Ogden et al v. Robert Warren Trucking, LLC et al
Filing
46
OPINION AND ORDER: Defendants' Motion for Summary Judgment 26 is DENIED. Signed on 7/25/12 by Magistrate Judge Dennis J. Hubel. (kb)
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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