Conne v. Speedee Cash

* 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this opinion should not be published and is not precedent except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.
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United States Court of Appeals
Fifth Circuit
F I L E D
July 23, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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.

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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.

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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

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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

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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.

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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.

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