No. 94-229 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

MICHAEL A. TEFFT, EDWARD C. PETERS, 

JOSEPH E. GASPAR, NANCI ELLEN GREEN, 

RANDY J. ARCHERY, JOSEPH M. McKAMEY, 

GEORGE L. DOMME, MICHAEL D. CROSS, 

MICHAEL E. HEISLER, and JACK C. STIMAC, 

Plaintiffs and Respondents, 

v. 

THE STATE OF MONTANA, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

Filed: 

For Appellant: 

W. D. Hutchinson, Assistant Attorney General, 

Agency Legal Services Bureau, Helena, Montana 

For Respondents: 

Lawrence A. Anderson, Attorney at Law, 

Great Falls, Montana 

Submitted on Briefs: January 19, 1995 

Decided: May 4, 1995 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

The plaintiffs, who are firefighters employed by the Montana 

Air National Guard in Great Falls, filed this action in the 

District Court for the Eighth Judicial District in Cascade County 

to recover wages due from the defendant, State of Montana, and 

liquidated damages for violation of the Federal Fair Labor 

Standards Act (FLSA). The District Court granted plaintiffs' 

motion for partial summary judgment and held that the State 

violated the FLSA when it reduced plaintiffs' wages and that its 

actions were not taken in good faith. After a nonjury trial, the 

District Court found the amount of wages and damages due, and 

entered judgment in favor of plaintiffs for that amount. The State 

appeals from the District Court's order granting summary judgment 

and the amount of damages awarded. We affirm the judgment of the 

District Court. 

We restate the issues on appeal as follows: 

1. Did the District Court err when it granted plaintiffs' 

motion for summary judgment? 

2. Did the District Court abuse its discretion when it 

awarded liquidated damages under 29 U.S.C. § 216(b) (1988) of the 

Fair Labor Standards Act? 

3. Were the District Court's findings regarding the amount 

of plaintiffs' damages clearly erroneous? 

2 
FACTUAL BACKGROUND 

Plaintiffs are firefighters who provide protection for 

civilian aircraft and a unit of the Montana Air National Guard at 

the Great Falls International Airport. 

employed by the federal government. 

Prior to 1975, they were 

In 1975, when the federal 

firefighting jobs were discontinued, plaintiffs were employed by 

the Montana Department of Military Affairs. However, through a 

cooperative arrangement, the federal government still paid for most 

of the costs associated with their jobs. 

After the State established the fire crew jobs in 1975, 

plaintiffs' salaries were based on the State's statutory pay 

matrix. Section 2-18-312, MCA. The State initially paid 

plaintiffs biweekly for 80 hours of work during each two week 

period. However, plaintiffs' actual schedules had them working 24 

hour shifts, followed by 48 hours off duty. Therefore, they worked 

substantially more hours during each two week period than the 80 

hours for which they were paid. They actually worked between 96 

and 120 hours during a two week period, and 2912 hours per year, 

but were paid on the basis of a 2080 hour year. The State failed 

to pay them for the actual time worked, or to keep accurate records 

of their time at work. 

In 1982, the State began to reflect actual hours worked on 

plaintiffs' time cards, but plaintiffs were still paid for only 

80 hours of work biweekly. During a brief period from 1985 to 

1986, the State began to pay plaintiffs for the actual hours they 

3 
, , 

worked. However, to avoid overtime requirements, the State added 

an additional day off, or "Kelly day," for each pay period. One 

count of plaintiffs' complaint, the "straight time" claim, was a 

claim for wages for those hours worked, but for which they were not 

paid, between 1979 and 1985. In separate litigation, plaintiffs 

settled claims for overtime compensation during this period. 

In 1985, the United States Supreme Court reversed previous 

case law which excluded state jobs from coverage under the federal 

Fair Labor Standards Act. See Garcia v. Metropolitan Transit Authority (1985), 

469 U.S. 528, 105 S. Ct. 1005, 83 L. Ed. 2d 1016. As a result, 

FLSA provisions became binding on state and local governments. 

The FLSA provides that a firefighter must be paid at the 

overtime rate if the firefighter's tour of duty exceeds 212 hours 

in 28 days. 29 U.S.C. § 207 (1988); 29 C.F.R. § 553.201 (1993). 

Plaintiffs' hours consistently exceeded this number, with the 

exception of the period from September 1985 to July 1986. 

Following Garcia, Congress passed two amendments to the FLSA. 

The first amendment eased the financial burden on state and local 

governments by exempting them from liability for FLSA violations 

that occurred before April 15, 1986. Pub. L. No. 99-150, 99 Stat. 

787, § 2(c) (29 U.S.C. § 216 note (1988) (Effect of Amendments by 

Public Law 99-150 on Public Agency Liability Respecting any 

Employee Covered Under Special Enforcement Policy)); see Hill v. City of 

Greenville (N.D. Tex. 1988), 696 F. Supp. 1123, 1126. A second 

amendment enacted an anti-discrimination provision to deter state 

4 
· , 

and local governments from decreasing employees' wages to offset 

the increased overtime compensation requirement. Pub. L. No. 

99-150, § 8, 99 Stat. 791 (29 U.S.C. § 215 note (1988) (Liability 

of Public Agency for Discrimination Against Employee for Assertion 

of Coverage)). 

In response to Garcia, the Department of Military Affairs 

proposed changes in the manner in which firefighters were paid. 

However, the proposal was rejected by the State's Personnel 

Division on the basis that it deviated from the State pay matrix. 

The Department, therefore, requested an exclusion from the State's 

pay plan under § 2-18-103 (6), MCA, which excludes officers or 

members of the militia. The State granted the exclusion by 

July 1986. Plaintiffs were required to be members of the National 

Guard and became part of a new class known as the Militia 

Protective Services, an exempt classification. We recently held 

that the requirement of National Guard membership was 

unconstitutional because the State could not establish a rational 

basis for it. McKameyv.State (Mont. 1994), 885 P.2d 515,51 St. Rep. 

1218. 

Following this reclassification, the State reduced plaintiffs' 

hourly wages. The Kelly day was eliminated and plaintiffs were 

paid biweekly based on a reduced hourly wage multiplied by the 

number of hours actually \iOrked. The new hourly wages were 

effectively determined by dividing each plaintiff's set annual 

salary by 2912 hours instead of 2080 hours. 

5 
· . 

Plaintiffs filed a complaint, and later an amended complaint, 

that demanded lost compensation for (1) unpaid "straight time," and 

(2) discrimination in violation of the FLSA based on the State·s 

reclassification. Plaintiffs contended they were entitled to 

unpaid wages and were entitled to liquidated damages pursuant to 

the FLSA, based on the State·s reduction of their wages in response 

to the Garcia decision. The plaintiffs moved for and received 

summary judgment on the FLSA claim. In its order, the District 

Court held that the State had failed to raise a factual issue 

regarding its violation of the Act, or whether it acted in good 

faith when it reduced plaintiffs· wages. Accordingly, the court 

held that plaintiffs were entitled to liquidated damages. 

The District Court ordered a hearing on the remaining issues, 

including the amount of damages, and the State was allowed to 

submit additional proof of good faith and reasonable grounds for 

its actions. Both parties offered expert testimony regarding 

damage calculations. The State failed to offer evidence 

satisfactory to the District Court that it had acted in good faith 

when it reduced plaintiffs· wages. The District Court found 

plaintiffs· damage calculations more reliable than the State·s, and 

adopted plaintiffs· damage figures. On January 31, 1994, the 

District Court entered judgment against the State for $485,434.60. 

ISSUE 1 

Did the District Court err when it granted plaintiffs· motion 

for summary judgment? 

6 
, . 

The nature of our inquiry when we review a district court's 

summary judgment decision is identical to the trial court's. Cooper 

v. Sisters of Charity (1994), 265 Mont. 205, 207, 875 P.2d 352, 353 (citing 

Minniev. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214). 

Summary judgment is proper only when no genuine issue of material 

fact exists and the moving party is entitled to judgment as a 

matter of law. Rule 56 (c), M.R.Civ.P. i Spain-Morrow Ranch, Inc. v. West 

(1994), 264 Mont. 441, 444, 872 P.2d 330, 331-32. 

In 1985, the United States Supreme Court decided Garcia, which 

applied the minimum-wage and overtime provisions of the FLSA to 

state employees. In order to minimize financial impact on state 

and local governments, Congress enacted amendments to the FLSA. 

Hil( 696 F. Supp. at 1125. Congress also enacted what is referred 

to as § 8 to prohibit governmental discrimination against employees 

who are entitled to financial benefits as a result of Garcia. 

29 U.S.C. § 215 note (1988), Pub. L. No. 99-150, § 8, 99 Stat. 791. 

Section 8 provided: 

A public agency which is a State, political 

subdivision of a State, or an interstate governmental 

agency and which discriminates or has discriminated 

against an employee with respect to the employee's wages 

or other terms or conditions of employment because on or 

after February 19, 1985, the employee asserted coverage 

under section 7 of the Fair Labor Standards Act of 1938 

[29 U.S.C. § 207] shall be held to have violated section 

15 (a) (3) of such Act [29 U.S.C. § 215 (a) (3)] . The 

protection against discrimination afforded by the 

preceding sentence shall be available after August I, 

1986, only for an employee who takes an action described 

in section 15(a) (3) of such Act. 

7 
· , 

Section 7 sets forth the number of hours after which firefighters 

must be paid overtime. 29 U.S.C. § 207 (1988). Section 215 (a) (3) 

makes it unlawful for any person to discriminate against an 

employee because the employee has filed a complaint or instituted 

a proceeding under the FLSA. 29 U.S.C. § 215(a) (3) (1988). 

The District Court's order correctly noted that the State 

conceded, in its brief in opposition to plaintiffs' motion for 

summary judgment, that it reduced plaintiffs' hourly wages in 

response to Garcia and to avoid increasing annual pay. Other courts 

have concluded that discrimination in violation of the FLSA occurs 

under these circumstances. See Drollingerv. Stateo/Arizona (9th Cir. 1992), 

962 F.2d 956; Blantonv. Cityo/Murfreesboro (6th Cir. 1988), 856 F.2d 731; 

Hill, 696 F. Supp. 1123. In Drollinger, the Ninth Circuit Court of 

Appeals concluded that Arizona violated § 8 as a matter of law when 

it lowered hourly wage rates for firefighters as a response to 

Garcia. Drollinger, 962 F. 2 d at 957 - 5 9 . 

The State argues that the District Court erroneously decided 

that the State's "reclassification" plan violated § 8 of the FLSA 

amendments, and 29 U.S.C. § 215(a) (3). First, the State claims 

that it did not discriminate against plaintiffs because they 

asserted coverage under the FLSA. Instead, the State contends that 

it lawfully responded to budgetary constraints. The District Court 

rejected the State's "economic necessity" defense. 

Other courts have rejected an "economic necessity" defense in 

similar circumstances. See Blanton, 856 F.2d at 735; Hill, 696 F. Supp. 

8 
at 1126. The court in Hill recognized that congressional amendments 

were designed to delay the impact of the FLSA overtime provisions 

to give state and local governments sufficient time to rearrange 

their budgets in order to comply with the FLSA. Hill, 696 F. Supp. 

at 1126. In Blanton, the Eighth Circuit Court of Appeals rejected 

an economic necessity defense where a city decreased its 

firefighters' wages. 

Actions by public employers to reduce employee pay and 

benefits, taken as the sole and direct result of fiscal 

pressures created by the mandated extension of Fair Labor 

Standard Act benefits, run afoul of the strictures of 

section 8. 

Blanton, 856 F.2d at 735. In order to justify a reduction based on 

economic necessity, an employer must prove that wages were reduced 

from fiscal concern which was not attributable to the extra cost of 

complying with the FLSA. Blanton, 856 F.2d at 735. 

We too reject the State's assertion of an economic necessity 

defense. The State argues that the federal government provided 

funding for plaintiffs' salaries, and after Garcia the State did not 

receive additional funding. However, the District Court stated, 

and we agree, that the State failed to establish that it could not 

augment federal funds with state funds, or implement a different 

plan, without violating the FLSA. 

The State also argues that plaintiffs did not assert FLSA 

violations until 1988, and therefore, that the State could not have 

reclassified plaintiffs in response to their assertion of coverage 

9 
under the Act in violation of §§ 8 and 215 (a) (3) .1 Section 

215(a) (3) makes it unlawful for the State to discriminate against 

an employee because the employee has filed a complaint or 

instituted or caused to be instituted any proceeding under the 

FLSA. 29 U. S . C . § 215 (a) (3) ( 1988) . 

In Drollinger, the Ninth Circuit rej ected an argument similar to 

the State's when it held that: 

[T] he FLSA prohibits not only FLSA violations in response 

to employee assertions of coverage, but also FLSA 

violations in anticipation of assertions of coverage: any 

other interpretation would nullify the Act's protections. 

Section 8 would be meaningless if an employer were 

permitted to reduce hourly wages in response to Garcia and 

thereby avoid the FLSA's pay-and-a-half provisions as 

long as he did so before his employees learned of their 

statutory entitlements and had a chance to request that 

they be afforded the benefits due them. 

Drollinger, 962 F. 2 d at 958, n . 2 . 

Likewise, the Eighth Circuit in Blanton resolved this issue 

against a city which asserted a similar argument. That court cited 

legislative history for the proposition that employers' actions to 

decrease wages that are intended to avoid the FLSA constitute 

discrimination under § 8, whether or not they are in response to 

1 While this contention may be technically correct, it is not 

correct as a practical matter. It is true that on March 21, 1988, 

the District Court first granted plaintiffs' motion to amend their 

complaint in Stimac v. State of Montana, Cascade County Cause 

No. BDV-84-1570, regarding overtime and allege a claim based on the 

FLSA. However, the motion to allow that amendment was filed on 

June 6, 1986. The reduction in wages was authorized on June 19, 

1986, and was actually implemented during July 1986. 

10 
employee assertions of coverage. Blanton, 8 5 6 F. 2 d at 73 6 . 

Eighth Circuit added that: 

[I]t is not necessary to prove the employer intended to 

retaliate to prove a violation of section 8 if an 

employer, such as the City of Murfreesboro, reduced its 

employees' rates of pay so as to nullify the effect of 

extending the Act's coverage. 

The 

Blanton, 856 F. 2d at 736. Finally, in Hill, the court recognized that 

an assertion of coverage need only be some act that would give the 

employer notice that employees are covered by the FLSA. That court 

added that where the employer already had notice that employees 

were covered by the FLSA, it would be superfluous to require the 

employees to affirmatively notify their employer that they are 

covered by the FLSA. Hill, 696 F. Supp. at 1125. 

The State has conceded that it had actual notice that the FLSA 

covered plaintiffs as early as July 1985. Therefore, as the court 

stated in Hill, further notice in the form of a claim by its 

employees was unnecessary. 

Finally, the State asserts that the plaintiffs "ratified" the 

wage cuts when they signed agreements that reduced their hourly 

wage. However, the United States Supreme Court has held that 

employees' rights under the FLSA cannot be abridged by contract or 

otherwise because it would defeat the purpose of the FLSA. Barrentine 

v. Arkansas-Best Freight System (1981), 450 u.S. 728, 739-40, 101 S. Ct. 

1437, 1444-45, 67 L. Ed. 2d 641, 652-53. 

For these reasons, we conclude that the uncontroverted 

evidence established a violation of the federal Fair Labor 

11 
Standards Act by the State of Montana, and that the District Court 

did not err when it granted plaintiffs I motion for summary judgment 

on that issue. 

ISSUE 2 

Did the District Court abuse its discretion when it awarded 

liquidated damages under 29 U.S.C. § 216 (b) (1988) of the Fair 

Labor Standards Act? 

What constitutes good faith and reasonable grounds, as those 

notions relate to the issue of liquidated damages, involves mixed 

questions of law and fact. To the extent that legal principles are 

involved, the standard of review is de novo, but to the extent that 

factual issues are involved, we will reverse the district court 

only for clear error. Brattv. County of Los Angeles (9th Cir. 1990), 912 

F.2d 1066, 1071, cert~nkd (1991), 498 U.S. 1086. The State argues 

that the District Court erred when it awarded liquidated damages 

and decided that the State did not prove it acted in good faith or 

on reasonable grounds. We note that despite its summary judgment 

decision, which awarded liquidated damages, the District Court 

allowed the State to submit evidence of good faith and reasonable 

grounds at the hearing, but found that it either had not done so, 

or that its evidence was insufficient. 

As set forth above, § 8 violations are deemed violations of 

29 U.S.C. § 215(a) (3). The damage provision for these violations 

provides in relevant part: 

12 
Any employer who violates the provisions of section 

15(a) (3) of this Act shall be liable for such legal or 

equitable relief as may be appropriate to effectuate the 

purposes of section 15 (a) (3) , including without 

limitation employment, reinstatement, promotion, and the 

payment of wages lost and an additional equal amount as 

liquidated damages. 

29 U.S.C. § 216 (b) (1988) However, 29 U.S.C. § 260 states that in 

claims to recover damages under the FLSA: 

[I]f the employer shows to the satisfaction of the court 

that the act or omission giving rise to such action was 

in good faith and that he had reasonable grounds for 

believing that his act or omission was not a violation of 

the Fair Labor Standards Act ... the court may, in its 

sound discretion, award no liquidated damages . 

See also Bratt, 912 F. 2 d at 1 0 71 . The State acknowledges that an 

employer has the burden of proving that its violation of the FLSA 

was in good faith and that the employer had reasonable grounds to 

believe it did not violate the FLSA. See E.E.o.c. v. First Citizens Bank of 

Billings (9th Cir. 1985), 758 F.2d 397, 403, cert. denied (1985), 474 U.S. 

902. 

Courts have utilized different standards to determine what 

constitutes good faith and reasonable grounds. Compare Kinney v. District 

of Columbia (D.C. Cir. 1993), 994 F.2d 6, 12, and Bratt, 912 F.2d at 

1072, with Walton, 786 F.2d at 312. As discussed below, we conclude 

that the Fifth Circuit's test to determine good faith and 

reasonable grounds based on an objective standard is more reliable. 

Judge Easterbrook, writing for the court in Walton, stated that 

the correct standard is the one provided by the statute: 

13 
[W]hether the employer's conduct--objectively viewed 

through the lens of the "reasonable man" famous in tort 

law--acted "in good faith and had reasonable 

grounds for believing that his act or omission was not a 

violation" of the FLSA. 

Walton, 78 6 P . 2 d at 3 12 . The Walton court concluded that the 

objective standard was especially appropriate in claims against 

corporate or governmental employers which do not have an actual 

mental state. Walton, 78 6 F. 2 d at 3 12 . That court added that a 

decision made aboveboard and justified in public is more likely to 

satisfy the test. Walton, 78 6 F. 2 d at 3 12 . Double damages are 

meant to be the norm and not the exception. Walton, 786 F. 2d at 

310. In addition, double damages are partly designed to compensate 

for concealed violations. Utilizing these damages when concealed 

violations are detected presents employers with the full costs of 

their actions, a goal stressed in the legislative history of the 

double damage provision. Walton, 786 F. 2d at 312. 

We have already concluded that overwhelming evidence supported 

"the conclusion that the [State's military service] requirement's 

sole purpose [was] to circumvent the wage and overtime standards 

set forth in the Fair Labor Standards Act " McKamey, 885 

P.2d at 522. 

In its summary judgment order, the court mentioned that the 

State's decision to reduce plaintiffs' wages and eliminate them 

from the State's pay plan was not made aboveboard nor justified to 

the pUblic. The court added that the militia exception was 

frivolous and a subterfuge designed to avoid legal obligations 

14 
· . 

imposed by the FLSA. Other factors the court found persuasive are: 

the State was aware of Garcia's ramifications, other available 

alternatives were not pursued, the State unilaterally declared 

plaintiffs exempt from the State pay plan, and the State did not 

inform plaintiffs of its decision to do so. 

the District Court's findings. 

The record supports 

Based on our decision in AfcKamey, and evidence cited by the 

District Court, we conclude that the District Court was not clearly 

erroneous, did not abuse its discretion, and did not err as a 

matter of law when it found and concluded that plaintiffs were 

entitled to liquidated damages under § 216, and that the State did 

not objectively demonstrate good faith or reasonable grounds under 

§ 260. 

ISSUE 3 

Were the District Court's findings regarding the amount of 

plaintiffs' damages clearly erroneous? 

"A district court's damage determination is a factual finding 

which must be upheld if it is supported by substantial evidence; we 

will not overturn a district court unless its determination was 

clearly erroneous." Semenzav.Bowman (Mont. 1994), 885 P.2d 451, 455, 

51 St. Rep. 1209, 1212 (citing Columbia Grain Int'I v. Cereck (1993), 258 

Mont. 414, 417, 852 P.2d 676, 678). We rely on a three-part test 

to determine if a finding is clearly erroneous. First, we review 

the record to ensure the findings are supported by substantial 

evidence. Second, if there is an evidentiary basis for the 

15 
finding, we consider whether the district court misapprehended the 

effect of the evidence. Third, if the other two criteria are 

satisfied, we may still determine that a finding is clearly 

erroneous when a review of the record leaves the Court with a firm 

conviction that a mistake has been made. Interstate Prod Credit Ass'n v. 

DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. 

The District Court's findings were based on conflicting expert 

testimony. The trial judge has the duty to resolve conflicts in 

evidence and this Court gives due regard to the trial judge's 

superior opportunity to judge the credibility of witnesses. Williams 

v. DeVinney (1993), 259 Mont. 354, 359, 856 P.2d 546, 549. A district 

court is "not bound by the opinion of a particular party or expert 

but remains free to adopt any reasonable valuation that is 

supported by the record." Goodoverv.Lindey's (1992), 255 Mont. 430, 

440, 843 P.2d 765, 771 (citing In reMarriage oJ Dzivi (1991), 247 Mont. 

165, 167, 805 P.2d 567, 568). 

In its brief, the State concedes that substantial evidence 

supports the District Court's "straight time" wage award, but 

argues that a review of the record leads to a conclusion that the 

District Court misapprehended the evidence and made a mistake. 

Specifically, the State attacks the adequacy of the foundation for 

the testimony of the plaintiffs' damage expert. However, the 

foundation was made difficult by the State's failure to maintain 

accurate records of the hours worked by the plaintiffs. 

16 
The District Court recognized that the State breached its duty 

to properly account for the hours plaintiffs actually worked, and 

therefore, that plaintiffs were entitled to substantiate their 

claim without precise time records. See Wage Claim of Holbeck v. Stevi-West, 

Inc. (1989), 240 Mont. 121, 125-26, 783 P.2d 391, 394 (citing Garsjo 

v. Department of Labor and Industry ( 1977), 172 Mont. 182 , 188 - 89, 562 P. 2 d 

473, 476). 

Gar~o relied on language from a United States Supreme Court 

case discussing the difficulty an employee confronts when an 

employer keeps insufficient records. Garsjo, 562 P.2d at 476 (citing 

Anderson v. Mt. Clemens Pottery Co. , (1946), 328 U. S . 680, 687, 66 S. Ct. 

1187, 1192, 90 L. Ed. 1515, 1523. In Ande~on, 328 U.S. at 687-88, 

the United States Supreme Court reasoned: 

[W]here the employer's records are inaccurate or 

inadequate and the employee cannot offer convincing 

substitutes, a more difficult problem arises. The 

solution, however, is not to penalize the employee by 

denying him any recovery on the ground that he is unable 

to prove the precise extent of uncompensated work. Such 

a result would place a premium on an employer's failure 

to keep proper records in conformity with his statutory 

duty; it would allow the employer to keep the benefits of 

an employee's labors without paying due compensation as 

contemplated by the Fair Labor Standards Act. In such a 

situation we hold that an employee has carried out his 

burden if he proves that he has in fact performed work 

for which he was improperly compensated and if he 

produces sufficient evidence to show the amount and 

extent of that work as a matter of just and reasonable 

inference. The burden then shifts to the employer to 

come forward with evidence of the precise amount of work 

performed or with evidence to negative the reasonableness 

of the inference to be drawn from the employee's 

evidence. If the employer fails to produce such 

17 
evidence, the court may then award damages to the 

employee, even though the result be only approximate. 

In Garsjo, we also quoted similar reasoning from the Michigan Supreme 

Court, which held that: 

"When the employee shows, as he did here, 'that he did in 

fact perform overtime work for which he was not properly 

compensated and produces sufficient evidence to show the 

extent and amount of such work as a matter of just and 

reasonable inference, the burden shifts to the employer 

to come forward with evidence of the precise amount of 

the work performed or with evidence to negate the 

reasonableness of the inference to be drawn from the 

evidence of the employee. And if the employer fails to 

produce such evidence, it is the duty of the court to 

enter judgment for the employee, even though the amount 

be only a reasonable approximation. '" 

Garsjo, 562 P.2d at 476-77 (quoting Purcellv.Keegan (Mich. 1960), 103 

N.W.2d 494, 497). 

Each party used a different approach to determine the unpaid 

"straight time" claim based on the available data. Plaintiffs' 

expert assumed that each plaintiff worked a standard schedule of 

2912 hours per year and used this figure as a ceiling to compute 

unpaid "straight time" for each year. He used the total hours 

worked, minus total overtime paid from settlement of the previous 

suit, minus "straight time" hours paid, to determine unpaid 

"straight time" hours. Plaintiffs' expert then multiplied the 

unpaid "straight time" with the hourly pay rate for the year in 

question to determine the amount of damages. 

The State's expert challenged the use of a 2912 hour average 

ceiling and noted that in later years when more accurate time cards 

were used, records indicated some plaintiffs took leave without 

18 
pay. As a result, the total for each plaintiff may not have been 

exactly 2912 hours. 

The trial court criticized this approach, stating that if the 

State was going to use this approach it should have used the most 

reliable records, which were after 1986. However, the State did 

not explain its failure to use these records. The records used by 

the State showed that plaintiffs averaged approximately 2700 hours 

per year. However, after 1986, records reflected that plaintiffs 

averaged approximately 2900 hours per year. The court found 

plaintiffs' formula "reasonable in light of the lack of other 

records to come to more accurate figures." 

The other damage issue involves the FLSA claim. As noted 

above, in 1986 the State recomputed each plaintiff's hourly wage by 

dividing his or her annual salary by 2912, instead of 2080 as 

required by statute. Sections 2-18-306, -312, MCA. The District 

Court's Conclusion of Law No.7 noted that the State's method was 

illegal. 

Plaintiffs' expert compared 2080 hours to 2912 hours to arrive 

at a factor of .714, which he then used to arrive at the total 

amount by which plaintiffs were underpaid. The State argues that 

plaintiffs' expert should have audited actual records, instead of 

using the formula. Plaintiffs respond that this could not be done 

because of inaccurate record keeping by the State. 

The State's expert testified that he based his calculations on 

an audit of payroll records. However, the District Court noted 

19 
numerous errors in his method, several of which the State's expert 

admitted during cross-examination. 

Plaintiffs introduced evidence that they worked hours for 

which they were not properly compensated. Plaintiffs produced 

sufficient evidence of the amount of uncompensated work, based on 

reasonable inferences, to entitle them to damages based on a 

reasonable approximation. The District Court found that the State 

failed to produce sufficient evidence of the precise amount of work 

performed, or to negate the inference produced by the plaintiffs. 

The District Court is in a better position than this Court to 

reconcile contradictory expert testimony. Based on our review of 

the record, we are not convinced the District Court misapprehended 

the evidence, nor are we convinced the District Court made a 

mistake. Therefore, we conclude that the District Court's damage 

calculations were not clearly erroneous. 

The judgment of the District Court is affirmed. 

We concur: 

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