                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                      December 10, 2015
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
WILLIAM EVANS,

      Plaintiff - Appellant,

and

JEFFREY THAYER,

      Plaintiff,

v.                                                         No. 15-1049
                                              (D.C. No. 1:13-CV-02415-WJM-KMT)
LOVELAND AUTOMOTIVE                                         (D. Colo.)
INVESTMENTS, INC.; JOHN RICHARD
PIPE, d/b/a Loveland Auto Transport;
PIPELINE AUTO TRANSPORT, INC.,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, HOLMES and PHILLIPS, Circuit Judges.
                 _________________________________

      Appellant William Evans appeals from one ruling in a judgment generally

granted in his favor—the denial of an award of liquidated damages under the Fair


      *
        After examining plaintiff-appellant’s brief and the appellate record, this
panel has determined unanimously that oral argument would not materially assist in
the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case, res
judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219. Exercising jurisdiction under

28 U.S.C. § 1291, we agree with Mr. Evans that the district court was not precluded

from awarding liquidated damages, and we remand the case for reconsideration in

accordance with this order.

       Mr. Evans worked as a truck driver for the defendants. After the defendants

failed to timely pay him wages, he sued under FLSA and the Colorado Wage Claim

Act (“CWCA”), Colo. Rev. Stat. §§ 8-4-101 to -123.1 Mr. Evans properly served the

defendants with his complaint, but the defendants failed to file a responsive pleading

by the applicable deadline or otherwise respond to the complaint. After default was

entered against the defendants, they moved to set aside the entry of default.

Although the court initially set aside entry of default as to one of them, it later

granted Mr. Evans’s subsequent motion for entry of default judgment as to all of

them. Oddly, Mr. Evans next moved for summary judgment, rather than default

judgment.

       The district court treated Mr. Evans’s motion for summary judgment as an

application for default judgment under Fed. R. Civ. P. 55(b)(2) and entered a final

default judgment. In doing so, the court concluded that Mr. Evans was entitled to

judgment in his favor on both his FLSA and CWCA claims. Aplt. App. at 15;

see Redmond v. Chains, Inc., 996 P.2d 759, 764 (Colo. App. 2000) (holding that




       1
        Mr. Evans’s co-plaintiff has not appealed, so this order and judgment
addresses only Mr. Evans’s claims.
                                            2
because FLSA does not preempt CWCA, a plaintiff “is entitled to assert claims for

relief under both statutes”).

      The court then stated that “these claims give rise to similar and, at least

partially, overlapping damages.” Aplt. App. at 15. The court cited Mason v.

Oklahoma Turnpike Authority, 115 F.3d 1442, 1459 (10th Cir. 1997) (quoting U.S.

Indus., Inc. v. Touche Ross & Co., 854 F.2d 1223, 1259 (10th Cir. 1988)), overruled

on other grounds by TW Telecom Holdings Inc. v. Carolina Internet Ltd., 661 F.3d

495 (10th Cir. 2011), for the principle that “‘[i]f a federal claim and a state claim

arise from the same operative facts, and seek identical relief, an award of damages

under both theories will constitute double recovery.’” Then without evaluating the

nature of relief available under FLSA and CWCA, the court further concluded that

Mr. Evans could “recover damages only on the statute which provides the greatest

relief.” Aplt. App. at 15.

      Without explaining why it believed CWCA provided greater relief than FLSA,

the district court awarded Mr. Evans $7,248.75 in compensatory damages for unpaid

wages under CWCA. Further, after finding that Mr. Evans had made a proper,

written demand for payment under CWCA and that the defendants had willfully

failed to pay the owed wages, the district court also awarded Mr. Evans a penalty

under CWCA of 175% of the unpaid wages: $12,685.31. See Colo. Rev. Stat.

§ 8-4-109(3). Although noting that Mr. Evans had provided no support for his

prejudgment-interest claim, the court nevertheless exercised its discretion and

awarded prejudgment interest—solely on the compensatory damages—in the amount

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of $1077.18, together with postjudgment interest. In addition, it ruled that Mr. Evans

was entitled to his attorney fees and costs.

      On appeal, Mr. Evans contends that he is entitled to FLSA liquidated damages

in addition to the CWCA penalty because the two monetary awards serve different

purposes. More specifically, he contends that FLSA liquidated damages are meant to

compensate employees wrongly unpaid their wages, but that the CWCA penalty is

meant to punish employers that wrongly fail to pay their employees’ earned wages.

We agree with Mr. Evans’s position.

      We review de novo a district court’s conclusions of law, including matters of

statutory interpretation and legal analysis underlying a district court’s award of

damages. O’Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1257 (10th Cir. 2001).

      In addition to requiring employers to pay wages owed, FLSA authorizes the

imposition of an equal amount as liquidated damages unless “the employer shows

both that he acted in good faith and that he had reasonable grounds for believing that

his actions did not violate the Act.” Doty v. Elias, 733 F.2d 720, 725-26 (10th Cir.

1984); see also 29 U.S.C. §§ 216(b), 260. Liquidated damages awarded under FLSA

are compensatory rather than punitive. Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697,

707 (1945). In other words, they “‘are not a penalty exacted by the law, but rather

compensation to the employee occasioned by the delay in receiving wages due

caused by the employer’s violation of the FLSA.’” Jordan v. U.S. Postal Serv.,

379 F.3d 1196, 1202 (10th Cir. 2004) (quoting Herman v. RSR Sec. Servs. Ltd.,

172 F.3d 132, 142 (2d Cir. 1999)); see also Renfro v. City of Emporia, 948 F.2d

                                               4
1529, 1540 (10th Cir. 1991) (“The purpose for the award of liquidated damages is

‘the reality that the retention of a workman’s pay may well result in damages too

obscure and difficult of proof for estimate other than by liquidated damages.’”

(quoting Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 463 (D.C. Cir. 1976))).

      The relief available under FLSA and CWCA does partially overlap because

both laws allow employees to recover unpaid wages as compensatory damages. And

Mr. Evans concedes that he can recover his unpaid wages only once. But, as

discussed above, FLSA allows for additional compensatory damages as liquidated

damages. In contrast, CWCA imposes a penalty on an employer who receives an

employee’s written demand for payment and fails to make payment within fourteen

days, and it increases the penalty if the employer’s failure to pay is willful.

See Graham v. Zurich Am. Ins. Co., 296 P.3d 347, 349-50 (Colo. App. 2012). No

Tenth Circuit case directly addresses whether these damages duplicate one another.

      Other jurisdictions have concluded that an award of both a state statutory

penalty and FLSA liquidated damages does not constitute a double recovery.

See, e.g., Mathis v. Housing Auth., 242 F. Supp. 2d 777, 790 (D. Or. 2002) (“[A]n

award of the penalty under [the state law] and an award of liquidated damages under

the FLSA do not constitute a double recovery.”); Morales v. Cancun Charlie’s Rest.,

No. 3:07-cv-1836 (CFD), 2010 WL 7865081, at *9 (D. Conn. Nov. 23, 2010)

(unpublished) (allowing recovery of liquidated damages under both FLSA and state

law because the provisions “serve different purposes—the FLSA damages are

compensatory and the [state law] damages serve a punitive purpose”); Do Yea Kim v.

                                            5
167 Nail Plaza, No. 05 CV 8560 (GBD), 2008 WL 2676598, at *3 (S.D.N.Y. July 7,

2008) (unpublished) (“New York Labor Law provides separately for liquidated

damages in overtime compensation claims, in addition to federal liquidated

damages.”). We agree with the rationale of these cases.

      We note further that, like FLSA liquidated damages, prejudgment interest also

is meant “‘to compensate the wronged party for being deprived of the monetary value

of his loss from the time of the loss to the payment of the judgment.’” Greene v.

Safeway Stores, Inc., 210 F.3d 1237, 1247 (10th Cir. 2000) (quoting Suiter v.

Mitchell Motor Coach Sales, Inc., 151 F.3d 1275, 1288 (10th Cir. 1998)). It follows

that “a party may not recover both liquidated damages and prejudgment interest

under the FLSA.” Doty, 733 F.2d at 726. Thus, on remand, if the district court

awards FLSA liquidated damages it must vacate its award of prejudgment interest.

See Dep’t of Labor v. City of Sapulpa, 30 F.3d 1285, 1290 (10th Cir. 1994) (“If the

district court finds that liquidated damages should be awarded it must vacate its

award of prejudgment interest, because it is settled that such interest may not be

awarded in addition to liquidated damages.”).

      Therefore, we remand to the district court to recalculate the amount of

damages in light of our determination that it is permissible for the court to award




                                           6
both FLSA liquidated damages and a CWCA penalty. If the court awards FLSA

liquidated damages, it must vacate the award of prejudgment interest.


                                          Entered for the Court


                                          Gregory A. Phillips
                                          Circuit Judge




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