United States District Court, D. Oregon
JOSEPH BRINKMAN, both in his individual capacity and, in addition, as a collective action on behalf of others similarly situated, Plaintiff,
ABM ONSITE SERVICES - WEST, INC., Defendant.
Michael H. Simon United States District Judge
Joseph Brinkman brought this suit against his former
employer, Defendant ABM Onsite Services - West, Inc.,
alleging that Defendant failed to pay Plaintiff the
applicable minimum wage when those wages were due. Plaintiff
filed No. 3:17-cv-00275-SI (“Case ‘275”) in
federal court alleging a FLSA minimum wage claim and a FLSA
overtime claim pursuant to 29 U.S.C. §§ 206-07. ECF
1. Plaintiff also filed suit in state court, which Defendant
removed to federal court on March 27, 2017 as No.
3:17-cv-00478-SI (“Case ‘478”). The Court
has consolidated these two cases.
now moves for partial summary judgment on two legal questions
related to a state-law claim presented in Case ‘478:
(1) whether an employee may recover $200 in statutory damages
under Or. Rev. Stat. (hereinafter “ORS”) §
652.615 only once or for every paycheck that had the same
type of wrongful violation; and (2) whether the $200 in
statutory damages constitutes a penalty (in which case there
is a 3-year statute of limitations) or liquidated or other
non-penal statutory damages (in which case there is a 6-year
statute of limitations). Plaintiff has cross-moved for
summary judgment on both issues. For the reasons that follow,
the Court finds for Defendant on the first issue and for
Plaintiff on the second.
is entitled to summary judgment 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 of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). The court must view the evidence in the light most
favorable to the non-movant and draw all reasonable
inferences in the non-movant's favor. Clicks
Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257
(9th Cir. 2001). Although “[c]redibility
determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the facts are jury functions,
not those of a judge . . . ruling on a motion for summary
judgment, ” the “mere existence of a scintilla of
evidence in support of the plaintiff's position [is]
insufficient . . . .” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252, 255 (1986). “Where the
record taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no genuine
issue for trial.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation
and quotation marks omitted).
parties file cross-motions for summary judgment, the court
“evaluate[s] each motion separately, giving the
non-moving party in each instance the benefit of all
reasonable inferences.” A.C.L.U. of Nev. v. City of
Las Vegas, 466 F.3d 784, 790-91 (9th Cir. 2006)
(quotation marks and citation omitted); see also Pintos
v. Pac. Creditors Ass'n, 605 F.3d 665, 674 (9th Cir.
2010) (“Cross-motions for summary judgment are
evaluated separately under [the] same standard.”). In
evaluating the motions, “the court must consider each
party's evidence, regardless under which motion the
evidence is offered.” Las Vegas Sands, LLC v.
Nehme, 632 F.3d 526, 532 (9th Cir. 2011). “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.”
In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387
(9th Cir. 2010). Thereafter, the non-moving party bears the
burden of designating “specific facts demonstrating the
existence of genuine issues for trial.” Id.
“This burden is not a light one.” Id.
The Supreme Court has directed that in such a situation, the
non-moving party must do more than raise a
“metaphysical doubt” as to the material facts at
issue. Matsushita, 475 U.S. at 586.
brought this case on behalf of himself and in a collective
action on behalf of “all current and former ABM
employees who received a paycheck for work performed in
Oregon on or after February 16, 2011.” Among other
claims, Plaintiff alleges that Defendant wrongfully deducted
certain Oregon Workers' Benefit Fund assessments from his
paychecks and from the paychecks of putative class members.
This is Plaintiff's fourth claim in Case ‘478 and
is titled “Oregon Wrongful Deductions Claim.”
ORS § 652.615 Damages
asserts that Defendant violated ORS § 652.610(3), and
therefore that Plaintiff and others similarly situated
“are entitled to (for each violation) the greater of
$200 or actual damages in an amount to be proven at trial,
pursuant to ORS 652.615[.]” ECF 1-1 in Case ‘478.
Plaintiff defines “each violation” as each
paycheck containing a wrongful deduction. Defendant moves for
partial summary judgment on this claim, arguing that
Plaintiff is only entitled to actual damages or a
single $200 penalty under ORS § 652.615 if
Plaintiff proves his claims for alleged multiple wrongful
deductions under ORS § 652.610 (3). ECF 41 in Case
‘275. Plaintiff has cross-moved for summary judgment on
the same issue.
core dispute for the purpose of this cross motion for summary
judgment is the proper interpretation of ORS § 652.615,
“Remedy for violation of itemized statement
requirement.” That statute provides:
There is hereby created a private cause of action for a
violation of ORS 652.610(3) for actual damages or $200,
whichever is greater. In any such action the court may award
to the prevailing party, in addition to costs and
disbursements, reasonable attorney fees.
Id. The referenced statute, ORS § 652.610(3),
An employer may not withhold, deduct or divert any portion of
an employee's wages unless:
(a) The employer is required to do so by law;
(b) The deductions are voluntarily authorized in writing by
the employee, are for the employee's benefit and are
recorded in the employer's books;
(c) The employee has voluntarily signed an authorization for
a deduction for any other item, provided that the ultimate
recipient of the money withheld is not the employer and that