PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 15-3895 & 16-2214

_____________

MICHAEL SOURYAVONG; EDWIN VELEZ

 

v.

LACKAWANNA COUNTY; 

LACKAWANNA COUNTY DEPUTY SHERIFFS 

ASSOCIATION*

(D.C. No. 3-13-cv-01534)

NELSON ROLON

v.

LACKAWANNA COUNTY;

LACKAWANNA COUNTY DEPUTY SHERIFFS 

ASSOCIATION*

(D.C. No. 3-13-cv-01581)

Michael Souryavong and Nelson Rolon,

Appellants

 

* Dismissed pursuant to Clerk’s Order dated 7/29/17
2

_____________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(M.D. Pa. Nos. 3-13-cv-01534 & 3-13-cv-01581)

District Judge: Hon. A. Richard Caputo

______________

Argued March 28, 2017

______________

Before: AMBRO, VANASKIE, and RESTREPO, Circuit 

Judges

(Filed: September 20, 2017)

Cynthia L. Pollick, Esq. [ARGUED]

The Employment Law Firm

363 Laurel Street

Pittston, PA 18640

Counsel for Appellants

Harry T. Coleman, Esq. [ARGUED]

41 North Main Street

Suite 316

Carbondale, PA 18407

Counsel for Appellee

______________

OPINION

______________
3

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 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 
4

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 
5

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 
6

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.”
7

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.
8

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 
9

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 
10

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 
11

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). 
12

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.
13

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 
14

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).
15

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. 

IV.

The evidence presented at trial was insufficient to create

a jury question as to whether the County’s FLSA violations 

were made willfully, and the District Court’s attorney’s-fee 

standards were correct and applied without abuse of discretion. 

We will affirm.