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Velez v. Lackawanna County

United States Court of Appeals, Third Circuit

September 20, 2017

MICHAEL SOURYAVONG; EDWIN VELEZ
v.
LACKAWANNA COUNTY; LACKAWANNA COUNTY DEPUTY SHERIFFS ASSOCIATION[*] NELSON ROLON
v.
LACKAWANNA COUNTY; LACKAWANNA COUNTY DEPUTY SHERIFFS ASSOCIATION Michael Souryavong and Nelson Rolon, Appellants

          Argued March 28, 2017

         On Appeal from the United States District Court for the Middle District of Pennsylvania D.C. Nos. 3-13-cv-01534, 3-13-cv-01581 (M.D. Pa. Nos. 3-13-cv-01534 & 3-13-cv-01581) District Judge: Hon. A. Richard Caputo

          Cynthia L. Pollick, Esq. [ARGUED] The Employment Law Firm Counsel for Appellants

          Harry T. Coleman, Esq. [ARGUED] Counsel for Appellee

          Before: AMBRO, VANASKIE, and RESTREPO, Circuit Judges

          OPINION

          VANASKIE, Circuit Judge.

         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 non-payment 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 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 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' ...


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