor or services,
    (2) it was previously agreed to, and (3) all the conditions stipu-
    lated have been met. Pick v. Norfolk 
    Anesthesia, supra
    .
    It is clear that sick and vacation leave plans like those pro-
    vided under the labor contracts qualify as compensation for
    labor or services. The NWPCA specifically provides that sick
    and vacation leave plans are “fringe benefits” and thus included
    within the act’s definition of “wages.” See § 48-1229(4). See,
    also, Timberlake v. Douglas County, 
    291 Neb. 387
    , 
    865 N.W.2d 788
    (2015).
    But establishing that the leave benefits qualify as compen-
    sation for labor or services proves only the first element of
    an NWPCA claim. In order to prove the other two elements,
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    Lassalle was also required to show that the State previously
    agreed to pay him for the leave at issue and that all the con-
    ditions stipulated to receive that pay were met. It was here
    that the district court found that Lassalle’s NWPCA claim fell
    short: it found that the State did not agree in the labor contracts
    that it would pay Lassalle for vacation, sick, or bereavement
    leave to the extent doing so would allow Lassalle to be paid
    for more than 80 hours during a pay period. Lassalle offers a
    number of reasons why he believes this was erroneous, but, as
    we will explain, we are not persuaded.
    Lassalle first argues that the district court erred by giving
    any consideration to whether there was a prior agreement to
    pay him for the leave at issue. Lassalle asserts that under the
    NWPCA, the question of whether there was an agreement to
    pay compensation is an issue of fact that should not have been
    resolved at summary judgment. We disagree. Lassalle brought
    his claim under the NWPCA, but he alleged in his operative
    complaint that his right to payment arose out of the labor con-
    tracts. When, as here, a party’s NWPCA claim is premised on
    a written contract, the meaning of that contract may present a
    question of law to be decided by the court. As we have previ-
    ously observed, “[i]n virtually every case brought under the
    [NWPCA], the employee and the employer dispute whether
    wages are owed based on an existing contract or agreement of
    some sort. The court then determines which party’s interpre-
    tation of the agreement is correct.” Professional Firefighters
    Assn. v. City of Omaha, 
    290 Neb. 300
    , 307, 
    860 N.W.2d 137
    ,
    142 (2015). A court may make such a determination because
    the meaning of an unambiguous contract is a question of law.
    See Kasel v. Union Pacific RR. Co., 
    291 Neb. 226
    , 
    865 N.W.2d 734
    (2015). That is what we understand the district court to
    have done here.
    [6-9] Neither do we agree with Lassalle that the district
    court was incorrect when it determined that the labor contracts
    did not contain an agreement to pay Lassalle for leave hours
    in excess of 80 hours in a pay period. In reviewing the district
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    court’s interpretation of the labor contracts, we are guided by
    familiar principles. When the terms of a contract are clear,
    a court may not resort to rules of construction, and the terms
    are to be accorded their plain and ordinary meaning as an
    ordinary or reasonable person would understand them. Coffey
    v. Planet Group, 
    287 Neb. 834
    , 
    845 N.W.2d 255
    (2014). A
    contract must receive a reasonable construction and must be
    construed as a whole, and if possible, effect must be given
    to every part of the contract. Kercher v. Board of Regents,
    
    290 Neb. 428
    , 
    860 N.W.2d 398
    (2015). A court is not free to
    rewrite a contract or to speculate as to terms of the contract
    which the parties have not seen fit to include. Ray Anderson,
    Inc. v. Buck’s, Inc., 
    300 Neb. 434
    , 
    915 N.W.2d 36
    (2018). A
    court should avoid interpreting contract provisions in a manner
    that leads to unreasonable or absurd results that are obviously
    inconsistent with the parties’ intent. Timberlake v. Douglas
    County, 
    291 Neb. 387
    , 
    865 N.W.2d 788
    (2015).
    Lassalle cannot point to any provision in the labor contracts
    in which the State agreed that employees could take and be
    paid for leave hours in addition to being compensated for a
    fully worked pay period. The labor contracts did provide that
    “[v]acation leave may not be unreasonably denied or deferred
    so that the employee is deprived of vacation rights.” This pro-
    vision, however, does not give employees a right to use vaca-
    tion leave in any manner they choose or a right to be paid for
    vacation leave during pay periods in which they actually work
    a full schedule. In any event, we do not see how this provision
    could be of any assistance to Lassalle, because it refers only
    to employees who are denied vacation leave and are thereby
    deprived of vacation rights. Lassalle acknowledges that he has
    never forfeited any vacation leave.
    The provision in the contracts stating that “[b]ereavement
    leave will not be unreasonably denied” is also of no assistance
    to Lassalle. Like the language regarding vacation leave, this
    provision does not reflect an agreement that employees will be
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    paid for bereavement leave to the extent it would cause them
    to exceed their normal paid hours during a pay period.
    The labor contracts did contain a provision that made clear
    that leave time was not to be counted as hours worked for
    overtime purposes. The district court relied on this provision
    in the course of concluding that there was no agreement to pay
    Lassalle for the leave time at issue. Lassalle criticizes the dis-
    trict court’s reliance on this provision, arguing that it is irrel-
    evant because he did not claim an entitlement to overtime pay.
    But even if Lassalle is correct that the labor contracts’ overtime
    provisions do not directly address his claim, it remains true that
    no provision of the labor contracts, outside of those dealing
    with overtime, refers to employees’ right to be paid for more
    than 40 hours if paid weekly or more than 80 hours if paid
    every 2 weeks.
    Not only did the labor contracts not contain any language
    suggesting an agreement to pay employees leave time in a pay
    period in which they worked a full schedule, they contained
    language giving DHHS the authority to enforce its policy pro-
    hibiting employees from using leave time in this fashion. As
    noted above, in the labor contracts, the State reserved the right
    to direct employees “to the extent such rights [were] not modi-
    fied by [the labor contracts],” and that this included the “right
    to adopt, modify, change, enforce, or discontinue any existing
    rules, regulations, procedures, or policies.”
    Because the labor contracts contained no provision guaran-
    teeing employees the right to use leave time to the extent that
    doing so would cause them to exceed their normal hours during
    a pay period, the State could, within the terms of the labor con-
    tracts, enforce its policy prohibiting employees from doing so.
    And while Lassalle strives to create a genuine issue of material
    fact regarding the policy, we do not see one. Lassalle princi-
    pally points to deposition testimony from a longtime DHHS
    payroll processor that she had to change the way she processed
    payroll in response to DHHS’ June 2016 memorandum regard-
    ing the usage of leave time. This testimony is undoubtedly
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    evidence that DHHS did not consistently enforce its policy
    prior to June 2016, but that point is not in question. We do not
    believe this evidence creates a genuine dispute of material fact
    as to whether such a policy existed or that the labor contracts
    authorized DHHS to enforce it.
    Lassalle also argues that the State could not enforce its
    policy in the instances at issue, because a supervisor approved
    his taking of leave, he did not work on the days leave was
    approved, and he recorded that leave on his timesheets. He
    apparently takes the position that the State agreed to pay leave
    when those conditions were met. But while those steps may
    be necessary conditions to an employee’s receiving leave pay
    under the labor contracts, Lassalle points to nothing in the
    labor contracts that provides those are sufficient conditions to
    receiving leave pay.
    In the instances at issue, Lassalle may have received super-
    visor approval to miss work on a particular day he was sched-
    uled, but under the policy adopted by DHHS—which, as we
    have discussed above, the labor contracts authorized it to
    enforce—he was not permitted to use leave time to the extent
    it would cause his total hours to exceed 80 in a pay period.
    Further, there is no dispute that DHHS did not, in fact, deduct
    any leave hours from Lassalle’s accumulated totals in the
    instances at issue. So while Lassalle may not have received
    leave pay for some days in which his supervisor approved his
    absence from work, he did not actually use leave hours on
    those days either. There is nothing in the labor contracts indi-
    cating that employees could, prior to separation from employ-
    ment and during a pay period in which they were compensated
    for a full 80 hours, also receive pay for leave hours that were
    not used.
    [10] Lassalle makes other arguments that the district court
    erred by granting summary judgment on his NWPCA claim,
    but in light of our conclusion that the district court correctly
    concluded that the labor contracts contained no agreement to
    pay him for the leave at issue, they can be dispensed with
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    quickly. Lassalle argues, for example, that the district court
    ignored deposition testimony of certain current and former
    state employees. He argues that this testimony was favorable
    to his position there was an agreement to pay him for the leave
    at issue and that by not addressing it, the district court failed
    to view the evidence in the light most favorable to him as the
    nonmoving party. Although we understand much of the tes-
    timony Lassalle relies upon to recognize only a general right
    of state employees to accrue and use leave benefits, it is not
    necessary for us to parse that testimony in detail, because it is
    extrinsic to the labor contracts. Extrinsic evidence is not per-
    mitted to explain the terms of a contract that is unambiguous.
    Ray Anderson, Inc. v. Buck’s, Inc., 
    300 Neb. 434
    , 
    915 N.W.2d 36
    (2018).
    Finally, Lassalle argues that the district court erred by
    focusing exclusively on the labor contracts. In both his briefs
    and at oral argument, Lassalle emphasized that he brought an
    NWPCA claim and not a claim for breach of the labor con-
    tracts. But as we have discussed, to prevail on an NWPCA
    claim, the employee must show an agreement to pay the wages
    at issue, and Lassalle alleged that the labor contracts contained
    such an agreement. Given this allegation, we cannot fault the
    district court for analyzing the labor contracts to determine
    if they contained an agreement that would support Lassalle’s
    NWPCA claim. Further, Lassalle has not identified any other
    agreement in which the State committed to pay him for leave
    under the circumstances at issue here.
    The district court did not err by concluding as a matter of
    law that there was no prior agreement to pay Lassalle for the
    leave at issue and sustaining the State’s motion for summary
    judgment on Lassalle’s NWPCA claim.
    Class Certification.
    Lassalle also argues that the district court erred when it
    overruled his motion for class certification. The district court
    concluded that because it sustained the State’s motion for
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    summary judgment, Lassalle’s motion for class certification
    was moot. We agree.
    [11] A case becomes moot when the issues initially pre-
    sented in the litigation cease to exist, when the litigants lack a
    legally cognizable interest in the outcome of litigation, or when
    the litigants seek to determine a question which does not rest
    upon existing facts or rights, in which the issues presented are
    no longer alive. State v. Dunster, 
    278 Neb. 268
    , 
    769 N.W.2d 401
    (2009). Lassalle sought to represent a class of DHHS
    employees in an action against the State, but because the State
    was entitled to summary judgment on those claims, he could
    no longer do so. The class certification issue was moot. See,
    e.g., Spaulding v. United Transp. Union, 
    279 F.3d 901
    (10th
    Cir. 2002) (holding that entry of summary judgment in favor of
    defendants mooted plaintiffs’ argument that district court erred
    in denying motion for class certification); Jibson v. Michigan
    Educ. Ass’n-NEA, 
    30 F.3d 723
    , 734 (6th Cir. 1994) (“because
    we affirm the district court’s grant of [the defendant’s] motion
    for summary judgment, we also find that the district court did
    not err in subsequently refusing to rule on the motion for class
    certification, and in not granting any relief to the other pur-
    ported class members”). See, also, Cowen v. Bank United of
    Texas, FSB, 
    70 F.3d 937
    (7th Cir. 1995) (explaining that entry
    of summary judgment in favor of defendant moots motion for
    class certification if grounds for summary judgment would
    apply equally to other members of proposed class).
    CONCLUSION
    Because the district court did not err by sustaining the
    State’s motion for summary judgment on Lassalle’s NWPCA
    claim or by denying his motion for class certification as moot,
    we affirm.
    Affirmed.
    Cassel, J., not participating.