                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                  UNITED STATES COURT OF APPEALS
                           FIFTH CIRCUIT                      July 23, 2007

                                                        Charles R. Fulbruge III
                                                                Clerk
                             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.


     *
      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this opinion should not be published and is not precedent except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.

                                  1
     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.


                                    2
      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


                                        3
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


                                         4
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.


                                       5
     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.




                                6
