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 

September 28, 2015 

MEMORANDUM OPINION and ORDER 

 Cable line technicians James Brand, Barry Farmer, Mark Graham, Kevin 

Jackson, Michael Jackson, Jose Vigil, and Christopher Woodard (collectively, “the 

plaintiffs”) sued their employers, Comcast Corporation and Comcast Cable 

Communications Management, LLC (together, “Comcast”), 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., claiming that Comcast failed to pay them for 

compensable work time. Before the court are Comcast’s motions for summary 

judgment with respect to each of the individual plaintiffs. For the following 

reasons, the motions are granted: 

Procedural History

 Plaintiff James Brand originally brought this suit in February 2012 as a 

purported collective action under the FLSA and as a class action under the IMWL 

and the Illinois Wage Payment and Collection Act (“IWPCA”), 820 ILCS 115, et seq. 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 1 of 57 PageID #:8636
2

In May 2012 the parties consented to the jurisdiction of this court for all further 

proceedings. (R. 27.) Shortly thereafter, Brand moved to conditionally certify a 

collective action under the FLSA. (R. 30.) In September 2012 this court granted 

that motion in part giving Brand permission to send notice of the collective action to 

“all individuals who were employed or are currently employed, by one or more of the 

defendants, its subsidiaries or affiliated companies, as line technicians or any 

similarly titled position at any time during the relevant statute of limitations 

period,” but limiting notice to potential plaintiffs who have worked or work at 

Comcast’s 112th Street facility in Chicago. (R. 56, Mem. Op. at 4, 7, 20.) Two 

months later, the court granted Comcast’s motion to dismiss Brand’s IWPCA claim. 

(R. 62.) 

 After several plaintiffs opted into the collective action and consented to this 

court’s jurisdiction, (R. 118), the plaintiffs filed their third amended complaint, 

(R. 119). In this iteration of the complaint, the plaintiffs dropped their collective 

and class action allegations and instead brought their FLSA and IMWL claims as 

individuals.1 The plaintiffs allege that Comcast violated federal and state wage 

laws by failing to pay them for their overtime work. (Id. ¶ 12.) Specifically, the 

plaintiffs claim that Comcast encouraged them to spend time before and after their 

shifts performing tasks such as reviewing assignments, checking routes, loading 

 

1 The names of Carlena Bolden and James Hughes appear as plaintiffs in the 

caption of the third amended complaint, but they have since been voluntarily 

dismissed from the suit. (R. 124; R. 131.) The third amended complaint also 

asserts an IWPCA claim, which the plaintiffs included only to preserve their right 

to appeal this court’s decision dismissing the claim. (R. 115, Mot. to Amend at 2 

n.1.) 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 2 of 57 PageID #:8637
3

and unloading their vehicles, completing their vehicle checklist, and performing 

work on portable computers, but it did not pay them for performing these tasks. 

(Id.) Additionally, the plaintiffs allege that Comcast automatically deducted an 

hour from their schedule for daily meal breaks regardless of whether the plaintiffs 

worked through their breaks. (Id.) Finally, the plaintiffs assert that they are 

entitled to compensation for time they spent on call because they claimed that they 

were “highly restricted” during their on-call shifts. (Id.) 

 After a period of discovery, Comcast filed seven separate motions for 

summary judgment, one per each plaintiff left in the suit. (R. 136; R. 139; R. 142; 

R. 145; R. 148; R. 151; R. 154.) These motions are now fully briefed and ready for 

disposition. For the sake of efficiency, the court will address all seven motions in 

the current opinion. 

Facts 

A. Facts Applicable to All Seven Plaintiffs 

The following undisputed facts apply across the board to all seven of the 

plaintiffs’ claims. For ease of citation, the court will cite only to Brand’s response to 

Comcast’s Rule 56.1 statement of facts and Comcast’s reply to Brand’s additional 

facts with respect to the universally applicable facts. 

1. Line Technicians’ Job Duties 

 Comcast provides cable, entertainment, and communications products and 

services in the state of Illinois. (R. 167, Pl.’s Resp. to Defs.’ Facts ¶ 2.) The 

plaintiffs are all current or former line technicians who work or have worked at 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 3 of 57 PageID #:8638
4

Comcast’s 112th Street facility in Chicago. Comcast employs line technicians to 

maintain its cable network infrastructure. (Id. ¶ 6.) A line technician is responsible 

for maintaining node health, repairing outages, signal testing, and addressing other 

system issues for the network plant. (Id.) In particular, line technicians are 

charged with promptly identifying and restoring hard line plant issues. (Id. ¶ 7.) 

Comcast provides line technicians with a company work vehicle that they can use 

only for Comcast business and not for personal purposes. (R. 197, Defs.’ Resp. to 

Pl.’s Add’l Facts ¶ 3.) 

 Comcast line technicians who work at the 112th Street facility are nonexempt employees who work three main shifts: 7:30 a.m. to 4:30 p.m.; 12:00 p.m. to 

9:00 p.m.; and when they are on call, 3:00 p.m. to midnight. (R. 167, Pl.’s Resp. to 

Defs.’ Facts ¶¶ 1, 8.) Line technicians could work either as “home garaging” 

technicians or “home dispatched” technicians. (Id. ¶¶ 10-11.) A home garaging line 

technician volunteers to park his Comcast vehicle at home rather than at Comcast’s 

garage. (Id. ¶ 11.) A home garaging technician begins or ends each work day by 

driving between his home and a designated reporting location—such as a Comcast 

home office or meeting location—instead of driving directly to or from a customer’s 

residence. (Id.) A home dispatched technician volunteers to drive his Comcast 

vehicle directly between his home and work assignments in the field. (Id. ¶¶ 10, 

12.) Home dispatched technicians are paid for the time spent driving between their 

home and their first assignment, but are not paid for time driving from their last 

assignment to their home, unless they are performing work activities during the 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 4 of 57 PageID #:8639
5

drive. (R. 197, Defs.’ Resp. to Pl.’s Facts ¶ 8.) According to Comcast’s Vehicle Use 

Policy, employees who use Comcast vehicles must maintain them in accordance 

with defined maintenance procedures and must complete a monthly vehicle 

inspection report. (R. 167, Pl.’s Resp. to Defs.’ Facts ¶ 14.) That responsibility 

currently includes a requirement that the line technician perform a daily safety 

check of the vehicle before driving it. (R. 197, Defs.’ Resp. to Pl.’s Facts ¶¶ 5, 7.) 

2. Comcast’s Timekeeping Policies 

 Comcast maintains a number of written policies that require line technicians 

to report all time worked and that forbid working off the clock. For example, 

Comcast employees must acknowledge receipt of an employee handbook which 

states that: 

each employee agrees to record accurately all hours actually worked 

and further agrees not to misrepresent the hours worked either by 

overstating the actual hours or understating them. Employees must 

record, as time worked, any time performing services related to their 

duties or otherwise working on behalf of the Company, even if such 

time is prior to the scheduled shift start or stop time. 

(R. 167, Pl.’s Resp. to Defs.’ Facts ¶ 16.) Comcast’s Time Reporting Guidelines for 

home garaging and home dispatched line technicians instruct them not to perform 

any work related tasks before logging into the system to start their shift or logging 

out of the system to end it. (Id. ¶ 19.) The guidelines also make clear that if a line 

technician does perform work related tasks before or after a shift, or if he or she 

works during a normally unpaid lunch period, he or she must “(i) notify his or her 

supervisor and (ii) properly record this work time on his/her time sheet.” (Id.) 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 5 of 57 PageID #:8640
6

 As for what activities constitute compensable work, Comcast policies state 

that work time includes any break lasting 20 minutes or less, noting that a “meal 

break is not considered time worked if the break lasts at least 30 minutes without 

interruption for work and you are relieved of all work duties.” (R. 197, Defs.’ Resp. 

to Pl.’s Facts ¶ 12.) Comcast’s “Getting Paid For Your Work: Time Recording 

Training for Hourly Employees” document (“Time Recording Training”) states that 

“working off the clock is strictly prohibited.” (R. 167, Pl.’s Resp. to Defs.’ Facts 

¶ 23.) It also instructs line technicians to include the following activities at the 

beginning of the work day as work time: “[l]ogging into the computer and other 

electronic devices provided by the Company; [o]pening work applications; [p]icking 

up work equipment; [and p]erforming safety checks.” (Id. ¶ 25.) Similarly, it 

instructs line technicians to “record the exact time that you stop working at the end 

of your day,” including as work time “any time spent at the end of the work day: 

[l]ogging out of the computer and other electronic devices; [c]losing work 

applications; [and u]nloading equipment.” (Id. ¶ 27.) Time spent retrieving, 

reading, or listening to work related emails and voice mails or communicating with 

supervisors, Comcast employees, or customers is included in the definition of work 

time. (R. 197, Defs.’ Resp. to Pl.’s Facts ¶ 9.) The Time Recording Training also 

states that employees should contact human resources if they feel they “are being 

forced to work off-the-clock,” or alternatively, instructs them to contact a separate 

resource called “Comcast Listens” to report concerns about how they are paid. 

(R. 167, Pl.’s Resp. to Defs.’ Facts ¶ 28.) 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 6 of 57 PageID #:8641
7

 3. On-Call Policies 

The plaintiffs have all worked on-call shifts that can last for up to seven days. 

(Id. ¶ 68.) These shifts are assigned on a rotating basis with each line technician 

working one week-long on-call shift approximately every six weeks. (R. 197, Defs.’ 

Resp. to Pl.’s Facts ¶ 18.) When on call, line technicians’ regular shifts change to 

3:00 p.m. to midnight but they must also be available to respond to any outages in 

their service areas between the hours of midnight and 7:00 a.m. (R. 186-3, Brand 

Decl. ¶ 10.) During on-call shifts, line technicians can be called in to help with 

network restoration, escalation, and line call repair. (R. 167, Pl.’s Resp. to Defs.’ 

Facts ¶ 67.) When line technicians are on call, they are required to be available by 

phone or Nextel. (Id. ¶ 69.) Although Comcast’s Greater Chicago Region 

CommTech Administration Guide states that on-call employees “are free to engage 

in personal activities of their choice,” it also makes clear that during on-call shifts 

line technicians “must be able to be contacted and be able to provide a quick and 

competent response if there is a service problem.” (Id.) Specifically, Comcast’s oncall policy states that called-in employees must report to work within 30 minutes 

after they speak with a company representative authorized to call them in and that 

failing to respond to a communication within a few minutes subjects them to 

“corrective action.” (R. 197, Defs.’ Resp. to Pl.’s Facts ¶ 19.) Line technicians are 

paid $40 per day in standby pay while they are on call, but then they earn 

additional overtime pay when they are called in from the time they respond to the 

page until the time they return home. (R. 167, Pl.’s Resp. to Defs.’ Facts ¶¶ 70-71.)

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 7 of 57 PageID #:8642
8

 4. Managers’ Knowledge of Lunch-Break Work 

 The plaintiffs have compiled evidence of a number of complaints that were 

made to the managers at the 112th Street facility regarding technicians working 

through lunch breaks starting in 2008. Comcast disputes many of the specifics 

regarding these complaints, but the following details are undisputed. In October 

2008 a service technician (not a line technician) complained to his or her manager 

that jobs were being issued during the technicians’ lunch breaks. (R. 197, Defs.’ 

Resp. to Pl.’s Facts ¶ 20.) In May 2009, a technician at the 112th Street facility 

lodged a formal but anonymous complaint with the Illinois Department of Labor 

complaining that meal periods of 20 minutes or more were not being given to 

employees working 7.5 hours a day or longer. (Id. ¶ 21.) In July 2010, another 

anonymous complaint was lodged through the Comcast Listens Web Portal stating 

that technicians at the 112th Street facility would sometimes work through lunch 

when their workloads got heavy but that the supervisors would not pay them for 

working through lunch. (Id. ¶ 22.) In June 2012, an employee using the Comcast 

Listens Helpline lodged a complaint stating that Manager Mark Espinoza was 

“creating a hostile work environment by having unrealistic expectations.” (Id. ¶ 24.) 

Specifically, the complaint stated that Espinoza pushed employees to the point of 

exhaustion, did not compensate them fairly for their work, and refused to 

compensate them for time spent after they logged in but before they started 

assisting customers. (Id.) 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 8 of 57 PageID #:8643
9

B. Facts Specific to Individual Plaintiffs 

 The following facts address the relevant circumstances that are unique to 

each individual plaintiff. It should be noted that there are instances in the parties’ 

Local Rule 56.1 statements and responses in which both sides have attempted to 

dispute the other parties’ facts by pointing to evidence that does not actually 

contradict the cited fact or by providing their own interpretation of what the fact 

means. In such instances, or where a fact is otherwise improperly disputed, the 

court has deemed the fact admitted for purposes of the current motions. See N.D. 

Ill. Local Rule 56.1. 

1. James Brand 

 During at least part of the period relevant to this lawsuit, Brand worked as a 

home dispatched technician, driving his Comcast vehicle directly from his home to 

field assignments and back. (R. 167, Brand’s Resp. to Defs.’ Facts ¶ 10.) Brand 

creates or receives his daily assignments using a Comcast database called 

“Watchtower.” (Id. ¶ 36.) He typically logs into the database at 6:00 a.m. and he 

testified that the log-in process can last from 20 to 40 minutes. (Id. ¶¶ 37-38.) 

Brand also performs safety inspections on his Comcast vehicle before the start of his 

shift, a process that takes between 15 and 20 minutes. (Id. ¶¶ 43-44.) As for lunch 

breaks, Brand testified that he knows he is supposed to take up to a one-hour lunch 

break every day, but he was only able to take a lunch break “maybe three times a 

month, if [he] was lucky.” (Id. ¶¶ 48-51.) After the end of his shift, Brand secures 

his Comcast vehicle and takes some equipment into his home for overnight storage, 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 9 of 57 PageID #:8644
10

a process that takes “maybe 20 minutes.” (Id. ¶¶ 55, 57.) He also spends time 

logging off his computer at the end of the day, which could take 15 to 20 minutes, 

sending emails to report the status of his work for the day, and logging his miles. 

(Id. ¶¶ 56, 61, 63.) 

 Brand also worked week-long on-call shifts on a rotating basis. (Id. ¶ 68.) 

Brand was called out during 10 pay periods in 2009, 11 pay periods in 2010, and 8 

pay periods in 2011. (R. 197, Defs.’ Resp. to Pl.’s Facts ¶ 49.) Between 2009 and 

2011, Brand was dispatched for 54.6% of the hours he was on call.2 (Id. ¶ 49.) 

According to him, while he was on call he had to stay with his Comcast vehicle, 

could not have non-Comcast employees in his Comcast vehicle, was expected to 

respond to communications regarding an outage within five to ten minutes from 

receiving the communication, and had to stay in close enough range to his service 

area that he could complete a job in three hours. (Id. ¶ 51.) Brand testified that 

while on call he was able to run errands as long as he did not go so far that he could 

not respond to a page in a timely manner. (R. 167, Brand’s Resp. to Defs.’ Facts 

¶ 72.) 

 Brand testified that supervisors Espinosa and Dave Johnson advised him not 

to record time that he worked before the start of his shift. (R. 216, Pl.’s Sur-Reply 

¶ 30.) He said that Johnson told him only to record his scheduled hours on his 

 

2 The court is including in the individual facts, where available, Comcast’s 

representation of the percentage of on-call hours each individual was called in to 

work during the relevant periods. Although those representations appear in 

Comcast’s responses to the individual plaintiffs’ additional facts, the court allowed 

the plaintiffs to file a joint sur-reply to those responses, and the plaintiffs did not 

dispute Comcast’s representation of these facts. (R. 216, Sur-Reply at 27-28.) 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 10 of 57 PageID #:8645
11

timesheet. (R. 197, Defs.’ Resp. to Pl.’s Facts ¶ 35.) Brand further testified that he 

was instructed to record a one-hour lunch break whether or not he took it. (R. 216, 

Pl.’s Sur-Reply ¶ 30.) Brand testified that he told his supervisors that he was 

unable to take lunch breaks because of his workload. (R. 197, Defs.’ Resp. to Pl.’s 

Facts ¶ 41.) According to Brand, he also did not record time spent after 4:30 p.m. 

(the end of his shift) performing tasks such as safety checks and carrying equipment 

because he was instructed to record just the hours scheduled. (R. 216, Pl.’s SurReply ¶ 30.) Brand did concede, however, that he did not believe there was ever a 

time when he recorded overtime hours but was not paid for it. (R. 167, Brand’s 

Resp. to Defs.’ Facts ¶ 33.) 

2. Barry Farmer 

 During the period relevant to this lawsuit, Farmer has worked both as a 

home dispatched and a home garaging technician, working a regularly scheduled 

shift from 7:30 a.m. to 4:30 p.m. and a seven-day on-call shift every five weeks. 

(R. 170, Farmer’s Resp. to Defs. Facts ¶¶ 9, 11.) When working as a home 

dispatched line technician, Farmer would log on to his computer as early as 

6:00 a.m. (Id. ¶¶ 37-38.) It often took him 30 to 40 minutes to get logged into his 

computer and 10 to 15 minutes to check his assignments using Watchtower. (Id. 

¶¶ 39-40.) Before leaving for a job or the garage, Farmer would inspect his truck for 

about 10 minutes, depending on the weather conditions and whether his inspection 

revealed any problems. (Id. ¶¶ 44-45.) When working as a home garaging 

technician, Farmer would often arrive at the 112th Street facility between 7:10 and 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 11 of 57 PageID #:8646
12

7:15 a.m. to download his meter, log into his computer, and to check his 

assignments before starting his shift. (R. 204, Defs.’ Resp. to Farmer’s Add’l Facts 

¶¶ 31-33.) Some days Farmer did not take a lunch break because of his workload 

and only sometimes when he missed his lunch break would he record it as overtime. 

(R. 170, Farmer’s Resp. to Defs. Facts ¶ 56.) He testified that he “couldn’t begin to 

guess” how much unrecorded time he spent working through lunch. (Id. ¶ 61.) 

Even when Farmer took a lunch break, he sometimes spent time during the break 

looking at assignments, a task that can take between five and thirty minutes 

depending on the situation. (R. 204, Defs.’ Resp. to Farmer’s Facts ¶ 41.) Farmer 

testified that at the end of each day he spent five to ten minutes logging off his 

computer, five to ten minutes securing his equipment, and about ten minutes 

recording his time. (R. 170, Farmer’s Resp. to Defs. Facts ¶¶ 68-70.) Farmer 

sometimes performed these tasks during his shift and sometimes he performed 

them after his shift ended at 4:30 p.m. (Id. ¶ 71.) If these tasks took longer than a 

half hour he would record that time as overtime and was paid for that time. (Id. 

¶¶ 72, 75.) Farmer testified that Espinosa recommended that he not enter his start 

time for the day as the time he logged into his computer. (Id. ¶ 54.) He also 

testified that he told another supervisor, Steve Rembis, that he was checking 

assignments during his lunch break. (R. 216, Sur-Reply ¶ 43.) 

 Farmer testified that during on-call shifts he is able to watch television, run 

errands, make home repairs, and spend time with his kids. (R. 170, Farmer’s Resp. 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 12 of 57 PageID #:8647
13

to Defs.’ Facts ¶ 80.) Farmer reported being called out for 37.7% of the total hours 

he spent on call. (R. 204, Defs.’ Resp. to Farmer’s Facts ¶ 50.) 

 3. Mark Graham 

 Graham worked as a home dispatched line technician out of the 112th Street 

facility from 2003 through 2010, when his employment with Comcast ended. 

(R. 173, Graham’s Resp. to Defs.’ Facts ¶ 10; R. 199, Defs.’ Resp. to Graham’s Facts 

¶ 31.) Graham worked a regular schedule of Sunday through Thursday, 7:30 a.m. 

to 4:30 p.m., throughout his employment with Comcast. (R. 173, Graham’s Resp. to 

Defs.’ Facts ¶ 9.) Graham chose to dispatch from home “to save a little gas so I don’t 

have to drive my car to work and back.” (Id. ¶ 13.) He testified that he was 

expected to be at his first job of the day by 8:00 a.m. (R. 199, Defs.’ Resp. to 

Graham’s Add’l Facts ¶ 32.) 

 Graham testified that he logged into his Comcast laptop between 6:30 a.m. 

and 7:00 a.m. each work day to pick up jobs for the start of his shift. (R. 173, 

Graham’s Resp. to Defs.’ Facts ¶ 32.) The process of logging in and choosing his jobs 

took him 15 to 20 minutes, but Graham did not record that time on his time sheets. 

(Id. ¶¶ 34-35.) Graham also spent 10 to 15 minutes before the start of his shift 

inspecting his truck. (Id. ¶ 36.) He did not record that time on his timesheets 

either. (Id. ¶ 37.) Although Graham was entitled to a one-hour lunch each day, 

whether he took lunch depended on his workload. (Id. ¶¶ 47, 50-51.) He estimates 

that he worked through lunch three days a week. (R. 199, Defs.’ Resp. to Graham’s 

Add’l Facts ¶ 37.) He testified that he did not record the time he worked through 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 13 of 57 PageID #:8648
14

lunch because he knew someone who had done so and was “beat up” for it. (Id. 

¶¶ 40, 41.) After the end of his shift, Graham spent about 10 to 15 minutes 

securing his vehicle but did not record that time on his time sheets. (R. 173, 

Graham’s Resp. to Defs.’ Facts ¶¶ 53-55.) As for his on-call shifts, Graham 

understood Comcast’s policy to be that he had five minutes to respond to a 

communication to avoid being disciplined. (R. 199, Defs.’ Resp. to Graham’s Add’l 

Facts ¶ 49.) 

 Graham testified that he believed that Espinosa was “cheating [him] on 

time.” (R. 173, Graham’s Resp. to Defs.’ Facts ¶ 38.) He also testified that Espinosa 

did not give him any direct instructions on entering pre-shift time on his time 

sheets, but he received instructions from his supervisor Johnson. (Id. ¶ 41.) 

Graham testified that Johnson told him to record on his time sheet 7:30 a.m. to 4:30 

p.m., unless he worked overtime, which he understood to mean “[a]ny time that’s 

not your normal working time.” (Id. ¶¶ 42-43.) Even though Graham had 

complained about other workplace issues, he never complained to his supervisor, 

manager, Comcast’s Human Resources Department, or through Comcast Listens, 

about not being paid for all of the time he had worked. (Id. ¶ 31.) 

4. Kevin Jackson 

 During his on-going tenure as a line technician with Comcast, Kevin Jackson 

has worked a 7:30 a.m. to 4:30 p.m. shift in both the home garaging and home 

dispatched roles. (R. 176, K. Jackson’s Resp. to Defs.’ Facts ¶¶ 1, 7, 10.) When he 

was home dispatched, Jackson “pretty much always” worked as a lead technician, 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 14 of 57 PageID #:8649
15

for which he received an additional $40 per day above his regular pay. (Id. ¶¶ 9, 

33.) While he was home dispatched, Jackson would log into his computer between 

6:00 a.m. and 6:30 a.m. each work day to check assignments and to assign jobs to 

other line technicians. (Id. ¶¶ 34-35.) The log-in process could take between 20 and 

40 minutes. (R. 206, Defs.’ Resp. to K. Jackson’s Add’l Facts ¶ 36.) At the 

beginning of his work day, Jackson also conducted a “circle of safety” inspection on 

his Comcast vehicle and completed mileage forms. (R. 176, K. Jackson’s Resp. to 

Defs.’ Facts ¶ 41.) The amount of time the circle-of-safety inspection and inventory 

checks took him varied, but they could take between five and thirty minutes to 

complete. (R. 206, Defs.’ Resp. to K. Jackson’s Add’l Facts ¶ 34.) Jackson testified 

that he asked Espinosa if he could record the extra time he spent working pre-shift 

and Espinosa told him to record his start time as 7:30 a.m. (Id. ¶ 40.) 

 As for lunch-break and post-shift work, Jackson testified that whether he 

worked through part or all of his one-hour lunch break depended on the day and his 

workload. (R. 176, K. Jackson’s Resp. to Defs.’ Facts ¶ 46.) He estimates that 

before he went through the Employee Self Service3 (“ESS”) training in July 2013, 

his lunches were interrupted 70 to 75 percent of the time. (Id. ¶¶ 57-58.) As a lead 

technician, he took calls from other line technicians during his lunch. (R. 206, Defs.’ 

Resp. to K. Jackson’s Add’l Facts ¶ 33.) Jackson testified that nine times out of ten 

when he worked through lunch he told his supervisors about it. (Id. ¶ 46.) When 

 

3 All technicians began using Comcast’s computer program identified as Employee 

Self Service to record their time starting at the end of 2008 or beginning of 2009. 

(R. 176, K. Jackson’s Resp. to Defs.’ Facts ¶ 15.) 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 15 of 57 PageID #:8650
16

Jackson returned home after a shift, he spent five to seven minutes securing his 

vehicle and putting equipment away. (R. 176, K. Jackson’s Resp. to Defs.’ Facts 

¶¶ 61, 63.) On occasion he spent a half hour to an hour performing tasks post-shift 

in his role as lead technician. (R. 206, Defs.’ Resp. to K. Jackson’s Add’l Facts ¶ 50.) 

 Jackson testified that he feels “like a prisoner” during on-call shifts because 

he has to “sleep light” in case a call comes in and because working from 3:00 p.m. 

until midnight before going on-call until 7:30 a.m. prevented him from seeing his 

children. (R. 176, K. Jackson’s Resp. to Defs.’ Facts ¶¶ 69, 72-73.) Jackson reported 

being called out for 12.5% of the total hours he spent on call during the relevant 

period. (R. 206, Defs.’ Resp. to K. Jackson’s Add’l Facts ¶ 56.) 

 5. Michael Jackson 

 Michael Jackson has worked as a line technician for Comcast since 2009, 

working a regular schedule of 7:30 a.m. to 4:30 p.m., Sunday through Thursday. 

(R. 179, M. Jackson’s Resp. to Defs.’ Facts ¶¶ 1, 6.) He worked as a home 

dispatched technician from 2009 until “maybe 2011,” and has worked as a home 

garaging technician out of the 112th Street facility since then. (Id. ¶ 7.) Jackson 

testified that he usually logs into his computer between 6:20 a.m. and 6:30 a.m. 

each work day because it can take 20 to 30 minutes to boot up the computer and 

review his assignments on Watchtower. (Id. ¶¶ 30-31.) He also spends 20 to 25 

minutes performing a vehicle inspection before the start of his shift. (Id. ¶ 36.) 

Jackson testified that he typically emails and texts during his lunch breaks. (Id. 

¶ 48.) If he receives a message about an outage, he has to respond to the 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 16 of 57 PageID #:8651
17

communication within five to ten minutes. (Id. ¶ 49.) After his shift ends, Jackson 

spends 20 to 25 minutes securing his equipment, inspecting his vehicle, and taking 

equipment inside his house. (Id. ¶¶ 56-57.) 

 Jackson testified that he works a seven-day on-call shift every eight weeks. 

(Id. ¶ 65.) His understanding of his responsibility while on call is that he is 

required to respond to a text message within 30 minutes and must resolve the 

outage within 90 minutes. (Id. ¶ 69.) He testified that in theory an on-call 

employee could watch television, spend time with family, read, watch ball games, go 

to the grocery store, and run quick errands. (Id. ¶ 72.) Jackson reported being 

called out for about 41% of all of the hours he spent on call. (R. 195, Defs.’ Resp. to 

M. Jackson’s Add’l Facts ¶ 48.) 

 Jackson testified that after attending a November 2011 ESS training about 

pay, he and other technicians attended a meeting with Espinosa in which they said 

they should be getting paid for the time they spend turning on their computers. 

According to Jackson, Espinosa said, “I advise you guys not to do that.” (R. 179, 

M. Jackson’s Resp. to Defs.’ Facts ¶ 39.) Jackson also testified that at that meeting 

“[w]e were told not to put the time down for performing [the pre-shift] work.” 

(R. 216, Sur-Reply ¶¶ 36, 38.) After that meeting, Jackson did not try to record 

time he spent working pre-shift or time he spent monitoring texts and emails 

during lunch. (R. 179, M. Jackson’s Resp. to Defs.’ Facts ¶¶ 42, 52.) 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 17 of 57 PageID #:8652
18

6. Jose Vigil 

 At all relevant times Jose Vigil has worked as a line technician for Comcast 

on a Tuesday to Saturday, 7:30 a.m. to 4:30 p.m. schedule. (R. 182, Vigil’s Resp. to 

Defs.’ Facts ¶¶ 1, 8.) Originally Vigil worked as a home dispatched technician, but 

starting in February 2013 he began working as a home garaging technician. (Id. 

¶ 9.) While working as a home garaging technician, Vigil would typically arrive at 

the 112th Street facility around 6:10 a.m. (R. 202, Defs.’ Resp. to Vigil’s Add’l Facts 

¶ 32.) Vigil testified that before the 7:30 a.m. start of his shift, he spends about 10 

to 15 minutes turning on his computer and entering his time and then monitors 

Watchtower to see how many jobs are available. (R. 182, Vigil’s Resp. to Defs.’ 

Facts ¶¶ 33-34, 36-37.) He does not record the time he spends monitoring 

Watchtower. (Id. ¶ 39.) Vigil also spends approximately 10 minutes synchronizing 

his meter with his supervisor’s computer before his shift starts. (Id. ¶ 42.) He does 

not record that time either. (Id. ¶ 43.) He also spends “maybe a half hour” of 

unreported time completing a pre-shift vehicle inspection. (Id. ¶¶ 44-45.) As for 

lunch breaks, Vigil testified that prior to December 2012 or February 2013, he 

worked through lunch. (Id. ¶ 50.) At the end of his shift, Vigil spends about 30 

minutes putting away his equipment and sending an email describing the day’s job. 

(Id. ¶ 64.) Even if he completes those activities after 4:30 p.m. he does not record 

the time as overtime because his supervisors push too much for the technicians to 

stay on a 7:30 a.m. to 4:30 p.m. schedule. (Id. ¶¶ 67-68.) Vigil is required to work a 

seven-day on-call shift approximately every four to six weeks. (R. 202, Defs.’ Resp. 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 18 of 57 PageID #:8653
19

to Vigil’s Add’l Facts ¶ 52.) Vigil reported being called out for about 45% of the 

hours he spent on call. (R. 204-4, Defs.’ Resp. to Farmer’s Add’l Facts Ex. C, 

DiGiovanni Decl. ¶ 8.) 

 Sometime between December 2012 and February 2013, Espinosa called Vigil 

and told him he noticed that Vigil was recording nine straight hours of work, and 

instructed him to stop and take his lunch. (R. 182, Vigil’s Resp. to Defs.’ Facts 

¶ 54.) Starting around then, Vigil would monitor Watchtower during his lunch 

break and if he saw an outage in his area, he would call his supervisor to find out 

whether he should suspend his lunch and address it. (Id. ¶¶ 59-63.) 

7. Chris Woodard 

 Chris Woodard worked as a home garaging Comcast line technician starting 

in August 2011. (R. 185, Woodard Resp. to Defs.’ Facts ¶¶ 1, 10.) Woodard testified 

that he was required to arrive at the 112th Street facility by 7:30 a.m. to start his 

shift, but he would conduct “pre-trip” vehicle inspections required by the 

Department of Transportation before leaving in the morning. (Id. ¶¶ 30-32.) He 

would also log into Watchtower, a process that took between 20 to 30 minutes. (Id. 

¶¶ 33-34.) He was never told to log in before his shift started. (Id. ¶ 38.) Woodard 

testified that most of the time he took a lunch break and that he was paid for time 

he worked through lunch if he recorded it. (Id. ¶¶ 42-43, 45.) There were times 

Woodard worked through lunch without recording his time because he was told not 

to skip his lunch and there were times he could not leave the customer for a lunch 

break. (Id. ¶ 46.) If he received a communication about an outage in his area 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 19 of 57 PageID #:8654
20

during a lunch break, Woodard would respond to the outage and then restart his 

lunch after it was resolved. (Id. ¶ 48.) It took him “[m]aybe a minute” to review his 

messages during his lunch break. (Id. ¶ 50.) Woodard never told anyone that he 

was working through lunch and not recording it. (Id. ¶ 52.) Woodard also spent 

five to ten minutes after the end of a shift securing his truck, shutting down his 

laptop, and putting equipment away. (Id. ¶¶ 55-58.) He said that he would spend 

15 to 20 minutes dropping off bad equipment at the 112th Street facility after his 

shift ended. (R. 208, Defs.’ Resp. to Woodard’s Add’l Facts ¶ 42.) 

 Woodard worked a seven-day on-call shift on a “normal rotation” every month 

or a month and a half, but he was sometimes asked to volunteer for extra call shifts. 

(R. 185, Woodard Resp. to Defs.’ Facts ¶ 61.) Woodard ran personal errands in his 

Comcast vehicle while he was on call. (Id. ¶ 65.) He often skipped church services 

while on call because he did not know whether he would be called in. (Id. ¶ 71.) He 

also said that he had to have his cell phone with him at all times while on call and 

that he would keep his laptop on while on call at home to monitor the system. 

(R. 208, Defs.’ Resp. to Woodard’s Add’l Facts ¶ 51.) Woodard was called out for 

approximately 42.9% of the on-call hours he worked from the period between 

August 2011 and February 2013. (Id. ¶ 50.) He was called out more than once a 

day on nine of the thirty-nine days that he was called out. (Id. ¶ 49.) 

 Woodard testified that he brought up with his supervisors in at least three 

meetings whether it would be permissible for him to record the time he spent before 

the start of his shift, but they told him not to do so. (Id. ¶ 31.) According to 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 20 of 57 PageID #:8655
21

Woodard, they told him to record his start time as 7:30 a.m. (Id. ¶ 34.) Woodard 

also testified that he complained to his managers that they were logging him out 

while he was still on the job, but they responded that they only had a certain 

amount of overtime to authorize. (Id. ¶ 44.) 

Analysis

 This court will grant summary judgment only where the moving party shows 

that “there is no genuine dispute as to any material fact and the movant is entitled 

to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 

U.S. 317, 322 (1986). Where the moving party meets its burden of pointing to 

materials that “it believes demonstrate the absence of a genuine issue of material 

fact,” the responding party must point to “specific facts showing that there is a 

genuine issue for trial.” Celotex, 477 U.S. at 323-24. Although the facts will be 

reviewed in the light most favorable to the non-moving party, see Kellar v. Summit 

Seating Inc., 664 F.3d 169, 173 (7th Cir. 2011), the “mere existence of a scintilla of 

evidence in support of the [non-movant’s] position” is insufficient to defeat a motion 

for summary judgment, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). 

Instead, to overcome a well-supported motion for summary judgment, there must be 

a genuine dispute over facts from which a reasonable jury could find in the 

plaintiffs’ favor. See id. at 247-48, 252. 

 The plaintiffs seek to proceed to trial on their claims that Comcast violated 

the FLSA and IMWL by failing to pay them overtime wages for time they spent 

working before their shifts started, during what would otherwise be a lunch break, 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 21 of 57 PageID #:8656
22

after their shifts ended, and while waiting to be called in during on-call shifts. Both 

the FLSA and the IMWL require employers to pay their non-exempt employees one 

and one-half times their regular hourly wage for hours spent working beyond 40 

hours in one week. 29 U.S.C. § 207(a)(1); 820 ILCS § 105/4a(1). The parties agree 

that the IMWL parallels the FLSA and so the same analysis applies to both claims. 

See Villareal v. El Chile, Inc., 776 F. Supp. 2d 778, 784 (N.D. Ill. 2011). The 

plaintiffs bear the burden of proving that they performed overtime work for which 

they were not properly compensated. See Kellar, 664 F.3d at 173. 

A. The On-Call Claims 

 Comcast’s assertion that it is entitled to summary judgment with respect to 

the plaintiffs’ on-call claims is the most straight forward of its arguments from a 

factual perspective, so the court will begin there. Comcast argues that because it 

places no restrictions on how line technicians spend their time during on-call 

shifts—other than to require them to remain sober and to respond to calls to repair 

outages within 30 minutes—that time is not compensable as working time under 

either the FLSA or IMWL. All of the plaintiffs respond by arguing that the 

frequency with which they are called to jobs during on-call shifts, coupled with the 

call response time requirements and the threat that they could be forced to undergo 

drug and alcohol screenings while on call, means that they are unable to use their 

time effectively for personal pursuits. Accordingly, the plaintiffs argue that the 

undisputed facts show that they are entitled to their regular or overtime 

compensation for all of the hours they spend on call. 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 22 of 57 PageID #:8657
23

 Under certain circumstances, time spent waiting to work while on call may 

constitute working time under the FLSA. See Armour & Co. v. Wantock, 323 U.S. 

126, 133 (1944). Whether time spent on call is compensable as work under the 

FLSA turns on whether the employee is “engaged to wait” or is “waiting to be 

engaged.” See Dinges v. Sacred Heart St. Mary’s Hosps., Inc., 164 F.3d 1056, 1056-

57 (7th Cir. 1999) (citing Armour, 323 U.S. 126 & Skidmore v. Swift & Co., 323 U.S. 

134 (1944)). The Labor Department has codified the concept as follows: 

[a]n employee who is required to remain on call on the employer’s 

premises or so close thereto that he cannot use the time effectively for 

his own purposes is working while ‘on call.’ An employee who is not 

required to remain on the employer’s premises but is merely required 

to leave word at his home or with company officials where he may be 

reached is not working while on call. 

 29 C.F.R. § 785.17; see also Jonites v. Exelon Corp., 522 F.3d 721, 723 (7th Cir. 

2008). There is no one legal formula that dictates whether waiting time is 

compensable, see Skidmore, 323 U.S. at 136, but courts have looked to a number of 

factors to help settle the question, including the following: whether the employee’s 

movements were subject to excessive geographical restrictions; whether the 

frequency of call-ins created undue restrictions; whether there was a fixed 

timeframe for responding to a call; and whether the employee actually engaged in 

personal activities while on call. Cleary v. ADM Milling Co., 827 F. Supp. 472, 475 

(N.D. Ill. 1993). At the end of the day, whether time spent on call is compensable 

hinges on the on-call employee’s freedom to devote his time effectively “to the 

ordinary activities of private life.” See Dinges, 164 F.3d at 1057; Bright v. Houston 

Nw. Med. Ctr. Survivor, Inc., 934 F.2d 671, 677 (5th Cir. 1991) (en banc). 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 23 of 57 PageID #:8658
24

 Here, the plaintiffs all argue that the speed with which they had to respond 

to a page (approximately five to ten minutes) and the thirty-minute window to 

report to work after responding to a page, together with the requirement that they 

stay with their Comcast vehicle during on-call shifts, severely restrict their ability 

to engage in personal activities. But courts have found similar conditions 

insufficient to demonstrate the compensability of on-call time. For example, in 

Dinges, the plaintiff emergency medical technicians were required while on call to 

arrive at the hospital within seven minutes of receiving a page. 164 F.3d at 1057. 

That restriction prevented on-call employees from attending holidays with relatives, 

engaging in out-of-town leisure activities, or running errands outside a seven-mile 

radius from the hospital. Id. Despite those restrictions, because the plaintiffs had 

less than a 50% chance of being called in during each on-call shift and they could 

still sleep, care for family members, and attend local events, the court concluded 

that their on-call time was not work time. Id. at 1058-59. Similarly, in Bright, the 

plaintiff was required to remain reachable by beeper and to stay within a 20-minute 

radius of his employer while on-call. 934 F.2d at 673. Likewise, the Eighth Circuit 

determined that such restrictions did not prevent the plaintiff from effectively using 

his on-call time for his own purposes even though he would have been able to do 

more things had the on-call restrictions been more forgiving. Id. at 678. In 

Birdwell v. City of Gadsen, Ala., 970 F.2d 802, 807 (11th Cir. 1992), plaintiff police 

officers sought compensation for a one-week period in which they were required to 

be immediately reachable for a call-in to respond to a workers’ strike. The officers 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 24 of 57 PageID #:8659
25

presented evidence that although they could leave their homes, they could not leave 

town, go on vacation, participate in outdoor activities, or go anywhere with family 

members without driving two cars. Id. at 808. The Eleventh Circuit held that these 

restrictions on the officers’ free time were insufficiently severe to treat the on-call 

time as work time, because they “could do anything they normally did so long as 

they were able to respond to a call promptly and sober.” Id. at 810. 

 The undisputed facts here show that the limitations on the plaintiffs during 

their on-call shifts were no more restrictive than those placed on the plaintiffs in 

Dinges, Bright, or Birdwell. Although Comcast policy required that the plaintiffs 

respond to an outage within 30 minutes of communicating with Comcast regarding 

the outage, that limitation is significantly more forgiving than the 7-minute 

reaction time the Seventh Circuit concluded was insufficient to convert waiting time 

into working time in Dinges. Several plaintiffs testified that being on call disturbed 

their regular routine, but the test is whether they could conduct normal activities of 

private life while on call, not whether they could do so without any inconvenience or 

in the precise way they do outside of their on-call shifts. See Bright, 934 F.2d at 677 

(noting that employee need not “have substantially the same flexibility or freedom 

as he would if not on call, else all or almost all on-call time would be working time, a 

proposition that the settled case law and the administrative guidelines clearly 

reject”). For example, Michael Jackson complains that because he works from three 

p.m. until midnight while he is on call, he is unable to see his children because they 

do not get home from school until after three. But that is a complaint about the 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 25 of 57 PageID #:8660
26

inconvenience involved in his particular schedule, not about the restrictions placed 

on him during what would otherwise be downtime. Significantly, several of the 

plaintiffs testified that they are able to sleep, watch television, spend time with 

friends or family, shop for groceries, run errands, or make home repairs while 

waiting to be called in during on-call shifts. (See, e.g., R. 167, Brand’s Resp. to 

Defs.’ Facts ¶ 74; R. 170, Farmer’s Resp. to Defs.’ Facts ¶ 80; R. 179, M. Jackson’s 

Resp. to Defs.’ Facts ¶ 72 (agreeing that he could do these types of activities at least 

in theory while on call); R. 185, Woodard’s Resp. to Defs.’ Facts ¶ 65.) That 

testimony belies a finding that the plaintiffs’ free time while on call was so severely 

restricted that it constituted work time for purposes of the FLSA. See Aiken v. City 

of Memphis, Tenn., 190 F.3d 753, 760 (6th Cir. 1999).

 The plaintiffs also rely heavily on the frequency with which they were called 

in during on-call shifts to support their assertion that they are unable to use their 

time effectively to engage in personal pursuits while on call. In Dinges, the Seventh 

Circuit found significant the fact that the plaintiffs were called in during fewer than 

50% of their on-call shifts in concluding that their wait time was not compensable. 

164 F.3d at 1058. Here, the plaintiffs have not provided clear evidence regarding 

the percentage of days on which they were on call that they were called in to work. 

There is evidence, however, that on the days they were called in the plaintiffs were 

typically only called in once. (See, e.g., R. 208, Defs.’ Resp. to Woodard’s Add’l Facts 

¶ 49; R. 186-20, Pls.’ Ex. 20, Comcast Wage Doc. 00042586.) That fact “mitigates 

against a conclusion that the on-call time was spent predominantly for the benefit” 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 26 of 57 PageID #:8661
27

of Comcast. See Reimer v. Champion Healthcare Corp., 258 F.3d 720, 725 (8th Cir. 

2001); compare with Renfro v. City of Emporia, Kan., 948 F.2d 1529, 1532, 1537-38 

(10th Cir. 1991) (frequency of callbacks suggested on-call time compensable where 

plaintiff firefighters called back on average between three and five times and 

sometimes thirteen times per shift). Additionally, Comcast has submitted evidence, 

which the plaintiffs have not disputed, (see supra pg. 10 n.2), showing the following 

with respect to the percentage of hours that the plaintiffs worked during their oncall shifts: 

Plaintiff4 Percentage of On-Call 

Shift Hours Called In 

James Brand 54.6 

Barry Farmer 37.7 

Kevin Jackson 12.5 

Michael Jackson 40.3 

Jose Vigil 45.1 

Christopher Woodard 42.9 

(R. 204-4, Defs.’ Resp. to Farmer’s Facts Ex. C, DiGiovanni Decl. ¶ 8.) Thus, the 

only plaintiff who worked more than half of the time he spent on call was Brand, 

and he worked just over 50% of his on-call time. But even the proportion of hours 

the plaintiffs spent working while on call here is insufficient to trump the other 

factors pointing clearly to the conclusion that the plaintiffs could do as they saw fit 

with their on-call time. As a point of comparison, in Jonites the employer required 

off-duty employees (not just on-call employees) to be reachable by phone at all times 

to respond to emergency calls and disciplined employees who failed to answer more 

 

4 The declaration providing this data does not include information for Mark 

Graham, whose employment with Comcast ended in 2010. 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 27 of 57 PageID #:8662
28

than 50 percent of the calls or to accept more than 35 percent of the call outs. 522 

F.3d at 722. That requirement forced the employees to stay within a two-hour 

radius of their normal duty station and prevented anyone whose response rate was 

near the floor from leaving town, even while off duty, without using vacation time. 

Id. at 724. Despite the fact that the employer’s policy essentially kept employees 

tethered to their phones or beepers at all times, the Jonites court found the ensuing 

hardships insufficient to turn their off time into working time. Id. Here, the 

plaintiffs only had travel restrictions during their one-week on-call shifts, which 

they rotated through approximately every six weeks. Accordingly, the frequency 

with which they were subject to the inconveniences inherent in being on call is 

insufficient to push their on-call claims beyond the summary judgment stage. 

 Finally, the plaintiffs argue that their on-call shifts were unduly restrictive 

because “at any moment” during those shifts they could “be involuntarily 

transported and drug and alcohol tested any time they were ‘on call.’” (R. 165, 

Brand Resp. Mem. at 14 (emphasis in original).) Courts have routinely held that 

on-call rules including a requirement that employees remain sober are insufficiently 

restrictive to convert their on-call time to work time. See, e.g., Reimer, 258 F.3d at 

725; Dinges, 164 F.3d at 1057; Bright, 934 F.2d at 673; Birdwell, 970 F.2d at 808. 

Additionally, here all of the plaintiffs cite the same set of undisputed facts to 

suggest that they are subject to random drug and alcohol tests at any time during 

their on-call period. Those facts show that on a single occasion, a Comcast line 

technician was removed from a bar and grill and subjected to drug and alcohol 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 28 of 57 PageID #:8663
29

testing by managers who saw his Comcast truck parked outside and suspected he 

had been drinking. (R. 197, Defs.’ Resp. to Brand’s Add’l Facts ¶ 52.) Comcast 

policies prohibit line technicians from driving after consuming alcohol. (Id.) None 

of the plaintiffs submit any evidence that they or any other line technician has been 

brought in for alcohol or drug testing randomly or absent a manager’s suspicion 

that the employee was about to drive a Comcast vehicle after drinking. 

Accordingly, they have not shown that there is anything different about Comcast’s 

requirement that they remain sober while on call from the cases finding such 

restrictions insufficient to transform on-call time into work time. For all of these 

reasons, the court concludes that Comcast is entitled to summary judgment with 

respect to the plaintiffs’ claims for on-call compensation. 

B. Pre-Shift and Post-Shift Activities 

 Comcast also seeks summary judgment on the plaintiffs’ claims that they are 

entitled to overtime compensation for the time they spent or spend engaged in 

certain activities before the beginning and after the end of their regular shifts. 

According to Comcast, the plaintiffs’ claims are barred by the Portal-to-Portal Act 

(“PPA”), 29 U.S.C. § 254, as amended by the Employee Commuting Flexibility Act of 

1996 (“ECFA”), 29 U.S.C. § 254(a), because all of the pre- and post-shift activities 

for which they seek compensation are, according to Comcast, activities which are 

incidental to the use of Comcast’s vehicles for commuting. The plaintiffs argue that 

their pre- and post-shift activities are compensable regardless of the ECFA because, 

they say, those activities are indispensable and integral to their principal activities, 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 29 of 57 PageID #:8664
30

or alternatively, because Comcast has established a custom or practice of 

compensating line technicians for such activities. For the following reasons, this 

court concludes that Comcast is entitled to summary judgment with respect to the 

pre-shift and post-shift claims.

 1. Incidental versus Indispensable Activities Under the PPA 

 The plaintiffs seek compensation for unrecorded time they spent before and 

after their shifts logging into their computers, obtaining and reviewing assignments 

electronically, conducting vehicle inspections, and loading, unloading, or securing 

equipment in and from their Comcast vehicles. The PPA narrowed the scope of 

employer liability under the FLSA by excepting from coverage two activities that 

previously had been treated as compensable: “(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.” See 29 U.S.C. § 254(a). 

Although the PPA did not define “principal activity,” the Supreme Court has 

interpreted the term to embrace “all activities which are an integral and 

indispensable part of the principal activities.” See Integrity Staffing Solutions, Inc. 

v. Busk, 135 S.Ct. 513, 517 (2014) (internal quotation marks and citation omitted). 

In 1996, Congress amended the PPA by passing the ECFA, which clarifies the rules 

regarding payment for time employees spend using employer-provided vehicles for 

their commute. See H.R. Rep. No. 104-585, at 2 (1996). The ECFA excludes 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 30 of 57 PageID #:8665
31

payment for the time an employee spends commuting and engaged in activities that 

are incidental to commuting: 

the 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 shall not be considered part of the 

employee’s principal activities 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). Thus, as amended by the ECFA, the PPA carves out from the 

FLSA time employees spend engaged in activities that are incidental to their use of 

a company vehicle, as long as the employees’ use of the vehicle is subject to an 

agreement with the employer and the vehicle is used for travel within the normal 

commuting area for the employer’s business. Id.; see also Rutti v. Lojack Corp., 596 

F.3d 1046, 1052 (9th Cir. 2010). In other words, if activities are “integral and 

indispensable” to the employees’ principal activities, then they are compensable, but 

if, on the other hand, they are “incidental” to the use of a company vehicle for 

commuting, they are not. See Chambers v. Sears Roebuck & Co., 428 Fed. App’x 

400, 414 (5th Cir. 2011). 

There is no dispute here that in their capacities as home dispatched or home 

garaging line technicians the plaintiffs used their Comcast vehicles within a normal 

commuting area and subject to an agreement with Comcast. The parties disagree, 

however, over whether the pre- and post-shift activities underlying their FLSA 

claims are incidental to their use of those Comcast vehicles for commuting, or are, 

as the plaintiffs argue, integral and indispensable to their principal activities as 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 31 of 57 PageID #:8666
32

line technicians. Comcast argues that all of the activities described by the plaintiffs 

are carved out of the FLSA’s compensation requirements by the ECFA because, 

they say, those activities are incidental to the plaintiffs’ commute driving a 

Comcast-issued vehicle. See 29 U.S.C. § 254(a). Although the ECFA does not define 

the term “incidental,” its legislative history provides some guidance. The House 

Report acknowledges that it “is not possible to define in all circumstances what 

specific tasks and activities would be considered ‘incidental’ to the use of an 

employer’s vehicle for commuting.” H.R. Rep. No. 104-585, at 5 (1996). But it 

makes clear that “[c]ommunication between the employee and employer to receive 

assignments or instructions, or to transmit advice on work progress or completion, 

as well as “routine vehicle safety inspections or other minor tasks” are included 

among the incidental activities which are not compensable under the ECFA. Id. 

 Courts that have wrestled with the task of separating incidental activities 

from compensable ones in this context have repeatedly placed activities like those 

described by the plaintiffs into the category of activities that are incidental to the 

employees’ commute. In Chambers, for example, the plaintiffs sought compensation 

for time spent logging into a device to learn their first assignment, carrying the 

device to their company vehicle and plugging it in before driving to their first 

service call, unplugging the device and transporting it to their houses from the van 

at the end of the day, and plugging it in to upload information regarding the current 

day’s stops and the next day’s assignment. 428 Fed. App’x at 415-17. Noting that 

the House Report to the ECFA included communications to receive assignments as 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 32 of 57 PageID #:8667
33

among the activities that are incidental to a commute, the court concluded that the 

activities the plaintiffs described all “relate to the employee’s commute,” and thus 

are non-compensable under the ECFA.5 Id. at 417; see also Donatti v. Charter 

Commc’ns, LLC, 950 F. Supp. 2d 1038, 1053 (W.D. Mo. 2013) (finding time spent 

carrying equipment between company vehicles and the employees’ homes incidental 

to commute). Similarly, in Rutti, 596 F.3d at 1057, the Ninth Circuit concluded that 

time a car alarm technician spent before his shift “receiving, mapping, and 

prioritizing jobs and routes for assignment” was incidental to his commute rather 

than integral to his principal activities. As another court reasoned, checking 

assignments early enough to ensure that the employee allots sufficient time for his 

commute to his first job is “by its very nature” incidental to the employee’s use of a 

company vehicle. Donatti, 950 F. Supp. 2d at 1054. Courts have also held that 

cleaning, maintaining, and performing routine safety inspections of company 

vehicles are activities that should be considered incidental to the employee’s use of a 

company vehicle. See, e.g., Aiken, 190 F.3d at 759 (finding tasks involved in keeping 

vehicles clean and scheduling maintenance incidental to commute); Butler v. 

 

5 It should be noted that the amount of time the plaintiffs in Chambers spent on 

some of their pre- and post-shift tasks was significantly shorter than the time the 

plaintiffs spent on similar tasks here. In addition to finding that these tasks are 

carved out by the ECFA, the Chambers court concluded in the alternative that those 

tasks were noncompensable because they were de minimus. Id. at 418. But the 

plaintiffs here have not developed any argument that their commute-related 

activities are rendered compensable by the amount of the employees’ time they 

absorb. Nor have they argued that the relatively lengthy duration of these tasks 

supports a conclusion that they are principal activities. Accordingly, this court has 

cabined its analysis to Comcast’s argument that the tasks at issue here are 

incidental to the plaintiffs’ commute within the meaning of the ECFA. 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 33 of 57 PageID #:8668
34

DirectSat USA, LLC, 55 F. Supp. 3d 793, 807-09 (D. Md. 2014) (finding time spent 

reading emails regarding schedule, prioritizing routes, or maintaining vehicle not 

compensable); Donatti, 950 F. Supp. 2d at 1053 (finding time spent quickly 

inspecting company vehicle and removing and replacing hazard cones from around 

the vehicle incidental to commute). 

 The pre- and post-shift tasks for which the individual plaintiffs seek 

compensation here are remarkably similar to those found to be incidental to the 

employees’ commute in the cases discussed above. The plaintiffs all described their 

pre- and post-shift activities in similar terms. For example, in discussing their preshift claims, all of the plaintiffs described turning on their computers and logging in 

at least a half hour before the start of their shifts for the purpose of reviewing or 

obtaining their assignments for the day. They also testified that they spent 

anywhere from five minutes (Kevin Jackson) to thirty minutes (Vigil) performing 

safety inspections of their Comcast vehicle before the start of their shifts. These 

kinds of routine tasks related to obtaining assignments electronically and 

performing vehicle safety inspections are inherently incidental to the plaintiffs’ 

choice to use Comcast vehicles as their method of commuting. See, e.g., Rutti, 596 

F.3d at 1057. As for post-shift activities, all of the plaintiffs described spending 

time securing their Comcast vehicles and putting away equipment for safekeeping. 

That process took them anywhere from five to thirty minutes, depending on the line 

technician and the day, although Farmer and Vigil both testified that they 

sometimes perform these tasks before their shift ends. Additionally, Brand, 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 34 of 57 PageID #:8669
35

Farmer, and Vigil testified that they sometimes spend time at or after the end of 

their shift sending emails, logging miles or recording time, and logging out of their 

computers. But time spent communicating with a supervisor to report on a last 

service call or uploading information about the day’s work are the kinds of 

communications incidental to a commute that the ECFA carves out. See Buzek v. 

Pepsi Bottling Grp., Inc., 501 F. Supp. 2d 876, 877, 883 (S.D. Tex. 2007). 

In their response, the plaintiffs fail to explain why the tasks they identify 

here are 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. Instead of 

acknowledging or distinguishing the case law suggesting that the pre- and postshift activities the plaintiffs describe here should be categorized as incidental to 

their commute under the ECFA, the plaintiffs rely entirely on the Supreme Court’s 

recent decision in Integrity Staffing to argue that these activities are integral and 

indispensable to their principal activities as line technicians. (See, e.g., R. 165, 

Brand Resp. Mem. at 12-13.) But Integrity Staffing has nothing to do with tasks 

related to commuting in a company vehicle. Instead, Integrity Staffing addresses 

the question of whether the 25 minutes plaintiff warehouse employees spent 

waiting for and undergoing security screenings at the end of their shifts is 

compensable under the FLSA. Id. at 515. The employees argued that this time was 

“solely for the benefit of the employers and their customers” and therefore was 

indispensable to their principal activities as warehouse workers. Id. at 515-16. The 

Supreme Court rejected that argument, and concluded that the security screenings 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 35 of 57 PageID #:8670
36

were “noncompensable postliminary activities.” Id. at 518. The Supreme Court 

made clear that the test for whether an activity is indispensable to a principal 

activity does not focus on “whether an employer required a particular activity.” Id.

at 519 (emphasis in original). Instead, “an activity is integral and indispensable to 

the principal activities that an employee is employed to perform—and thus 

compensable under the FLSA—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.” Id. 

Here, the plaintiffs assert that Integrity Staffing supports their pre- and postshift claims because they could not have performed their job duties as line 

technicians without performing tasks like logging in to obtain assignments, 

performing vehicle checks, and securing their equipment. But that argument is a 

non-starter because Integrity Staffing does not deal with the ECFA. To suggest 

that an activity can be incidental to a commute under the ECFA but still be 

compensable because it is integral to a principal activity would render the ECFA 

meaningless. Chambers, 428 Fed. App’x at 414 n.38; Buzek, 501 F. Supp. 2d at 885 

(noting that cases not involving employee commutes are not “on point” in 

determining whether commute-related activities are compensable). Even putting 

aside that the discussion in Integrity Staffing does not relate to the ECFA, the 

plaintiffs have provided no argument to support their assertion that a line 

technician could not dispense with the relevant tasks and still perform their job. It 

is clear that Comcast required these tasks, and that they were necessary byCase: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 36 of 57 PageID #:8671
37

products of the plaintiffs’ use of Comcast vehicles in the course of their commute. 

But that is not the same as demonstrating that they are indispensable activities to 

the work Comcast employs them to perform—namely, repairing cable outages. “The 

fact that certain preshift activities are necessary for employees to engage in their 

principal activities does not mean that those preshift activities are ‘integral and 

indispensable’ to a ‘principal activity.’” IBP, Inc. v. Alvarez, 546 U.S. 21, 40-41 

(2005). Nor does the fact that a given task increases the efficiency of a principal 

activity mean that it is integral and indispensable to that activity. Dinkel v. 

MedStar Health Inc., __ F. Supp. 3d __, No. 11-998, 2015 WL 1735078, at *3-4 

(D.D.C. Apr. 16, 2015). The plaintiffs simply have not shown that the activities 

they point to are intrinsic aspects of the work of a line technician or are 

indispensable to that work. For these reasons, the court agrees with Comcast that 

under the ECFA, the pre- and post-shift activities the plaintiffs claim they engaged 

in here are incidental to their use of a Comcast vehicle for commuting purposes, and 

therefore are not compensable under the ECFA. See 29 U.S.C. § 254(a). 

2. Custom or Practice of Compensation 

 The plaintiffs also argue that even if the ECFA would otherwise bar their 

claims for compensation with respect to their pre- and post-shift activities, they are 

nonetheless entitled to such compensation because, according to them, Comcast has 

a custom or practice of paying for these tasks. Subsection (b) of the PPA makes 

clear that even where activities might not otherwise be compensable, an employer 

may still be liable for the activity if it is made compensable by: 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 37 of 57 PageID #:8672
38

a custom or practice in effect, at the time of such activity, at the 

establishment or other place where such employee is employed, 

covering such activity, not inconsistent with a written or nonwritten 

contract, in effect at the time of such activity, between such employee, 

his agent, or collective-bargaining representative and his employer. 

29 U.S.C. § 254(b)(2); see also IBP, Inc., 546 U.S. at 26. The applicable regulation 

explains that the terms “custom” and “practice” as used in this subsection “may be 

said to be descriptive generally of those situations where an employer, without 

being compelled to do so by an express provision of a contract, has paid employees 

for certain activities performed.” 29 C.F.R. § 790.10(c). In that situation, what 

otherwise may be a noncompensable preliminary or postliminary activity may 

become compensable by way of the employer’s established custom or practice. See 

Jerzak v. City of South Bend, 996 F. Supp. 840, 847 (N.D. Ind. 1998). 

 The plaintiffs all argue that their pre- and post-shift activities have been 

made compensable under 29 U.S.C. § 254(b)(2) by way of Comcast’s written 

employment policies stating that line technicians will be compensated for such 

activities as logging into and out of computers, picking up equipment, conducting 

daily vehicle inspections, and engaging in job-related communications with 

supervisors, co-workers, or customers, among other things. (See, e.g., R. 165, 

Brand’s Resp. Mem. at 11.) As additional evidence of a custom or practice, they 

point to Comcast’s Payroll Manager’s testimony that line technicians begin their 

workday “the minute they start anything related to Comcast business, whether it’s 

reading a piece of paper, logging into a mobile device . . . . So the minute you begin 

your work day, whether that’s logging into a computer, again, reading a document 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 38 of 57 PageID #:8673
39

left on your desk, you’re on the clock.”6 (Id. at 11-12.) In arguing that these facts 

suffice to establish a custom or practice within the meaning of the PPA, the 

plaintiffs rely almost entirely on a previous decision rendered by this court in 

another FLSA case. In Blakes v. Ill. Bell Tel. Co., 77 F. Supp. 3d 776, 781-82 (N.D. 

Ill. 2015), the plaintiff cable splicers sought compensation for post-shift hours they 

spent completing time sheets. Based on the evidence submitted in that case, the 

court concluded that the plaintiffs were entitled to survive summary judgment not 

only because the relevant employee manual described that work as compensable, 

but also because the facts showed that the defendant had a “long-standing 

acquiescence to paying cable splicers for recording their time.” Id. at 781. 

Specifically, the plaintiffs submitted evidence showing that the defendant’s “policy 

has been to compensate for timesheet entry, even if done post-shift, for at least as 

long as electronic time entry has been in place.” Id.

 In contrast to the situation in Blakes, here the plaintiffs have not amassed 

sufficient evidence to allow a reasonable jury to conclude that their pre- and postshift commute-related activities have been rendered compensable by Comcast’s 

custom or practice. Their reliance on the cited Payroll Manager testimony lends 

them no aid because it simply describes how a line technician begins his or her day. 

It does not describe a practice of paying line technicians for commute-related 

 

6 The plaintiffs also assert that “Comcast admits that it has in fact paid for this 

type of work in the past,” but in support of that assertion they cite only generally to 

Comcast’s written policies. (R. 165, Brand Resp. Mem. at 12.) The cited policies do 

not support the assertion that Comcast has paid for these activities when they are 

performed pre- or post-shift or where an employee fails to record those activities on 

a time sheet. 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 39 of 57 PageID #:8674
40

activities that take place outside of scheduled shifts, and certainly not when the line 

technicians fail to report that time. Moreover, as Comcast points out, the plaintiffs’ 

custom or policy argument cuts against arguments they make in other parts of their 

briefs regarding Comcast’s refusal to pay for their pre- and post-shift activities. For 

example, the plaintiffs rely on evidence suggesting that Espinosa specifically 

directed them not to report time spent pre-shift on commute-related activities. 

Additionally, several of the plaintiffs opted into this suit based on the premise that 

Comcast has a “common and uniform trend” of not paying for the activities for 

which they now argue Comcast compensates line technicians as a matter of custom 

or policy. The plaintiffs cannot have it both ways at the summary judgment stage. 

See Chambers, 428 Fed. App’x at 422 (declining to find custom or practice of 

payment where “the very essence of Plaintiff’s claims” was that employer did not 

compensate for commute-related activities). 

 At bottom, the only evidence the plaintiffs have put forward in support of 

their custom or policy argument is comprised of Comcast’s written policies 

describing compensable work. The plaintiffs cite no cases in which a court has 

found that these kinds of general employment policies alone are sufficient to 

establish a legally binding obligation to compensate for time that is otherwise 

noncompensable. (See, e.g., R. 165, Brand Resp. Mem. at 11-12.) Nor have the 

plaintiffs explained why Comcast’s policies describing compensable work create a 

custom or practice. The plaintiffs have not suggested that any such custom or 

policy is advanced by the requirements that make clear that line technicians must 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 40 of 57 PageID #:8675
41

report all of their time to be paid for it. The plaintiffs’ claims stem from unreported 

time. Accordingly, Comcast’s written policies are not enough to propel the plaintiffs 

past summary judgment based on a custom or practice theory for their FLSA 

claims, which are rooted in otherwise noncompensable activities. 

 It should be noted that the finding the plaintiffs advocate here—that an 

employer’s general written employment policies alone may entrench a legally 

binding obligation to compensate employees for otherwise noncompensable and 

unreported activities—could lead to unintended and undesired consequences. For 

example, finding that Comcast’s general employment policies create a legally 

enforceable obligation to pay for unreported time could lead employers to avoid 

providing work descriptions in writing, thus depriving employees of a clear 

understanding of what their employer considers to be qualifying work. It could also 

lead to arguments that an otherwise non-binding employee handbook is legally 

enforceable via the custom or practice route. Moreover, employers who are inclined 

to pay for certain kinds of commute-related activities might resist doing so out of a 

fear of unintentionally creating a legally binding custom or practice. For all of these 

reasons, the court agrees with Comcast that the plaintiffs have not pointed to 

sufficient evidence to survive summary judgment on their pre- and post-shift claims 

based on any custom or practice of payment for those activities. Accordingly, 

Comcast is entitled to summary judgment with respect to the plaintiffs’ FLSA 

claims stemming from their pre- and post-shift activities. 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 41 of 57 PageID #:8676
42

C. Compensation for Lunch-Break Work 

With respect to the plaintiffs’ lunch-break claims, Comcast argues that it is 

entitled to summary judgment because, according to it, there is no evidence that it 

had either actual or constructive knowledge that the plaintiffs were working 

through lunch without pay. Alternatively, Comcast argues that even if the 

plaintiffs were able to show that Comcast was aware that line technicians were 

working through lunch, they have insufficient evidence to substantiate how often 

they worked without pay. According to Comcast, that lack of evidence entitles it to 

summary judgment because the plaintiffs’ mere “speculation” is insufficient to show 

the amount or the extent of their unpaid overtime. For the following reasons, the 

court determines that only Brand and Kevin Jackson have submitted sufficient 

evidence to create a genuine issue of material fact with respect to Comcast’s 

knowledge regarding unpaid lunch breaks and to allow a reasonable inference 

regarding the extent of that unpaid time. 

1. Comcast’s Knowledge That Line Technicians Worked Through 

 Lunch Breaks Without Pay 

To survive summary judgment with respect to their lunch-break claims, the 

plaintiffs must offer sufficient evidence from which a reasonable jury could conclude 

that Comcast had “actual or constructive knowledge” that they were working 

through lunch without pay. See Kellar, 664 F.3d at 177. The plaintiffs can show 

actual knowledge with evidence that Comcast “instructed them not to report 

overtime, told them to delete overtime that they reported on their timesheets or 

refused to pay them for reported overtime.” Boelk v. AT&T Teleholdings, Inc., No. 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 42 of 57 PageID #:8677
43

12-cv-40-bbc, 2013 WL 3777251, at *7 (W.D. Wis. July 19, 2013). An employer has 

constructive knowledge within the meaning of the FLSA when it “had reason to 

know” or “should have known” that its employees were not being compensated for 

work they performed. 29 C.F.R. § 785.11; Kellar, 664 F.3d at 177. “While an 

employer cannot slyly sit back in order to reap extra work without pay, it has no 

obligation to pay for work it did not know about and had no reason to know about.” 

Gaines v. K-Five Constr. Corp., 742 F.3d 256, 270 (7th Cir. 2014). Accordingly, in 

the absence of evidence of actual knowledge, the question becomes whether the 

plaintiffs’ managers or supervisors “had the opportunity through reasonable 

diligence to acquire knowledge” that the plaintiffs were working through lunch 

without pay. See Reich v. U.S. Dep’t of Conservation & Nat. Res., State of Ala., 28 

F.3d 1076, 1082 (11th Cir. 1994) (internal quotation and citation omitted); 

Ladegaard v. Hard Rock Concrete Cutters, Inc., No. 00 C 5755, 2004 WL 1882449, at 

*4 (N.D. Ill. Aug. 18, 2004). 

 The plaintiffs all first assert that Comcast requires them to monitor work 

devices during their lunch breaks and argue that this policy demonstrates that it 

had actual knowledge that they were working through lunch without pay. But the 

facts they cite do not support the assertion that Comcast requires them to 

continually and actively monitor their devices while on break. (See, e.g., R. 165, 

Brand Resp. Mem. at 15-16; R. 197, Defs.’ Resp. to Brand’s Facts ¶¶ 16-17.) As an 

initial matter, much of the deposition testimony they cite to support this assertion 

in their statements of additional facts has nothing to do with lunch breaks. (See, 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 43 of 57 PageID #:8678
44

e.g., R. 186-2, Brand Dep. at 211 (discussing pre-shift work); R. 186-7, Farmer Dep. 

at 67 (discussing pre-shift job assignments); R. 186-12, M. Jackson Dep. at 18 

(same).) Although the testimony they cite from Woodard, Vigil, and Kevin Jackson 

supports the suggestion that those plaintiffs sometimes receive outage notices via 

text, email, phone, or radio during lunch, Vigil and Woodard testified that if they 

receive such a communication, they suspend their lunch break and resume it later, 

if possible. (R. 186-17, Vigil Dep. at 85-86 (noting that he does not have to respond 

to an outage during lunch); R. 186-19, Woodard Dep. at 140 (stating that it was “not 

often” that he received a communication during lunch).) Moreover, Vigil testified 

that no manager ever told him he had to watch his computer for communications 

during lunch and said that he does so because he has “nothing to do.” (R. 186-17, 

Vigil Dep. at 90.) No reasonable jury could infer from the evidence the plaintiffs 

cite that Comcast has a blanket policy requiring them to actively monitor devices 

during lunch breaks and to respond immediately to communications regarding 

outages. Accordingly, the cited testimony does not support the assertion that 

Comcast knew that the plaintiffs were working through lunch without pay simply 

because it knew that they occasionally received outage notices during their meal 

breaks. 

 Moreover, it should be noted that none of the cited testimony indicates that 

being ready to receive outage notices—even if a reasonable jury could infer that was 

Comcast’s policy—required anything from line technicians beyond glancing at 

devices or listening for a notification when such a communication comes in. The 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 44 of 57 PageID #:8679
45

plaintiffs have not argued that keeping a work device within earshot or their field of 

vision in case such a notification arrives prevents them from taking a bona fide 

meal break. Perhaps that is because relevant case law suggests that monitoring a 

radio or similar device is not a substantial job duty as long as the employee can still 

spend his lunch break primarily for his own benefit without persistent 

interruptions.7 See Ruffin v. MotorCity Casino, 775 F.3d 807, 812 (6th Cir. 2015) 

(collecting cases finding that being available to respond to calls does not convert 

lunch break to work time). Accepting the plaintiffs’ argument that Comcast had 

knowledge of uncompensated lunch-break work just because the plaintiffs 

monitored devices during lunch would mean that no line technician has ever had a 

bona fide lunch break for as long as Comcast’s outage-response policy has been in 

place. Not even the plaintiffs have suggested that to be the case. Accordingly, this 

court disagrees that line technicians’ duty to monitor their devices so as to be able 

to respond to outages on its own translates to a reasonable conclusion that Comcast 

had actual knowledge that the plaintiffs were working through their lunch breaks 

without pay. 

 To support their argument that Comcast had constructive knowledge of 

unpaid overtime, the plaintiffs also collectively point to a “variety of complaints” 

that Comcast received from 2008 to 2012, which the plaintiffs characterize as being 

 

7 In a footnote, (see, e.g., R. 165, Brand Resp. at 16 n.3), the plaintiffs assert that 

Comcast has not argued that their lunch breaks are noncompensable as a matter of 

law, but it is their burden to prove that their meal periods are compensable. See 

Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87 (1946) (superseded by 

statute on other grounds as stated in IBP, 546 U.S. at 41). 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 45 of 57 PageID #:8680
46

about unpaid lunch breaks. Given that the plaintiffs devoted only two sentences to 

this argument without explaining how the facts they cite in support demonstrate 

constructive knowledge, (see, e.g., R. 165, Brand Resp. at 16), the court will not 

linger long here. Suffice it to say that none of the anonymous complaints that came 

in to a service technician manager, the Department of Labor, human resources, or 

the Comcast Listens Helpline directly involved complaints that the plaintiffs were 

working through lunch or that the plaintiffs’ managers or supervisors knew or 

should have known that these specific plaintiffs were working through lunch 

without pay. (R. 166, Brand Add’l Facts ¶¶ 20-28); see Boelk, 2013 WL 3777251, at 

*10 (determining that evidence suggesting managers should have known that 

unidentified technicians were working through breaks without pay was insufficient 

to put managers on notice that the named plaintiffs were working through breaks). 

Even the complaint that supervisor Espinosa was pressuring line technicians 

regarding their work hours was directed at unpaid pre-shift work, not lunch breaks. 

(R. 166, Brand’s Add’l Facts ¶ 24.) Accordingly, the court will focus on the facts 

submitted by the individual plaintiffs to determine whether there exists sufficient 

evidence from which a reasonable jury could conclude that Comcast had actual or 

constructive knowledge that the plaintiffs were working through lunch without pay. 

a. Brand 

 In addition to the generic evidence outlined above in support of his argument 

that Comcast knew or should have known that he was working through lunch, 

Brand submitted evidence that human resources personnel and supervisor Johnson 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 46 of 57 PageID #:8681
47

not only knew but instructed him not to report that he was working through lunch. 

Specifically, Brand testified that a person from human resources told him and other 

line technicians that “you have to put down your one-hour lunch break . . . whether 

you take your lunch or not, you have to put down your one-hour lunch break.” 

(R. 166, Brand’s Add’l Facts ¶ 40; R. 186-2, Brand Dep. at 66:22-67:12, 279:14-21.) 

Brand testified that Johnson was present when Brand received that instruction. 

(R. 186-2, Brand Dep. at 68:2.) He also testified that he told his managers and 

supervisors “a lot” that he was not able to take a lunch break because of the amount 

of work on his plate and said that if he called Johnson to relay that he was unable 

to take a lunch on a given day, Johnson would say “well, you know, you should have 

took it.” (Id. at 280:11-281:18.) Because a supervisor’s knowledge is imputed to the 

employer, see Cunningham v. Gibson Elec. Co., Inc., 43 F. Supp. 2d 965, 975 (N.D. 

Ill. 1999), Brand’s testimony that he was instructed in the presence of his 

supervisor not to record time he spent working through lunch, coupled with his 

supervisor’s awareness that Brand was frequently working through lunch, is more 

than sufficient to create at least a genuine issue of material fact as to whether 

Comcast knew or should have known that Brand was not being paid for all of the 

lunch breaks he worked through. 

b. Farmer 

 Farmer’s evidence regarding Comcast’s knowledge is far weaker than Brand’s 

and fails to raise a genuine issue of fact as to whether his supervisors or managers 

knew or should have known he was working through lunch without recording those 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 47 of 57 PageID #:8682
48

times. Farmer points to his testimony that he told his supervisor, Steve Rembis, 

that he was looking at assignments during his lunch break. (R. 169, Farmer’s Add’l 

Facts ¶¶ 43-44; R. 186-7, Farmer Dep. at 90:3-90:16.) But Farmer testified that if 

Rembis asked him to cut his lunch break short to attend to a job, Farmer would 

suspend his lunch and resume his lunch break after he completed the assignment. 

(R. 186-7, Farmer Dep. at 93:1-93:17.) He also testified that he “may have spoken 

with Mr. Espinosa on occasions” during a lunch break, but admitted that he might 

not have said he was on lunch during those calls and Espinosa would not have 

known that he was interrupting his lunch break. (Id. at 90:18-91:6.) When asked 

how his supervisor would know whether he worked through his lunch break, 

Farmer responded “I guess he wouldn’t. Other than the fact that they can see when 

we go on and off a job and see our clocks even though we try to keep it—the 

paperwork stable.” (Id. at 168:15-21.) Farmer has made no attempt to explain 

what he meant by his supervisors being able to see when he goes on or off a job. 

That Farmer’s supervisors may have had access to technology that would allow 

them to determine whether he was working at any point in the day is insufficient in 

itself to demonstrate that they knew he was skipping his lunch breaks without 

reporting them. The question is not whether Comcast could have known, but 

whether it should have known. See Newton v. City of Henderson, 47 F.3d 746, 749 

(5th Cir. 1995) (noting that defendant’s ability to investigate whether plaintiff 

truthfully recorded time not enough to establish constructive knowledge). 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 48 of 57 PageID #:8683
49

c. Graham 

 In support of his argument regarding Comcast’s knowledge, Graham has 

submitted no evidence that he told his supervisors or managers that he was 

working through lunch or that they knew or should have known he was working 

through lunch without recording it and looked the other way. The only testimony 

he cites in the section of his additional facts devoted to complaints about 

uncompensated meal breaks is his testimony that he did not record the times he 

worked through lunch because it “was a known thing” that it would not be approved 

and because he knew someone who was “beat up” for recording overtime during 

lunch. (R. 172, Graham’s Add’l Facts ¶¶ 40-41; R. 186-9, Graham Dep. at 49:3-

50:14.) But Graham admitted that neither of his supervisors, Johnson nor 

Espinosa, told him that he would not be compensated for working through lunch 

breaks, and he testified that he never told them that he had worked through lunch 

without recording it. (R. 186-9, Graham Dep. at 49:22-50:6, 51:5-51:7.) None of this 

testimony could support a reasonable jury’s finding that Graham’s supervisors were 

aware that he was working through lunch without pay. Without more, Graham has 

not shown that Comcast had actual or constructive knowledge with respect to 

unpaid overtime during his lunch breaks. 

d. Kevin Jackson 

 Kevin Jackson has submitted sufficient evidence to allow a reasonable jury to 

conclude that his supervisors had at least constructive knowledge that he had 

worked through lunch without pay. Jackson testified that on one occasion when he 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 49 of 57 PageID #:8684
50

recorded that he worked through lunch, someone from payroll called him and told 

him to take and record a lunch break, and his time “should not reflect the fact that I 

didn’t take a lunch break.” (R. 175, K. Jackson Add’l Facts ¶ 45; R. 186-10, 

K. Jackson Dep. at 90:3-90:24.) Additionally, Jackson testified that “nine times out 

of ten” that he worked through lunch he would inform his supervisors, and 

Supervisor Rembis told him to “[m]ake sure your time sheet reflects that you had a 

lunch.” (R. 175, K. Jackson’s Add’l Facts ¶ 46.) Although this falls short of a direct 

instruction not to record time worked, a reasonable jury could infer from Rembis’s 

reaction that he understood Kevin Jackson was working through lunch without 

compensation. Jackson also testified directly that he told Johnson that he was 

working through lunch without reporting it. (Id. ¶ 47.) On one occasion when 

Jackson told Johnson he had worked through lunch and asked whether he could 

leave early to compensate for that time, Johnson told him, “[n]o, you should have 

took lunch.” (Id.) Given Jackson’s testimony that he was told to record a lunch 

break whether or not he took it, coupled with his testimony that he repeatedly told 

his supervisors that he was working through lunch, he has offered sufficient 

evidence from which a reasonable jury could conclude that Comcast knew or should 

have known he was working through lunch without pay. 

e. Michael Jackson 

 Michael Jackson has not submitted sufficient facts to allow a reasonable jury 

to infer Comcast’s knowledge regarding his work during meal breaks. Jackson 

testified that he typically tries to take a lunch break every day. (R. 186-12, 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 50 of 57 PageID #:8685
51

M. Jackson Dep. at 67:1-67:3.) He testified that he could not recall a single day 

when he worked as a line technician and was unable to take a lunch. (Id. at 67:11-

67:14.) He admitted that he never told his supervisors that he was checking emails 

or reading text messages during his lunch break. (Id. at 67:22-68:2; R. 178, 

M. Jackson’s Add’l Facts ¶ 41.) In neither his response brief nor his statement of 

additional facts has Jackson pointed to any evidence to suggest that Comcast knew 

he was working through lunch. In fact, by his own admission, he was unaware of a 

single day on which he did not take a lunch break. That testimony precludes his 

FLSA claims with respect to unpaid lunch breaks. See Wilson v. City of Chi., No. 02 

C 3379, 2004 WL 2095675, at *7 (N.D. Ill. Sept. 20, 2004) (“If Plaintiff himself 

cannot recall even a single instance in which he was required to perform police work 

during his lunch break, no reasonable jury could find that such instances 

occurred.”). 

f. Vigil 

 Similarly, Vigil’s testimony precludes his lunch-break claim. Vigil testified 

that when he starts his one-hour lunch break he emails his supervisors to let them 

know. (R. 186-17, Vigil Dep. at 82:14-82:18.) He testified that if an outage occurs in 

his area while he is on lunch he does not have to respond, and the supervisor gets 

someone else to take care of it. (Id. at 85:10-85:22.) Vigil also testified that if there 

is an outage in his area and he is on lunch, he might suspend his lunch and take it 

later in the day, if it is not too late. (Id. at 86:3-86:12; R. 181, Vigil’s Add’l Facts 

¶ 45.) Nowhere in his statement of facts does he point to any evidence that he was 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 51 of 57 PageID #:8686
52

instructed not to record time worked during lunch or that he told his supervisors he 

was not recording time he worked during a lunch break. In fact, he testified that 

when he suspends his lunch because of an outage, he resumes it later in the 

afternoon if he has time. (R. 186-17, Vigil Dep. at 88:18-88:15.) He has submitted 

no evidence to support a reasonable inference that his supervisors knew about any 

instances where he ran out of time to restart his lunch. These facts simply do not 

support an inference that Comcast had actual or constructive knowledge that Vigil 

worked through lunch breaks without pay.8

g. Woodard

 The only facts Woodard points to in his statement of additional facts to raise 

a genuine issue with respect to Comcast’s knowledge pertain to times that his 

supervisors rejected his attempt to record time worked through a lunch break when 

he was a service technician. (R. 184, Woodard’s Add’l Facts ¶¶ 39-40.) As Comcast 

points out, this is a case about unpaid overtime worked by the plaintiffs in their role 

as line technicians. Comcast observes that Woodard has opted into another 

collective action pending in this district bringing FLSA claims on behalf of Comcast 

service technicians. See Elder, et al. v. Comcast Corp., No. 12 CV 1157, R. 85-1 

 

8 Vigil also argues that Comcast did not provide him with proper timekeeping 

training because although his first language is Spanish, the trainings were 

presented in English. Vigil asserts that there is no evidence that he actually 

understood that he was supposed to record all the time he worked. (R. 180, Vigil 

Resp. Mem. at 15.) Vigil has not brought any separate claim based on a failure to 

train, and there is no evidence that a language barrier caused Vigil to record his 

lunch-break time erroneously. In fact, he argues that he recorded the time as his 

supervisors instructed him to, without pointing to evidence that he misunderstood 

those instructions because of a language barrier. Accordingly, his training assertion 

does not help him fend off summary judgment with respect to his lunch-break claim. 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 52 of 57 PageID #:8687
53

(N.D. Ill). Woodard will not be allowed to use evidence regarding service technician 

supervisors’ knowledge of unpaid work to demonstrate that Comcast knew or should 

have known that he was working without pay in his distinct role as a line 

technician. Woodard also argues that management had at least constructive 

knowledge because the Watchtower database gave them the capability to monitor 

whether there were breaks between when he started and ended a job. But again, 

the question is whether Comcast should have known, not whether it could have 

known. See Newton, 47 F.3d at 749. Because Woodard has not submitted any 

additional individual evidence to support his knowledge argument, Comcast is 

entitled to summary judgment with respect to his lunch-break claims. 

2. Damages 

 Finally, Comcast argues that it is entitled to summary judgment because the 

plaintiffs have insufficient evidence regarding the amount of unpaid overtime for 

which they now seek compensation. The burden rests with the plaintiff to establish 

the amount of damages. Brown v. Family Dollar Stores of Ind., L.P., 534 F.3d 593, 

595 (7th Cir. 2008). In cases where the employer keeps time records that comply 

with the FLSA, “the accurate time records will establish the amount of damages, 

and the general rule that precludes recovery of uncertain and speculative damages 

is appropriate.” Id. (citing Anderson, 328 U.S. at 688). But where the employer’s 

records are not trustworthy, the employee can meet his burden of showing damages 

by proving “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 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 53 of 57 PageID #:8688
54

of that work as a matter of just and reasonable inference.” Anderson, 328 U.S. at 

687; see also Brown, 534 F.3d at 597 (noting that just and reasonable inference 

standard applies where trustworthiness of employer records called into question). 

An employer’s records may be deemed untrustworthy in circumstances where an 

employee’s manager discouraged him from accurately recording time. See Allen v. 

Board of Pub. Educ. for Bibb Cty., 495 F.3d 1306, 1316 (11th Cir. 2007). Under the 

just and reasonable standard, damages can “be reconstructed from memory, 

inferred from the particulars of the jobs the technicians did, or estimated in other 

ways.” Espenscheid v. DirectSat USA, LLC, 705 F.3d 770, 775 (7th Cir. 2013). 

Once the plaintiff meets this relaxed standard of proof, the burden shifts back to the 

employer to produce evidence that refutes the reasonableness of the inference. 

Anderson, 328 U.S. at 687-88. 

 Because only Brand’s and Kevin Jackson’s lunch-break claims have survived 

the previous analyses, the court will address only whether these two plaintiffs have 

submitted sufficient evidence from which a jury could calculate their damages. 

Both Brand and Jackson submitted evidence that they were instructed to record a 

lunch break whether or not they actually took one. Accordingly, they are entitled to 

show the amount and extent of their unpaid work under the relaxed “just and 

reasonable inference” evidentiary standard. See Brown, 534 F.3d at 597. Under 

this standard they may rely on their recollection, but not on speculation. See 

Kolesnikow v. Hudson Valley Hosp. Ctr., 622 F. Supp. 2d 98, 118 (S.D.N.Y. 2009). 

In fact, their recollection alone can satisfy this burden even where there is no 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 54 of 57 PageID #:8689
55

precise corroborating documentation or records. See Blakes v. Ill. Bell Tel. Co., 75 

F. Supp. 3d 792, 814 (N.D. Ill. 2014). To meet his burden Brand points to his 

testimony that during the relevant period he only took lunch breaks “maybe once or 

twice, maybe three times a month, if I was lucky.” (R. 167, Brand’s Resp. to Defs.’ 

Facts ¶ 51.) Similarly, Jackson points to his testimony that he worked “[o]ver four 

years, probably three years’ worth” of his lunches, and “70 to 75 percent of the time 

lunch was interrupted.” (R. 175, K. Jackson’s Add’l Facts ¶ 43.) The language they 

use about how often they “maybe” or “probably” worked through lunch suggests 

guesswork. They point to no explanation as to how they reached their estimates nor 

do they point to any memory “triggering factors” or other details providing the basis 

for their recollection. See Brown, 534 F.3d at 597. “Bare allegations and vague 

undocumented estimates” are insufficient to survive summary judgment. 

Millington v. Morrow Cty. Bd. of Comm’rs, No. 2:06-cv-347, 2007 WL 2908817, at *7 

(S.D. Ohio Oct. 4, 2007); see also Joiner v. Bd. of Trs. of the Flavius J. Witham 

Mem’l Hosp., No. 1:13-cv-555-WTL-DKL, 2014 WL 3543481, at *7 (S.D. Ind. July 

17, 2014) (holding that plaintiffs’ assertions that lunches were interrupted “two or 

three times a week” and “practically every day” are general assertions insufficient 

to overcome summary judgment). Because that is all Brand and Jackson have 

supplied here, they have not shown that they can demonstrate the extent of the 

unpaid wages owed them even under the just and reasonable inference.9 

 

9 Given this conclusion, the court need not address Comcast’s argument that 

Jackson’s claims should be limited to specific time periods in which he was home 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 55 of 57 PageID #:8690
56

 Additionally, both Brand and Jackson devote three sentences of their 

response brief to pointing out that Comcast maintains GPS and other data that 

could corroborate when they were “completing tasks that Comcast itself defines as 

work, off-the-clock, with Comcast’s knowledge.” (See, e.g., R. 165, Brand Resp. 

Mem. at 18.) They acknowledge that “the process for gleaning this information may 

not be simple,” but suggest that it is a “tangible way to prove” the amount of unpaid 

wages due. (Id.) Apparently the process is so far from simple that the plaintiffs 

made no attempt to engage with it to defend against Comcast’s summary judgment 

motion. They have not explained how the process could work, let alone provided 

evidence from the cited data to corroborate their speculative testimony. (Id.) As the 

Seventh Circuit has bluntly put it, “summary judgment is the put up or shut up 

moment in a lawsuit.” See Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008). 

If Brand and Jackson believe that the data they cite could corroborate their 

testimony, this was the time to demonstrate that by bringing forth actual evidence. 

Instead, they have done nothing more than allude to a potential process that might 

potentially lead to helpful evidence. Because they opted not to engage in that 

process, their allusion to cross-referencing data is an insufficient hoist with which to 

elevate their otherwise speculative testimony above the summary judgment 

threshold. 

 

dispatched rather than home garaging and before he underwent time-keeping 

training in 2011. (See R. 149, Comcast Mem. at 14-15.) 

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 56 of 57 PageID #:8691
57

Conclusion

 For the foregoing reasons, Comcast’s motions for summary judgment are 

granted. 

 ENTER:

 

 ____________________________________ 

 Young B. Kim 

 United States Magistrate Judge

Case: 1:12-cv-01122 Document #: 222 Filed: 09/28/15 Page 57 of 57 PageID #:8692