Johnson et al v. Helion Technologies, Inc.

Filing 174

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 8/2/2022. (sat, Chambers)

Case 1:18-cv-03276-DKC Document 174 Filed 08/02/22 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
TYLER JOHNSON, et al.,
Individually and on behalf of
similarly situated employees
v.

:
:
:

HELION TECHNOLOGIES, INC.

Civil Action No. DKC 18-3276

:
:

MEMORANDUM OPINION
Presently pending and ready for resolution in this Fair Labor
Standards Act (“FLSA”) case is a motion filed by Defendant Helion
Technologies, Inc. (“Helion”) to alter or amend the judgment under
Rule 59 and for judgment as a matter of law under Rule 50.
No. 163).

(ECF

The issues have been fully briefed, and the court now

rules, no hearing being necessary.

Local Rule 105.6.

For the

following reasons, the motion will be denied.
I.

Background
This case primarily concerns unpaid overtime claims against

Helion by four former employees, three Field Technicians and one
Systems Administrator. 1
Joseph

McCloud,

William

The Field Service Technician Plaintiffs,
Toomey,

and

Milton

Turnerhill,

were

employed to provide on-site information technology (“IT”) system

The court previously used different names for these
positions.
It adopts “Field Service Technician” (or “Field
Technician”) and “Systems Administrator” here because those were
the terms used on the verdict sheet at trial. (ECF No. 156).
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Case 1:18-cv-03276-DKC Document 174 Filed 08/02/22 Page 2 of 30

support to Helion’s automobile dealership clients. Until May 2018,
Helion classified the Field Technician Plaintiffs as exempt from
overtime requirements under the Computer Employee Exemption.

On

May 20, 2018, Helion reclassified them as non-exempt and began to
pay them overtime wages.
did

not

use

a

system

Prior to their reclassification, Helion
to

record

the

total

hours

that

Field

Technicians worked or the number of hours over forty that they
worked in a given week.

As a Systems Administrator, Wayne Carroll

provided remote IT-system support to Helion’s clients.

Helion has

always classified the Systems Administrator position as exempt
from overtime requirements.
In October 2018, this collective FLSA action was initiated
against Helion.

Various former Helion employees later opted-into

the suit, but only Plaintiffs McCloud, Toomey, Turnerhill, and
Carroll proceeded to trial.

Plaintiffs McCloud, Turnerhill, and

Carroll’s sole claims were for unpaid overtime under the FLSA.
Mr. Toomey brought claims for unpaid overtime under the FLSA and
under the Maryland Wage and Hour Law (“MWHL”) and the Maryland
Wage Payment and Collection Law (“MWPCL”).

Helion countersued Mr.

Toomey for breach of contract and Mr. Toomey asserted, in response,
a claim for FLSA retaliation.

The court granted summary judgment

to Mr. Toomey on Helion’s contract claim and on all liability as
to his FLSA retaliation claim.

(ECF No. 107, ¶ 4).

It denied

Helion’s summary judgment motion on Plaintiffs’ overtime claims.
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Case 1:18-cv-03276-DKC Document 174 Filed 08/02/22 Page 3 of 30

A jury trial occurred from March 18 to March 28, 2022.

Helion

moved for judgment as a matter of law under Rule 50(a) at the close
of Plaintiffs’ case.

The motion was largely denied.

However, the

court held that Mr. Toomey had not presented sufficient evidence
of non-economic damages on his FLSA retaliation claim, declined to
send that issue to the jury, and, because the amount of damages
was the only remaining issue in that claim, awarded Mr. Toomey $1
in nominal damages.
again

moved

for

(ECF Nos. 149, at 1; 166, at 106-07).
judgment

at

the

close

of

all

Helion

evidence,

incorporating the remaining grounds from its earlier motion.

The

court denied the motion and sent overtime claims to the jury.
The jury returned a verdict, (ECF No. 156), in favor of Helion
on Mr. Carroll’s FLSA claim, concluding that Helion proved that
the Systems Administrator position was exempt under the Computer
Employee Exemption.
Field

Technician

It separately found in favor of the three

Plaintiffs

on

their

FLSA

claims.

The

jury

concluded that the Field Technician position was not exempt and
that Helion failed to pay appropriate overtime, but that the
violation was not willful.

It awarded various damages amounts to

each Field Technician Plaintiff for the two-year period before
they joined the lawsuit.

The jury also found in favor of Mr.

Toomey on his parallel state-law claims.

It awarded him the same

amount for those violations as it did for the FLSA violation, even
though the look back period was longer (three years) for the state
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Case 1:18-cv-03276-DKC Document 174 Filed 08/02/22 Page 4 of 30

labor laws.

It found Mr. Toomey was not entitled to liquidated

damages on his state-law claims because it found that he did not
prove that Helion acted in bad faith.

The Field Technician

Plaintiffs’ liquidated damages under the FLSA were tried to the
court. It declined to award any because it found that Helion acted
in good faith.

(ECF No. 149, at 2-3).

On April 11, the prevailing Plaintiffs moved for attorneys’
fees and costs.

(ECF No. 159).

The next day, Helion moved for

attorneys’ fees against Plaintiff Toomey.

(ECF No. 160).

Those

motions have been stayed pending resolution of the post-trial
substantive motion now at issue.

(ECF No. 162).

On April 26,

Helion moved to alter or amend the judgment in favor of Plaintiff
Toomey on his retaliation claim and renewed its motion for judgment
as a matter of law on the Field Technician Plaintiffs’ overtime
claims.

(ECF No. 163).

Plaintiffs opposed and Helion replied.

(ECF Nos. 164; 165).
II.

Motion to Alter or Amend the Judgment on Plaintiff Toomey’s
FLSA Retaliation Claim
A.

Standard of Review

Neither party provides the relevant standard of review.

A

motion to alter or amend filed within 28 days of the judgment is
governed by Federal Rule of Civil Procedure 59(e).

See MLC Auto,

LLC v. Town of S. Pines, 532 F.3d 269, 280 (4th Cir. 2008); Classen
Immunotherapies, Inc. v. King Pharms., Inc., No. 04–cv-3621-WDQ,
4

Case 1:18-cv-03276-DKC Document 174 Filed 08/02/22 Page 5 of 30

2013 WL 5934055, at *3 (D.Md. Oct. 31, 2013).

“A district court

has the discretion to grant a Rule 59(e) motion only in very narrow
circumstances[.]”

Hill v. Braxton, 277 F.3d 701, 708 (4th Cir.

2002) (citation omitted).

Only one is relevant here: to correct

clear error of law or prevent manifest injustice.

See U.S. ex

rel. Becker v. Westinghouse Savannah River Co., 305 F.3d 284, 290
(4th Cir. 2002) (citing Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co.,
148 F.3d 396, 403 (4th Cir. 1998)).

“In general, reconsideration

of a judgment after its entry is an extraordinary remedy which
should be used sparingly.” Pac. Ins. Co., 148 F.3d at 403 (internal
quotation marks and citation omitted).
B.

Analysis

Helion argues that the court’s $1 nominal damages award on
Mr. Toomey’s FLSA retaliation claim was improper for three reasons.
First, it contends that a violation of the FLSA’s anti-retaliation
provision

is

not

“the

type

of

invasion

of

common

law

or

constitutional rights which typically triggers a nominal damages
award.”

(ECF No. 165, at 5 & n.4).

It is not clear whether Helion

suggests nominal damages were not available at all or simply were
not mandatory.

Second, Helion contends that Mr. Toomey “waived or

forfeited any claim for nominal damages by failing to request a
nominal-damages jury instruction and a verdict sheet line item for
nominal damages.”

(ECF No. 163-1, at 3).

Third, it argues that

the nominal damages award was impermissible additur under the
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Case 1:18-cv-03276-DKC Document 174 Filed 08/02/22 Page 6 of 30

Seventh Amendment.

(Id.).

Helion raised none of these objections

at the time the court awarded Mr. Toomey nominal damages, after
granting Helion’s motion for judgment on Mr. Toomey’s claim to
non-economic damages.
1.

(See ECF No. 166, at 107).

Availability of Nominal Damages

To the extent that Helion argues otherwise, nominal damages
are an available remedy for Mr. Toomey’s FLSA retaliation claim.
Under the statute, any employer who retaliates against its employee
“shall be liable for such legal or equitable relief as may be
appropriate to effectuate the purposes of [the anti-retaliation
provision],

including

without

limitation

employment,

reinstatement, promotion, and the payment of wages lost and an
additional

equal

amount

of

liquidated

damages.”

29

U.S.C.

§ 216(b).
Nominal damages are a form of legal or equitable relief
appropriate

to

effectuate

retaliation provision. 2

the

As

the

purposes

of

the

Supreme Court

FLSA’s

anti-

recently held,

“nominal damages are in fact damages paid to the plaintiff” and
constitute “‘relief on the merits[.]’”

Uzuegbunam v. Preczewski,

Courts appear to disagree about whether nominal damages are
legal or equitable in nature. Compare Griffith v. State of Colo.,
Div. of Youth Servs., 17 F.3d 1323, 1327 (10th Cir. 1994) (legal),
with Bayer v. Neiman Marcus Grp., Inc., 861 F.3d 853, 869-874 (9th
Cir. 2017) (sometimes equitable).
The court need not resolve
whether the nominal damages awarded to Mr. Toomey were legal or
equitable to determine whether they are available in an FLSA
retaliation action because the statute authorizes both.
2

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Case 1:18-cv-03276-DKC Document 174 Filed 08/02/22 Page 7 of 30

141 S.Ct. 792, 801 (2021) (quoting Farrar v. Hobby, 506 U.S. 103,
11, 113 (1992)).

Courts have also held that nominal damages can

be awarded to “vindicate rights” that might not cause tangible
injury,

Bayer,

861

F.3d

at

872,

because

“every

legal

injury

necessarily causes damage,” see Uzuegbunam, 141 S.Ct. at 798-800
(emphasis in original) (summarizing cases); see also Calhoun v.
DeTella, 319 F.3d 936, 941 (7th Cir 2003) (nominal damages are
“recognition of a violation of rights” (citation omitted)).

In

addition, “[n]ominal damages serve . . . to clarify the identity
of the prevailing party for the purposes of awarding attorney’s
fees and costs in appropriate cases.”

Bayer, 861 F.3d at 872

(internal quotation marks and citation omitted).
In

summary,

nominal

damages

can

compensate

non-tangible

injuries, vindicate rights, and signal who the prevailing party
is, opening the door to attorney’s fees.

These effects further

the purposes of the FLSA’s anti-retaliation provision by repairing
damage, enabling employees to bring suit, and creating a deterrent
against future violations.

In short, nominal damages “‘affec[t]

the behavior of the defendant towards the plaintiff’ and thus
independently provide redress.”

Uzuegbunam, 141 S.Ct. at 801

(quoting Hewitt v. Helms, 482 U.S. 755, 761 (1987)).

Moreover,

the court has identified several cases in which plaintiffs were
awarded nominal damages on FLSA retaliation claims.

Sondesky v.

Cherry Scaffolding Inc., Nos. 19-2899 & 19-2900, 2021 WL 4147099,
7

Case 1:18-cv-03276-DKC Document 174 Filed 08/02/22 Page 8 of 30

at *1 (3d Cir. Sept. 13, 2021) (unpublished); Demirovic v. Ortega,
No. 15-cv-0327, 2018 WL 1935981, at *8 (E.D.N.Y. Apr. 24, 2018);
Schaeffer v. Warren Cnty., No. 14-cv-0945, 2017 WL 5709640, at *11
(S.D.Miss. Nov. 27, 2017). 3
2.

Waiver

First, the waiver rule is not implicated here.

The rule is

invoked in cases where plaintiffs first seek nominal damages well
after a verdict has been rendered or on appeal.

See, e.g., Azimi

v. Jordan’s Meats, Inc., 456 F.3d 228, 240 (1st Cir. 2006) (three
months after verdict); Berene, 800 F.App’x at 760-61 (on appeal).
Here, nominal damages were raised and awarded during trial and
before the jury was instructed.

It is nonsensical to suggest that

Mr. Toomey waived his nominal damages claim in such circumstances.
Even if the waiver rule were relevant here, Mr. Toomey did
not waive his request.

Even where an award of nominal damages is

mandatory, it “can be waived.”

Berene, 800 F.App’x at 761 n.5

(citing Oliver v. Falla, 258 F.3d 1277, 1281-82 (11th Cir. 2001)
(collecting cases)); Azimi, 456 F.3d at 239-40 (“Regardless of

The court need not resolve whether awarding Mr. Toomey
nominal damages was mandatory under Carey v. Piphus, 435 U.S. 247
(1978).
At a minimum the award was available as a matter of
discretion. See, e.g., Berene v. Nationstar Mortgage, LLC, 800
F.App’x 756, 761 n.5 (11th Cir. 2020) (citing Carver Middle Sch.
Gay-Straight Alliance v. Sch. Bd. of Lake Cnty., 842 F.3d 1324,
1331 (11th Cir. 2016)) (indicating that nominal damages may be
discretionary where not mandatory).
Whether the award was
mandatory or discretionary does not affect Helion’s other
challenges, as discussed further below.
3

8

Case 1:18-cv-03276-DKC Document 174 Filed 08/02/22 Page 9 of 30

whether an award of nominal damages is obligated in a . . . case
where liability has been found, a request for nominal damages may
be forfeited[.]”). To avoid waiver, a plaintiff must make a timely
request for a nominal-damages jury instruction or from the court
once a verdict has been reached.

Azimi, 456 F.3d at 240; Oliver,

258 F.3d at 1282.
Although not specifically stated in his complaint, Mr. Toomey
made clear to the court at trial that he sought all available
damages, including nominal damages. His complaint asked for “legal
or equitable relief appropriate to effectuate the purposes of” the
FLSA’s anti-retaliation provision.

(ECF No. 88-2, at 21).

While

that alone would not be enough, Azimi, 456 F.3d at 240 n.10, Mr.
Toomey also proposed a jury instruction stating, “This Court has
already

found

that

Defendant

did

retaliate

Toomey.

It is therefore left for you to determine what, if any,

damages Plaintiff Toomey is entitled to.”

against

Plaintiff

(ECF No. 134, at 22).

He also proposed a verdict-sheet question asking, “What if any
damages do you award Plaintiff William Toomey for his retaliation
claim against Defendant?”
to both proposals.

(ECF No. 123, at 3).

Helion objected

Although the parties focused their attention

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Case 1:18-cv-03276-DKC Document 174 Filed 08/02/22 Page 10 of 30

on Mr. Toomey’s request for non-economic damages, the scope of his
proposed jury instruction and verdict-sheet question was broader. 4
At the close of Plaintiffs’ case, the court granted Helion’s
motion for judgment as a matter of law on Mr. Toomey’s non-economic
damages

request

because

he

emotional-distress evidence.

had

not

introduced

sufficient

In doing so, the court stated that

Mr. Toomey “gets a dollar for this, and that means, I don’t think
I need to send it to the jury.

Is that right, [Plaintiffs’

counsel]?” (ECF No. 166, at 107). Mr. Toomey’s attorney responded
that he “would like [the court] to send it to the jury but I
understand the Court’s position.”

(Id.).

In other words, Mr.

Toomey maintained that the non-economic damage request should go
to the jury but, if it were not viable, he agreed that he was
entitled to nominal damages.

(Id.).

Helion did not object.

(Id.).
Under these circumstances, it would be wrong to conclude that
Mr. Toomey waived his nominal damages claim.

At a minimum, his

accession to a nominal damages award at the close of his case was
enough to satisfy the timely request requirement.

That the court

Helion argued pre-trial that Mr. Toomey could not seek noneconomic damages on his retaliation claim because he had not made
any request for them in his answer to Helion’s interrogatories.
Mr. Toomey delivered amended interrogatory answers to Helion
before trial and Helion was permitted to examine Mr. Toomey
regarding the testimony he intended to offer.
Satisfied that
Helion would not be prejudiced, the court permitted Mr. Toomey to
testify about his emotional distress.
4

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Case 1:18-cv-03276-DKC Document 174 Filed 08/02/22 Page 11 of 30

first raised nominal damages in that moment is immaterial.

If

anything, it reflects that Mr. Toomey had already put Helion and
the

court

on

notice

to

his

intent

to

seek

nominal

damages.

Helion’s belated objection to this award is unpersuasive.
3.

Additur

The Seventh Amendment states that, “[i]n suits at common law,
where the value in controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved, and no fact tried by a
jury shall be otherwise re-examined in any Court of the United
States, than according to the rules of the common law.”
Supreme

Court

has

held

that,

under

the

Seventh

The

Amendment’s

reexamination clause, “[a] federal court may grant a new trial
because of an inadequate verdict, but . . . it may not increase
the damages above those awarded by the jury, either directly or by
use of an additur.”

Charles A. Miller & Arthur R. Wright, Additur,

Federal Practice & Procedure § 2816 (3d ed. 2022); see Gasperini
v. Ctr. for Humanities, Inc., 518 U.S. 415, 433 (1996) (citing
Dimick v. Schiedt, 293 U.S. 474, 486-87 (1935)).
The court’s decision to award Mr. Toomey one dollar in nominal
damages did not violate the Seventh Amendment by impermissibly
increasing a jury damages award to Mr. Toomey.

This is true

whether the nominal damages award was mandatory or discretionary.
If it was mandatory under Carey v. Piphus, it categorically could
not be impermissible additur.

Gibeau v. Nellis, 18 F.3d 107, 111
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Case 1:18-cv-03276-DKC Document 174 Filed 08/02/22 Page 12 of 30

(2d Cir. 1994); Hicks v. Brown Grp., Inc., 902 F.2d 630, 652-54
(8th Cir. 1990), vacated on other grounds, 499 U.S. 914 (1991).

If

the award was discretionary, it still did not violate the Seventh
Amendment because the retaliation claim was not tried to the jury
and there was no jury damages award on it.

Put another way, the

nominal damage award was not the “bald addition of something which
in no sense can be said to be included in the verdict” because
there was no jury verdict on the retaliation claim.

Dimick, 293

U.S. at 486.
To the extent Helion argues that Mr. Toomey’s nominal damages
remedy must have been tried to the jury, it is mistaken.

“[T]he

seventh amendment requires a jury trial upon demand where the
amount in controversy exceeds twenty dollars.”
F.2d 613, 616 n.7 (4th Cir. 1978).

Burt v. Abel, 585

If a plaintiff’s allegations

“entitle him to no more than nominal damages, the seventh amendment
will

not

be

controversy.”

applicable
Id.

because

of

an

insufficient

amount

in

In such a case, the district court may award

nominal damages on the basis of its previous finding that a
violation occurred.

See id.

Helion has not shown that awarding Mr. Toomey nominal damages
on his FLSA retaliation claim was a clear error of law or created
manifest injustice.

The award stands.

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III. Motion for Judgment Notwithstanding the Verdict on the
Field Technician Overtime Claims
A.

Standard of Review

Federal Rule of Civil Procedure 50 governs the requirements
for making both initial and renewed motions for judgment as a
matter of law.

Rule 50(b) provides that a party may file a renewed

motion for judgment, also known as judgment notwithstanding the
verdict (“JNOV”), as a matter of law within twenty-eight days after
the entry of judgment.

A court may grant JNOV if “there is no

legally sufficient evidentiary basis for a reasonable jury to find
in favor of that party on that issue.”

Fed.R.Civ.P. 50(a).

In

making this determination, “the judge is not to weigh the evidence
or appraise the credibility of the witnesses, but must view the
evidence in the light most favorable to the non-moving party and
draw legitimate inferences in its favor.”

Anheuser–Busch, Inc. v.

L & L Wings, Inc., 962 F.2d 316, 318 (4th Cir. 1992) (citations
omitted).
B.

Analysis

Helion makes two broad arguments which mirror arguments this
court resolved at summary judgment.

First, it may argue that its

analysis of GPS data from the Field Technician Plaintiffs’ company
vehicles satisfies its burden to maintain accurate time records
under Mt. Clemens.

If so, it contends, the Field Technician

Plaintiffs could not have relied on their own testimony to estimate
their

hours

worked

under

the

Mt.
13

Clemens

burden-shifting

Case 1:18-cv-03276-DKC Document 174 Filed 08/02/22 Page 14 of 30

framework.
sufficiency

Second, and in the alternative, Helion challenges the
of

the

Field

overtime hours worked.

Technician

Plaintiffs’

evidence

of

It asserts that the Field Technician

Plaintiffs’ testimony could not support a just and reasonable
inference of their hours worked for two reasons: (a) the testimony
was too imprecise, and (b) the GPS data negated the reasonableness
of

the

Field

Technician

Plaintiffs’

estimates

because

it

accurately captured all the work they performed, and they did not
consider it when building their estimates.
Helion is wrong on all counts and is not entitled to judgment
notwithstanding the verdict. As an initial matter, the Mt. Clemens
burden-shifting framework does not apply at trial (although it can
inform what evidence is sufficient for a plaintiff to meet his
burden of proof).

In any case, the GPS data did not satisfy

Helion’s duty to maintain accurate time records.

Furthermore, the

Field Technician Plaintiffs’ estimates were sufficiently detailed
to support an inference of their hours worked and prove by a
preponderance of the evidence that they were not paid for overtime
work.

And the GPS data could not negate the Field Technician

Plaintiffs’ estimates as a matter of law, whether through its
accuracy or their failure to consider it.

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1.
Applicability of Mt. Clemens and Helion’s Obligation
to Maintain Accurate Time Records
The FLSA statute places on employers the duty “to keep proper
records of wages, hours, and other conditions and practices of
employment,” because they are in the best position to do so.
Anderson v. Mt. Clemens, 328 U.S. 680, 687 (1943), superseded by
statute on other grounds, Portal–to–Portal Act of 1947, Pub.L. No.
80–49 § 4(a), 61 Stat. 86–87 (codified at 29 U.S.C. § 254(a)); see
also 29 U.S.C. § 211(c) (codifying employer record-keeping duty).
“[W]hen employers violate their statutory duty to keep proper
records, [] employees thereby have no way to establish the time
spent

doing

uncompensated

work[.]”

Tyson

Foods,

Inc.

v.

Bouaphakeo, 577 U.S. 442, 456 (2016) (citing Mt. Clemens, 328 U.S.
at 687).
In Anderson v. Mt. Clemens, the Supreme Court held that, in
such a situation, the “remedial nature of [the FLSA] and the great
public policy which it embodies . . . militate against making the
burden [of proof] an impossible hurdle for the employee.”
U.S. 680 at 687.

328

A more forgiving standard of proof was necessary

to avoid “penalize[ing] the employee by denying him any recovery
on the ground that he is unable to prove the precise extent of
uncompensated work[ and] . . . allow[ing] the employer to keep the
benefits

of

compensation[.]”

an

employee’s

labors

Id.

15

without

paying

due

Case 1:18-cv-03276-DKC Document 174 Filed 08/02/22 Page 16 of 30

The Court adopted a burden-shifting framework that allows
employees without access to accurate time records to rely on their
own testimony to meet their burden of proof.
[W]here the employer’s records are inaccurate
or inadequate and the employee cannot offer
convincing substitutes . . . an employee has
carried out his burden if he proves that he
has in fact performed work for which he was
improperly compensated and if he produces
sufficient evidence to show the amount and
extent of that work as a matter of just and
reasonable inference. The burden then shifts
to the employer to come forward with evidence
of the precise amount of work performed or
with evidence to negative the reasonableness
of the inference to be drawn from the
employee’s evidence. If the employer fails to
produce such evidence, the court may then
award damages to the employee, even though the
result be only approximate.
Mt. Clemens, 328 U.S. at 687-88.
Helion misunderstands Mt. Clemens.
two things.
summary

First, it imposes its burden-shifting framework at

judgment,

determine

As relevant here, it does

whether

where
a

it

genuine

serves

as

dispute

an
of

evidentiary
material

tool

fact

regarding the number of hours an FLSA plaintiff worked.

to

exists
That

burden-shifting framework has no purchase at trial and does not
create a hurdle for plaintiffs to clear to present their own
testimony to the jury.

See St. Mary’s Honor Ctr. v. Hicks, 509

U.S. 502, 510 (1993) (describing the McDonnell Douglas burdenshifting framework in Title VII employment discrimination cases as
becoming “no longer relevant” once its initial hurdle has been
16

Case 1:18-cv-03276-DKC Document 174 Filed 08/02/22 Page 17 of 30

cleared and the defendant has introduced evidence to support its
position).

At trial, the parties put their best evidence forward

and the jury must decide whether the plaintiffs have proved their
case. The only relevant basis for a defendant in Helion’s position
to argue that a plaintiff’s evidence should not reach the jury is
the sufficiency of that evidence prove the plaintiff’s case by a
preponderance of the evidence.
That said, Mt. Clemens also comments on what sort of evidence
is sufficient for a plaintiff to prove a wage-and-hour claim.
the

extent

evidence

would

not

support

a

just

and

To

reasonable

inference under Mt. Clemens, it would not be sufficient to support
a jury verdict.

As such, Helion can rely on Mt. Clemens to argue

that there was insufficient evidence to support the jury verdicts,
but not to suggest that the Field Technician Plaintiffs were barred
from relying on less precise evidence, here their own testimony,
to support their claims.
In any case, to the extent Helion argues that its GPS records
satisfy

its

mistaken.

burden

to

maintain

accurate

time

records,

it

is

This is a case about allegedly misclassified workers.

Until May 2018, Helion classified Field Technicians as exempt from
the FLSA’s overtime requirements and did not employ a system to
record their time.

As a result, Helion does not have, nor did it

ever maintain, records of the hours that the Field Technicians
worked prior to May 2018.

Its analysis of GPS data from the Field
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Technician Plaintiffs’ company vehicles was prepared for this
litigation and cannot satisfy Helion’s duty to maintain time
records.

In addition, as discussed below, a jury could reasonably

find that the analysis of the GPS data does not accurately reflect
the Field Technician Plaintffs’ hours worked.
2.
Sufficiency of the Field Technician Plaintiffs’
Evidence
The Field Technician Plaintiffs’ testimony was sufficient to
support the jury verdicts.
prove

their

evidence.

overtime

hours

Their testimony was precise enough to
worked

by

a

preponderance

of

the

In addition, Helion’s contention that the GPS data, or

the Field Technician Plaintiffs’ disregard of it, undermined their
testimony improperly invites the court to intrude on the jury’s
responsibility to find facts.

The jury could reasonably have

concluded that Helion’s analysis was inaccurate and credited the
Field Technician Plaintiffs’ testimony.

The GPS data and analysis

therefore cannot negate the weight or reasonableness of the Field
Technician Plaintiffs’ estimates as a matter of law.
To

prevail

at

trial,

FLSA

plaintiffs

must

“prove

by

a

preponderance of the evidence that they worked overtime hours
without compensation and that [their employer] knew of such work.”
Lyle v. Food Lion, Inc., 954 F.2d 984, 987 (4th Cir. 1992).

As

noted above, Mt. Clemens clarifies what is required to prove that
an

employee

worked

overtime

without
18

compensation

where

the

Case 1:18-cv-03276-DKC Document 174 Filed 08/02/22 Page 19 of 30

employer violates its duty to maintain accurate time records.

In

such cases, the employee must introduce evidence to show “the
‘amount and extent’ of the work ‘as a matter of just and reasonable
inference[.]’”

Talton v. I.H. Caffey Distributing Co., Inc., 124

F.App’x 760, 763 (4th Cir. 2005) (quoting Mt. Clemens, 328 U.S. at
687) (resolving appeal from summary judgment).

Courts differ on

what is precisely required to meet this burden.

See Alston v.

DIRECTV, Inc., 254 F.Supp.3d 765, 789 n.12 (D.S.C. 2017) (Childs,
J.) (citing, among other cases, Holaway v. Stratasys, Inc., 771
F.3d 1057, 1059 (8th Cir. 2014), and rejecting the view that a
plaintiff’s testimony “(a) must be so specific as to rise above
the

level

needed

for

reasonable

estimation

or

(b)

must

be

accompanied by other substantiating evidence”).
Whatever

the

precise

requirements,

the

jury’s

verdict

demonstrates that the Field Technician Plaintiffs satisfied them
at trial.

Mr. McCloud testified that his regular work hours were

from 8:00 a.m. to 5:00 p.m. (with an hour for lunch) but that he
“always had to be on-call,” that he sometimes did not finish by
5:00, and that approximately once a month he had to do onboarding
project work that might require 7-8 hours of “after hours” work.
(ECF No. 167, at 14:2-3, 18:12-19:18, 29:18-24, 32:9-14, 53:1-13).
He indicated he worked late at least a couple times a week and
also received on-call requests a couple times a week.
at 52:1-5, 58:4-9).

(Id.,

Although not crystal clear, he suggested that
19

Case 1:18-cv-03276-DKC Document 174 Filed 08/02/22 Page 20 of 30

staying late or responding to on-call requests could often take
two hours.

(See id., 53:18-21).

He also testified that he

typically worked for 30 minutes before leaving home for the day.
(Id., at 13, 22, 51).

Taken together, he estimated that he worked

ten hours of overtime each week, on average.

(Id., at 30:5-10,

59:13-24).
Mr. Toomey testified that his regular work hours were from
8:00 a.m. to 5:00 p.m. with an hour for lunch.
18:24-19:2).

(ECF No. 169, at

He worked on special projects every week-and-a-half

or two weeks for which he had to work late into the night.
at 26:1-18).

(Id.,

He traveled to at least seven client sites outside

his geographic region for onboarding and remodel projects that
often required overnight work.

(Id., at 67:12-74:15).

He was on-

call every other week for part of his employment and on-call once
every

three

weeks

for

another

part.

(Id.,

at

43:21-44:4).

Sometimes the on-call requests would be resolved in less than an
hour.

(Id., at 46:17-47:2).

In at least one instance a request

required an entire weekend of work.

(Id.).

He estimated that on

average he worked fifteen-to-twenty-five hours of overtime per
week and asserted that he worked at least some overtime every week.
(Id., at 48:14-49:3).
Mr. Turnerhill testified that he was expected to work eight
hours a day, although he had some flexibility on when he started
and ended.

(ECF No. 166, at 28:11-25).
20

The rule of thumb was

Case 1:18-cv-03276-DKC Document 174 Filed 08/02/22 Page 21 of 30

8:00 a.m. to 5:00 p.m. or 9:00 a.m. to 6:00 p.m., with an hour for
lunch.

(Id.).

He typically worked 9:00 to 6:00 but typically

started his day by 8:00 a.m.

(See id., 29:13-15).

He worked 30

minutes to an hour before his official workday began in the
morning.

(Id., at 31:25-32:14).

Although his workload was highly

variable, he would sometimes still be working at a client site at
midnight or work through the night.

(Id., at 37:1-3).

He was

sent to San Antonio for multi-day onboarding projects that required
after hours work.
day.

(Id., at 40: 9-19).

(Id., at 42:3-13).

(Id., at 48:23-24).

He could “easily pull a ten-hour day[.]”

He estimated that he worked ten-to-fifteen

hours a week in overtime on average.
Neither

the

He was also on-call every

GPS

data

nor

(Id., at 47:6-14).

Helion’s

analysis

of

it

could

undermine the Field Technician Plaintiffs’ testimony as a matter
of law.

Nothing about the data required the Field Technician

Plaintiffs to incorporate it into their own estimates of hours
worked.

Helion points to a District of New Jersey case, Adami v.

Cardo Windows, Inc., for the proposition that where a defendant
introduces records of work performed (but not hours worked),
plaintiffs must incorporate the facts reflected in those records
into their time estimates and cannot disregard them.

See No. 12-

cv-2804, 2015 WL 1471844, at *9 (D.N.J. Mar. 31, 2015).
That

case,

distinguishable.

which
The

is

not

binding

plaintiffs

in

21

on

Adami

this

court,

is

conceded

that

the

Case 1:18-cv-03276-DKC Document 174 Filed 08/02/22 Page 22 of 30

employer’s records of work performed were accurate and could be
used to “reconstruct each day” worked.
The

FLSA

does

not

impose

a

burden

Neither are true here.
on

Plaintiffs to analyze the raw GPS data.

the

Field

Technician

Neither that data nor

Helion’s analysis of it necessarily captured all the work they
performed or all their compensable time.

Accordingly, the ability

of both to reflect accurately the hours worked by the Field
Technician Plaintiffs is hotly contested, as discussed below.
the

extent

that

Adami’s

holding

extends

to

records

To

whose

completeness and accuracy is disputed, it is unpersuasive.

To

conclude that a plaintiff’s testimony should not go to the jury
because it was not informed by records which may be inaccurate is
to make credibility and reliability determinations for the jury. 5
The

substantial

conflict

between

the

parties

about

the

ability of the GPS data and Helion’s analysis of it to reflect
accurately the Field Technician Plaintiffs’ hours worked also
means

that

they

could

not

somehow

independently

negate

reasonableness of the Field Technician Plaintiffs’ testimony.

the
At

the end of the day, this argument also seeks to have the court
stand in the jury’s shoes.

Before elaborating on why, a brief

Helion also argues that the Field Technician Plaintiffs
should have incorporated its Autotask records into their estimates
of time worked. That argument is doomed by Helion’s own admission
that the Autotask records do not accurately reflect time worked.
(ECF No. 165, at 8).
5

22

Case 1:18-cv-03276-DKC Document 174 Filed 08/02/22 Page 23 of 30

description of why the jury might reasonably have found the records
and analysis inaccurate is helpful.

First, the analysis was

prepared by Helion’s Vice President of Human Resources, Lucas
Johnson, for this litigation.

Not only could the jury have

concluded that he was not an impartial investigator of the GPS
data, but it may also have concluded that he lacked the technical
skills to analyze the data accurately.

Indeed, at least one error

was identified during Mr. Johnson’s testimony.
Second, the underlying GPS data concededly did not capture
every day that the Field Technician Plaintiffs worked.
for Mr. McCloud, the GPS records were incomplete.
were missing.

(ECF No. 170, at 32:9-10).

At least

Months of data

The data also captures

only information about the Field Technician Plaintiffs’ travels
when

in

their

assigned

territories.

It

says

nothing

about

movements when they traveled by means other than their company
cars to different territories, as at least Mr. Toomey did.

Helion

attempts to address these gaps by pointing to the fact that, in
its

analysis,

the

Field

Technician

worked per week was less than forty.

Plaintiffs’

average

hours

It argues that the difference

between the average it calculated and the average estimated by the
Field Technician Plaintiffs was so great that it undermined their
estimates.

Of

course,

that

is

a

quintessential

determination that this court cannot make.
operates week-by-week.

credibility

In addition, the FLSA

If Helion failed to pay its employees
23

Case 1:18-cv-03276-DKC Document 174 Filed 08/02/22 Page 24 of 30

overtime wages in any given week, it is liable for those unpaid
wages.

The jury awarded the Field Technician Plaintiffs fewer

damages than requested.

It could reasonably have concluded that

the Field Technician Plaintiffs’ estimates were high but that they
worked overtime for which they were unpaid. 6
Third, the analysis in Helion’s summary GPS exhibits assumed
that the Field Technician Plaintiffs’ workdays always began when
they arrived at the first worksite or Helion facility of the day
and ended when they departed the last worksite or Helion facility
of the day.

This assumption relies on a legal conclusion – that

the Field Technician Plaintiffs never had compensable work time
outside that window each day.

But disputes of fact must be

resolved to make that legal conclusion.

As discussed below, the

jury could reasonably have concluded that the Field Technician
Plaintiffs’ workdays sometimes started earlier and ended later
than asserted by Helion, even though normal commute time is not
compensable.
Under the FLSA, employers need not pay their employees for:
(1) walking, riding, or traveling to and from
the actual place of performance of the
principal activity or activities which such
employee
is
employed
to
perform,
and
(2) activities which are preliminary to or
postliminary to said principal activity or
activities,
Ironically, Helion’s own summary GPS exhibits included weeks
with more than forty hours of work, essentially conceding unpaid
overtime wages were due in those weeks.
6

24

Case 1:18-cv-03276-DKC Document 174 Filed 08/02/22 Page 25 of 30

which occur either prior to the time on any
particular workday at which such employee
commences, or subsequent to the time on any
particular workday at which he ceases, such
principal activity or activities.
[This
extends to] use of an employer’s vehicle for
travel by an employee and activities performed
by an employee which are incidental to the use
of such vehicle for commuting . . . if the use
of such vehicle for travel is within the
normal commuting area for the employer’s
business or establishment and the use of the
employer’s vehicle is subject to an agreement
on the part of the employer and the employee
or representative of such employee.
29 U.S.C. § 254(a).
This means that, “[n]ormally, travel from home to work is not
compensable regardless of whether the employee works at a fixed
location or at different job sites.”

Butler v. DirectSAT USA,

LLC, 55 F.Supp.3d 793, 814 (D.Md. 2014) (Chasanow, J.) (citing 29
U.S.C. § 254(a); 29 C.F.R. § 785.35).
compensation

for

his

commute

But a plaintiff may obtain

“under

the

continuous

workday

doctrine, where the compensable workday begins with the first
principal activity of a job and ends with the employee’s last
principal activity.”

Id. (internal quotations omitted) (quoting

Perez v. Mountaire Farms, Inc., 650 F.3d 350, 363 (4th Cir. 2011))
(citing 29 C.F.R. § 790.6(a)).
Whether an activity is principal “is a mixed question or law
and fact[.]”

Jones v. Hoffberger Moving Servs., 92 F.Supp.3d 405,

411 (D.Md. 2015) (Bredar, J.).

Even activities seemingly outside
25

Case 1:18-cv-03276-DKC Document 174 Filed 08/02/22 Page 26 of 30

the workday “are compensable [] if they are an ‘integral and
indispensable part of the [employee’s] principal activities,’”
because “integral and indispensable” activities are themselves
principal activities.

Perez, 650 F.3d at 363 (quoting Steiner v.

Mitchell, 350 U.S. 247, 256 (1956)) (citing IBP, Inc. v. Alvarez,
546 U.S. 21, 37, (2005)).

“[T]he test for whether an activity is

‘integral and indispensable’ is ‘tied to the productive work that
the employee is employed to perform.’” Aviles-Cervantes v. Outside
Unlimited, Inc., 276 F.Supp.3d 480, 492 (D.Md. 2017) (Bennett, J.)
(quoting Depew v. Mobile Dredging & Pumping Co., No. 15-cv-3080JMC,

2017

WL

1382307,

at

*6

(D.Md.

Apr.

18,

2017)

(quoting

Integrity Staffing Sols., Inc. v. Busk, 574 U.S. 27, 33, 36
(2014))).

“That

indispensable’

to

is,
the

‘[a]n

activity

performance

of

is

only

‘integral

an

employee’s

and

principal

activities if ‘it is an intrinsic element of those activities and
one with which the employee cannot dispense if he is to perform
his principal activities.’”
The

Field

Technician

Id.
Plaintiffs

introduced

sufficient

evidence through their own testimonies for the jury to conclude
that their compensable workdays began before or during their
commute to their first job site and ended after their departure
from

their

last

job

site.

The

Field

Technician

Plaintiffs

testified that they fielded substantive emails and calls about
their work with Helion, including about problems at client sites,
26

Case 1:18-cv-03276-DKC Document 174 Filed 08/02/22 Page 27 of 30

before they left home in the morning, during their commutes in the
morning, and after they arrived home at the end of the day.

The

jury

and

could

have

concluded

that

this

work

was

integral

indispensable to their principal job duties and therefore extended
the start and end of their continuous workday.
Mr. McCloud testified that “[s]ometimes [he] had meetings
with the client before [he] would actually get to the site” in
which he would “try to troubleshoot” with the client over the
phone.

(ECF No. 167, at 13:23-24, 22:16-19).

He also testified

that he would “[c]heck[] emails” in the morning and that the Field
Technicians “[a]lways had our phones on us so, you know, we’re
getting calls from clients throughout the day[.]”
24).

(Id., at 22:21-

This work usually started by 8 a.m., before he left for his

first site visit and, all told, such tasks would usually take 30
minutes.

(Id., at 51:8-20).

Mr. Toomey testified that he would respond to emails at the
end of the day, sometimes until 10:00 or 11:00 p.m.
at 34:17-18, 36:15-23).

He would also start work an hour and a

half or an hour before his official start time.
20).

(ECF No. 169,

(Id., at 35:18-

During that time, he would send emails and contact clients.

(Id., at 35:23-25).

Sometimes he would have to pull over on his

way to the first job of the day to take calls from the desktop
department or a client to troubleshoot problems.

27

(Id., at 37:18).

Case 1:18-cv-03276-DKC Document 174 Filed 08/02/22 Page 28 of 30

He estimated that his morning tasks took him an hour or an hour
and a half, on average.

(Id., at 38:3-6).

Mr. Turnerhill testified he would have phone calls with
clients before he left in the morning.

(ECF No. 166, at 29:5-18).

Sometimes he was just calling to schedule a time for arrival, but
other times he was calling management or other technicians for
direction because his assignment was unclear or it dealt with an
issue

with

which

he

was

unfamiliar.

(Id.,

at

29:19-30:4).

Sometimes he would also be following-up on issues from prior days’
work.

(Id., at 30:19-31:3).

He would also check emails in the

morning, and they sometimes covered work-related matters distinct
from his daily assignments.

(Id., at 31:15-24).

He estimated

that he spent 30 minutes to an hour on such tasks before he left
home each morning.

(Id., at 31:25-32:14).

At bottom, the jury was instructed appropriately following
the close of all evidence on the applicable legal principles at
issue in the case, how to evaluate the evidence presented by the
parties, and the method for calculating damages.
instructed

on

the

factors

credibility of a witness.

to

consider

when

The jury was
evaluating

the

In addition, the jury was instructed on

the applicable law and the background of the case, including that
the Field Technician Plaintiffs were employees of Helion who were
entitled to overtime pay if they were not exempt.

The jury was

informed that Helion conceded that they did not pay the Field
28

Case 1:18-cv-03276-DKC Document 174 Filed 08/02/22 Page 29 of 30

Technician Plaintiffs overtime wages during the relevant time
period.

The jury was also instructed that each Field Technician

Plaintiff was required to prove by a preponderance of the evidence
that he worked hours for which he was not paid overtime.

Finally,

the jury was given the formula for computing the wages owed to
each Field Technician Plaintiff.
Based on the testimony adduced at trial and in accordance
with instructions provided by the court, the jury determined that
the

Field

Technician

Plaintiffs

each

established

by

a

preponderance of the evidence that he performed work for which he
was owed compensation by Helion.
denied.

Helion’s motion for JNOV will be

It asks the court to weigh the credibility of the Field

Technician Plaintiffs against the credibility and accuracy of
Helion’s

GPS

analysis

and

its

supporting

testimony.

That

determination is within the jury’s purview, not the court’s. Based
on the damages amounts awarded by the jury, all of which were lower
than the amount requested by the Field Technician Plaintiffs, it
is clear that the jury weighed all of the testimony presented by
the parties to arrive at its verdict.

Moreover, viewing the

testimony from trial in the light most favorable to the Field
Technician Plaintiffs, a reasonable jury could find that they were
entitled to their respective damages amounts.

29

Case 1:18-cv-03276-DKC Document 174 Filed 08/02/22 Page 30 of 30

IV.

Conclusion
For the foregoing reasons, Helion’s motion to alter or amend

the judgment and for judgment as a matter of law will be denied.
A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

30