Desmond v. PNGI Charles Town Gaming, L.L.C.

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

JOHN DESMOND, 
Plaintiff-Appellant,
v.
PNGI CHARLES TOWN GAMING,  No. 09-2189
L.L.C., d/b/a Charles Town Races
& Slots,
Defendant-Appellee.


DANA WITHERSPOON, 
Plaintiff-Appellant,
v.
PNGI CHARLES TOWN GAMING,  No. 09-2190
L.L.C., d/b/a Charles Town Races
& Slots,
Defendant-Appellee.

2 DESMOND v. PNGI CHARLES TOWN GAMING

M. LARRY SANDERS, 
Plaintiff-Appellant,
v.
PNGI CHARLES TOWN GAMING,  No. 09-2192
L.L.C., d/b/a Charles Town Races
& Slots,
Defendant-Appellee.


JOHN DESMOND, 
Plaintiff-Appellee,
v.
PNGI CHARLES TOWN GAMING,  No. 09-2254
L.L.C., d/b/a Charles Town Races
& Slots,
Defendant-Appellant.

Appeals from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
John Preston Bailey, Chief District Judge.
3:06-cv-00128-JPB; 3:06-cv-00129-JPB;
3:06-cv-00135-JPB)

Argued: September 23, 2010

Decided: January 14, 2011

Before TRAXLER, Chief Judge, SHEDD, Circuit Judge,
and James C. DEVER III, United States District Judge for
the Eastern District of North Carolina,
sitting by designation.
 DESMOND v. PNGI CHARLES TOWN GAMING 3
Affirmed in part, vacated in part, and remanded by published
opinion. Judge Dever wrote the opinion, in which Chief Judge
Traxler and Judge Shedd joined.

COUNSEL

ARGUED: Paul B. Weiss, MARTIN & SEIBERT, LC, Mar-
tinsburg, West Virginia, for John Desmond, Dana Wither-
spoon, and M. Larry Sanders. Brian Michael Peterson,
BOWLES, RICE, MCDAVID, GRAFF & LOVE, PLLC,
Martinsburg, West Virginia, for PNGI Charles Town Gaming,
L.L.C., d/b/a Charles Town Races & Slots. ON BRIEF:
Charles F. Printz, Jr., BOWLES, RICE, MCDAVID, GRAFF
& LOVE, PLLC, Martinsburg, West Virginia, for PNGI
Charles Town Gaming, L.L.C., d/b/a Charles Town Races &
Slots.

OPINION

DEVER, District Judge:

John Desmond, Dana Witherspoon, and M. Larry Sanders
(collectively "appellants" or "former employees") appeal from
an award of unpaid overtime compensation in their case under
the Fair Labor Standards Acts ("FLSA") against their former
employer, PNGI Charles Town Gaming, L.L.C., d/b/a Charles
Town Races & Slots ("Charles Town Gaming" or "em-
ployer"). The former employees dispute how the district court
computed unpaid overtime compensation under the FLSA.
Charles Town Gaming cross-appeals and disputes the district
court’s decision to grant summary judgment to the former
employees as to whether Charles Town Gaming’s FLSA vio-
lation was willful. As explained below, we affirm the district
court’s method of computing unpaid overtime compensation,
4 DESMOND v. PNGI CHARLES TOWN GAMING
vacate the district court’s judgment as to willfulness, and
remand for a trial on the issue of willfulness.

I.

Desmond, Witherspoon, and Sanders are three former rac-
ing officials who filed suit against their former employer
Charles Town Gaming, alleging violations of the overtime
provisions of the FLSA. J.A. 49–50. The district court consol-
idated the three actions and granted summary judgment to
Charles Town Gaming, concluding that because the appellants
held administrative positions, they were therefore exempt
from the overtime provisions of the FLSA. Appellants timely
appealed, and we reversed. See Desmond v. PNGI Charles
Town Gaming, L.L.C., 564 F.3d 688, 689, 691 (4th Cir.
2009). We concluded that the former employees did not qual-
ify for the administrative exemption under the FLSA. Id. at
695. We then remanded the case to the district court for fur-
ther proceedings. Id. at 695.

On remand, the district court entered summary judgment
for the former employees on the issue of FLSA liability. Des-
mond v. PNGI Charles Town Gaming, L.L.C., 661 F. Supp.
2d 573, 576 (N.D. W.Va. 2009). The district court then calcu-
lated the unpaid overtime compensation owed to the former
employees under 29 U.S.C. § 216(b). Id. at 576–85; see 29
U.S.C. § 216(b) ("Any employer who violates the provisions
of [29 U.S.C. § 206 or § 207] shall be liable to the employee
or employees affected in the amount of their unpaid minimum
wages, or their unpaid overtime compensation, as the case
may be, and in an additional equal amount as liquidated dam-
ages."). Charles Town Gaming conceded the number of hours
for which overtime was owed. Desmond, 661 F. Supp. 2d at
577. The district court determined the rate at which those
hours should be compensated by first applying Overnight
Motor Transportation Co. v. Missel, 316 U.S. 572 (1942), to
determine the regular rate. The district court then examined
whether the appropriate overtime premium was 50% or 150%
 DESMOND v. PNGI CHARLES TOWN GAMING 5
of that regular rate for all hours worked over 40. After brief-
ing, the district court calculated the unpaid overtime compen-
sation under 29 U.S.C. § 216(b) by using a 50% premium.
The court based its decision not on 29 C.F.R. § 778.114, but
rather upon the logic of Overnight Motor and general princi-
ples of compensatory damages. Desmond, 661 F. Supp. 2d at
583–84.

On remand, the parties also disputed whether Charles Town
Gaming’s FLSA violation was willful. After considering cross
motions for summary judgment as to willfulness, the district
court concluded that Charles Town Gaming’s FLSA violation
was willful as matter of law, thereby expanding the statute of
limitations period from two years to three years. Id. at 586.

The former employees appealed the district court’s calcula-
tion of unpaid overtime compensation under 29 U.S.C.
§ 216(b). Charles Town Gaming cross-appealed the district
court’s decision to award summary judgment on the willful-
ness issue.

II.

The former employees worked as racing officials with
Charles Town Gaming. J.A. 50. Charles Town Gaming pre-
pared the job descriptions for racing officials in 1999. Id. at
55–56. In doing so, Charles Town Gaming’s human resources
director used a computer program to help determine whether
to designate the position as exempt or non-exempt from over-
time under the FLSA. Id. Charles Town Gaming paid the rac-
ing officials a per diem rate and treated them as exempt. See
Aff. Karen Raffo, Nov. 20, 2007. Over the ensuing years,
Charles Town Gaming changed the pay from per diem to a
fixed weekly salary that the parties intended to cover all hours
worked. See J.A. 56, 146–52; Aff. Karen Raffo, Nov. 20,
2007. Charles Town Gaming believed (erroneously) that the
former employees were subject to the FLSA administrative
exemption; therefore, Charles Town Gaming did not pay them
6 DESMOND v. PNGI CHARLES TOWN GAMING
overtime. J.A. 49. All three appellants often worked more
than 40 hours in a week. Id. at 50. After the appellants unani-
mously declared the wrong horse to have won a race, Charles
Town Gaming dismissed them from their employment. Id.

The former employees contend the district court erred in
calculating their unpaid overtime compensation under 29
U.S.C. § 216(b). Charles Town Gaming contends the district
court erred by concluding that their FLSA violation was will-
ful. We review a grant of summary judgment de novo. See,
e.g., United States v. Bergbauer, 602 F.3d 569, 574 (4th Cir.
2010). When cross-motions for summary judgment are before
a court, the court examines each motion separately, employ-
ing the familiar standard under Rule 56 of the Federal Rules
of Civil Procedure. See, e.g., Ga. Pac. Consumer Prods., L.P.
v. Von Drehle Corp., 618 F.3d 441, 445 (4th Cir. 2010).

A.

The former employees challenge how the district court cal-
culated their unpaid overtime compensation under 29 U.S.C.
§ 216(b). The Supreme Court addressed how to calculate such
unpaid overtime compensation under 29 U.S.C. § 216(b) in
Overnight Motor. 316 U.S. at 580. The Court held that when
calculating the "regular rate" of pay for an employee who
agreed to receive a fixed weekly salary as payment for all
hours worked, a court should divide the employees fixed
weekly salary by the total hours worked in the particular
workweek. Id. at 579–80 (analyzing section 7 of the FLSA,
now codified at 29 U.S.C. § 207(a)(1)). This calculation
should be completed for each workweek at issue and results
in a regular rate for a given workweek. Id. Of course, the
Court recognized that the regular rate could vary depending
on the total hours worked. The Court then determined that the
employee should receive overtime compensation for all hours
worked beyond 40 in a given workweek at a rate not less than
one-half of the employee’s regular rate of pay. Id.
 DESMOND v. PNGI CHARLES TOWN GAMING 7
Although the parties agree that Overnight Motor applies in
calculating the regular rate, they disagree about how to calcu-
late the overtime premium. Specifically, the parties disagree
over whether the former employees should receive 150% of
the regular rate for all hours worked over 40 in a given work-
week or 50% of the regular rate for all hours worked over 40
in a given workweek.

In analyzing how to calculate unpaid overtime compensa-
tion under 29 U.S.C. § 216(b) in this mistaken exemption
classification case, we note that four sister circuits have
addressed this issue. The First, Fifth, Seventh, and Tenth Cir-
cuits all have determined that a 50% overtime premium was
appropriate in calculating unpaid overtime compensation
under 29 U.S.C. § 216(b) in mistaken exemption classifica-
tion cases, so long as the employer and employee had a
mutual understanding that the fixed weekly salary was com-
pensation for all hours worked each workweek and the salary
provided compensation at a rate not less than the minimum
wage for every hour worked. See Urnikis-Negro v. Am. Fam-
ily Prop. Servs., 616 F.3d 665 (7th Cir. 2010); Clements v.
Serco, Inc., 530 F.3d 1224 (10th Cir. 2008); Valerio v. Put-
nam Assocs., Inc., 173 F.3d 35 (1st Cir. 1999); Blackmon v.
Brookshire Grocery Co., 835 F.2d 1135 (5th Cir. 1988).

In Blackmon, the Fifth Circuit applied 29 C.F.R. § 778.114
to calculate unpaid overtime compensation in a mistaken
exemption classification case. 835 F.2d at 1138. The employ-
ees in Blackmon were meat-market managers who were
wrongly classified as exempt. Id. at 1137–38. The district
court calculated their unpaid overtime compensation by divid-
ing the weekly salary by 40 hours to determine their regular
rate, multiplying that rate by 150%, and then multiplying that
result by the number of overtime hours. Id. at 1138. The Fifth
Circuit rejected this method, instead applying 29 C.F.R.
§ 778.114 to determine the regular rate, and only using a 50%
multiplier. Id. The Fifth Circuit did not cite, much less dis-
cuss, Overnight Motor.
8 DESMOND v. PNGI CHARLES TOWN GAMING
In Valerio, the First Circuit upheld an award of summary
judgment in a mistaken exemption classification case. 173
F.3d at 39–40. Valerio was wrongly classified as an exempt
employee. Id. at 37. Upon dismissing Valerio from employ-
ment, her employer gave her a lump-sum payment intended
to cover any overtime owed to her. Id. at 38. In calculating the
unpaid overtime compensation, the employer paid her a 50%
overtime premium and relied on 29 C.F.R. § 778.114. The
First Circuit affirmed the district court’s finding that the
amount paid was more than was owed to Valerio under the
FLSA. Id. In Valerio, the First Circuit cited, but did not dis-
cuss, Overnight Motor. Id. at 39–40.

In Clements, the Tenth Circuit affirmed a district court’s
application of 29 C.F.R. § 778.114 to calculate unpaid over-
time compensation in a mistaken exemption classification
case. 530 F.3d at 1225. The employees in Clements provided
recruiting services to the Army on behalf of their employer,
Serco. Id. Serco had erroneously classified these employees as
exempt under the "outside salesmen" exemption. Id. at 1227;
cf. 29 U.S.C. § 213(a)(1). The employees claimed a 150%
multiplier applied because the employer and employees had
not agreed on whether overtime compensation was owed.
Clements, 530 F.3d at 1230. In affirming the use of a 50%
multiplier in calculating the unpaid overtime compensation,
the Tenth Circuit cited 29 C.F.R. § 778.114, the First Circuit’s
decision in Valerio, and our decision in Bailey v. County of
Georgetown, 94 F.3d 152, 155–57 (4th Cir. 1996). Clements,
530 F.3d at 1230. The Tenth Circuit found the lack of a clear
and mutual understanding on the overtime premium to be "ir-
relevant as to whether the Employees understood they were
being paid on a salaried . . . basis." Id. at 1231. In Clements,
the Tenth Circuit did not cite, much less discuss, Overnight
Motor.

In Urnikis-Negro, the Seventh Circuit affirmed a district
court’s award of a 50% overtime premium to calculate unpaid
overtime compensation in a mistaken exemption classification
 DESMOND v. PNGI CHARLES TOWN GAMING 9
case. 616 F.3d at 684. However, the court rejected the district
court’s retroactive application of 29 C.F.R. § 778.114, finding
it a "dubious source of authority for calculating a misclassi-
fied employee’s damages." Id. at 679. Instead, the court relied
on Overnight Motor. Id. at 680–84. The court held that when
an employer and employee agree that a fixed salary will con-
stitute payment at the regular rate for all hours worked and the
rate is not lower than the minimum wage, a court should rely
on Overnight Motor to calculate unpaid overtime compensa-
tion under 29 U.S.C. § 216(b). Id. Moreover, in such a situa-
tion, the court calculates the unpaid overtime compensation
using a 50% multiplier rather than a 150% multiplier. See id.

In addition to these decisions from our sister circuits, the
Department of Labor also has approved using a 50% overtime
premium to calculate unpaid overtime compensation in a mis-
taken exemption classification case. See Retroactive Payment
of Overtime and the Fluctuating Workweek Method of Pay-
ment, Wage and Hour Opinion Letter, FLSA 2009-3 (Dep’t
of Labor Jan. 14, 2009). The DOL issued the opinion letter in
response to an employer who asked how to compensate
employees mistakenly classified as exempt. Id. at 1. In the
opinion letter, the DOL states that "because the fixed salary
covered whatever hours the employees were called upon to
work in a workweek; the employees will be paid an additional
one-half their actual regular rate for each overtime hour . . .;
and the employees received and accepted the salary knowing
that it covered whatever hours they worked," a retroactive
payment of overtime using the 50% multiplier conforms with
FLSA requirements. Id. at 2.1

Here, the district court did not apply 29 C.F.R. § 778.114
to this mistaken exemption classification case. Rather, the dis-
1
Such DOL opinion letters are not binding on courts, but "constitute a
body of experience and informed judgment . . . give[n] . . . substantial
weight." Flood v. New Hanover County, 125 F.3d 249, 253 (4th Cir. 1997)
(discussing a DOL Wage and Hour Division letter ruling).
10 DESMOND v. PNGI CHARLES TOWN GAMING
trict court relied on the logical implications of Overnight
Motor to calculate unpaid overtime compensation under 29
U.S.C. § 216(b). Desmond, 661 F. Supp. 2d at 584. The dis-
trict court found that there was an agreement that the fixed
weekly salary covered all hours worked. Id. The district court
then reasoned that Overnight Motor’s regular-rate determina-
tion implies the previously paid weekly salary covers the base
compensation for all hours worked. Id. Thus, the district court
concluded that it need only award 50% of the regular rate to
provide the employees their "unpaid overtime compensation"
under 29 U.S.C. § 216(b). Id.

Appellants disagree and insist that such a reliance on Over-
night Motor improperly expands federal common law. They
also (confusingly) argue that Chevron2 deference to 29 C.F.R.
§ 778.114 requires courts to use a 150% multiplier and that if
employers are allowed to retroactively apply section 778.114
in mistaken exemption classification cases, employers have
no motive to pay for overtime as it accrues, effectively treat-
ing nonexempt employees as if they were exempt. In appel-
lants’ view, such a holding will create an incentive for
employers to pay a fixed weekly salary, never to pay over-
time, and then simply pay a 50% premium on the regular rate
2
See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837 (1984). To the extent that appellants believe that Chevron applies to
29 C.F.R. pt. 778, appellants’ reliance on Chevron is misplaced. A DOL
interpretive bulletin (such as the one contained in 29 C.F.R. pt. 778) is dif-
ferent than a DOL regulation promulgated in accordance with notice and
comment rulemaking. See, e.g., Monahan v. County of Chesterfield, 95
F.3d 1263, 1272 n.10 (4th Cir. 1996). Regulations promulgated in accor-
dance with notice and comment rulemaking are analyzed in accordance
with Chevron. See, e.g., Long Island Care at Home, Ltd. v. Coke, 551 U.S.
158, 165–75 (2007); Christensen v. Harris County, 529 U.S. 576, 586–88
(2000); Auer v. Robbins, 519 U.S. 452, 457–58 (1997). In contrast, inter-
pretive bulletins "while not controlling upon the courts by reason of their
authority, do constitute a body of experience and informed judgment to
which courts and litigants may properly resort for guidance." Skidmore v.
Swift & Co., 323 U.S. 134, 140 (1944); see Christensen, 529 U.S. at 587;
Overnight Motor, 316 U.S. at 580 n.17; Monahan, 95 F.3d at 1272 n.10.
 DESMOND v. PNGI CHARLES TOWN GAMING 11
if caught misclassifying non-exempt employees as exempt
employees. Cf. 29 U.S.C. § 213 (a)(1); 29 C.F.R. pt. 541
(white-collar exemption regulations).

As the district court held, appellants’ argument ignores the
teaching of Overnight Motor. After all, in Overnight Motor,
the Court recognized that employees and employers are free
to agree to a reduced hourly wage in exchange for a fixed
weekly salary, provided the fixed weekly salary covers all
hours worked and meets minimum wage requirements. 316
U.S. at 580. In our view, the district court correctly concluded
that Overnight Motor provides the appropriate method for cal-
culating the unpaid overtime compensation under 29 U.S.C.
§ 216(b) in this case. Tellingly, in Overnight Motor, the Court
provided the formula to compute the overtime due an
employee who was paid a fixed weekly salary intended to
cover all hours worked. Overnight Motor, 316 U.S. at 580
n.16. Although Overnight Motor concerned the more basic
question of whether overtime compensation applies to those
earning more than the minimum wage requirements in the
FLSA, 316 U.S. at 575, it contains nothing to indicate why
such a computation would not apply in determining unpaid
overtime compensation under 29 U.S.C. § 216(b) in a mis-
taken exemption classification case. Indeed, in Overnight
Motor, the Court interpreted 29 U.S.C. § 207(a) and explained
the meaning of "the regular rate at which he is employed,"
and interpreted 29 U.S.C. § 216(b) and explained how to cal-
culate "unpaid overtime compensation." See Overnight Motor,
316 U.S. at 574 n.2, 579–80.

Traditional principles of compensatory damages bolster this
conclusion. Compensatory damages are "[d]amages sufficient
in amount to indemnify the injured person for the loss suf-
fered." Black’s Law Dictionary 445 (9th ed. 2009). Here, the
former employees agreed to receive straight time pay for all
hours worked in a given workweek and have already received
such pay. Thus, the "loss suffered" is the 50% premium for
their overtime hours. Accordingly, we affirm the district
12 DESMOND v. PNGI CHARLES TOWN GAMING
court’s judgment about how to calculate unpaid overtime
compensation under 29 U.S.C. § 216(b).

B.

In its cross appeal, Charles Town Gaming contends the dis-
trict court mistakenly granted summary judgment to the for-
mer employees on the issue of willfulness. Whether a
violation is willful impacts the length of the appropriate limi-
tations period under the FLSA and can impact the computa-
tion of unpaid overtime compensation under the FLSA.3 The
FLSA provides two potential limitations periods. For non-
willful FLSA violations, a two-year statute of limitations
applies. See 29 U.S.C. § 255(a). When the violation is willful,
a three-year statute of limitations applies. Id.

In McLaughlin v. Richland Shoe Co., the Supreme Court
clarified the meaning of willfulness under section 255(a). See
486 U.S. 128 (1988). Before Richland Shoe, a circuit split
existed on the meaning of willfulness under the FLSA. See id.
at 131 n.1. In Coleman v. Jiffy June Farms, Inc., the Fifth Cir-
cuit held that the test of willfulness was simply whether the
employer knew the FLSA was "in the picture." 458 F.2d
1139, 1142 (5th Cir. 1971). In other words, mere awareness
of the possible application of the FLSA would suffice to
extend the statute of limitations from two to three years. Id.
In Richland Shoe, the Third Circuit rejected this view, con-
cluding that the appropriate standard was whether an
employer knew the conduct violated the FLSA, or showed
reckless disregard of such a determination. See Brock v. Rich-
land Shoe Co., 799 F.2d 80, 82–83 (3d Cir. 1986), aff’d sub
nom. McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988).

In Richland Shoe, the Supreme Court agreed with the Third
3
Witherspoon and Sanders were employed for less than two years, mak-
ing the characterization of the violation irrelevant for them. Only Des-
mond’s calculation would change.
 DESMOND v. PNGI CHARLES TOWN GAMING 13
Circuit. 486 U.S. at 131. In doing so, the Court noted that the
FLSA was originally enacted in 1938 without a statute of lim-
itations, but was amended in 1947 to add a two-year period.
Id. at 131–33. In 1966, Congress distinguished between ordi-
nary and willful violations of the FLSA and extended the stat-
ute of limitations to three years for willful violations. Id.
Because the Jiffy June standard functionally obliterated the
distinction between willful and non-willful violations, the
Court concluded that Congress did not intend such an expan-
sive definition of willful. Id. Moreover, in determining what
willful meant, the Court incorporated the standard of willful-
ness that it articulated in Trans World Airlines, Inc. v. Thur-
ston, 469 U.S. 111, 126–28 (1985) (analyzing willfulness
under 29 U.S.C. § 626(b) of the ADEA). Thus, only those
employers who "either knew or showed reckless disregard for
the matter of whether its conduct was prohibited by the
[FLSA]" have willfully violated the statute. Richland Shoe,
486 U.S. at 133. Negligent conduct is insufficient to show
willfulness. Id. at 135. Furthermore, the employee bears the
burden of proof when alleging a violation is willful. See id.

Following Richland Shoe, we have examined the issue of
willfulness under the FLSA in two published decisions. In
Lyle v. Food Lion, Inc., we upheld the district court’s determi-
nation that Food Lion’s violation of the FLSA was willful.
954 F.2d 984, 987–88 (4th Cir. 1992). Lyle and his co-
plaintiff Tew were both hourly employees in a Food Lion
store. Both alleged they worked uncompensated overtime
hours with the knowledge of Food Lion officials, who had
given them their own keys to the store to facilitate such work.
Id. at 986–87. Food Lion officials insisted they had no such
knowledge, and such overtime work would have been impos-
sible to perform without their knowledge. Id. at 987. Follow-
ing a bench trial, the district court noted the issue required the
court to assess witness credibility. Id. Finding the employees
more credible, the district judge found in their favor. Id. After
noting the highly deferential standard applicable to a judge’s
credibility determination, we upheld the decision. Id.
14 DESMOND v. PNGI CHARLES TOWN GAMING
In Martin v. Deiriggi, we again upheld a determination of
willfulness. 985 F.2d 129, 136 (4th Cir. 1992). The district
court conducted a bench trial, and rested its finding of willful-
ness in part on witness credibility. Id. Moreover, the district
court also considered the employer’s payroll procedures, and
evidence indicating the employer had destroyed and withheld
payroll records from DOL investigators. Id. As in Food Lion,
we upheld the finding of willfulness.

Here, the district court awarded summary judgment to the
former employees on the willfulness issue. Desmond, 661 F.
Supp. 2d at 586. Our review of this issue is de novo and the
former employee (as the parties seeking summary judgment)
must demonstrate an absence of a genuine issue of material
fact on the willfulness issue.

In support, the former employees argue that Charles Town
Gaming willfully ignored their own official job descriptions,
which described the positions as non-exempt beginning in
1999. See J.A. 55–56. The district court relied on this evi-
dence in granting summary judgment to the former employ-
ees. See Desmond, 661 F. Supp. 2d at 586.

In opposition to this conclusion and in support of its argu-
ment that there is a genuine issue of material fact concerning
willfulness, Charles Town Gaming cites the district court’s
first summary judgment order. See J.A. 55–56. In that order,
the district court observed that Charles Town Gaming person-
nel testified that the FLSA designation on the job descriptions
was created by a computer program, the designation was a
typographical error, and the error was then mistakenly carried
forward to the job description in later revisions. J.A. 55–56.
Charles Town Gaming also contends that its erroneous
exemption classification of the former employees as subject
to the administrative exemption was not reckless, in that the
district court initially upheld the classification in this case,
and required a published Fourth Circuit opinion to clarify that
the positions were not exempt. Charles Town Gaming also
 DESMOND v. PNGI CHARLES TOWN GAMING 15
cites the November 20, 2007 affidavit of Karen Raffo, which
provides further evidence regarding a change in wage calcula-
tion from a per diem to a salary basis. See Aff. Karen Raffo,
Nov. 20, 2007. Charles Town Gaming submitted this affidavit
in support of its first motion for summary judgment. See J.A.
29. Finally, Charles Town Gaming cites Margaret Patterson’s
deposition testimony, J.A. 113–42, and contends that the
cumulative force of the foregoing evidence creates a genuine
issue of material fact on the willfulness issue.

When the evidence is viewed in the light most favorable to
Charles Town Gaming, a genuine issue of material fact exists
as to willfulness. See, e.g., Fowler v. Land Mgmt. Groupe,
Inc., 978 F.2d 158, 163–64 (4th Cir. 1992). Accordingly, we
vacate the judgment and remand the case to the district court
for a trial on the issue of willfulness.

III.

The district court properly applied Overnight Motor in
computing unpaid overtime compensation under 29 U.S.C.
§ 216(b). However, the district court erred in entering sum-
mary judgment on the issue of willfulness. Thus, the district
court’s judgment is affirmed in part, vacated in part, and
remanded for further proceedings consistent with this opinion.

AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED