PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN DESMOND, 

Plaintiff-Appellant,

v.  No. 09-2189 PNGI CHARLES TOWN GAMING,

L.L.C., d/b/a Charles Town Races

& Slots,

Defendant-Appellee. 

DANA WITHERSPOON, 

Plaintiff-Appellant,

v.  No. 09-2190 PNGI CHARLES TOWN GAMING,

L.L.C., d/b/a Charles Town Races

& Slots,

Defendant-Appellee. 
M. LARRY SANDERS, 

Plaintiff-Appellant,

v.  No. 09-2192 PNGI CHARLES TOWN GAMING,

L.L.C., d/b/a Charles Town Races

& Slots,

Defendant-Appellee. 

JOHN DESMOND, 

Plaintiff-Appellee,

v.  No. 09-2254 PNGI CHARLES TOWN GAMING,

L.L.C., d/b/a Charles Town Races

& Slots,

Defendant-Appellant. 

Appeals from the United States District Court

for the Northern District of West Virginia, at Martinsburg.

John Preston Bailey, Chief District Judge.

3:06-cv-00128-JPB; 3:06-cv-00129-JPB;

3:06-cv-00135-JPB)

Argued: September 23, 2010

Decided: January 14, 2011

Before TRAXLER, Chief Judge, SHEDD, Circuit Judge,

and James C. DEVER III, United States District Judge for

the Eastern District of North Carolina,

sitting by designation.

2 DESMOND v. PNGI CHARLES TOWN GAMING
Affirmed in part, vacated in part, and remanded by published

opinion. Judge Dever wrote the opinion, in which Chief Judge

Traxler and Judge Shedd joined.

COUNSEL

ARGUED: Paul B. Weiss, MARTIN & SEIBERT, LC, Martinsburg, West Virginia, for John Desmond, Dana Witherspoon, and M. Larry Sanders. Brian Michael Peterson,

BOWLES, RICE, MCDAVID, GRAFF & LOVE, PLLC,

Martinsburg, West Virginia, for PNGI Charles Town Gaming,

L.L.C., d/b/a Charles Town Races & Slots. ON BRIEF:

Charles F. Printz, Jr., BOWLES, RICE, MCDAVID, GRAFF

& LOVE, PLLC, Martinsburg, West Virginia, for PNGI

Charles Town Gaming, L.L.C., d/b/a Charles Town Races &

Slots.

OPINION

DEVER, District Judge:

John Desmond, Dana Witherspoon, and M. Larry Sanders

(collectively "appellants" or "former employees") appeal from

an award of unpaid overtime compensation in their case under

the Fair Labor Standards Acts ("FLSA") against their former

employer, PNGI Charles Town Gaming, L.L.C., d/b/a Charles

Town Races & Slots ("Charles Town Gaming" or "employer"). The former employees dispute how the district court

computed unpaid overtime compensation under the FLSA.

Charles Town Gaming cross-appeals and disputes the district

court’s decision to grant summary judgment to the former

employees as to whether Charles Town Gaming’s FLSA violation was willful. As explained below, we affirm the district

court’s method of computing unpaid overtime compensation,

DESMOND v. PNGI CHARLES TOWN GAMING 3
vacate the district court’s judgment as to willfulness, and

remand for a trial on the issue of willfulness. 

I.

Desmond, Witherspoon, and Sanders are three former racing officials who filed suit against their former employer

Charles Town Gaming, alleging violations of the overtime

provisions of the FLSA. J.A. 49–50. The district court consolidated the three actions and granted summary judgment to

Charles Town Gaming, concluding that because the appellants

held administrative positions, they were therefore exempt

from the overtime provisions of the FLSA. Appellants timely

appealed, and we reversed. See Desmond v. PNGI Charles

Town Gaming, L.L.C., 564 F.3d 688, 689, 691 (4th Cir.

2009). We concluded that the former employees did not qualify for the administrative exemption under the FLSA. Id. at

695. We then remanded the case to the district court for further proceedings. Id. at 695. 

On remand, the district court entered summary judgment

for the former employees on the issue of FLSA liability. Desmond v. PNGI Charles Town Gaming, L.L.C., 661 F. Supp.

2d 573, 576 (N.D. W.Va. 2009). The district court then calculated the unpaid overtime compensation owed to the former

employees under 29 U.S.C. § 216(b). Id. at 576–85; see 29

U.S.C. § 216(b) ("Any employer who violates the provisions

of [29 U.S.C. § 206 or § 207] shall be liable to the employee

or employees affected in the amount of their unpaid minimum

wages, or their unpaid overtime compensation, as the case

may be, and in an additional equal amount as liquidated damages."). Charles Town Gaming conceded the number of hours

for which overtime was owed. Desmond, 661 F. Supp. 2d at

577. The district court determined the rate at which those

hours should be compensated by first applying Overnight

Motor Transportation Co. v. Missel, 316 U.S. 572 (1942), to

determine the regular rate. The district court then examined

whether the appropriate overtime premium was 50% or 150%

4 DESMOND v. PNGI CHARLES TOWN GAMING
of that regular rate for all hours worked over 40. After briefing, the district court calculated the unpaid overtime compensation under 29 U.S.C. § 216(b) by using a 50% premium.

The court based its decision not on 29 C.F.R. § 778.114, but

rather upon the logic of Overnight Motor and general principles of compensatory damages. Desmond, 661 F. Supp. 2d at

583–84. 

On remand, the parties also disputed whether Charles Town

Gaming’s FLSA violation was willful. After considering cross

motions for summary judgment as to willfulness, the district

court concluded that Charles Town Gaming’s FLSA violation

was willful as matter of law, thereby expanding the statute of

limitations period from two years to three years. Id. at 586. 

The former employees appealed the district court’s calculation of unpaid overtime compensation under 29 U.S.C.

§ 216(b). Charles Town Gaming cross-appealed the district

court’s decision to award summary judgment on the willfulness issue.

II.

The former employees worked as racing officials with

Charles Town Gaming. J.A. 50. Charles Town Gaming prepared the job descriptions for racing officials in 1999. Id. at

55–56. In doing so, Charles Town Gaming’s human resources

director used a computer program to help determine whether

to designate the position as exempt or non-exempt from overtime under the FLSA. Id. Charles Town Gaming paid the racing officials a per diem rate and treated them as exempt. See

Aff. Karen Raffo, Nov. 20, 2007. Over the ensuing years,

Charles Town Gaming changed the pay from per diem to a

fixed weekly salary that the parties intended to cover all hours

worked. See J.A. 56, 146–52; Aff. Karen Raffo, Nov. 20,

2007. Charles Town Gaming believed (erroneously) that the

former employees were subject to the FLSA administrative

exemption; therefore, Charles Town Gaming did not pay them

DESMOND v. PNGI CHARLES TOWN GAMING 5
overtime. J.A. 49. All three appellants often worked more

than 40 hours in a week. Id. at 50. After the appellants unanimously declared the wrong horse to have won a race, Charles

Town Gaming dismissed them from their employment. Id.

The former employees contend the district court erred in

calculating their unpaid overtime compensation under 29

U.S.C. § 216(b). Charles Town Gaming contends the district

court erred by concluding that their FLSA violation was willful. We review a grant of summary judgment de novo. See,

e.g., United States v. Bergbauer, 602 F.3d 569, 574 (4th Cir.

2010). When cross-motions for summary judgment are before

a court, the court examines each motion separately, employing the familiar standard under Rule 56 of the Federal Rules

of Civil Procedure. See, e.g., Ga. Pac. Consumer Prods., L.P.

v. Von Drehle Corp., 618 F.3d 441, 445 (4th Cir. 2010).

A.

The former employees challenge how the district court calculated their unpaid overtime compensation under 29 U.S.C.

§ 216(b). The Supreme Court addressed how to calculate such

unpaid overtime compensation under 29 U.S.C. § 216(b) in

Overnight Motor. 316 U.S. at 580. The Court held that when

calculating the "regular rate" of pay for an employee who

agreed to receive a fixed weekly salary as payment for all

hours worked, a court should divide the employees fixed

weekly salary by the total hours worked in the particular

workweek. Id. at 579–80 (analyzing section 7 of the FLSA,

now codified at 29 U.S.C. § 207(a)(1)). This calculation

should be completed for each workweek at issue and results

in a regular rate for a given workweek. Id. Of course, the

Court recognized that the regular rate could vary depending

on the total hours worked. The Court then determined that the

employee should receive overtime compensation for all hours

worked beyond 40 in a given workweek at a rate not less than

one-half of the employee’s regular rate of pay. Id.

6 DESMOND v. PNGI CHARLES TOWN GAMING
Although the parties agree that Overnight Motor applies in

calculating the regular rate, they disagree about how to calculate the overtime premium. Specifically, the parties disagree

over whether the former employees should receive 150% of

the regular rate for all hours worked over 40 in a given workweek or 50% of the regular rate for all hours worked over 40

in a given workweek. 

In analyzing how to calculate unpaid overtime compensation under 29 U.S.C. § 216(b) in this mistaken exemption

classification case, we note that four sister circuits have

addressed this issue. The First, Fifth, Seventh, and Tenth Circuits all have determined that a 50% overtime premium was

appropriate in calculating unpaid overtime compensation

under 29 U.S.C. § 216(b) in mistaken exemption classification cases, so long as the employer and employee had a

mutual understanding that the fixed weekly salary was compensation for all hours worked each workweek and the salary

provided compensation at a rate not less than the minimum

wage for every hour worked. See Urnikis-Negro v. Am. Family Prop. Servs., 616 F.3d 665 (7th Cir. 2010); Clements v.

Serco, Inc., 530 F.3d 1224 (10th Cir. 2008); Valerio v. Putnam Assocs., Inc., 173 F.3d 35 (1st Cir. 1999); Blackmon v.

Brookshire Grocery Co., 835 F.2d 1135 (5th Cir. 1988). 

In Blackmon, the Fifth Circuit applied 29 C.F.R. § 778.114

to calculate unpaid overtime compensation in a mistaken

exemption classification case. 835 F.2d at 1138. The employees in Blackmon were meat-market managers who were

wrongly classified as exempt. Id. at 1137–38. The district

court calculated their unpaid overtime compensation by dividing the weekly salary by 40 hours to determine their regular

rate, multiplying that rate by 150%, and then multiplying that

result by the number of overtime hours. Id. at 1138. The Fifth

Circuit rejected this method, instead applying 29 C.F.R.

§ 778.114 to determine the regular rate, and only using a 50%

multiplier. Id. The Fifth Circuit did not cite, much less discuss, Overnight Motor.

DESMOND v. PNGI CHARLES TOWN GAMING 7
In Valerio, the First Circuit upheld an award of summary

judgment in a mistaken exemption classification case. 173

F.3d at 39–40. Valerio was wrongly classified as an exempt

employee. Id. at 37. Upon dismissing Valerio from employment, her employer gave her a lump-sum payment intended

to cover any overtime owed to her. Id. at 38. In calculating the

unpaid overtime compensation, the employer paid her a 50%

overtime premium and relied on 29 C.F.R. § 778.114. The

First Circuit affirmed the district court’s finding that the

amount paid was more than was owed to Valerio under the

FLSA. Id. In Valerio, the First Circuit cited, but did not discuss, Overnight Motor. Id. at 39–40.

In Clements, the Tenth Circuit affirmed a district court’s

application of 29 C.F.R. § 778.114 to calculate unpaid overtime compensation in a mistaken exemption classification

case. 530 F.3d at 1225. The employees in Clements provided

recruiting services to the Army on behalf of their employer,

Serco. Id. Serco had erroneously classified these employees as

exempt under the "outside salesmen" exemption. Id. at 1227;

cf. 29 U.S.C. § 213(a)(1). The employees claimed a 150%

multiplier applied because the employer and employees had

not agreed on whether overtime compensation was owed.

Clements, 530 F.3d at 1230. In affirming the use of a 50%

multiplier in calculating the unpaid overtime compensation,

the Tenth Circuit cited 29 C.F.R. § 778.114, the First Circuit’s

decision in Valerio, and our decision in Bailey v. County of

Georgetown, 94 F.3d 152, 155–57 (4th Cir. 1996). Clements,

530 F.3d at 1230. The Tenth Circuit found the lack of a clear

and mutual understanding on the overtime premium to be "irrelevant as to whether the Employees understood they were

being paid on a salaried . . . basis." Id. at 1231. In Clements,

the Tenth Circuit did not cite, much less discuss, Overnight

Motor.

In Urnikis-Negro, the Seventh Circuit affirmed a district

court’s award of a 50% overtime premium to calculate unpaid

overtime compensation in a mistaken exemption classification

8 DESMOND v. PNGI CHARLES TOWN GAMING
case. 616 F.3d at 684. However, the court rejected the district

court’s retroactive application of 29 C.F.R. § 778.114, finding

it a "dubious source of authority for calculating a misclassified employee’s damages." Id. at 679. Instead, the court relied

on Overnight Motor. Id. at 680–84. The court held that when

an employer and employee agree that a fixed salary will constitute payment at the regular rate for all hours worked and the

rate is not lower than the minimum wage, a court should rely

on Overnight Motor to calculate unpaid overtime compensation under 29 U.S.C. § 216(b). Id. Moreover, in such a situation, the court calculates the unpaid overtime compensation

using a 50% multiplier rather than a 150% multiplier. See id.

In addition to these decisions from our sister circuits, the

Department of Labor also has approved using a 50% overtime

premium to calculate unpaid overtime compensation in a mistaken exemption classification case. See Retroactive Payment

of Overtime and the Fluctuating Workweek Method of Payment, Wage and Hour Opinion Letter, FLSA 2009-3 (Dep’t

of Labor Jan. 14, 2009). The DOL issued the opinion letter in

response to an employer who asked how to compensate

employees mistakenly classified as exempt. Id. at 1. In the

opinion letter, the DOL states that "because the fixed salary

covered whatever hours the employees were called upon to

work in a workweek; the employees will be paid an additional

one-half their actual regular rate for each overtime hour . . .;

and the employees received and accepted the salary knowing

that it covered whatever hours they worked," a retroactive

payment of overtime using the 50% multiplier conforms with

FLSA requirements. Id. at 2.1

Here, the district court did not apply 29 C.F.R. § 778.114

to this mistaken exemption classification case. Rather, the dis1Such DOL opinion letters are not binding on courts, but "constitute a

body of experience and informed judgment . . . give[n] . . . substantial

weight." Flood v. New Hanover County, 125 F.3d 249, 253 (4th Cir. 1997)

(discussing a DOL Wage and Hour Division letter ruling). 

DESMOND v. PNGI CHARLES TOWN GAMING 9
trict court relied on the logical implications of Overnight

Motor to calculate unpaid overtime compensation under 29

U.S.C. § 216(b). Desmond, 661 F. Supp. 2d at 584. The district court found that there was an agreement that the fixed

weekly salary covered all hours worked. Id. The district court

then reasoned that Overnight Motor’s regular-rate determination implies the previously paid weekly salary covers the base

compensation for all hours worked. Id. Thus, the district court

concluded that it need only award 50% of the regular rate to

provide the employees their "unpaid overtime compensation"

under 29 U.S.C. § 216(b). Id.

Appellants disagree and insist that such a reliance on Overnight Motor improperly expands federal common law. They

also (confusingly) argue that Chevron2 deference to 29 C.F.R.

§ 778.114 requires courts to use a 150% multiplier and that if

employers are allowed to retroactively apply section 778.114

in mistaken exemption classification cases, employers have

no motive to pay for overtime as it accrues, effectively treating nonexempt employees as if they were exempt. In appellants’ view, such a holding will create an incentive for

employers to pay a fixed weekly salary, never to pay overtime, and then simply pay a 50% premium on the regular rate

2

See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.

837 (1984). To the extent that appellants believe that Chevron applies to

29 C.F.R. pt. 778, appellants’ reliance on Chevron is misplaced. A DOL

interpretive bulletin (such as the one contained in 29 C.F.R. pt. 778) is different than a DOL regulation promulgated in accordance with notice and

comment rulemaking. See, e.g., Monahan v. County of Chesterfield, 95

F.3d 1263, 1272 n.10 (4th Cir. 1996). Regulations promulgated in accordance with notice and comment rulemaking are analyzed in accordance

with Chevron. See, e.g., Long Island Care at Home, Ltd. v. Coke, 551 U.S.

158, 165–75 (2007); Christensen v. Harris County, 529 U.S. 576, 586–88

(2000); Auer v. Robbins, 519 U.S. 452, 457–58 (1997). In contrast, interpretive bulletins "while not controlling upon the courts by reason of their

authority, do constitute a body of experience and informed judgment to

which courts and litigants may properly resort for guidance." Skidmore v.

Swift & Co., 323 U.S. 134, 140 (1944); see Christensen, 529 U.S. at 587;

Overnight Motor, 316 U.S. at 580 n.17; Monahan, 95 F.3d at 1272 n.10.

10 DESMOND v. PNGI CHARLES TOWN GAMING
if caught misclassifying non-exempt employees as exempt

employees. Cf. 29 U.S.C. § 213 (a)(1); 29 C.F.R. pt. 541

(white-collar exemption regulations). 

As the district court held, appellants’ argument ignores the

teaching of Overnight Motor. After all, in Overnight Motor,

the Court recognized that employees and employers are free

to agree to a reduced hourly wage in exchange for a fixed

weekly salary, provided the fixed weekly salary covers all

hours worked and meets minimum wage requirements. 316

U.S. at 580. In our view, the district court correctly concluded

that Overnight Motor provides the appropriate method for calculating the unpaid overtime compensation under 29 U.S.C.

§ 216(b) in this case. Tellingly, in Overnight Motor, the Court

provided the formula to compute the overtime due an

employee who was paid a fixed weekly salary intended to

cover all hours worked. Overnight Motor, 316 U.S. at 580

n.16. Although Overnight Motor concerned the more basic

question of whether overtime compensation applies to those

earning more than the minimum wage requirements in the

FLSA, 316 U.S. at 575, it contains nothing to indicate why

such a computation would not apply in determining unpaid

overtime compensation under 29 U.S.C. § 216(b) in a mistaken exemption classification case. Indeed, in Overnight

Motor, the Court interpreted 29 U.S.C. § 207(a) and explained

the meaning of "the regular rate at which he is employed,"

and interpreted 29 U.S.C. § 216(b) and explained how to calculate "unpaid overtime compensation." See Overnight Motor,

316 U.S. at 574 n.2, 579–80.

Traditional principles of compensatory damages bolster this

conclusion. Compensatory damages are "[d]amages sufficient

in amount to indemnify the injured person for the loss suffered." Black’s Law Dictionary 445 (9th ed. 2009). Here, the

former employees agreed to receive straight time pay for all

hours worked in a given workweek and have already received

such pay. Thus, the "loss suffered" is the 50% premium for

their overtime hours. Accordingly, we affirm the district

DESMOND v. PNGI CHARLES TOWN GAMING 11
court’s judgment about how to calculate unpaid overtime

compensation under 29 U.S.C. § 216(b).

B.

In its cross appeal, Charles Town Gaming contends the district court mistakenly granted summary judgment to the former employees on the issue of willfulness. Whether a

violation is willful impacts the length of the appropriate limitations period under the FLSA and can impact the computation of unpaid overtime compensation under the FLSA.3

 The

FLSA provides two potential limitations periods. For nonwillful FLSA violations, a two-year statute of limitations

applies. See 29 U.S.C. § 255(a). When the violation is willful,

a three-year statute of limitations applies. Id.

In McLaughlin v. Richland Shoe Co., the Supreme Court

clarified the meaning of willfulness under section 255(a). See

486 U.S. 128 (1988). Before Richland Shoe, a circuit split

existed on the meaning of willfulness under the FLSA. See id.

at 131 n.1. In Coleman v. Jiffy June Farms, Inc., the Fifth Circuit held that the test of willfulness was simply whether the

employer knew the FLSA was "in the picture." 458 F.2d

1139, 1142 (5th Cir. 1971). In other words, mere awareness

of the possible application of the FLSA would suffice to

extend the statute of limitations from two to three years. Id.

In Richland Shoe, the Third Circuit rejected this view, concluding that the appropriate standard was whether an

employer knew the conduct violated the FLSA, or showed

reckless disregard of such a determination. See Brock v. Richland Shoe Co., 799 F.2d 80, 82–83 (3d Cir. 1986), aff’d sub

nom. McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988).

In Richland Shoe, the Supreme Court agreed with the Third

3Witherspoon and Sanders were employed for less than two years, making the characterization of the violation irrelevant for them. Only Desmond’s calculation would change. 

12 DESMOND v. PNGI CHARLES TOWN GAMING
Circuit. 486 U.S. at 131. In doing so, the Court noted that the

FLSA was originally enacted in 1938 without a statute of limitations, but was amended in 1947 to add a two-year period.

Id. at 131–33. In 1966, Congress distinguished between ordinary and willful violations of the FLSA and extended the statute of limitations to three years for willful violations. Id.

Because the Jiffy June standard functionally obliterated the

distinction between willful and non-willful violations, the

Court concluded that Congress did not intend such an expansive definition of willful. Id. Moreover, in determining what

willful meant, the Court incorporated the standard of willfulness that it articulated in Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 126–28 (1985) (analyzing willfulness

under 29 U.S.C. § 626(b) of the ADEA). Thus, only those

employers who "either knew or showed reckless disregard for

the matter of whether its conduct was prohibited by the

[FLSA]" have willfully violated the statute. Richland Shoe,

486 U.S. at 133. Negligent conduct is insufficient to show

willfulness. Id. at 135. Furthermore, the employee bears the

burden of proof when alleging a violation is willful. See id.

Following Richland Shoe, we have examined the issue of

willfulness under the FLSA in two published decisions. In

Lyle v. Food Lion, Inc., we upheld the district court’s determination that Food Lion’s violation of the FLSA was willful.

954 F.2d 984, 987–88 (4th Cir. 1992). Lyle and his coplaintiff Tew were both hourly employees in a Food Lion

store. Both alleged they worked uncompensated overtime

hours with the knowledge of Food Lion officials, who had

given them their own keys to the store to facilitate such work.

Id. at 986–87. Food Lion officials insisted they had no such

knowledge, and such overtime work would have been impossible to perform without their knowledge. Id. at 987. Following a bench trial, the district court noted the issue required the

court to assess witness credibility. Id. Finding the employees

more credible, the district judge found in their favor. Id. After

noting the highly deferential standard applicable to a judge’s

credibility determination, we upheld the decision. Id.

DESMOND v. PNGI CHARLES TOWN GAMING 13
In Martin v. Deiriggi, we again upheld a determination of

willfulness. 985 F.2d 129, 136 (4th Cir. 1992). The district

court conducted a bench trial, and rested its finding of willfulness in part on witness credibility. Id. Moreover, the district

court also considered the employer’s payroll procedures, and

evidence indicating the employer had destroyed and withheld

payroll records from DOL investigators. Id. As in Food Lion,

we upheld the finding of willfulness.

Here, the district court awarded summary judgment to the

former employees on the willfulness issue. Desmond, 661 F.

Supp. 2d at 586. Our review of this issue is de novo and the

former employee (as the parties seeking summary judgment)

must demonstrate an absence of a genuine issue of material

fact on the willfulness issue. 

In support, the former employees argue that Charles Town

Gaming willfully ignored their own official job descriptions,

which described the positions as non-exempt beginning in

1999. See J.A. 55–56. The district court relied on this evidence in granting summary judgment to the former employees. See Desmond, 661 F. Supp. 2d at 586.

In opposition to this conclusion and in support of its argument that there is a genuine issue of material fact concerning

willfulness, Charles Town Gaming cites the district court’s

first summary judgment order. See J.A. 55–56. In that order,

the district court observed that Charles Town Gaming personnel testified that the FLSA designation on the job descriptions

was created by a computer program, the designation was a

typographical error, and the error was then mistakenly carried

forward to the job description in later revisions. J.A. 55–56.

Charles Town Gaming also contends that its erroneous

exemption classification of the former employees as subject

to the administrative exemption was not reckless, in that the

district court initially upheld the classification in this case,

and required a published Fourth Circuit opinion to clarify that

the positions were not exempt. Charles Town Gaming also

14 DESMOND v. PNGI CHARLES TOWN GAMING
cites the November 20, 2007 affidavit of Karen Raffo, which

provides further evidence regarding a change in wage calculation from a per diem to a salary basis. See Aff. Karen Raffo,

Nov. 20, 2007. Charles Town Gaming submitted this affidavit

in support of its first motion for summary judgment. See J.A.

29. Finally, Charles Town Gaming cites Margaret Patterson’s

deposition testimony, J.A. 113–42, and contends that the

cumulative force of the foregoing evidence creates a genuine

issue of material fact on the willfulness issue. 

When the evidence is viewed in the light most favorable to

Charles Town Gaming, a genuine issue of material fact exists

as to willfulness. See, e.g., Fowler v. Land Mgmt. Groupe,

Inc., 978 F.2d 158, 163–64 (4th Cir. 1992). Accordingly, we

vacate the judgment and remand the case to the district court

for a trial on the issue of willfulness.

III.

The district court properly applied Overnight Motor in

computing unpaid overtime compensation under 29 U.S.C.

§ 216(b). However, the district court erred in entering summary judgment on the issue of willfulness. Thus, the district

court’s judgment is affirmed in part, vacated in part, and

remanded for further proceedings consistent with this opinion.

AFFIRMED IN PART,

VACATED IN PART,

AND REMANDED

DESMOND v. PNGI CHARLES TOWN GAMING 15