Krouse v. Ply Gem Pacific Windows Corporation et al
Filing
83
OPINION AND ORDER: Granting in Part Denying in Part Motion for Summary Judgment 44 ; Denying Motion for Partial Summary Judgment 50 ); Granting in Part Denying in Part Motion to Compel 54 . Signed on 7/19/11 by Judge Ancer L. Haggerty. (dmd)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
KENT KROUSE,
Civil No. 10-111-HA
Plaintiff,
OPINION AND ORDER
v.
PLY GEM PACIFIC WINDOWS
CORPORATION; EDWARD CHASE; and
ROBERT GEHNE,
Defendants.
_______________________________________
HAGGERTY, District Judge:
Plaintiff brought suit against defendants asserting claims arising out of the circumstances
of his termination of employment with his former employer, defendant Ply Gem Pacific
Windows Corporation (Ply Gem). Plaintiff began working for Ply Gem's predecessor in early
February 1997 as a window technician. He was terminated in February 2009. Plaintiff alleges,
in part, that he was pressured to refrain from documenting the overtime hours he worked. Other
details from the factual background of this case will be evaluated as necessary.
OPINION AND ORDER -1
Plaintiff's Complaint initially alleged fifteen claims. Plaintiff stipulated to the dismissal
of two claims against the individually named defendants, and plaintiff agreed to withdraw his
Tenth, Thirteenth, and Fourteenth Claims for Relief alleging Oregon Family Leave Act
discrimination, defamation, and intentional interference with economic relations. Defendants
seek summary judgment on the remaining ten claims.
Plaintiff advances a cross-motion for summary judgment on his Fourth Claim for Relief,
alleging that defendant Ply Gem made an unlawful deduction from a reimbursement check in
violation of Oregon Revised Statute (ORS) section 652.615. Plaintiff seeks payment of the
statutory penalty of $200.00 for this conduct. Also pending in this action is plaintiff's discovery
motion, which re-visits prior rulings made by this court.
For the following reasons, defendant's Motion for Summary Judgment [44] is GRANTED
IN PART AND DENIED IN PART. Plaintiff's Motion for Partial Summary Judgment [50] is
DENIED. Plaintiff's Motion to Compel [54] is GRANTED IN PART AND DENIED IN PART.
I.
STANDARDS
Summary judgment is appropriate "if the movant 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). The moving party has the burden of establishing the absence of a genuine dispute
regarding material facts. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All reasonable
doubt as to the existence of a genuine factual dispute should be resolved against the moving
party. MetroPCS, Inc. v. City & County of San Francisco, 400 F.3d 715, 720 (9th Cir. 2005)
(citation omitted).
OPINION AND ORDER -2
If the moving party shows the absence of a genuine issue of material fact, the nonmoving
party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at
324. A nonmoving party cannot defeat summary judgment by relying on the allegations in the
complaint, or with unsupported conjecture or conclusory statements. Hernandez v. Spacelabs
Medical, Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). Summary judgment should be entered
against "a party who fails to make a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear the burden of proof at trial."
Celotex, 477 U.S. at 322. However, the Ninth Circuit has reasoned that courts should require
very little evidence to survive summary judgment in an employment discrimination case because
the ultimate question is one that is most appropriately conducted by the fact-finder, upon a full
record. Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996).
II.
ANALYSIS
1.
Defendant’s Motion for Summary Judgment
A.
Failure to Pay Overtime pursuant to the Fair Labor Standards Act
Plaintiff's first claim is brought under the Fair Labor Standards Act (FLSA), at 29 U.S.C.
§ 216(b), and alleges that defendant Ply Gem failed to pay overtime wages. Plaintiff seeks
unpaid overtime in the amount of $16,315.20 plus prejudgment interest and liquidated damages.
Compl. at 8. Plaintiff admits that he did not report this overtime, but asserts that defendant was
aware that he was working additional unreported hours. Plaintiff claims that he complained to
his supervisors, Edward Chase (Chase) and Robert Gehne (Gehne), that he was being forced to
work off-the-clock, providing them notice that he was working unreported hours. Plaintiff
OPINION AND ORDER -3
further alleges that defendant was engaged in a "clandestine policy encouraging plaintiff to work
off-the-clock so as to not clock overtime." Pl.'s Resp. at 13.
Defendants seek summary judgment on this claim, arguing that the affirmative defense of
equitable estoppel is properly invoked because Ply Gem should not be held responsible for the
payment of hours that plaintiff failed to report. The parties agree that the four elements of
equitable estoppel are presented accurately in Forrester v. Roth's I.G.A. Foodliner, Inc., 475 F.
Supp. 630 (D. Or. 1979). Under Forrester, equitable estoppel applies where: (1) the plaintiff
knows the facts; (2) the plaintiff intends his conduct to be acted upon; (3) the defendant is
ignorant of the true facts; and (4) the defendant relies on the plaintiff’s conduct. Id. at 630.
The first two elements of the estoppel defense are present. First, plaintiff had knowledge
of the hours that he was allegedly working. Second, plaintiff submitted his time records for the
purpose of getting compensated with knowledge that the records lacked any claim for the alleged
overtime. Plaintiff intended that defendant act upon the information he submitted.
Whether the third element is present—regarding defendant's alleged ignorance of the
"true facts" of plaintiff's unreported hours—is less clear. Plaintiff sent an e-mail to his supervisor
stating, "this only company I cant do enough for and don't want time so scare everyone to not
show real hours." Le Roux Decl. Ex. 32. Plaintiff argues that this e-mail constitutes notice that
he was working off the clock. Chase testified that he understood the communication to mean
that Krouse "was working off the clock, basically, and doing something that he shouldn't have
been doing." Chase Dep. 75: 23-25. This testimony raises a genuine dispute of material fact as
to whether defendant had knowledge of the "true facts" regarding plaintiff's unreported overtime.
OPINION AND ORDER -4
Defendant fails to meet all of the elements of the estoppel defense at this time. Summary
judgment is denied on plaintiff's first claim.
B.
Failure to Pay back wages pursuant to ORS 652.140 and 652.150
Plaintiff's second claim is brought under ORS 652.140(1), alleging that defendant failed
to timely pay all wages earned and unpaid after plaintiff was terminated. Plaintiff seeks the
maximum civil penalty of $4,944.00. Compl. at 10.
Section 652.140 provides that when an employee is terminated, the employer must make
payment of all unpaid wages no later than the first business day following the termination. ORS
652.140. The statute provides that where an employer "willfully" violates this requirement,
penalty wages will continue until full payment is made or an action is brought, at a rate of eight
hours per day for a period not to exceed thirty days. ORS 652.150. The Oregon Court of
Appeals has held that an employer willfully fails to pay wages "when it knows or reasonably
should know all the facts that trigger the obligation under ORS 652.150." Wilson v. Smurfit
Newsprint Corp., 107 P.3d 61, 72 (Or. Ct. App. 2005).
Defendant argues that to prevail under the Wage Claim Act, an employee must "prove the
agreement, express or implied, which gives him the right to expect compensation." Leonard v.
Arrow-Tualatin, Inc., 708 P.2d 630, 632 (Or. Ct. App. 1985). Because plaintiff never reported
the hours he now claims, defendant asserts, he had no right to expect compensation.
The court agrees. While plaintiff's failure to report the hours he allegedly worked will not
necessarily prevent him from being compensated for those hours, it does preclude a statutory
penalty under ORS 652.150. Because plaintiff never reported his hours, defendant had no means
of knowing how many unreported hours plaintiff allegedly worked, and had no means of paying
OPINION AND ORDER -5
plaintiff for those hours at the time of his termination. Because defendant had no means of
calculating the amount of compensation allegedly owed, plaintiff had no right to expect
compensation at the time of his termination. Additionally, because it was plaintiff's failure to
report his true hours that prevented defendant from complying with the requirements of ORS
652.140, he cannot now seek the statutory penalty for this failure. Summary judgment is,
therefore, granted on plaintiff's Second Claim for Relief.
C.
Failure to Pay Portion of Reimbursement Check and Unlawful
Deduction
Plaintiff's third and fourth claims are for penalty wages under ORS 652.150 for failure to
pay $18.22 that plaintiff was owed as part of a reimbursement check. Plaintiff seeks a statutory
penalty of $200.00 under ORS 652.615 for defendant's allegedly unlawful deduction of $18.22
from plaintiff's reimbursement check. Defendant seeks summary judgment on both claims, and
plaintiff has cross-moved for summary judgment on his fourth claim alleging unlawful
deduction.
Following his termination, plaintiff submitted a claim for reimbursement for on-the-job
expenses. Defendant appears to have mistakenly processed the reimbursement as wages and
deducted a payment for benefits in the amount of $18.22. The mistake was not discovered until
the following year when defendant was contacted by plaintiff's counsel, at which time defendant
issued a check for the unpaid sum.
Defendant asserts that these claims must fail because the deduction at issue was taken
from an "expense reimbursement check" instead of a payment for wages. The parties do not
OPINION AND ORDER -6
dispute the relevant facts and agree that the only issue to be determined is whether a
reimbursement check can be considered "wages" under Oregon's wage claim statute.
Section 652.150 provides a penalty for "[failure] to pay any wages or compensation, for
any employee whose employment ceases, as provided in ORS 652.140." ORS 652.150
(emphasis added). In contrast, ORS 652.140 provides that "all wages earned and unpaid at 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 termination." ORS 652.140 (emphasis added).
The Oregon Supreme Court has acknowledged the discrepancy and defined wages as
"[a]ll earned compensation contracted to be paid by the employer for the employe's [sic] personal
service regardless of the nature of such compensation." State ex rel. Nilsen v. Ore. State Motor
Ass’n, 432 P.2d 512, 514 (Or. 1967). This definition, while broad, does not encompass
reimbursement checks. A reimbursement check is a payment for goods, not for personal services
and therefore falls outside of the Supreme Court's definition of wages.
Moreover, as defendant points out, the difficulty of applying ORS 652.150 to a
reimbursement check suggests that the legislature did not intend reimbursements to be included
in the definition of "wages" under Oregon's wage claim law. The statute provides that the
"wages or compensation of the employee shall continue . . . at the same hourly rate for eight
hours per day . . ." ORS 652.150. A reimbursement claim is for a fixed sum and bears no direct
relationship to amount of time worked. It, therefore, cannot accrue at an hourly or daily rate as
provided in the statute.
Plaintiff points out that the definition of "wages" has been held to include a fixed monthly
payment for use of a personal vehicle. See Olson v. Eclectic Institute, Inc., 119 P.3d 791, 793
OPINION AND ORDER -7
(Or. Ct. App. 2005). There is, however, a distinct difference between these two types of
payments. A fixed monthly payment, unlike a reimbursement check, can be prorated on a daily,
or conceivably an hourly basis for the purpose of complying with the statute's provisions.
Because reimbursement checks do not fall within the definition of wages, plaintiff cannot
recover penalty wages under ORS 652.150 or ORS 652.615. Summary judgment is granted in
favor of defendant on plaintiff's Third and Fourth Claims for Relief, and plaintiff's cross-motion
for summary judgment is denied.
D.
Wage Claim Retaliation pursuant to ORS 652.355 and 653.060
Plaintiff's fifth claim alleges that defendant discriminated and retaliated against plaintiff
after he brought wage claims in violation of ORS 653.060 and ORS 652.355. Compl. at 12.
Section 653.060(1)(a) prohibits discrimination against an employee because "the employee has
made a complaint that the employee has not been paid wages in accordance with ORS 653.010 to
653.261." ORS 653.060(1)(a). Section 652.355 prohibits an employer from discharging or
otherwise discriminating against an employee for making a "wage claim." The statutory
definition of a "wage claim" is "an employee's claim against an employer for compensation for
the employee's own personal services, and includes any wages, compensation, damages or civil
penalties provided by law to employees in connection with a claim for unpaid wages." ORS
652.320(7).
Defendant seeks summary judgment on this claim, arguing that defendant never made a
wage claim. The parties do not dispute that a claim for overtime compensation would constitute
a wage clam under the statute. The disputed issue is whether any of plaintiff's conduct was
sufficient to constitute a wage claim against defendant.
OPINION AND ORDER -8
Plaintiff again cites the e-mail he sent to his supervisors, as well as several additional
e-mails between plaintiff and his supervisors regarding his inability to complete his work in a
forty-hour workweek. Pl.'s Resp. at 20. While these e-mails may have provided notice to
defendant that plaintiff was working unreported hours, there is no evidence in the record that
plaintiff ever requested payment or compensation for these hours.
Because there is no evidence that plaintiff ever made a complaint about not being
compensated for his unreported overtime or requested compensation for these hours, plaintiff
cannot recover under ORS 653.060 or ORS 652.355. Defendant's motion for summary
judgment is granted on plaintiff's Fifth Claim for Relief.
E.
Injured Worker Discrimination
Plaintiff's sixth claim alleges that defendant Ply Gem unlawfully discriminated against
plaintiff for invoking his rights as an injured worker. Compl. at 13. Section 659A.040 prohibits
discrimination against an employee for invoking the workers' compensation procedures under
ORS Chapter 656. To establish a prima facie case of injured worker discrimination, plaintiff
must show that: (1) he invoked the workers' compensation system; (2) he was discriminated
against in the tenure, terms or conditions of his employment; and (3) the discrimination was
caused by the employee's invocation of workers' compensation. Williams v. Freightliner, LLC,
100 P.3d 1117, 1121 (Or. Ct. App. 2004).
The Oregon Court of Appeals has held that a claimant is not required to make a formal
claim to "invoke" the workers' compensation system. Herbert v. Altimeter, Inc., 218 P.3d 542,
548 (Or. Ct. App. 2009). Invocation of the workers' compensation system is sufficient if a
OPINION AND ORDER -9
worker reports an on-the-job injury, or an employer perceives that a worker has been injured and
will report an injury. Id.
Plaintiff says he invoked workers' compensation three times. Because plaintiff must only
show that he invoked the workers' compensation system once to survive summary judgment, this
court will consider only plaintiff's most compelling argument.
On January 26, 2009, plaintiff slipped on an icy road and fell. He reported the fall to
Chase and, at Chase's request, sent an e-mail regarding the incident. The e-mail stated: "slipped
and fell. . . . Chained up seamed [sic] fine about 4 hours later neck started getting tight hurt to
turn head and hurt under shoulder. Probley [sic] just stiff from shock off [sic] fall. . . ." Le Roux
Decl. Ex. 48. Chase testified that plaintiff's e-mail was the equivalent of filing the appropriate
paperwork for an incident report. Chase Dep. 15:25 - 16:1. Defendant now argues that this
failed to constitute an injury report because plaintiff's e-mail to Gehne minimized the harm from
the fall by stating that he was probably just stiff.
Plaintiff's e-mail to Chase after his fall on the ice states that his neck and shoulder hurt.
According to Chase, the message fell within the normal procedure for reporting an on-the-job
incident. This evidence is sufficient to create a genuine dispute of fact as to whether plaintiff's
e-mail should be considered an injury report. Under Herbert, an employee's report of an on-thejob injury, or an employer's perception that an employee will report an on-the-job injury is
sufficient to invoke the workers' compensation system. For this reason, defendant's argument
fails and summary judgment is denied on this claim.
OPINION AND ORDER -10
F.
Safety Complaint Retaliation
Plaintiff's seventh claim alleges that he suffered an adverse employment action after
reporting and opposing unsafe working conditions. Compl. at 13. Section 654.062 prohibits an
employer from discharging, demoting or in any way retaliating against an employee because an
employee has opposed an unlawful practice. ORS 654.062.
Plaintiff alleges that defendant retaliated against him for making two safety complaints.
In January 2009, plaintiff complained that defendant's new warehouse facility did not have a
bathroom facility (bathroom complaint). Plaintiff also complained that he was being asked to
talk on the phone while driving (driving complaint). Defendant argues that plaintiff's bathroom
complaint cannot constitute a safety complaint because the lack of a toilet was not in violation of
any statute. This argument comes up short.
The Oregon Court of Appeals has held that an employee need not prove an actual
violation, but must only "establish that he suffered discrimination at his employment because he
made a complaint 'related to' safe and healthful working conditions." Butler v. State, Dep't of
Corrections, 909 P.2d 163, 171 (Or. Ct. App. 1995). In Butler, the court rejected defendant's
argument that the subject of the complaint must, if proven, constitute an actual violation of a
statute. Id. The court stated that an issue may "relate to workplace safety and, therefore, fall
within the purview of the Oregon Safe Employment Act" even if it is not regulated either in a
statute or by a state agency. Id. The Court of Appeals has also held that there is a sufficient basis
for a claim under ORS 654.062 where an employee only complains to their employer, without
contacting a government agency. Herbert, 218 P.3d at 542.
OPINION AND ORDER -11
A complaint regarding the lack of bathroom facilities can be considered related to safe
and healthful working conditions. Under Butler, the complaint need not actually constitute a
statutory violation to be an actionable complaint. Defendant's argument is without merit.
Defendant further argues that plaintiff's driving complaint does not constitute a safety
complaint because plaintiff was never asked to drive while talking on a cell phone. Defendant
cites an e-mail from plaintiff's supervisor specifically telling plaintiff that he was not being asked
to use the phone while driving.
Defendant's evidence, while persuasive, is not sufficient to eliminate a genuine factual
dispute regarding whether plaintiff was told to talk on the phone or use the computer while
driving. The e-mail chain defendant cites clearly shows that plaintiff believed that he had been
asked to make phone calls while driving. If this was the case, the fact that he was subsequently
told not to do so should not preclude his recovery under this statute. To hold otherwise would
allow employers to escape liability by providing one set of instructions verbally, and a
contradictory set of instructions in writing.
Genuine factual disputes exist as to whether plaintiff's bathroom complaint and driving
complaint constitute safety complaints. Summary judgment is, therefore, denied on this claim.
G.
Whistleblower Retaliation
Plaintiff's eighth claim asserts that defendant Ply Gem retaliated against plaintiff after
plaintiff reported and opposed defendant's illegal conduct. Compl. at 13. Oregon law prohibits
employers from discriminating against employees that have "in good faith reported information
that the employee believes is evidence of a violation of a state or federal law, rule or regulation."
ORS 659A.199. This court has held that this statute protects employees "who make an internal
OPINION AND ORDER -12
or external report that is intended or likely to result in the enforcement or compliance with state
law." Merrill v. M.I.T.C.H. Charter School Tigard, Civil No. 10-219-HA, 2011 WL 1457461,
*8 (D. Or. Apr. 4, 2011).
Defendants seek summary judgment on this claim, again on the grounds that the conduct
plaintiff reported does not constitute an actual violation of statute. Again this argument fails.
An employee need not be objectively correct about the existence of a statutory violation to
sufficiently state a prima facie claim of retaliation. Yeager v. Providence Health Sys. Or., 96
P.3d 862, 866 (Or. Ct. App. 2004). Under the language of the statute, plaintiff must only have
believed that the subject of the complaint violated state law. Factual issues preclude summary
judgment on plaintiff's Eighth Claim for Relief.
H.
Medical Leave Interference under the Family Medical Leave Act
Plaintiff’s ninth claim for relief asserts that defendant’s conduct illegally interfered with
plaintiff’s right to take protected leave under the Family Medical Leave Act (FMLA). Compl. at
15.
The FMLA makes it unlawful for an employer to "interfere with, restrain, or deny the
exercise of or the attempt to exercise, any right" provided by the FMLA. 29 U.S.C. § 2615(a)(1).
This court has held that to prevail on an FMLA interference claim, a plaintiff must show that: (1)
he or she is an eligible employee; (2) the defendant is an employer under the FMLA, as defined
in 29 U.S.C. § 2611(4); (3) he or she was entitled to take leave, as defined in 29 U.S.C.
2612(a)(1); (4) the plaintiff gave notice of his or her intention to take leave, as defined in 29
U.S.C. § 2612(e)(1) and 29 C.F.R. §§ 825.302-.303; and (5) the defendant denied the plaintiff the
OPINION AND ORDER -13
benefits to which he or she was entitled under the FMLA.. See Price v. Multnomah County, 132
F. Supp. 2d 1290, 1296 (D. Or. 2001).
Plaintiff claims that defendant interfered with his right to take leave on two occasions.
First, plaintiff argues that Gehne's statement: "That's all we need is to have three guys out on
surgery," discouraged him from taking leave. Second, plaintiff argues that when he reported
having fallen on the ice, defendant terminated him for fear that he would take medical leave.
Defendant claims that neither of these instances constitute interference under the FMLA because
plaintiff never actually invoked the workers' compensation system until after he was fired.
Plaintiff cites two Ninth Circuit cases for his contention that Gehne's statement violated
the FMLA. In Xin Liu v. Amway Corp., the Ninth Circuit stated that the FMLA "protect[s] an
employee from any employer actions that discourage or interfere with the right to take FMLA
leave." 347 F.3d 1125, 1134 (9th Cir. 2003). In Bachelder v. American West Airlines, Inc., the
court analogized FMLA interference cases to employment discrimination cases, where "the
courts have long held that an employer [violates the] prohibition on interfering with employee
rights" by engaging in activity that tends to chill an employee's freedom to exercise his rights."
259 F.3d 1112, 1123 (9th Cir. 2001).
Plaintiff's reading of these cases is incorrect. The FMLA prohibits an employer from
discriminating against an employee that either (1) has filed a charge, or instituted or caused to be
instituted an action related to the FMLA; (2) has given or is about to give, any information in
connection with any inquiry or proceeding related to a right under the FMLA; or (3) has testified,
or is about to testify in an inquiry or proceeding relating to a right under the FMLA. 29 U.S.C. §
2615(b)(1)-(3). Neither Xin Liu, nor Bachelder appear to expand the class of employees to
OPINION AND ORDER -14
whom the FMLA's protections apply. In fact, both cases concern employees that had either taken
or requested leave.
Plaintiff never requested leave or took any action that would bring him under the
protections of the FMLA. Defendant's motion for summary judgment on this claim is granted.
I.
Wrongful Discharge
Finally, plaintiff brings a claim for wrongful discharge. As the Oregon Supreme Court
has stated, "[t]he elements of a wrongful discharge claim are simple: there must be a discharge,
and that discharge must be 'wrongful.'" Moustachetti v. State, 877 P.2d 66, 69 (Or. 1994). The
parties agree that the success of plaintiff's claim for wrongful discharge is dependent on plaintiff
succeeding on either his claim for injured worker retaliation, safety complaint retaliation, or
whistleblower retaliation.
Plaintiff's common law wrongful discharge claim would likely be precluded by plaintiff's
claims for injured worker retaliation, or safety complaint retaliation. As the Oregon Court of
Appeals has noted, "[i]f existing remedies adequately protect the employment related right . . .
the Oregon Supreme Court has usually chosen not to recognize an additional common law
remedy of wrongful discharge." Carlson v. Crater Lake Lumber Co., 796 P.2d 1216, 1219 (Or.
Ct. App. 1990) (citation omitted). The Court of Appeals has, however, made an exception for
claims that the legislature has clearly indicated are not meant to preclude a common law remedy.
Olsen v. Deschutes County, 127 P.3d 655, 661 (Or. Ct. App. 2006).
Section 659A.199, under which plaintiff brings his claim for whistleblower retaliation,
expressly provides that "[t]he remedies provided by this chapter are in addition to any common
law remedy or other remedy that may be available . . . ." ORS 659A.199(2). Because plaintiff's
OPINION AND ORDER -15
claim for whistleblower retaliation has survived defendant's motion for summary judgment,
summary judgment is also denied on plaintiff's claim for wrongful discharge.
2.
Plaintiff's Motion to Compel
A.
Plaintiff's first request
Plaintiff requests production of documents "reflecting customer contact information for
customers serviced by Plaintiff from September 1, 2007 through March 31, 2009." Plaintiff
claims that these documents are necessary to prove his claim for unpaid overtime under the
FLSA, and to respond to defendant's defense that it did not know that plaintiff was working offthe-clock. Plaintiff has already obtained telephone numbers for calls made to and from plaintiff's
cell phone issued by Ply Gem, which allegedly demonstrate that plaintiff made calls from Friday
through Sunday, but the records do not provide any identifying information for the customers
associated with the phone numbers.
Defendant objects to this motion on the grounds that production would be unduly
burdensome, that the documents are irrelevant, and for reasons of confidentiality. Defendant
claims that the request is unduly burdensome because Ply Gem does not already have customer
contact information broken down by window technician and would have to "create an new
document" which would "require that a member of Ply Gem's Information Technology
Department be taken off his/her normal activities in order to spend time to run the query." Def.'s
Resp. at 2. Defendant asks that if the motion to compel is granted, that plaintiff be ordered to
pay the reasonable costs associated with the search.
Defendant claims that the information is not relevant because if plaintiff can show that he
was making calls over the weekend it does not prove that plaintiff was working overtime, nor
OPINION AND ORDER -16
that defendant was aware of the alleged overtime. Finally, defendant asserts that the requested
information is personal private information, and "Ply Gem does not believe that it should be
required to turn over its customer's phone numbers." Def.'s Resp. to Pl.'s Mot. to Compel at 3.
Defendant's objections appear unfounded. The mere fact that a Ply Gem staff member
must "create a new document" and take time to "run [a] query" does not indicate a significant
burden. Defendant's objections regarding relevancy are no more convincing. Allegedly, plaintiff
can already show that he was making calls over the weekend. Defendant is correct that this does
not prove that he was working overtime, but providing the relevant customer contact information
to plaintiff could potentially allow plaintiff to produce evidence that could constitute such proof.
Defendant's objection that the telephone records do not prove defendant's awareness that plaintiff
was working overtime is irrelevant. The evidence sought could demonstrate a material element
of plaintiff's claim: that he was working unreported overtime. Finally, defendant's confidentiality
claim is unconvincing. Plaintiff already has the telephone records of defendant's customers, and
the parties have already filed a stipulated protective order for the requested information.
Plaintiff's motion to compel documents reflecting customer contact information for
customers serviced by plaintiff from September 1, 2007 through March 31, 2009 is granted.
Defendant's request for costs associated with this request is denied.
B.
Plaintiff's Second Request
Plaintiff requests production of performance reviews for plaintiff's supervisors Chase and
Gehne "because information is likely contained in those documents assessing their performance
with respect to efficiency and/or labor costs." Pl.'s Mot. to Compel.
OPINION AND ORDER -17
Defendant objects to the request, claiming that it is irrelevant. Defendant claims to have
examined the performance reviews for any discussion of overtime hours, and claims that no such
information is contained in the requested documents. Plaintiff claims that the documents will
"likely contain one or more broader categories such as 'efficiency' or 'labor costs,' that
encompasses controlling overtime pay to window technicians," and that defendant's evaluation of
the documents should not preclude discovery. This court agrees.
Plaintiff should not be required to accept defendant's assessment that the documents
contain no relevant information, and should be permitted to examine them himself. Plaintiff's
motion to compel production of the performance reviews of plaintiff's supervisors Chase and
Gehne is granted.
C.
Plaintiff's Third Request
Plaintiff requests production of defendant's balance sheets for the years 2006 through
2009, as well as "a copy of . . . any statistical analyses reflecting Ply Gem Pacific Windows
Corporation's market performance in the Oregon and Washington markets" for the years 2006
through 2009. Plaintiff claims that the requested information is relevant to defendant's claim that
overtime was reduced due to economic conditions, rather than the "clandestine policy" that
plaintiff alleges. Defendant objects to the request on the grounds that the requested documents
do not contain information regarding the number of service requests and would not be germane
to plaintiff's claim.
The court agrees that defendant's financial records are unnecessary to prove plaintiff's
claim for unpaid overtime wages. If plaintiff is correct that the reduction in reported overtime by
defendant's employees cannot be attributed solely to the shift from five eight-hour days to four
OPINION AND ORDER -18
ten-hour days, he should be able to prove this without defendant's financial records. However,
because defendant objects to discovery of its financial records based on relevance, defendant will
be precluded from introducing these records as a defense to any of plaintiff's claims.
III.
CONCLUSION
For the reasons discussed above, defendant's motion for summary judgment [44] is
GRANTED IN PART AND DENIED IN PART. Summary judgment is granted in favor of
defendant on plaintiff's Second, Third, Fourth, Fifth, and Ninth Claims for Relief. Summary
judgment is denied on plaintiff's First, Sixth, Seventh, Eighth, and Tenth Claims for Relief.
Plaintiff's Tenth, Thirteenth, and Fourteenth Claims for Relief are dismissed at plaintiff's request.
Plaintiff's Motion for Partial Summary Judgment on his Fourth Claim for Relief [50] is
DENIED.
Plaintiff's Motion to Compel [54] is GRANTED IN PART AND DENIED IN PART.
Defendant must produce its customer contact information for customers serviced by plaintiff
from September 1, 2007 through March 31, 2009, and personnel reviews for Chase and Gehne.
Plaintiff's Motion to Compel is denied as to defendant's financial statements. Defendant's request
for costs is also denied.
IT IS SO ORDERED.
DATED this 19th day of July, 2011.
/s/ Ancer L. Haggerty
Ancer L. Haggerty
United States District Judge
OPINION AND ORDER -19
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