UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

JAMES BRAND, et al., 

 Plaintiffs, 

 v. 

COMCAST CORPORATION & 

COMCAST CABLE 

COMMUNICATIONS MANAGEMENT, 

LLC, 

 Defendants. 

)

)

)

)

)

)

)

)

)

)

)

) 

No. 12 CV 1122 

Magistrate Judge Young B. Kim 

February 25, 2016 

MEMORANDUM OPINION and ORDER

 On September 28, 2015, the court entered summary judgment in favor of 

Defendants Comcast Corporation and Comcast Cable Communications 

Management, LLC (together, “Comcast”) with respect to the claims brought under 

the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., and the Illinois 

Minimum Wage Law (“IMWL”), 820 ILCS § 105, et seq., by cable line technicians 

James Brand, Barry Farmer, Mark Graham, Kevin Jackson, Michael Jackson, Jose 

Vigil, and Christopher Woodard (collectively, “the plaintiffs”). (R. 222.) After giving 

the parties time to consider settlement possibilities, this court entered a final 

judgment in Comcast’s favor on October 8, 2015. (R. 225.) On November 3, 2015, 

the plaintiffs filed the current Consolidated Motion to Reconsider Ruling on 

Summary Judgment. (R. 226.) For the following reasons, the motion is granted in 

part and denied in part: 
2

Background 

The relevant procedural history and factual landscape of this case is set forth 

in detail in this court’s opinion granting Comcast summary judgment, (R. 222), and 

those details are incorporated by reference here. For purposes of the current 

motion, the court notes that it granted Comcast summary judgment with respect to 

three distinct categories of the plaintiffs’ FLSA and IMWL claims. First, it 

concluded that the plaintiffs had not shown that they are entitled to compensation 

for time they spend waiting to be called in during their on-call shifts. (Id. at 22-29.) 

Second, it granted summary judgment to Comcast with respect to the plaintiffs’ 

claims that they are entitled to compensation for unrecorded time they say they 

spent working during their lunch breaks. (Id. at 42-56.) Third, the court granted 

Comcast summary judgment with respect to the plaintiffs’ claims that they are 

entitled to compensation for time spent in connection with tasks related to their 

choice to commute in a Comcast vehicle, after concluding that such time is not 

compensable under the Employee Commuting Flexibility Act of 1996 (“ECFA”), 29 

U.S.C. § 254(a), (R. 222, Mem. Op. at 30-37), and after rejecting the plaintiffs’ 

arguments that such time is nonetheless compensable based on what they asserted 

was Comcast’s custom or practice of paying for time spent on such tasks, see 29 

U.S.C. § 254(b)(2); (R. 222, Mem. Op. at 37-41). In their current consolidated 

motion, the plaintiffs seek reconsideration pursuant to Federal Rule of Civil 

Procedure 59(e) only with respect to this court’s decision regarding the third 

category of claims. 
3

Analysis 

 A party may move to alter or amend a judgment to correct a “manifest error 

of law or fact” within 28 days of the entry of judgment. See Fed. R. Civ. P. 59(e); 

Blue v. Hartford Life & Acc. Ins. Co., 698 F.3d 587, 598 (7th Cir. 2012). Motions to 

amend the judgment under Rule 59 allow a party to “avoid unnecessary appellate 

procedures” by bringing such errors to the district court’s attention. Moro v. Shell 

Oil Co., 91 F.3d 872, 876 (7th Cir. 1996). The Seventh Circuit has made clear that 

Rule 59(e) is not to be used as a vehicle to “advance arguments that could and 

should have been presented to the district court prior to the judgment.” Cincinnati 

Life Ins. Co. v. Beyrer, 722 F.3d 939, 954 (7th Cir. 2013) (quotation and citation 

omitted). Instead, the court has interpreted the rule to reserve reconsideration for 

situations in which the court “has patently misunderstood a party” or has made a 

legal error based on inadvertence or misapprehension. Bank of Waunakee v. 

Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191-92 (7th Cir. 1990) (quotation and 

citation omitted). Because there is a presumption that judgments are final, 

reconsideration is granted under Rule 59(e) only in the rare circumstance where the 

moving party has shown that there is good reason to set the judgment aside. Id.; 

Hecker v. Deere & Co., 556 F.3d 575, 591 (7th Cir. 2009). 

A. ECFA Arguments 

 The plaintiffs seek to set aside the court’s grant of summary judgment with 

respect to their claims regarding pre- and post-shift activities, arguing that this 

portion of the court’s opinion was based on a misapprehension of law and fact, both 
4

with respect to its conclusion that those activities are incidental to their commute 

within the meaning of the ECFA, and to its determination that the activities had 

not otherwise been made compensable via a Comcast custom or policy. None of the 

plaintiffs’ arguments with respect to the ECFA portion of the court’s decision meet 

the criteria for reconsideration. It must be noted that in their individual summary 

judgment responses, none of the plaintiffs evaluated the ECFA case law that 

Comcast identified. They instead relied solely on a Supreme Court case, Integrity 

Staffing Solutions, Inc. v. Busk, 135 S.Ct. 513 (2014), that deals with whether an 

activity is indispensable to a principal activity in a context unrelated to the ECFA. 

Each plaintiff made a blanket assertion that he is unable to perform his job duties 

as a line technician without engaging in his pre- and post-shift activities, then 

contended, without developing the argument, that under the Integrity Staffing test 

for indispensable activities, their pre- and post-shift duties are compensable. (See, 

e.g., R. 165, Brand Mem. at 12-13.) In part because of the plaintiffs’ failure to 

engage with the case law cited by Comcast regarding incidental activities under the 

ECFA, and because a district court is not required to “piece together appropriate 

arguments” that the party responding to summary judgment failed to raise, see 

Diadenko v. Folino, 741 F.3d 751, 757 (7th Cir. 2013) (quotation and citation 

omitted), the court concluded that the pre- and post-shift activities cited by the 

plaintiffs were not compensable because they are incidental to their use of a 

Comcast vehicle for commuting. (R. 222, Mem. Op. at 35, 37 (noting that “[i]n their 

response, the plaintiffs fail to explain why the tasks they identify here are 
5

qualitatively different than the kinds of pre- and post-shift tasks that many courts 

have found to be incidental to the use of a company vehicle.”).) 

 In their consolidated motion to reconsider, the plaintiffs have developed their 

brief original argument considerably, complete with citations to facts and cases that 

appear nowhere in their original responses. (R. 228, Pls.’ Mem. at 17-30.) The 

plaintiffs advance an argument that the amount of time the plaintiffs spent 

engaged in the relevant tasks elevates them above incidental tasks within the 

meaning of the ECFA. (Id. at 18-20.) This is an argument that the court explicitly 

identified as missing from their summary judgment responses. (R. 222, Mem. Op. 

at 33 n.5.) In the current motion the plaintiffs also argue for the first time that 

their pre- and post-shift tasks fall outside of the ECFA because they are performed 

whether or not a line technician commutes in a Comcast vehicle. (R. 228, Pls.’ Mem. 

at 22-24.) But none of them made that argument in response to Comcast’s 

summary judgment motion. (See, e.g., R. 165, Brand Mem. at 10-13.) The plaintiffs 

openly admit that they are expanding on arguments that they did not fully develop 

the first time because they originally chose to emphasize their custom or practice 

argument, which they assumed was the stronger argument. (R. 228, Pls.’ Mem. at 

26 n.5.) Essentially, the plaintiffs concede that their decision not to develop a more 

robust response to Comcast’s ECFA argument was a strategy decision. Although 

they argue that it is nonetheless within this court’s discretion to consider their 

newly developed argument, (see id.), the Seventh Circuit has made clear that Rule 

59(e) does not provide a mechanism through which parties can change strategies or 
6

correct their own oversights. Cincinnati Life Ins., 722 F.3d at 954. Accordingly, the 

plaintiffs’ motion to reconsider is denied to the extent that they ask the court to 

reconsider—or more accurately, consider for the first time—their new arguments 

regarding the applicability of the ECFA or its interplay with the Integrity Staffing

“integral and indispensable” test for principal activities. 

B. The Custom or Practice Argument

 The plaintiffs’ collective arguments with respect to the ruling on their custom 

or policy argument gives the court more pause. In their responses to Comcast’s 

motions for summary judgment, the plaintiffs all presented a brief argument 

contending that Comcast has a custom or practice of paying for the pre- and postshift activities related to their use of a company vehicle for commuting purposes. In 

support of the argument, they cited only written Comcast policies describing 

compensable work and testimony from one Comcast payroll manager who said that 

a line technician’s work day begins “the minute they start anything related to 

Comcast business.” (See, e.g., R. 165, Brand S.J. Resp. at 11.) Citing this court’s 

opinion in a similar case, Blakes v. Ill. Bell Tel. Co., 77 F. Supp. 3d 776, 781 (N.D. 

Ill. 2015), the plaintiffs argued that this evidence is sufficient to establish “a 

demonstrable custom and practice of paying for pre and post shift work.” (See 

R. 165, Brand S.J. Resp. at 12.) In ruling on the summary judgment motions, the 

court found the cited evidence in support of the plaintiffs’ custom or practice 

argument to be lacking. Noting that in Blakes the plaintiffs had shown a “longstanding acquiescence” on the part of their employer for paying for the contested 
7

activity, the court concluded that here the documents and snippet of manager 

testimony cited by the plaintiffs were insufficient to allow a reasonable jury to 

conclude that Comcast has a custom or practice of paying for the pre- and post-shift 

activities at issue. (R. 222, Mem. Op. at 37-40.) The court also expressed larger 

policy concerns regarding how interpreting employee handbook documents to 

establish a “custom or practice” within the meaning of 29 U.S.C. § 254(b) might 

impact the landscape of FLSA claims brought by employees seeking compensation 

for time they did not record. (Id. at 41.) 

 In their current motion for reconsideration, the plaintiffs have highlighted a 

series of facts—present in the summary judgment record but missing from the 

custom or practice argument sections of their original response briefs—to explain 

and support their position that they should survive summary judgment with respect 

to the custom or practice aspect of their FLSA claims. (R. 228, Pls.’ Mot. to 

Reconsider at 4-8.) Where a party is not simply rehashing old arguments, but 

rather shows that the court misapprehended a fact or set of facts, that showing may 

present a valid basis for reconsideration. Novick v. Staggers, 913 F. Supp. 2d 606, 

608 (N.D. Ill. 2012). The plaintiffs’ motion suggests that in its initial ruling this 

court misapprehended the factual foundation on which the plaintiffs’ custom or 

practice argument rests, and the extent to which that foundation overlaps with the 

circumstances in the Blakes case. That misapprehension warrants careful 

reconsideration of whether summary judgment is appropriate with respect to the 

plaintiffs’ pre- and post-shift claims. See Bank of Waunakee, 906 F.2d at 1191. 
8

 In Blakes, the plaintiff cable splicers claimed that the defendant employer 

systematically failed to pay them for overtime, including time they spent before or 

after their shifts completing their timesheets. 77 F. Supp. 3d at 779. The plaintiffs 

submitted evidence that the defendant’s company policy was to compensate cable 

splicers for the time they spent inputting their timesheets and showing that cable 

splicers who reported such time were paid. Id. The Blakes plaintiffs also presented 

evidence that despite the written policy, they were instructed not to record any 

overtime for timesheet completion. Id. This court concluded that the evidence 

supported a “long-standing acquiescence to paying cable splicers for recording their 

time,” and that such acquiescence was sufficient to allow the plaintiffs to go forward 

on their claim that the defendant violated its own custom or practice of 

compensating for timesheet completion when there was some evidence that the 

defendant’s managers thwarted the plaintiffs’ efforts to record that time. Id. at 781-

82. 

 In its summary judgment ruling in this case, the court considered the 

evidence the plaintiffs highlighted in their response briefs and concluded that 

unlike the plaintiffs in Blakes, the plaintiffs here had not shown that Comcast had a 

long-standing acquiescence in compensating them for the relevant commute-related 

pre- and post-shift activities. (R. 222, Mem. Op. at 39.) In contrast with Blakes, 

where the plaintiffs presented evidence that they were paid for the complained-of 

activities when they recorded their time, 77 F. Supp. 3d at 781, here the court 

believed, based on the plaintiffs’ response briefs, that the plaintiffs were essentially 
9

relying only on general company documents and written policies regarding what 

kind of work is included in a shift to support their custom or practice argument. 

But in the current motion, the plaintiffs shed a clearer light on the facts in the 

record demonstrating the alignment of this case with Blakes. For example, they 

highlight evidence that at least two of the plaintiffs—Farmer and Kevin Jackson— 

have been paid for their pre- and post-shift activities when they recorded their time. 

(R. 228, Pls.’ Mot. to Reconsider at 4.) They highlight the testimony of several 

managers and supervisors who say that the technicians should be paid for the kinds 

of activities at issue here. (Id. at 4-5.) They also point to manager testimony that 

line technicians have in fact been paid for performing these activities when they 

recorded the relevant time. (Id. at 5.) These facts support the same reasonable 

inference the court concluded was available to a jury in Blakes: that the defendant 

had a custom or practice of compensating employees for any time they spend on the 

given tasks and that individual managers thwarted that practice by encouraging or 

instructing the plaintiffs to work off-the-clock. 

 Because the plaintiffs have helped illuminate facts from which a jury might 

conclude that a custom or practice of paying for the commute-related pre- and postshift activities exists, the court agrees with the plaintiffs that this is a question that 

should be left to the jury to resolve. See Novesky v. Computer Cable Connection, 

Inc., No. 08-C-0130, 2011 WL 4496688, at *4-*5 (E.D. Wis. Sept. 27, 2011). And 

because, in contrast to their ECFA arguments, the plaintiffs are not simply 

changing strategy on this point or rehashing old arguments, but rather drawing 
10

attention to the court’s misapprehension of the facts presented, the court concludes 

that reconsideration is appropriate. Having reconsidered the factual landscape 

supporting the plaintiffs’ custom or practice argument, the court concludes that 

(barring other defenses) the plaintiffs have demonstrated a material fact dispute 

rendering summary judgment inappropriate with regard to the custom or practice 

aspect of their pre- and post-shift claims. See Novesky, 2011 WL 4496688, at *4. 

C. Knowledge 

 As Comcast points out, the conclusion that the plaintiffs have pointed to 

sufficient facts to justify placing the custom or practice question before a jury does 

not end the analysis, because Comcast has asserted a knowledge defense with 

respect to most of the plaintiffs’ pre- and post-shift claims that now must be 

resolved. (R. 233, Defs.’ Resp. at 9-10.) Specifically, in moving for summary 

judgment Comcast asserted a knowledge defense to the pre- and post-shift claims of 

the following five plaintiffs: Brand, Farmer, Graham, Michael Jackson, and Vigil. 

However, with respect to Kevin Jackson and Woodard, Comcast stated that it “does 

not contend there is no issue of facts as to the issue of management knowledge” 

with respect to their claims. (R. 149, Defs.’ Br. at 2, n.3; R. 155, Defs.’ Br. at 2 n.3.) 

 To survive summary judgment with respect to their pre- and post-shift 

claims, the plaintiffs must offer sufficient evidence to allow a reasonable jury to 

conclude that Comcast either knew or should have known that they were 

performing this work and not being paid for it. See Kellar v. Summit Seating, Inc.,

664 F.3d 169, 177 (7th Cir. 2011). In moving for summary judgment, Comcast 
11

argued that there is no evidence that the five noted plaintiffs either complained to 

their managers of working pre- or post-shift without pay or that their managers 

instructed them not to record the time they spent on such activities, which took 

place at their homes and not in a situation where their managers could have 

observed them. (See, e.g., R. 143, Defs.’ Mem. at 12-13.) Accordingly, the court 

must consider whether each individual plaintiff put forth sufficient evidence of 

Comcast’s actual or constructive knowledge in their summary judgment responses. 

 In contrast to their lunch-break claims, in support of which only two 

plaintiffs pointed to evidence that they had complained of working through lunch 

without pay or were instructed not to record their lunch-break work time, with 

respect to their pre- and post-shift claims all five plaintiffs have pointed to such 

evidence. The particulars of that evidence are described below. 

1. Brand 

 Brand testified that his manager, Dave Johnson, instructed him not to start 

his time when he first turned on his computer in the morning. (R. 166, Brand Add’l 

Facts ¶ 35.) He testified that Johnson instructed him only to record his scheduled 

hours on his time sheet. (Id.) Similarly, Brand testified that manager (and later 

supervisor) Mark Espinosa instructed him not to record work performed before the 

start of his shift and not to record a start time other than the regularly scheduled 

start time. (Id. ¶¶ 35-36; R. 186, Ex. 2, Brand Dep. at 38-39.) He also testified that 

his managers instructed him not to record time spent working outside his shift, and 

that he did not record time he spent working after his shift ended because he was 
12

instructed to record only his scheduled stop time. (R. 166, Brand Add’l Facts ¶ 48; 

R. 186, Ex. 2, Brand Dep. at 152.) 

2. Farmer 

 Similarly, Farmer testified that Espinosa advised him against recording his 

time from the moment he logged onto his computer if that happened before the 

regular start time of 7:30 a.m. (R. 169, Farmer Add’l Facts ¶ 38.) He also testified 

that he told three supervisors and one manager that he was logging on before his 

scheduled start time. (Id. ¶ 36.) He testified further that he complained in 

meetings with supervisors that he spends time conducting vehicle inspections, 

entering his time, and securing his equipment after his shift ends but does not get 

paid for it. (Id. ¶ 49.) 

3. Graham 

 Graham testified that Espinosa told line technicians not to record on his 

timesheet the pre-shift time he spends logging into his computer. (R. 172, Graham 

Add’l Facts ¶ 34.) He testified that Johnson specifically instructed him to log into 

his computer at 7:00 a.m., but not to record his start time until 7:30 a.m. (Id. ¶ 35.) 

Graham further testified that there were times when he tried to record time spent 

on his post-shift activities, but that time was rejected. (Id. ¶ 46.) He also testified 

that he was instructed to report his time as ending at 4:30 p.m., even though he had 

to do things like secure his truck and equipment every day after he arrived at home. 

(R. 186, Ex. 9, Graham Dep. at 36, 53.) 
13

4. Michael Jackson 

 Michael Jackson testified that Espinosa told him during a meeting not to 

record any time he spent working prior to the scheduled 7:30 a.m. start time. 

(R. 178, M. Jackson Add’l Facts ¶ 36.) After that meeting Michael Jackson 

complained to his supervisor at least twice that he was performing work before the 

start of his shift and not getting paid for it. (Id. ¶ 37.) He further testified that he 

was instructed not to record the time he spends post-shift downloading his meter 

and that he is required to spend time after 4:30 p.m. securing his truck and 

equipment. (Id. ¶¶ 46-47.) 

5. Vigil 

 Like the other plaintiffs, Vigil testified that Espinosa advised him not to 

enter his start time as the time when he logs into his computer, instead instructing 

him to record his start time as 7:30 a.m. (R. 181, Vigil Add’l Facts ¶ 37.) However, 

Vigil did not point to any evidence that his supervisors had actual or constructive 

knowledge that he was working after his shift. (R. 181, Vigil Add’l Facts ¶¶ 49-50.) 

The deposition testimony he cites in the “Complaints and Notice About 

Underpayment and Instructions Not to Record Post Shift Time” section of his 

additional facts only states that when Vigil worked past 4:30 p.m. he recorded his 

time and was paid. (R. 186, Ex. 17, Vigil Dep. at 92-96.) That testimony is 

insufficient to allow a jury to conclude that his supervisors knew that he was 

working post-shift without pay. 
14

 Given the testimony from these five plaintiffs that they either were 

instructed not to record time they worked pre-shift or that they complained about 

performing such work without pay and received no recourse, a reasonable jury could 

conclude that Comcast had actual or constructive knowledge that the plaintiffs were 

performing pre-shift work without pay. See Kellar, 664 F.3d at 177. The same is 

true with respect to the evidence regarding Comcast’s knowledge that Brand, 

Farmer, Graham, and Michael Jackson were working post-shift without pay. 

Accordingly, Comcast is not entitled to summary judgment with respect to those 

claims based on its knowledge defense. 

D. Damages 

 Finally, Comcast argued in moving for summary judgment that even if the 

complained-of pre- and post-shift duties are compensable, and even if there is 

evidence from which a jury could infer Comcast’s knowledge that the plaintiffs were 

working off-the-clock, summary judgment is nonetheless appropriate with respect to 

these claims based on what it characterizes as the plaintiffs’ speculative damages 

estimations. (See, e.g., R. 143, Defs.’ S.J. Mem. at 14-15.) In its original summary 

judgment ruling, this court found that argument persuasive with respect to the two 

lunch-break claims that survived through the damages point of the analysis, 

because the only testimony the two relevant plaintiffs cited involved guesswork 

about the frequency of days on which they did or did not work through lunch. 

(R. 222, Mem. Op. at 55.) Because they pointed to no memory-triggering factors or 

details that would elevate their testimony above the level of speculation, the court 
15

concluded that they could not demonstrate the extent of the unpaid wages owed 

them even under the “just and reasonable inference” standard that applies where 

there is evidence that supervisors discouraged the plaintiffs from accurately 

reporting their time. (Id.); see also Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495 

F.3d 1306, 1316 (11th Cir. 2007). By contrast, at least with respect to the pre-shift 

claims, the plaintiffs uniformly testified that they complete work outside of their 

shift not occasionally, but on every working day, and they identified fairly narrow, 

consistent windows of unpaid time. Most of the plaintiffs also pointed to evidence 

that they work after their shift ends without pay on a consistent, routine basis and 

within a discernible window. The relevant evidence is described below. 

1. Brand 

 Brand testified that until he attended a time-keeping training course in the 

fall of 2011, he did not record the time he spent logging onto his laptop before his 

shift. (R. 166, Brand Add’l Facts ¶ 33.) He testified that he typically logged into his 

computer to start his day at 6 a.m. and that this was a “set time.” (Id. ¶ 32; R. 186, 

Ex. 2, Brand Dep. at 212.) As for post-shift work, Brand testified that he spent 15 

to 20 minutes shutting down computer programs after his shift ended and 20 

minutes securing equipment. (R. 166, Brand Add’l Facts ¶ 46; R. 186, Ex. 2, Brand 

Dep. at 137-48.) Brand testified that he always had to perform his vehicle 

inspection at home, which supports an inference that he always performed that task 

after his shift ended. (R. 186, Ex. 2, Brand Dep. at 129.) 

 
16

2. Farmer 

 Farmer also testified that prior to a late 2011 time-keeping training he would 

not record the time he spent logging into his computer. (R. 169, Farmer Add’l Facts 

¶ 34.) Farmer testified that he would arrive at work every day 15 to 20 minutes 

before the start of his shift to perform tasks like gathering equipment and 

downloading his meter. (Id. ¶ 32, R. 186, Ex. 7, Farmer Dep. at 200-01.) He 

testified that he often spends 25-40 minutes per day after the end of his shift 

performing tasks like closing his computer programs, securing equipment, and 

entering his time, but said that sometimes he is able to perform those tasks before 

the end of his shift. (R. 169, Farmer Add’l Facts ¶ 47; R. 186, Ex. 7, Farmer Dep. at 

98-102.) Farmer testified that there are days when he can do all of his end-of-day 

tasks before 4:30 p.m. and there are days when he does them after 4:30 p.m., but he 

tries to finish as close to 4:30 p.m. as possible. (R. 186, Farmer Dep. at 100-01.) 

Whether he finishes before or after 4:30 p.m. depends on factors like the order in 

which he completes the task and whether he is in an area where he feels 

comfortable securing his equipment on location. (Id. at 101-02.) Farmer testified 

that he records his time spent on post-shift tasks if he spends over a half-hour on 

them, and is paid for that time. (Id. at 103-04.) But if he spends less than a halfhour, Farmer does not record the time. (Id.) He testified that he “couldn’t tell you” 

how much unrecorded time he spent working after 4:30 p.m. (R. 138-7, Farmer 

Dep. at 133.) 
17

3. Graham 

 Graham testified that every day during his time as a home dispatch 

technician he had to start working between 6:30 and 7:00 a.m. in order to login, 

identify his jobs and their locations, and inspect his truck before the start of his 

shift. (R. 172, Graham Add’l Facts ¶ 33.) After his shift Graham took 10 to 15 

minutes per day securing his vehicle after he arrived at home. (Id. ¶¶ 42-44.) 

 4. Kevin Jackson 

 During his time as a home dispatched lead technician, Kevin Jackson was 

required to prepare and send routes to other line technicians before 7 a.m. (R. 175, 

K. Jackson Add’l Facts ¶ 31.) He would regularly log into his laptop before 7:30 

a.m. so he could assign jobs to the other technicians within the required timeframe. 

(Id. ¶ 36.) Those tasks could take 20 to 40 minutes. (R. 186, Ex. 10, K. Jackson 

Dep. at 265-66.) After his shift, Kevin Jackson had to spend anywhere from a few 

minutes to 30 minutes or more completing his safety check, securing his van, and 

storing equipment. (R. 175, K. Jackson Add’l Facts ¶ 49.) Sometimes he is able to 

perform all of those tasks before 4:30 p.m., but it “doesn’t happen that often.” 

(R. 186, Ex. 10, K. Jackson Dep. at 182, 187.) During his time as a lead technician 

he had additional post-shift duties and they required 30 to 60 minutes of 

uncompensated time. (R. 175, K. Jackson Add’l Facts ¶ 50; R. 186, Ex. 10, 

K. Jackson Dep. at 284.) But when he was not working as a lead technician and 

was home garaged, he “very infrequently” sent emails or conducted work on his 

computer after 4:30 p.m. (R. 176, K. Jackson Resp. to Defs.’ Facts ¶ 66.) 
18

Additionally, after he received a timekeeping training on September 19, 2011, Kevin 

Jackson reported and was paid for all the time he worked past the end of his shift. 

(Id. ¶¶ 22-23.) 

 Here it should be noted that in moving for summary judgment with respect to 

Kevin Jackson, Comcast argued that his pre-shift claims should be limited to the 

period when he was home dispatched because he testified that when he was home 

garaged he “very infrequently” logged in before the start of his shift. (R. 149, Defs.’ 

Mem. at 14-15.) It is undisputed that Kevin Jackson has not been home dispatched 

since approximately January 2013. (R. 176, K. Jackson Resp. to Defs.’ Facts ¶ 11.) 

Comcast further argued that Kevin Jackson’s post-shift claims should be limited to 

the period before he received timekeeping training on September 19, 2011, because 

his undisputed testimony is that after that training he reported and was paid for all 

of the time he worked after the end of his shift. (R. 149, Defs.’ Mem. at 15; see also 

R. 222, Mem. Op. at 55 n.9; R. 176, K. Jackson Resp. to Defs.’ Facts ¶¶ 22-23.) 

Kevin Jackson has addressed this argument only in a footnote to the plaintiffs’ 

summary judgment sur-reply, where he asserted that this “issue need not be 

addressed at this juncture.” (R. 216, Pls.’ Sur-Reply at 23 n.12.) In support, he 

cites the Blakes decision, where in denying summary judgment with respect to the 

certified class’s claims the court stated that objections regarding individual 

plaintiffs whose timesheets fell outside the relevant period could be dealt with 

during the damages phase of the trial. Blakes, 77 F. Supp. 3d at 787. But, here 

Kevin Jackson responded to Comcast’s motion for summary judgment as an 
19

individual, and there is no reason why he should not be held to a substantive 

response at the summary judgment stage. Because a failure to address an issue in 

response to summary judgment results in waiver, Nichols v. Michigan City Plant 

Planning Dep’t, 755 F.3d 594, 600 (7th Cir. 2014), the court agrees that Kevin 

Jackson’s pre-shift claims should be limited to the relevant period before January 

2013 and his post-shift claims should be limited to the relevant period before 

September 19, 2011. 

5. Michael Jackson 

 Michael Jackson testified that every morning he worked as a home 

dispatched line technician he spent between 20 and 30 minutes performing tasks 

like logging into his computer, accessing jobs, and determining what equipment he 

would need. (R. 178, M. Jackson Add’l Facts ¶ 32.) He also spent between 20 and 

25 minutes every morning inspecting his vehicle. (Id. ¶ 33.) He testified that after 

his shift ended he had to spend an additional 20 to 25 minutes sending an end-ofday email to his supervisors, inspecting his vehicle again, locking down his truck, 

and securing his equipment. (Id. ¶¶ 42, 44-45.) He spent an additional 15 minutes 

working after his shift on Thursdays, when he had to download his meter. (Id. 

¶ 43.) 

6. Vigil 

 Vigil testified that when he was home dispatched he had to log into his 

computer before the start of his shift to learn the location of his day’s job. (R. 181, 

Vigil Add’l Facts ¶ 30.) When he was home garaging, he spent about 10 minutes 
20

before the start of his shift downloading his meter, about 30 minutes to inspect his 

vehicle, and 10 to 15 minutes to check his job assignments. (Id. ¶¶ 32-33.) 

7. Woodard 

 Woodard testified that he spent 30 minutes every work day on pre-shift 

duties like inventory checks. (R. 184, Woodard Add’l Facts ¶ 30.) He spent 15 to 20 

minutes after the close of his shift each day performing tasks like dropping off bad 

equipment. (Id. ¶ 42.) 

 As described above, the plaintiffs all testified that they consistently 

performed a set of tasks before the start of their shifts during their time as line 

technicians. In contrast to their lunch-hour claims, where the relevant plaintiffs 

could only speculate as to whether they had worked through lunch on given days, at 

least with respect to pre-shift activities the evidence supports an inference that the 

plaintiffs always performed such duties, and that the time they spent on such tasks 

was fairly consistent within certain windows of time. Because these tasks were a 

matter of routine, the “particulars of the jobs the technicians did” coupled with their 

reconstructed memories could enable a jury to come to a “just and reasonable 

inference” about the amount of unpaid time the plaintiffs spent working before the 

start of their shifts. See Espencheid v. DirectSat USA, LLC, 705 F.3d 770, 775 (7th 

Cir. 2013). Comcast disputes the amount of time the plaintiffs say they spent on 

pre-shift tasks, but the credibility of their accounts is an issue for a jury to resolve. 

And because a jury could make a just and reasonable inference regarding damages 
21

based on the plaintiffs’ testimony regarding the amount of unpaid pre-shift work 

they performed, the plaintiffs have shown that a jury should decide the question. 

 The evidence regarding the amount of unpaid work the plaintiffs performed 

post-shift is more of a mixed bag. Farmer testified that he is sometimes able to 

complete all of his end-of-the day tasks before his shift ends at 4:30 p.m., depending 

on various factors. Similarly, Kevin Jackson testified that when he was working as 

a line technician rather than a lead technician, he was sometimes able to complete 

his end-of-the-day activities within the confines of his shift. In their response briefs 

the only “triggering factor” or other method by which a reasonable jury could 

discern via a just and reasonable inference which days these two plaintiffs worked 

past their shift’s end without recording it is an unidentified “process for gleaning” 

information from Comcast data that this court found insufficient in its original 

opinion.1 (R. 222, Mem. Op. at 56; R. 168, Farmer S.J. Resp. at 19; R. 174, K. 

Jackson S.J. Resp. at 19.) The plaintiffs have not addressed that aspect of the 

court’s decision in the current motion to reconsider. Accordingly, the damages 

aspect of Farmer’s post-shift claims suffer from the same short-comings this court 

found precluded summary judgment with respect to Brand and Kevin Jackson’s 

lunch-break claims. (Id. at 54-56.) The same is true for Kevin Jackson’s post-shift 

 

1 The court notes that Farmer testified that he could look at his daily logs to see 

when his jobs were closed out and consult “my little notes that I might have jotted 

down if I had an issue on that particular day” to piece together “a better 

guesstimate” about which days he worked past his shift without recording the time. 

(R. 138-7, Farmer Dep. at 133.) But Farmer did not cite that testimony in his 

response brief or statements of facts and has not argued that it provides evidence 

that other memory triggering factors are available to him. 
22

claims pertaining to any time he was not working as a lead technician, because he 

testified that his lead technician duties caused him to work 30 to 60 minutes past 

the end of his shift. Given the court’s conclusion that his post-shift claims are 

limited to the discrete period before September 19, 2011, they should be further 

limited to any period before that date when he was working in a lead technician 

role. 

 On the other hand, the testimony from Brand, Graham, Michael Jackson, 

and Woodard supports an inference that they performed tasks after their shifts 

ended as a matter of course. As with their pre-shift claims, they have given a time 

window for those tasks based on the routine nature with which they had to 

complete them. That is sufficient at this stage in the litigation to allow the matter 

to proceed to a jury to evaluate the foundation of their damages claim. See Brown v. 

Family Dollar Stores of Ind., LP, 534 F.3d 593, 597-98 (7th Cir. 2008). Accordingly, 

upon reconsideration, the court concludes that: (1) summary judgment is 

inappropriate with respect to all of the plaintiffs’ claims that Comcast violated its 

own custom or practice regarding paying line technicians for performing the 

complained-of pre-shift activities, although Kevin Jackson’s pre-shift claims are 

limited to the period before January 2013; and (2) summary judgment is 

inappropriate with respect to the post-shift claims of Brand, Graham, Michael 

Jackson, Woodard, and Kevin Jackson to the extent he is seeking damages for postshift tasks connected to his lead technician role prior to September 19, 2011.
23

Conclusion

 For the foregoing reasons, the plaintiffs’ collective motion for reconsideration 

is granted in part and denied in part. Consistent with the explanation in this 

opinion, the summary judgment ruling entered by this court on September 28, 2015, 

(R. 225), is amended to the extent that summary judgment is denied only with 

respect to the plaintiffs’ FLSA and IMWL claims relating to unpaid pre-shift 

activities with the exception of Kevin Jackson’s pre-shift activities in the period 

after January 2013. The ruling is also amended to the extent that summary 

judgment is denied with respect to the claims of Brand, Graham, Michael Jackson, 

and Woodard regarding post-shift activities; and with respect to the post-shift 

claims of Kevin Jackson within any relevant period before September 19, 2011, 

when he was employed as a lead technician. Furthermore, the final judgment 

entered on October 8, 2015, (R. 225), is vacated to allow for further proceedings in 

this case. 

 ENTER:

 ____________________________________ 

 Young B. Kim 

 United States Magistrate Judge