Ogden et al v. Robert Warren Trucking, LLC et al, No. 3:2011cv00650 - Document 46 (D. Or. 2012)

Court Description: OPINION AND ORDER: Defendants' Motion for Summary Judgment 26 is DENIED. Signed on 7/25/12 by Magistrate Judge Dennis J. Hubel. (kb)

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1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF OREGON 5 PORTLAND DIVISION 6 7 TIMOTHY L. OGDEN and ) CLARISSA M. OGDEN, ) 8 ) Plaintiffs, ) No. 03:11-CV-00650-HU 9 ) v. ) 10 ) ROBERT WARREN TRUCKING, LLC, ) MEMORANDUM OPINION AND ORDER 11 and RICHARD WARREN, aka DICK ) ON MOTION FOR WARREN, ) SUMMARY JUDGMENT 12 ) Defendants. ) 13 _________________________________________ 14 15 16 Kevin T. Lafky Lafky & Lafky 17 429 Court Street NE Salem, OR 97301 18 19 Jon Weiner Law Office of Jon Weiner 20 1595 Commercial Street NE Salem, OR 97301 21 Attorneys for Plaintiffs 22 23 David M. Briggs Randy P. Sutton 24 Saalfeld Griggs PC P.O. Box 470 25 Salem, OR 97308-0470 26 Attorneys for Defendants 27 28 1 - MEMORANDUM OPINION AND ORDER 1 HUBEL, Magistrate Judge: 2 The plaintiffs Timothy L. and Clarissa M. Ogden bring this 3 action to recover unpaid wages and damages from their former 4 employer Robert Warren Trucking, LLC ( RWT ), and Richard Warren 5 ( Warren ), individually. The case is before the court on the 6 defendants Motion for Summary Judgment.1 The motion is fully 7 briefed, and the court heard oral argument on the motion on 8 July 24, 2012. 9 BACKGROUND FACTS 10 RWT is a trucking company with a fleet of approximately twenty 11 dump trucks, located in Cloverdale, Tillamook County, Oregon. 12 RWT s primary business is transporting rock, sand, and topsoil. 13 Warren holds a controlling ownership interest in RWT, and acts as 14 the company s chief operating officer, chief executive officer, and 15 manager, controlling all of the day-to-day operations of the 16 company. Warren has ultimate decision-making authority for RWT, 17 and his responsibilities include hiring and firing employees, as 18 well as the determination of all policies relating to employee 19 wages and hours.2 20 Timothy and Clarissa Ogden were hired by RWT as truck drivers 21 on or about August 4, 2010.3 As part of their jobs as truck 22 drivers, the Ogdens performed pre-trip inspections of their 23 trucks on a daily basis. They drove the trucks between RWT s place 24 25 26 1 Dkt. #26. 2 Dkt. #19, First Amended Complaint, ¶¶ 6, 7 & 8; Dkt. #21, 27 Answer to First Amended Complaint, ¶¶ 6, 7 & 8. 28 3 Dkt. #19, ¶¶ 9 & 11; Dkt. #21, ¶¶ 9 & 11. 2 - MEMORANDUM OPINION AND ORDER 1 of business and various job sites. The Ogdens contend that RWT did 2 not pay them (or any of its truck drivers) for the time spent on 3 the pre-trip inspections, or the drive time between RWT s business 4 location and the job sites. The Ogdens claim these policies 5 violate the minimum wage and overtime provisions of both the Fair 6 Labor Standards Act (FLSA) and state wage-and-hour laws. 4 The 7 Ogdens argue RWT s policies result in employees working more than 8 forty hours a week without compensation for overtime.5 9 On October 19, 2010, Mrs. Ogden called Warren at 3:33 p.m., 10 and left a voice mail message indicating she had some concerns 11 about the wage payment policies.6 Warren returned the call at 4:58 12 p.m. the same day, and talked with Mr. Ogden.7 13 lasted four minutes.8 The conversation According to Mr. Ogden, he told Warren he 14 wanted to talk about this prevailing wage for certain types of 15 jobs, and Warren responded that he did not have to pay that. 9 16 Mr. Ogden claims Warren stated he was exempt from payment of any 17 18 4 Dkt. #19, ¶¶ 13, 14, & 15. 19 5 Dkt. #19, ¶ 15. The FLSA mandates that employees who work 20 in excess of forty hours in a week receive overtime compensation at 21 a rate not less than one and one-half times their regular hourly wage. Childers v. City of Eugene, 922 F. Supp. 403, 404-05 (D. 22 Or. 1996) (Coffin, M.J.) (citing 29 U.S.C. § 207(a)(1)). 23 6 27 8 Id. 28 9 Id., p. 76. Dkt. #28, Affidavit of David M. Briggs ( Briggs Aff. ), Ex. B - excerpts from the Deposition of Clarissa M. Ogden ( C. Ogden 24 Depo. ), p. 40. 25 7 Dkt. #28, Briggs Aff., Ex. A - excerpts from the Deposition of Timothy L. Ogden ( T. Ogden Depo. ), p. 75. 26 3 - MEMORANDUM OPINION AND ORDER 1 prevailing wage. Mr. Ogden told Warren he had spoken with BOLI 2 (the Oregon Bureau of Labor and Industry) about the matter, which 3 caused Warren to become agitated and go off the handle. 10 4 According to the Ogdens, both of whom were listening to the call on 5 a speaker phone, Warren stated, You know what, you re done, you re 6 through. 11 Mr. Ogden asked for clarification a couple of times as 7 to whether Warren was firing the Ogdens, and Warren continued to 8 state either, You re through, or You re done. 12 Mr. Ogden then 9 hung up the phone.13 About a minute later, Warren tried to call the 10 Ogdens back, but they did not answer the phone. 11 and this time left a voice mail message. He tried again, The parties have an audio 12 recording of the voice mail message, so its contents are not in 13 dispute. Warren stated: 14 Hey, you hung up too quick. I didn t fire you. You re done taking my trucks to the job. I ll arrange to get them there. And Ann just pulled your tickets, you have been paid, we got them right here, your time tickets. Thank you, bye.14 15 16 17 18 Warren called the Ogdens again the next morning, but they 19 again did not answer the phone. Warren left another voice mail 20 message, of which an audio recording also exists, stating: 21 22 10 Id., pp. 76-77. 23 11 Id., p. 77. 24 12 Id., pp. 77-78; Dkt. #40-1, Ex. A to Declaration of John H. 25 Weiner, excerpts from C. Ogden s Deposition ( C. Ogden Depo-Weiner Decl. ), pp. 52-53 26 13 T. Ogden Depo., p. 78. 27 14 Dkt. #26, p. 4; see T. Ogden Depo., p. 92; C. Ogden Depo., 28 p. 58. 4 - MEMORANDUM OPINION AND ORDER 1 Hey Tim, this is Dick. I wanted to apologize for yesterday. When you mention BOLI, I get pissed. Anyway, why don t you come over tomorrow and we ll talk this out. We can pull all the rules and regulations and I ll have the computer for you so you can see all of them. And you do get paid from the time you leave the shop. You re on your own to Tillamook and Lincoln City as far as turning your tickets in. I don t make out your tickets for you. Everybody has to make out their own, I don t even want to. But, you get all your travel time, you have to turn them in, that s what I told Clarissa the other day. I think there s some other guys that are mixed up on that, too. But, give me a call or come on over, bye.15 2 3 4 5 6 7 8 9 10 Mr. Ogden called Warren that afternoon, stating he would not 11 be coming into the office to talk with Warren. 12 Warren, I m not coming in to talk to you. Mr. Ogden told I don t feel safe about 13 it. 16 14 The Ogdens believed Warren had fired them. Their explanation 15 for his quick call-back, and statement that they had hung up too 16 soon and actually were not fired, is that Warren (or his wife) had 17 realized firing the Ogdens for complaining about the wage policies 18 was impermissible, and Warren was attempting to retract his 19 statement in order to stay out of trouble. 20 The Ogdens sent RWT a handwritten letter dated October 20, 21 2010, that was received by RWT on October 25, 2010, regarding Hour 22 and wage dispute and notice of unpaid wages. 17 23 Ogdens claimed RWT owed them: (a) In the letter, the unpaid wages for all 24 uncompensated time between the time they clocked in each day until 25 26 15 Dkt. #26, p. 4; T. Ogden Depo., pp. 105-06. 27 16 T. Ogden Depo., p. 118. 28 17 Dkt. #27, Affidavit of Richard Warren ( Warren Aff. , Ex. A. 5 - MEMORANDUM OPINION AND ORDER 1 they clocked out, including each day s fifteen-minute pre-trip 2 inspection of the truck, and the time spent driving back and forth 3 between the yard and job sites; (b) all wages due for public 4 works projects, and federally funded projects at the legal rate set 5 by statue [sic] for said projects ; and (c) overtime wages for all 6 hours worked in excess of eight hours per day.18 7 On October 28, 2010, Warren sent Mr. Ogden a check for 8 $411.60, and Mrs. Ogden a check for $273.00, representing the 9 amounts Warren estimated to 10 inspections and travel time. be due for the Ogdens pre-trip The Ogdens received the checks a day 11 or two later.19 THE PLAINTIFFS CLAIMS 12 13 In their First Claim, asserted against RWT and Warren, the 14 Ogdens contend Warren discharged them from their jobs at RWT in 15 retaliation for their complaints about the company s wage policies, 16 in violation of the anti-retaliation provision of the federal Fair 17 Labor Standards Act ( FLSA ), 29 U.S.C. § 215(a)(3).20 An employer 18 who violates the anti-retaliation provision of the FLSA is liable 19 for such legal or equitable relief as may be appropriate to 20 effectuate the purposes of section 215(a)(3) of this title, 21 including without limitation employment, reinstatement, promotion, 22 23 18 Id.; Dkt. #19, ¶ 16; Dkt. #21, ¶ 15. 19 Dkt. #27, Warren Aff., ¶¶ 6 & 7; T. Ogden Depo. p. 134. 24 25 20 [I]t shall be unlawful for any person . . . (3) to discharge or in any other manner discriminate against any employee because 27 such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter. . . . 28 29 U.S.C. § 215(a)(3). 26 6 - MEMORANDUM OPINION AND ORDER 1 and the payment of wages lost and an additional equal amount as 2 liquidated damages. 29 U.S.C. § 216(b). In addition, a 3 prevailing plaintiff in such an action is entitled to a reasonable 4 attorney s fee to be paid by the defendant, and costs of the 5 action. Id. On this claim, the Ogdens seek Lost wages and 6 liquidated damages in an amount to be determined at the time of 7 trial, and such other legal and equitable relief as this Court 8 deems appropriate, in addition to reasonable attorney fees and 9 costs. . . . 21 10 In their Second Claim, asserted against RWT, the Ogdens 11 contend RWT failed to make timely payment to them of wages that 12 were due at the time their employment was terminated, in violation 13 of ORS § 652.14022 . The Ogdens contend, therefore, that they are 14 entitled to nine days of penalty wages under ORS § 652.15023, as 15 well as attorney fees and costs.24 16 17 21 Dkt. #19, Amended Complaint, p. 12, ¶ 1. 22 When an employer discharges an employee or when employment is terminated by mutual agreement, all wages earned and unpaid at 19 the time of the discharge or termination become due and payable not later than the end of the first business day after the discharge or 20 termination. ORS § 652.140(1). 18 21 22 23 24 25 26 27 28 23 For willful failure to pay termination wages when due, ORS § 652.150 provides for a penalty equal to the employee s regular hourly rate for eight hours per day until paid, for a maximum of thirty days. However, for employees who are required to submit regular time records to the employer, the penalty may be avoided if the employer pays the wages the employer estimates are due and payable . . . and the estimated amount of wages paid is less than the actual amount of earned and unpaid wages, as long as the employer pays the employee all wages earned and unpaid within five days after the employee submits the time records. ORS § 652.150(1). See Dkt. #34, p. 20. 24 Dkt. #19, p. 12, ¶ 2. 7 - MEMORANDUM OPINION AND ORDER 1 In their Third Claim, asserted against RWT, the Ogdens claim 2 they were discharged in retaliation for their wage complaints in 3 violation of ORS § 652.355(1).25 The Ogdens claim that pursuant to 4 ORS § 659A.88526, they are entitled to equitable relief and 5 economic damages (including back pay, benefits, and front pay) in 6 an amount to be determined at trial along with other compensatory 7 damages[,] . . . punitive damages . . . [and] reasonable attorney 8 fees[.] 27 9 SUMMARY JUDGMENT STANDARDS 10 11 Summary judgment should be granted if the movant shows that 12 there is no genuine dispute as to any material fact and the movant 13 is entitled to judgment as a matter of law. 14 56(c)(2). Fed. R. Civ. P. In considering a motion for summary judgment, the court 15 must not weigh the evidence or determine the truth of the matter 16 but only determine whether there is a genuine issue for trial. 17 Playboy Enters., Inc. v. Welles, 279 F.3d 796, 800 (9th Cir. 2002) 18 (citing Abdul-Jabbar v. General Motors Corp., 85 F.3d 407, 410 (9th 19 Cir. 1996)). 20 21 25 24 26 28 27 An employer may not discharge or in any other manner 22 discriminate against an employee because . . . [t]he employee has made a wage claim or discussed, inquired about or consulted an 23 attorney or agency about a wage claim. . . . ORS § 652.355(1)(a). In a civil action for unlawful discrimination, the court may order injunctive relief and any other equitable relief that may be 25 appropriate, including but not limited to reinstatement or the 26 hiring of employees with or without back pay, . . . costs and reasonable attorney fees at trial and on appeal[.] ORS 27 659A.885(1). Dkt. #19, Amended Complaint, ¶¶ 34 & 38; id., p. 12 ¶ 3. 8 - MEMORANDUM OPINION AND ORDER 1 The Ninth Circuit Court of Appeals has described the shifting 2 burden of proof governing motions for summary judgment as follows: 3 The moving party initially bears the burden of proving the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party s case. Id. at 325, 106 S. Ct. 2548. Where the moving party meets that burden, the burden then shifts to the non-moving party to designate specific facts demonstrating the existence of genuine issues for trial. Id. at 324, 106 S. Ct. 2548. This burden is not a light one. The non-moving party must show more than the mere existence of a scintilla of evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The non-moving party must do more than show there is some metaphysical doubt as to the material facts at issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 528 (1986). In fact, the non-moving party must come forth with evidence from which a jury could reasonably render a verdict in the non-moving party s favor. Anderson, 477 U.S. at 252, 106 S. Ct. 2505. In determining whether a jury could reasonably render a verdict in the non-moving party s favor, all justifiable inferences are to be drawn in its favor. Id. at 255, 106 S. Ct. 2505. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th 21 Cir. 2010). 22 Employment discrimination actions require particular scrutiny 23 at the summary judgment stage. As a general matter, the plaintiff 24 in an employment discrimination action need produce very little 25 evidence in order to overcome an employer s motion for summary 26 judgment. Chuang v. Univ. of Calif. Davis, Bd. of Trustees, 225 27 F.3d 1115, 1124 (9th Cir. 2000). This minimal evidence standard is 28 due to the nature of employment 9 - MEMORANDUM OPINION AND ORDER cases, where the ultimate 1 question is one that can only be resolved through a searching 2 inquiry one that is most appropriately conducted by a factfinder, 3 upon a full record. Id. (quoting Schnidrig v. Columbia Mach., 4 Inc., 80 F.3d 1406, 1410 (9th Cir. 1996)). 5 DISCUSSION 6 7 The threshold question underlying all of the Ogdens claims is 8 whether or not they were discharged on October 19, 2010. The 9 defendants acknowledge that it is unlawful for an employer to 10 retaliate against an employee for complaining about nonpayment of 11 wages for all hours worked.28 12 Ogdens were not actually However, the defendants argue the discharged, because to the extent 13 Mr. Warren stated that the Ogdens were terminated in his brief 14 phone call on the afternoon of October 19, 2010, he promptly 15 retracted the termination decision minutes later and communicated 16 this decision in his voice mail message. 29 The defendants assert 17 the Ogdens acknowledged, in their depositions, that to the extent 18 they may have been fired in the first phone conversation, that 19 decision was immediately retracted. 30 The defendants argue there 20 is no genuine issue of fact here, and they are entitled to judgment 21 as a matter of law.31 22 The Ogdens argue they were, in fact, discharged, and they were 23 not obligated to accept Warren s retraction and reinstatement 24 28 Dkt. #26, p. 10. 26 29 Id., p. 8. 27 30 Id., p. 11. 28 31 Id., pp. 10-13. 25 10 - MEMORANDUM OPINION AND ORDER 1 offer. They note Warren raised his voice and became angry during 2 the conversation in which he terminated them, causing Mr. Ogden to 3 be concerned that if he returned to RWT s offices, a physical 4 altercation might ensue, or he might even end up in jail . . . 5 since he was in Mr. Warren s hometown, [and] Mr. Warren grew up 6 with local police officers[.] 32 7 In reply, the defendants urge the court to consider the 8 reasonableness of the Ogdens belief that they had been fired. 9 They argue the initial conversation and Warren s subsequent voice 10 mail are not two separate and distinct events, as characterized 11 by the Ogdens, but instead they should be viewed as a continuum. 12 They assert the content of Warren s voice mail message, beginning 13 with, Hey, you hung up too quick, indicates he did not believe 14 the conversation was over at the time Mr. Ogden hung up the phone. 15 The defendants maintain, [I]t is up to the court to evaluate what 16 the words meant. 33 The defendants also allege the Ogdens were 17 looking to be terminated, 34 evidenced by their quick trip to the 18 unemployment office to seek unemployment benefits. 19 The plaintiffs and the defendants all rely, to some extent, on 20 the holding in NLRB v. Cement Masons Local No. 555, 225 F.2d 168 21 (9th Cir. 1955), in which the court considered, in the context of 22 the National Labor Relations Act, whether a union worker was 23 actually discharged when he was taken off of a job for a period 24 of time. The parties in the present case point to the NLRB court s 25 26 32 Dkt. #34, p. 11. 27 33 Dkt. #43, pp. 2-3. 28 34 Id., p. 3. 11 - MEMORANDUM OPINION AND ORDER 1 holding that [n]o set words are necessary to constitute a 2 discharge; words or conduct, which would logically lead an employee 3 to believe his tenure had been terminated, are in themselves 4 sufficient. NLRB, 225 F.2d at 172 (citing, in a footnote, federal 5 cases from the 8th and 10th Circuits, and state court cases from 6 Iowa, Minnesota, California, and Pennsylvania). 7 The defendants in the present case assert that this standard 8 is consistent with their position, arguing it was not reasonable 9 for the Ogdens to conclude they had been discharged. The Ogdens 10 argue their belief was reasonable, based on the content of their 11 first conversation with Warren. Mr. Ogden asked Warren three times 12 if the Ogdens were fired, and Warren repeatedly stated they were 13 either through or done. The Ogdens assert they were not 14 required to hear a fourth time, a tenth time, or a twenty-seventh 15 time that they were done or through before hanging up. 35 16 The parties appear to agree that resolution of the discharge 17 question is dependent upon the reasonableness of the Ogdens belief 18 that they had been discharged during their first phone conversation 19 with Warren. Their opposing views regarding whether or not this 20 belief was reasonable clearly demonstrate the existence of a 21 genuine issue of material fact that must be resolved at trial. 22 This type of fact-based determination is particularly inappropriate 23 at the summary judgment stage, where the ultimate question is one 24 that can only be resolved through a searching inquiry one that is 25 most appropriately conducted by a factfinder, upon a full record, 26 with an opportunity to evaluate the witnesses. Chuang, 225 F.3d at 27 28 35 Dkt. #34, p. 13. 12 - MEMORANDUM OPINION AND ORDER 1 1124 (quoting Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1410 2 (9th Cir. 1996)). 3 Notably, following oral argument on the defendants motion, 4 they submitted to the court a recording of the two voice mail 5 messages Warren left for the Ogdens. Although the recordings are 6 not of the best quality, the court was able to make out most of 7 what was said and the general tone of voice Warren used during the 8 messages. Neither Warren s tone nor the content of the messages 9 changes the court s opinion that summary judgment is inappropriate. 10 Accordingly, the defendants Motion for Summary Judgment is 11 denied as to the plaintiffs First and Third Claims. 12 With regard to the Ogdens Second Claim, summary judgment is 13 also inappropriate. In this claim, the Ogdens seek penalty wages 14 for RWT s allegedly tardy payment of wages due them at the time of 15 their discharge. They note the applicable law requires payment of 16 wages not later than the end of the first business day after the 17 discharge or termination. ORS § 652.140(1). The defendants, 18 however, argue the Ogdens were not terminated, but instead quit 19 voluntarily. According to the defendants, all wages the Ogdens 20 were due through October 18, 2010, had been paid. Once the Ogdens 21 quit their jobs, payment of any additional wages was not triggered 22 until the Ogdens submitted additional time records, after which the 23 wages had to 24 § 652.140(2)(c). be paid within five days pursuant to ORS The defendants assert the additional wages were, 25 in fact, paid within five days after RWT received the Ogdens 26 27 28 13 - MEMORANDUM OPINION AND ORDER 1 letter demanding additional wages, and therefore, no penalty wages 2 are due.36 3 As with the Ogdens First and Third Claims, resolution of this 4 claim depends on the determination of whether the Ogdens were 5 discharged, or alternatively, whether they quit voluntarily. The 6 existence of this issue of fact precludes summary judgment, and the 7 defendants motion is denied as to the Ogdens Second Claim. 8 CONCLUSION 9 10 For the reasons discussion above, the defendants Motion for 11 Summary Judgment is denied. 12 IT IS SO ORDERED. 13 Dated this 25th day of July, 2012. 14 /s/ Dennis J. Hubel 15 Dennis James Hubel Unites States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 36 Dkt. #26, pp. 13-16. 14 - MEMORANDUM OPINION AND ORDER

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