United States District Court, D. Oregon
EDWARD C. HUGLER, Acting Secretary of Labor, UNITED STATES DEPARTMENT OF LABOR, Plaintiff,
WE STSIDE DRYWALL, INC., a corporation; and MOHSEN SALEM, an individual, Defendant.
M. HEROLD Regional Solicitor CHARLES C. SONG Associate
Regional Solicitor DONNA F. BOND United States Department of
Labor Office of the Solicitor Attorneys for Plaintiff
D. SCIUCHETTI LAURA CALDERA TAYLOR Bullivant Houser Bailey,
Attorneys for Defendants
OPINION AND ORDER
J. BROWN, United States District Judge
matter comes before the Court on the Motion (#42) for Summary
Judgment filed by Defendants Westside Drywall, Inc., and
Mohsen Salem on December 1, 2016.
reasons that follow, the Court GRANTS in part and DENIES in
part Defendants' Motion.
following facts are taken from the Joint Statement of Agreed
Upon Facts (#36}, the Complaint (#1) filed by the Department
of Labor (DOL), and the parties' materials submitted in
support of this Motion and are undisputed unless otherwise
is an Oregon corporation that performs drywall and insulation
work and has its principal place of business in Hubbard,
Oregon. Salem is the President and Chief Executive Officer of
Westside. Westside employs piece-rate, hourly, and salaried
January 2012 DOL investigated Westside for violations of the
Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201,
et seq. The investigation focused on Westside's
failure to maintain accurate employment records and to pay
overtime compensation to piece-rate employees. DOL conducted
surveillance of Westside's headquarters, subpoenaed
Westside's employment records, and took statements from
employees. The investigation continued through September
December 28, 2016, DOL filed a Complaint in this Court
against Defendants. DOL alleges Defendants willfully and
repeatedly violated and continue to violate §§ 7
and 15(a)(2) of the FLSA, 29 U.S.C. §§ 207
and 215(a)(2), by failing to pay employees overtime
compensation when employees work more than forty hours a
week. DOL also alleges Defendants willfully and repeatedly
violated and continue to violate §§ 11 and 15(a)
(5) of the FLSA, 29 U.S.C. §§ 211 and 215(a)(5), by
failing to maintain, to keep, to make available, and to
preserve records of employees' hours and wages. DOL seeks
back wages on behalf of 100 identified employees and
liquidated damages equal to the amount of back wages owed.
Although DOL does not state the exact amount of damages
sought, DOL has indicated the amount in controversy is
"over $800, 000." Joint Sum. of Disputed Disc.
Issues (#41) at 34.
December 1, 2016, Defendants filed a Motion for Summary
Judgment as to all of DOL's claims against them.
judgment is appropriate when '"there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Washington Mut. Ins.
v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011).
See also Fed. R. Civ. P. 56(a). The moving party
must show the absence of a dispute as to a material fact.
Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146
(9th Cir. 2005). In response to a properly supported motion
for summary judgment, the nonmoving party must go beyond the
pleadings and show there is a genuine dispute as to a
material fact for trial. Id. "This burden is
not a light one. . . . The non-moving party must do more than
show there is some 'metaphysical doubt' as to the
material facts at issue." In re Oracle Corp. Sec.
Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citation
dispute as to a material fact is genuine "if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Villiarimo v.
Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir.
2002} (quoting Anderson v. Liberty Lobby, Inc., 411
U.S. 242, 248 (1986)). The court must draw all reasonable
inferences in favor of the nonmoving party. Sluimer v.
Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010).
"Summary judgment cannot be granted where contrary
inferences may be drawn from the evidence as to material
issues." Easter v. Am. W. Fin., 381 F.3d 948,
957 (9th Cir. 2004)(citation omitted). A "mere
disagreement or bald assertion" that a genuine dispute
as to a material fact exists "will not preclude the
grant of summary judgment." Deering v. Lassen Cmty.
Coll. Dist., No. 2-.07-CV-1521-JAM-DAD, 2011 WL 202797,
at *2 (E.D. Cal., Jan. 20, 2011) (citing Harper v.
Wallingford, 877 F.2d 728, 7 31 (9th Cir. 1989)). When
the nonmoving party's claims are factually implausible,
that party must "come forward with more persuasive
evidence than otherwise would be necessary." LVRC
Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir.
substantive law governing a claim or a defense determines
whether a fact is material. Miller v. Glenn Miller Prod.,
Inc., 454 F.3d 975, 987 (9th Cir. 2006). If the
resolution of a factual dispute would not affect the outcome
of the claim, the court may grant summary judgment.
contend they are entitled to judgment as a matter of law
inasmuch as DOL cannot meet its burden to show that
Defendants violated the FLSA by failing to pay their
employees overtime wages and to maintain employment records.
In the alternative, Defendants contend (1) DOL is limited to
recovery of back wages for either a two-year or three-year
statute-of-limitations period; (2) the back-wage computation
for each employee should be reduced by the 10 hours DOL
attributed to unreported travel on the ground that there was
not any unreported, compensable travel time; and (3}
Defendant Salem is not individually liable under the FLSA as
a matter of law.
A genuine dispute of material fact exists as to
whether Defendants violated the FLSA.
argue DOL cannot meet its burden to prove that Defendants
violated the FLSA. In any event, Defendants contend there is
not a genuine dispute of material fact, and, therefore, they
are entitled to judgment as a matter of law as to this issue.
7 of the FLSA, 29 U.S.C. § 207(a), sets out the
obligation of an employer regarding the maximum hours an
employee is allowed to work and the compensation required for
(1) Except as otherwise provided in this section, no employer
shall employ any of his employees who in any workweek is
engaged in commerce or in the production of goods for
commerce, or is employed in an enterprise engaged in commerce
or in the production of goods for commerce, for a workweek
longer than forty hours unless such employee receives
compensation for his employment in excess of the hours above
specified at a rate not less than one and one-half times the
regular rate at which he is employed.
Section 11 of the FLSA, 29 U.S.C.§ 211(c), sets out the
duty of an employer to maintain employee work records:
Every employer subject to any provision of this chapter or of
any order issued under this chapter shall make, keep, and
preserve such records of the persons employed by him and of
the wages, hours, and other conditions and practices of
employment maintained by him, and shall preserve such records
for such periods of time, and shall make such reports
therefrom to the Administrator as he shall prescribe by
regulation or order as necessary or appropriate for the
enforcement of the provisions of this chapter or the
regulations or orders thereunder.
DOL's failure to ...