                                                       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this opinion should not be published and is not precedent except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
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                                -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.
