Lassalle v. State ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/11/2020 08:08 AM CST
- 221 -
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.
- 222 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
LASSALLE v. STATE
Cite as 307 Neb. 221
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
- 223 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
LASSALLE v. STATE
Cite as 307 Neb. 221
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
- 224 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
LASSALLE v. STATE
Cite as 307 Neb. 221
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
- 225 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
LASSALLE v. STATE
Cite as 307 Neb. 221
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
- 226 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
LASSALLE v. STATE
Cite as 307 Neb. 221
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
- 227 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
LASSALLE v. STATE
Cite as 307 Neb. 221
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.
- 228 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
LASSALLE v. STATE
Cite as 307 Neb. 221
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.
- 229 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
LASSALLE v. STATE
Cite as 307 Neb. 221
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
- 230 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
LASSALLE v. STATE
Cite as 307 Neb. 221
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,
- 231 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
LASSALLE v. STATE
Cite as 307 Neb. 221
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
- 232 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
LASSALLE v. STATE
Cite as 307 Neb. 221
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
- 233 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
LASSALLE v. STATE
Cite as 307 Neb. 221
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
- 234 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
LASSALLE v. STATE
Cite as 307 Neb. 221
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
- 235 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
LASSALLE v. STATE
Cite as 307 Neb. 221
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
- 236 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
LASSALLE v. STATE
Cite as 307 Neb. 221
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.