Lassalle v. State

• Decision Date: 18 September 2020
• Docket Number: No. S-19-810.,S-19-810.
• Citation: 948 N.W.2d 725,307 Neb. 221
• Parties: 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.
• Court: Nebraska Supreme Court

307 Neb. 221

948 N.W.2d 725

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.

No. S-19-810.

Supreme Court of Nebraska.

Filed September 18, 2020

Kathleen M. Neary and Vincent M. Powers, Lincoln, 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, Lincoln, 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 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 prohibiting 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 certification. Lassalle defined the class as:

All current and former full-time non-exempt employees of [DHHS]

(a) who work at one or more of the following facilities: the Lincoln Regional Center, Norfolk Regional Center, Hastings Regional Center, Whitehall Psychiatric Residential Treatment Facility, Kearn[e]y Youth Rehabilitation & Treatment Center, Geneva Youth Rehabilitation & 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 corresponding 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, certain 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 summary 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 opposition 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 that these contracts set forth the terms and conditions of Lassalle's employment.

The relevant provisions of the labor contracts were substantially 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 operate 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 contracts 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, "holidays shall be considered as work hours for overtime purposes," but that "[l]eave time (vacation, sick, etc.) shall not be considered 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 unreasonably 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 obligating the employing agency "to provide reasonable opportunity for a State employee to use rather than forfeit accumulated 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 forfeited upon separation from employment, except that employees 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 working 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 attendance software used by DHHS to track employees’ worktime 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,...