Conne v. Speedee Cash of Mississippi, Inc. ( 2007 )


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  •                                                       United States Court of Appeals
    Fifth Circuit
    F I L E D
    UNITED STATES COURT OF APPEALS
    FIFTH CIRCUIT                      July 23, 2007
    Charles R. Fulbruge III
    Clerk
    No. 06-60377
    MELISSA CONNE,
    Plaintiff-Appellant-Cross-Appellee,
    versus
    SPEEDEE CASH OF MISSISSIPPI, INC.,
    Defendant-Appellee-Cross-Appellant.
    Appeals from the United States District Court
    for the Southern District of Mississippi
    (5:04-CV-178)
    Before KING, DAVIS, and BARKSDALE, Circuit Judges.
    PER CURIAM:*
    Speedee Cash of Mississippi, Inc. appeals being held in
    violation, and thereby having lost the use, of the Fair Labor
    Standards Act’s Fluctuating Work Week (FWW) method for certain wage
    payments to former employee Melissa Conne.       Conne appeals the
    denial of attorney’s fees.    AFFIRMED IN PART; VACATED AND REMANDED
    IN PART.
    I.
    *
    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    this opinion should not be published and is not precedent except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.
    1
    Conne was employed by Speedee Cash at a salary calculated
    according to the FWW method provided in 
    29 C.F.R. § 778.114
    .
    Accordingly, she was to receive a fixed weekly salary, regardless
    of the number of hours worked, while the rate of pay for her
    overtime fluctuated, depending on the total number of hours worked
    in the week for which the calculation was based.
    Two days’ pay was deducted from Conne’s salary due to her
    absence from work (1) on 12 March 2002, when she was moving, and
    (2) on 6 May 2002, when she stated she was sick.         As a result,
    Conne   filed   this   action,   claiming:    Speedee   Cash   deducted
    improperly from her salary; and, therefore, it was barred from
    using the FWW to compute her wages and owed her overtime pay at
    time-and-a-half her hourly rate for the overtime she worked from
    the date of the first improper calculation forward.
    The district court held Speedee Cash was required to pay Conne
    $1,393.08 in overtime wages because: although the deduction for 12
    March (absent because moving) was proper, it had not adhered to the
    FWW on 6 May; and, after one violation, an employer cannot use the
    FWW for the wrongfully-deducted employee.     Nevertheless, it denied
    Connee liquidated damages and attorney’s fees because it found
    Speedee Cash acted in good faith, complying with the FWW at all
    times other than for 6 May.      Conne v. Speedee Cash of Miss., Inc.,
    No. 5:04CV178 (S.D. Miss. 11 Oct. 2005).
    II.
    2
    Speedee Cash’s challenge to the district court’s FWW analysis
    and   Conne’s    challenge   to   the     denial      of    attorney’s     fees   are
    addressed in turn.
    A.
    We review de novo the district court’s holding that, as a
    matter of law, one violation of the FWW by an employer disallows
    its future      application.      E.g.,      Deaton    v.    Comm’r   of   Internal
    Revenue, 
    440 F.3d 223
    , 226 (5th Cir. 2006).
    The FWW method provides that overtime hours may be paid at
    one-half the hourly rate, determined by dividing the number of
    hours worked in the workweek into the amount of the salary.                        
    29 C.F.R. § 778.114
    .     An employer may pay an employee pursuant to this
    method where:      (1) the employee’s hours fluctuate from week to
    week; (2) she receives a fixed weekly salary, regardless of the
    number of hours worked that week; (3) “the salary is sufficiently
    large to assure that no workweek will be worked in which the
    employee’s average hourly earnings from the salary fall below the
    minimum hourly wage rate”; (4) “the employee clearly understands
    that the salary covers whatever hours the job may demand in a
    particular workweek”; and (5) the employee receives a 50 percent
    overtime premium in addition to the fixed weekly salary for all
    hours in excess of 40 worked that week.               
    Id.
    At issue is not whether Conne qualified for this method of
    3
    payment, but whether, by violating the FWW once by failing to pay
    Conne for a sick day, Speedee Cash lost the FWW as a method of
    calculation for that and future pay periods for Conne.                 Although
    the district court held the law bars a one-time violator of the FWW
    from using that method for the wrongfully-deducted employee, §
    778.114 does not impose any criteria in addition to the five listed
    above.
    Accordingly, as long as those criteria are met, one violation
    will not bar the employer from using the FWW for calculating future
    pay.    Because the deduction for the day she was sick was improper,
    however, Conne is entitled to her established weekly salary.                  See
    Wage & Hour Division, U.S. Department of Labor, Opinion Letter, 12
    May 2006, 
    2006 WL 1488849
     (“[I]t is the longstanding position of
    the    Wage    and   Hour   Division     that   an   employer     utilizing   the
    fluctuating workweek method of payment may not make deductions from
    an employee’s salary for absences occasioned by the employee.... If
    the deductions are made frequently or consistently, then the
    practice of making such deductions would raise questions as to the
    validity of the compensation plan”.).
    The    district   court   found    Speedee    Cash   had   “meticulously
    compl[ied] with the FWW at all times other than the one day
    deduction wrongfully made on May 6, 2002”.             Conne, No. 5:04CV178,
    at 4.    As a result, Conne was entitled to $84.61, the difference
    between her established weekly salary of $423.07 and $338.46, the
    4
    amount she was paid for the week of 6 May.           But, because she worked
    only 37.47 hours that week, she was not entitled to overtime pay.
    Moreover, Speedee Cash claims it overpaid Conne by $107 and thus
    owes her nothing for the 6 May deduction.              (In this regard, the
    district court agreed Speedee Cash was due a credit for $107.91.)
    We remand this matter to district court to determine the damages,
    if any, Speedee Cash owes Conne pursuant to this analysis.
    B.
    A   denial   of   attorney’s   fees     is   reviewed   for   abuse   of
    discretion, with underlying questions of law reviewed de novo and
    findings of fact reviewed only for clear error. CenterPoint Energy
    Houston Elec. LLC v. Harris County Toll Road Auth., 
    436 F.3d 541
    ,
    550 & n.17 (5th Cir.), cert. denied, 
    126 S. Ct. 2945
     (2006).
    Conne contends she is entitled to an award of attorney’s fees,
    as the prevailing party, pursuant to 
    29 U.S.C. § 216
    (b).                 That
    section provides the court shall allow a reasonable attorney’s fee
    to be paid by a defendant held in violation of 
    29 U.S.C. §§ 206
     or
    207.   Those sections involve minimum wage and overtime pay.            Conne
    does not dispute Speedee Cash paid her the minimum wage.              Nor does
    she claim working any overtime hours during the week at issue for
    which she should be compensated.            Accordingly, the district court
    did not abuse its discretion by not awarding attorney’s fees.
    III.
    5
    For the foregoing reasons, the denial of attorney’s fees is
    AFFIRMED; the judgment is VACATED in PART; and this matter is
    REMANDED to district court for calculation of damages, if any.
    6
    

Document Info

Docket Number: 06-60377

Judges: King, Davis, Barksdale

Filed Date: 7/23/2007

Precedential Status: Non-Precedential

Modified Date: 11/5/2024