Wilson v. Decibels of Oregon, Inc. et al

Filing 96

ORDER: I adopt the Report and Recommendation 82 . Plaintiffs motion to certify 35 is denied and Defendants motion to strike 53 is denied. Signed on 8/31/2017 by Judge Michael J. McShane. (cp)

Case 1:16-cv-00855-CL

Document 96

Filed 08/31/17

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MATTHEW WILSON,
Plaintiff,
Case No. 1:16-cv-00855-CL
v.
ORDER
DECIBELS OF OREGON, INC., and
DENNIS SNYDER,
Defendants.
_____________________________
MCSHANE, Judge:
Magistrate Judge Mark D. Clarke filed a Report and Recommendation (“R&R”) (ECF
No. 82), and the matter is now before this court. See 28 U.S.C. § 636(b)(1)(B), Fed. R. Civ. P.
72(b). Plaintiff objects to the R&R’s denial of Plaintiff’s motion for class certification. ECF No.
90. I have reviewed the case de novo. See 28 U.S.C. § 636(b)(1)(c); McDonnell Douglas Corp. v.

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Case 1:16-cv-00855-CL

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Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). I conclude the report is
correct and adopt.
DISCUSSION
Plaintiff is an installation technician who alleges that his former employer, defendant
Decibels of Oregon Inc., routinely undercounts the technicians’ weekly hours, thereby failing to
pay the technicians the overtime pay they are due in violation of state and federal overtime laws.
Installation technicians are paid on a piece-rate system based on the number of
installation jobs that they complete. Hours outside of an installation job, such as attending
meetings and trainings, are to be paid at an hourly rate. Plaintiff claims that Decibels routinely
fails to compensate for other job related tasks, including hours spent at the company’s warehouse
in preparation for work, time waiting between installations, drive time, and obligations required
at the end of the day.
In his motion for class certification, Plaintiff argues that all of the installation technicians
are similarly situated because defendant followed a “common policy or plan” to undercount the
hours the technicians worked. The installation technicians are similarly situated in that they
actually “worked more than 40 hours in a week” but were not paid for a certain hour or hours.
Pl.’s Obj 2, ECF No. 90.
In support of their motion for class certification, Plaintiff has submitted declarations from
several technicians describing their individual understanding of Decibel’s pay procedures and
policies. These declarations demonstrate that the individual employees were not similarly
situated. Upon inspection, the declarations reveal that each employee had a different
understanding of how they were to be paid, as well as what pay policies Decibel had in place. As
a result, it is impossible to determine what unpaid wages, if any, were due to each member of the
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Case 1:16-cv-00855-CL

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class without conducting an individual inquiry. Because plaintiff failed to show that the plaintiff
and members of the proposed class are subject to a common policy or are similarly situated,
Judge Clarke correctly recommended that class certification be denied.
CONCLUSION
I adopt the Report and Recommendation (ECF No. 82). Plaintiff’s motion to certify (ECF
No. 35) is DENIED and Defendants’ motion to strike (ECF No. 53) is DENIED.
IT IS SO ORDERED.
DATED this 31st day of August, 2017.
_____/s/ Michael J. McShane_____
Michael J. McShane
United States District Judge

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