Michael Souryavong v. Lackawanna County

This employee-overtime appeal raises questions as to

the nature of the evidence that is sufficient to create a jury

question on the purported “willfulness” of an employer’s nonpayment

of overtime. The question matters because a finding

of willfulness expands the limitations period for claims under

the Fair Labor Standards Act (“FLSA”), in effect permitting a

plaintiff to receive a larger award. Here only the willfulness

question was contested—Appellee Lackawanna County

conceded the basic overtime violations—and at trial

Appellants Michael Souryavong and Nelson Rolon presented

some evidence on the question but not enough to avoid a

directed verdict in the County’s favor. We find no error in the

District Court’s decision because the evidence presented did

not suggest the County was subjectively aware of the FLSA

problem at the time of the violations, at least with respect to

Souryavong and Rolon. Additionally, Souryavong and Rolon

challenge the District Court’s calculation of attorney’s fees, but

we find that decision appropriate as well. We will affirm.

I.

Souryavong and Rolon were among a class of

individuals working in two separate part-time capacities for

Lackawanna County. The County apparently tracked and paid

these employees for each of their individual jobs, but in 2011

the County became aware that it had failed to aggregate the

hours in both jobs, resulting in a failure to pay the overtime rate

for hours beyond 40 hours per pay period.

In June 2013, Souryavong, Rolon, and Edwin Velez

filed complaints in the Middle District of Pennsylvania

alleging several claims, including the only one relevant here, a

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claim against Lackawanna County for non-payment of

overtime in violation of the FLSA, 29 U.S.C. § 207(a)(1). By

2015, it was undisputed that the County had violated the

FLSA’s overtime provisions at various times from 2008 to

2012. Still disputed, however, was whether the County’s

violation was “willful.”

In November 2015, the case went to trial on the

willfulness question and damages. At trial the employees

presented evidence that included (1) documents showing the

County’s failure to pay proper overtime, a failure that

apparently lasted into January 2012 for Velez; (2) testimony

from County Chief Financial Officer Thomas Durkin stating

that “from 2007 onward” the County was generally “aware” of

its obligations under the FLSA (App. 266); (3) testimony from

County Human Resources Director Nancy Pearson stating that

she was also generally aware of the FLSA and its requirements;

and (4) a March 28, 2011 email from Pearson, sent to two other

county officials, with the subject line reading “County wage

and hour issues,” and the body of the email discussing certain

county employees who were working “second jobs.” (App.

152.) Pearson’s email highlighted two employees, one of

whom was Edwin Velez, as examples of the issue, and she

noted how these employees had each worked more than 40

hours per week by serving the County in two part-time

capacities: “Velez works 50 plus hours a [two-week] pay

period for the booking center and up to sixty hours a pay period

for the sheriff’s department. This sampling is not infrequent,

irregular or scattered.” (App. 152.) The email concluded by

raising the prospect that these employees might file labor

grievances:

[A]ll employees who work for the County should

only be working in one position. That brings us

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to the next point on dealing with those

individuals who may file a grievance for back

pay for overtime for being paid straight time.

Who would you like involved in a further

conversation about this matter so this can be

resolved?

(App. 152 (emphasis added).)

At the close of the employees’ case, the County made

an oral motion for entry of judgment as a matter of law, arguing

the employees’ evidence was insufficient to create a jury

question on willfulness. The Court immediately held oral

argument on the motion, and the employees’ Attorney Cynthia

Pollick argued that their evidence was sufficient. In support,

she cited (1) “testimony from Nancy Pearson” and (2) “the fact

that [the County] did not correct” the overtime issue over the

course of “four years” of violations. (App. 9-10.) At the close

of argument, the District Judge ruled from the bench. He stated

the employees’ evidence did not “measure up,” and granted the

County’s motion and entered judgment in its favor on the

willfulness question. (App. 21.)

The damages question still remained, the case went to

the jury, and it awarded $5,588.30. The Court then addressed

several post-trial motions, two of which are relevant here.

First, the plaintiffs moved for liquidated damages under 29

U.S.C. § 216.1 The County opposed the motion and argued

1 The effect of a liquidated damages award is to double

the unpaid overtime compensation. In this regard, 29 U.S.C. §

216 provides that “[a]ny employer who violates the provisions

of section 207 of this title shall be liable to the employee or

employees affected in the amount of their . . . unpaid overtime

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liquidated damages were inappropriate because the County had

operated in “good faith” and its FLSA violations were

inadvertent. See 29 U.S.C. § 260 (stating liquidated damages

shall not be awarded if an employer operated in “good faith”

and “had reasonable grounds for believing that his act or

omission was not a violation of the [FLSA]”). The employees

disagreed, and argued the County’s violation was

“intentional.” (App. 83.) The Court sided with the employees

and granted the motion, but rather than grounding its ruling on

“intentionality,” as the employees had argued that it should, the

court reasoned in its memorandum opinion that the County had

presented “no evidence” to show that it had taken any

“affirmative steps to ascertain the FLSA’s requirements” prior

to the at-issue overtime violations, or that the County had

“acted in ‘good faith.’” (App. 84.) In support of this

determination, the District Court correctly followed Martin v.

Cooper Elec. Supply Co., 940 F.2d 896, 910 (3d Cir. 1991), in

which we held that an employer’s failure to take “affirmative

steps to ascertain the legality of its pay practices” mandates an

award of liquidated damages.

In another motion, the employees moved for

attorney’s fees and costs, requesting an award of $166,162.50.

They based their request on a fee rate for Attorney Pollick’s

work of $400 per hour, 367.6 hours of legal work, and

additional legal-assistant time and costs. The Court found the

proper rate for Attorney Pollick to be significantly lower—

$250 per hour—and that only 278.2 hours were compensable,

for a lodestar of $69,550.00. It then deviated downward from

compensation . . . and in an additional equal amount as

liquidated damages.”

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the lodestar to a final award of $55,852.85—approximately

one-third of what the employees initially requested—after an

analysis of the factors laid out in Hensley v. Eckart, 461 U.S.

424, 430 n.3, 434-37 (1983). The court recorded its analysis

in a meticulous and thorough opinion.

This appeal followed, with Souryavong and Rolon

filing a joint notice of appeal. Velez—Souryavong and

Rolon’s co-plaintiff in the District Court—did not join

Souryavong and Rolon’s notice of appeal and did not file his

own. Velez is therefore not a party to this appeal.2

II.

The District Court had federal question jurisdiction

under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C.

§ 1291.

III.

Souryavong and Rolon’s appeal presents two issues:

(1) whether the District Court was right to grant judgment as a

matter of law on the willfulness question; and (2) whether the

Court erred in its calculation of attorney’s fees.

2 The Lackawanna County Sheriffs Association was

dismissed from the appeal after they and the employees

resolved the employees’ claims through successful mediation.

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A.



On the issue of whether the District Court should have

entered judgment as a matter of law on the FLSA “willfulness”

question, we apply de novo review. Brownstein v. Lindsay,

742 F.3d 55, 63 (3d Cir. 2014). Although willfulness is a

“question of fact,” Bianchi Trison Corp. v. Chao, 409 F.3d

196, 208 (3d Cir. 2005), a district court may take the question

from the jury and grant a Rule 50(a) motion for judgment as a

matter of law if “there is no legally sufficient evidentiary basis

for a reasonable jury to find for” the non-moving party, Rego

v. ARC Water Treatment Co., 181 F.3d 396, 400 (3d Cir. 1999).

Under the FLSA, whether an employer “willfully”

violates the statute is of import because such a finding extends

the FLSA’s limitations period from two years to three, bringing

another year of lost pay within the scope of the worker’s claim.

29 U.S.C. § 255(a). The Supreme Court defines “willfulness”

to include situations when the employer, at the time of its

FLSA violation, either “knew” its conduct was prohibited by

the FLSA or “showed reckless disregard for the matter.”

McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988).

Acting only “unreasonably” is insufficient—some degree of

actual awareness is necessary. Id. at 135 n.13.



Here, no pre-violation awareness of the two-job-FLSA

problem was shown by the evidence that Souryavong and

Rolon presented at trial. They argue otherwise based on: a

series of overtime violations that continued into January 2012

with respect to Velez; Nancy Pearson’s raising of the overtime

issue with other County employees in her March 28, 2011

email; and the County’s general awareness of the FLSA’s

requirements at all relevant times, as indicated by Durkin’s

testimony. But these three bits of evidence do nothing to show

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that the County was (i) specifically aware of the two-job FLSA

overtime problem (ii) as it related to Souryavong and Rolon

(iii) prior to the dates of the violations. Durkin’s testimony, for

example, is insufficient because it does not get at the two-job

problem—he only testified to an awareness of the FLSA on a

basic level. Willful FLSA violations require a more specific

awareness of the legal issue. See Flores v. City of San Gabriel,

824 F.3d 890, 896, 905-07 (9th Cir. 2016) (identifying a jury

question on FLSA “willfulness” where a city misclassified

employee pay for nine years despite familiarity with the type

of problem), cert. denied, 137 S. Ct. 2117 (2017). Also,

Pearson’s testimony and the timing of Velez’s overtime

violations do not show the necessary order of events for a

willfulness finding as to Souryavong and Rolon. Although

Velez’s overtime violations post-date Pearson’s email,

supporting an argument that the County’s violations as to him

were willful, the same is not true for Souryavong and Rolon,

who are the only parties for whom we may order relief because

they are the only appellants. For them, the parties have

highlighted no evidence suggesting the County’s violations

with their pay continued after Pearson’s email was sent.

Alternatively, even if Pearson’s email pre-dates some of

the County’s FLSA violations as to Souryavong and Rolon,

two other factors still indicate the District Court’s ruling is

correct. First, decisions from our sister circuits indicate that an

FLSA violation must have a degree of egregiousness that is

lacking in Lackawanna County’s case. For example, a jury

question on willfulness is present when a city is well aware of

the FLSA’s strictures, sets up a bureaucracy to classify pay and

benefits and properly calculate overtime, and then despite all

that allows a misclassification of a monthly payment to

continue for nine years. Id. Similarly, there is a jury question

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on willfulness if a family fails to pay a nanny a minimum wage,

family testimony indicates the family “knew” about minimum

wage laws, and the nanny’s testimony was that the family

required her to work twice as many hours as the family

claimed, did not provide a contract or record her working

hours, and instructed her to lie about her employment. Davila

v. Menendez, 717 F.3d 1179, 1182-83, 1185 (11th Cir. 2013).

Here, nothing indicates Lackawanna County’s violation could

be attributed to any similar level of recklessness or ill will. The

County apparently addressed the two-job FLSA problem

within a year of the date of Pearson’s email—much sooner than

the nine years in Flores—and while the County’s bureaucratic

failure that caused the time-tracking snafu is perhaps an

example of government morass, the evidence shows nothing

akin to the manipulation and concealment found in the facts of

Davila.

Second, even if Pearson’s email shows the County was

aware of an overtime problem generally at the time of the

Souryavong and Rolon violations, it does not indicate an

awareness of an FLSA overtime problem specifically. A

plaintiff must put forward at least some evidence of the

employer’s awareness of a violation of the FLSA overtime

mandate. See Flores, 824 F.3d at 907 (Owens, J., concurring)

(emphasizing that Supreme Court “willfulness” precedents

require a showing of some degree of subjective actual

awareness of an FLSA violation and that mere negligence will

not do). Here, Pearson’s email only references “wage and hour

issues,” and never mentions the FLSA or any other law—state

or federal. Pearson’s statement that the County’s conduct gave

rise to the risk that an employee “may file a grievance for

backpay for overtime” does not belie an awareness of an FLSA

problem. Without something connecting the email to the

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FLSA, Pearson’s email is not enough on its own to create a jury

question as to FLSA willfulness. See Oakes v. Pennsylvania,

871 F. Supp. 797, 801 (M.D. Pa. 1995) (finding no jury

question on the willfulness of a meal-break FLSA violation in

spite of employees previously raising a similar meal-break

issue, because the previous issue was raised only in the context

of a collective-bargaining agreement).

Finally, Souryavong and Rolon argue the District

Court’s holding on liquidated damages somehow requires us to

hold in their favor on willfulness. Their argument is that the

District Court recognized that the County acted “intentionally”

when it ruled in the employees’ favor on the liquidateddamages

motion. (Appellants’ Br. at 9.) But the District Court

grounded its ruling in a lack of evidence going to the County’s

good faith attempts at FLSA compliance. A lack of evidence

going to good faith is not the same as evidence in support of

intentionality.

In sum, the District Court was correct: the evidence

presented at trial did not measure up, and judgment as a matter

of law was appropriate.

B.

The second issue in this case is the award of attorney’s

fees. We review the “reasonableness” of a district court’s

award of attorney’s fees for abuse of discretion, Smith v.

Borough of Dunmore, 633 F.3d 176, 183 (3d Cir. 2011), but

exercise plenary review over its selection of legal standards for

determination of a fee award, Washington v. Phila. Cty. Court

of Common Pleas, 89 F.3d 1031, 1034-35 (3d Cir. 1996).

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Attorney Pollick makes three arguments that her fee

award should have been higher. Her first argument as we

understand it is that the District Court erred as a matter of law

in reducing the fee award below the lodestar amount.

Specifically, she argues that use of the Johnson factors was

prohibited by Perdue v. Kenny A., 559 U.S. 542 (2010). We

disagree.

Decades ago, courts calculated attorneys’ fees in

divergent ways, with some relying exclusively on twelve

factors laid out in the seminal Fifth Circuit decision, Johnson

v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.

1974), and others applying the lodestar method pioneered by

this Court in Lindy Bros. Builders, Inc. of Philadelphia v.

American Radiator & Standard Sanitary Corp., 487 F.2d 161

(3d Cir. 1973). In 1983 the Johnson factors were given a boost

when the Supreme Court explicitly stated in Hensley that

district courts “may consider” the Johnson factors. 461 U.S. at

434 n.9 (1983). Among those factors listed by the Court was

“the amount involved and the results obtained.” Id. at 430 n.3

(citing Johnson, 488 F.2d at 717-19).

Eventually, however, our lodestar approach “achieved

dominance,” and in the 2010 case Perdue v. Kenny A. the

Supreme Court spoke glowingly of the lodestar approach and

its advantages as compared to the Johnson factors. 559 U.S. at

551 (quoting Gisbrecht v. Barnhart, 535 U.S. 789, 801 (2002)).

The Court observed that the lodestar method has “several

important virtues,” most specifically that “the lodestar method

is readily administrable” and, “unlike the Johnson approach,”

is objective in that it “cabins the discretion of trial judges,

permits meaningful judicial review, and produces reasonably

predictable results.” Id. at 551-52.

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Yet the Court in Perdue still left room for Johnson

factors to play a role in the attorney fee award decision: First,

a district court should calculate the lodestar—“the number of

hours worked multiplied by the prevailing hourly rate”—which

carries a “strong presumption” of “reasonable[ness]” and

“includes most, if not all, of the relevant factors constituting a

‘reasonable’ attorney’s fee.” Id. at 543-44, 546, 552. After

calculating the lodestar, the court may deviate from it, but only

in the “rare circumstances in which the lodestar does not

adequately take into account a factor that may properly be

considered in determining a reasonable fee.” Id. at 543-44

(emphasis added). Thus, the consideration of Johnson

“factors” is permissible on the back end of a lodestar’s

calculation, as long as they are not already “subsumed in the

lodestar calculation.” Id. at 553.



Here, the District Court followed the proper lodestarthen-

Johnson factors process almost to a “T”: it calculated the

lodestar, identified the Johnson factors it thought not subsumed

in the lodestar, analyzed those factors in light of the facts of

this case, and then decided that a downward deviation from the

lodestar was justified. Pollick argues this downward deviation

was impermissible because Perdue overruled Hensley’s

blessing of the Johnson factors, and any post-Perdue reliance

on the Johnson factors is impermissible, at least as it relates to

any tinkering with the lodestar. This is incorrect for at least

four reasons. First, Hensley explicitly states that use of the

Johnson factors is permissible, and Hensley remains binding

precedent because the Supreme Court has not said otherwise—

its “decisions remain binding precedent until [the justices] see

fit to reconsider them, regardless of whether subsequent cases

have raised doubts about their continued vitality.” Bosse v.

Oklahoma, 137 S. Ct. 1, 2 (2016) (per curiam) (quoting Hohn

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v. United States, 524 U.S. 236, 252-53 (1998)). Second, there

should be no doubt that Perdue preserved the availability of the

Johnson factors because the Perdue decision explicitly states

that “factor[s]” may still justify a deviation from the lodestar.

559 U.S. at 554. Third, Perdue, like Hensley, explicitly

permits consideration of Johnson’s eighth factor—“the results

obtained.” Hensley, 461 U.S. at 434. And fourth, the Perdue

Court’s concerns were related to a poorly reasoned upward

deviation from the lodestar, not a well-reasoned downward

deviation, as was the case here. The Perdue district court’s

untenable fee award was 75% higher than the lodestar and was

supported by a bare-bones reference to “extraordinary”

circumstances. 559 U.S. at 548, 557-60. Here, by comparison,

the District Court deviated downward and provided ample

reasoning in a thorough and lengthy opinion.3

The District Court applied the right law in its fee

analysis. And it did not abuse its discretion in determining that

the relatively modest damage award justified a reduction in the

lodestar result.

Pollick’s two remaining arguments focus on the

reasonableness of the District Court’s fee determinations, and

both arguments fall within the abuse-of-discretion standard of

review. First, she argues the District Court should have

accepted her proposed $400-per-hour rate instead of the $250-

per-hour rate the Court picked because the County proffered

no evidence to contradict her proposed rate. That is not true—

the County did offer evidence. It presented an attorney’s

affidavit stating that attorneys of similar stature in the region

3 We also note that we rejected the same argument about

Perdue and Johnson that Attorney Pollick made in Dee v.

Borough of Dunmore, 548 F. App’x 58, 64-65 (3d Cir. 2013).

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were compensated at rates of $260 and $275 per hour, not far

from the $250-per-hour rate the court used. (App. 143.)

Second, Pollick argues she deserves relief because she made

out at least a prima facie case supporting her suggested fee rate,

contrary to the District Court’s holding. This argument fails,

however, because Pollick has not shown that she was

prejudiced by the Court’s decision on that issue: she still

received a hearing and was permitted to present evidence, and

the Court recorded its reasoning in a long and thorough

opinion. A prima-facie holding in her favor would have

substantively altered neither that process nor the outcome. We

discern no abuse of discretion by the adoption of an hourly rate

of $250.