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Bauer v. Old Dominion Freight Line, Inc.

United States District Court, D. Oregon

January 28, 2019

CODY K. BAUER, Plaintiff,

          Stephen L. Brischetto and Dezi Rae Robb, and Matthew C. Ellis, Of Attorneys for Plaintiff.

          Elizabeth A. Falcone, Jennifer A. Nelson, and Kelly S. Riggs, Of Attorneys for Defendant.


          Michael H. Simon, District Judge

         Plaintiff Cody Bauer (“Bauer”) brings this lawsuit against his former employer, Defendant Old Dominion Freight Line, Inc. (“Old Dominion”). Among other things, Bauer alleges that Old Dominion wrongfully discharged him from employment for refusing to operate a vehicle when doing so would violate a regulation, standard, or order of the United States related to commercial vehicle safety, health, or security or for refusing to operate a vehicle when the employee reasonably apprehended serious injury to the employee or the public because of the vehicle's hazardous safety or security condition, in violation of 49 U.S.C. § 31105(a)(1)(B). Bauer also alleges that Old Dominion retaliated against Bauer in violation of Oregon law for whistleblowing, making a wage claim, and opposing unlawful employment practices. Old Dominion moves for summary judgment against all of Bauer's claims, and Bauer cross-moves for partial summary judgment on his claims under federal law. Old Dominion also asserts several evidentiary objections to certain statements and other matters offered by Bauer.

         On December 13, 2018, United States Magistrate Judge Stacie F. Beckerman issued a thoughtful and well-explained Findings and Recommendation (“F&R”). Magistrate Judge Beckerman recommended that Old Dominion's Motion for Summary Judgment be granted in part and denied in part and that Bauer's motion for partial summary judgment be denied. For the reasons that follow, the court ADOPTS Magistrate Judge Beckerman's F&R in all respects except as it pertains to Bauer's claim under 49 U.S.C. § 31105(a)(1)(B)(ii) and his claims for punitive damages under state and federal law.


         Under the Federal Magistrates Act (“Act”), the Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). If a party files objections to a magistrate judge's findings and recommendations, “the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id.; Fed.R.Civ.P. 72(b)(3).

         For those portions of a magistrate judge's findings and recommendations to which neither party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S. 140, 152 (1985) (“There is no indication that Congress, in enacting [the Act], intended to require a district judge to review a magistrate's report to which no objections are filed.”); United States. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the court must review de novo magistrate judge's findings and recommendations if objection is made, “but not otherwise”). Although in the absence of objections no review is required, the Act “does not preclude further review by the district judge[] sua sponte . . . under a de novo or any other standard.” Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed.R.Civ.P. 72(b) recommend that “[w]hen no timely objection is filed, ” the Court review the magistrate judge's recommendations for “clear error on the face of the record.”

         Bauer and Old Dominion both timely filed objections, to which each side responded. Old Dominion objects to Magistrate Judge Beckerman's recommendation that the Court overrule Old Dominion's objections to certain paragraphs of the Declarations of Cody Bauer and Matthew C. Ellis and deny Old Dominion summary judgment against Bauer's retaliation claims under Or. Rev. Stat. §§ 659A.199, 653.060, and 652.355.[1] Bauer objects to Magistrate Judge Beckerman's recommendation that the Court grant summary judgment against Bauer's retaliation claim under Or. Rev. Stat. § 659A.030(1)(f), Bauer's request for punitive damages, Bauer's federal claim for violation of hours of service regulations, and Bauer's federal claim for violation of 49 U.S.C. § 31105(a)(1)(B)(ii) alleging that he refused to drive based on a reasonable apprehension of serious injury due to the vehicle's hazardous safety condition.


         In August 2014, Old Dominion hired Bauer as a pickup and delivery (“P&D”) driver. As a P&D driver, Bauer's job was to pick up and deliver goods between customers and Old Dominion's Portland Service Center. Old Dominion gave Bauer a handbook that contained Old Dominion's policies regarding his employment, including Old Dominion's hours of service policies. Old Dominion policy instructed drivers not to drive if they have been on duty for more than 14 hours. Bauer would receive an assignment from one of Old Dominion's dispatchers to pick up and deliver goods to and from customers. Bauer primarily reported to dispatchers Rodney Classen and Michael Christie, who in turn reported to P&D Operations Manager Steve Sutton, Assistant Service Center Manager Kelly Stillwell, and Service Center manager Jeff Lorenzini. Malena Winborne was the Service Center's Human Resources Manager. Lorenzini, his supervisor Scott Goodrich, and the human resources department had the ability to decide whether to terminate a P&D driver's employment.

         In the fall of 2014, shortly after Bauer started working for Old Dominion, he began to notice that his paycheck reflected that he had been docked 30 minutes of pay for his unpaid lunch break, even on days when he had been too busy to take a lunch break. On some days, Bauer was not able to take a meal break and worked for twelve hours straight. Bauer first began to raise the issue of his meal breaks with Sutton, Winborne, and his dispatchers. After Bauer asked Sutton about Old Dominion's meal break policy, Sutton told Bauer, “You take lunches when you can.” Bauer estimates that he made approximately ten complaints about his meal breaks between November 2014 and February 2016. When his concerns went unaddressed, he eventually brought his complaints up the chain of command, to Lorenzini, Goodrich, Tom Lilywhite (Human Resources Manager for the Northwest Region), and Chris Brooks (Vice President of Human Resources).

         On January 22, 2016, Bauer injured his back at work. After Bauer returned to work, he asked Sutton for a workers' compensation form, but Sutton told him it was not necessary and refused to give him the form. Bauer contends that Sutton then assigned Bauer to a more difficult and physically demanding route, which he was not able to complete in the allotted time. As a result of not being able to complete his route in time, Bauer received a corrective interview.

         Bauer also had complaints about Old Dominion's “on-call” policy. Drivers who were “on call” were required to call in periodically throughout the day and see if they were needed to perform work, but weren't paid for the time they spent waiting to be called to work. Bauer also believed that he was being placed “on-call” more than other employees. On February 4, 2016, Bauer spoke with Lorenzini about Sutton putting him “on-call” all the time and not letting him fill out a workers' compensation form. Bauer “warned” Lorenzini that if these issues were not resolved, he would file a complaint with the Oregon Bureau of Labor and Industries (“BOLI”). After this meeting, Lorenzini announced changes to Old Dominion's “on-call” policy. From that day forward, drivers would be given a specific time to call in, and if a driver was not called in by this time, they would be free for the rest of the day.

         Bauer received two more corrective interviews in February 2016. Bauer met with Stillwell shortly afterwards and explained that his routes were so busy that it was difficult for him to take a lunch break or even complete the assigned task. It was after this meeting that Bauer contacted BOLI and complained about Old Dominion's meal break policy.

         In mid-March, Bauer met with Lorenzini and Winbourne to complain about Old Dominion's meal-break policy, which Bauer contended resulted in him not getting his legally-mandated lunch breaks. Winbourne and Lorenzini told Bauer that Old Dominion had changed its meal-break policy and Old Dominion was no longer automatically deducting 30 minutes of work from employees who had been too busy to take their lunch breaks that day. On March 23, 2016, Old Dominion began sending lunch break reminders to P&D drivers. The next day, Sutton met with P&D drivers and informed them that they were required to take lunch breaks between the third and sixth hour of work and that they should call the dispatch center if they were unable to do so. Bauer started taking regular lunch breaks after March 23, 2016, and was not placed “on call” again until May 10, 2016.

         On May 10, 2016, Bauer was scheduled to be “on call” but did not receive a specified time to call in that day. He decided to work part of the morning at his family's restaurant until he heard from Old Dominion. He then received a call from Sutton, who told him to report to work. Bauer responded that he would need first to go home and change his clothes, but Sutton told him not to bother coming in. On May 19, 2016, Bauer received a final written warning that claimed that Bauer had told Sutton that he would be “unable to work.” Lillywhite and Goodrich knew that Bauer had received a final written warning. On May 23, 2016, Bauer filed a formal complaint with BOLI, alleging that he had been retaliated against for using the worker's compensation system and for whistleblowing about meal breaks and “on-call” policies.

         On December 14, 2016, weather forecasts predicted that a snowstorm would hit the Portland metropolitan area. At 3:00 p.m. that afternoon, Old Dominion dispatcher Michael Christie called Bauer and asked him to pick up goods from a customer near Salem, Oregon, and deliver them to the Portland Service Center. Bauer asked Christie if he was aware of the forecasted snowstorm and told Christie that he believed making the trip would create a safety risk. Christie assured Bauer that “everything would be fine.” Bauer accepted the dispatch and embarked according to Christie's instructions.

         Bauer drove to the customer's site near Salem and picked up the goods without incident. On his return from the Salem area to Portland, however, Bauer encountered difficult weather and road conditions. By the time Bauer reached Tualatin, conditions had severely worsened. The sun had set, visibility was poor, and the roads were icy and clogged with traffic. At about 9:00 p.m., Bauer had been on duty for almost 14 hours. He pulled his truck over and called Old Dominion. Bauer received no answer. He searched for nearby hotels but found no vacancies. Finally, he arranged to stay with a friend nearby and wait overnight until weather and road conditions had improved. Driving to his friend's house required Bauer to depart from his pre-approved route.

         Shortly after 9:00 p.m., Bauer spoke with Christie and told him that Bauer was at a friend's house. Christie asked Bauer to return to the Portland Service Center and stated that Bauer was required to return, even if it meant driving more than 14 hours. Bauer disagreed with Christie's order to return to the Portland Service Center. Christie called Stillwell and then called Bauer back. Christie told Bauer to “go ahead and lay ...

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