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Robillard v. Opal Labs, Inc.

United States District Court, D. Oregon, Portland Division

December 17, 2019

OPAL LABS, INC., Defendant. OPAL LABS, INC. Counter-Claimant,
GREG ROBILLARD, Counter-Defendant.



         Plaintiff Greg Robillard brings this action against Defendant Opal Labs, Inc. ("Opal") for alleged violations of the Fair Labor Standards Act ("FLSA") and Oregon law stemming from Opal's failure to pay overtime wages, failure to pay final wages at termination, and breach of contract for failure to pay promised vacation time upon separation of employment. Plaintiff also brings claims for age discrimination under state law, defamation per se, and invasion of privacy. Opal asserts counterclaims for breach of confidentiality, an Oregon Uniform Trade Secrets Act violation, and a federal Defend Trade Secrets Act violation. Plaintiff asserts three retaliation counterclaims premised on Opal's trade secret and confidentiality counterclaims.

         Presently before the court are Defendant's Motion for Summary Judgment (ECF No. 107) on all of Plaintiff s claims, and Plaintiffs Motion for Partial Summary Judgment (ECF No. 115) on Opal's counterclaims, his retaliation claims, and Opal's affirmative defense of failure to mitigate damages. For the following reasons, Opal's motion is granted in part and denied in part, and Plaintiffs motion is denied.

         Factual Background

         Opal is an Oregon start-up software company. (Decl. Stephen Giannini Supp. Def.'s Mot. Summ. J. ("Giannini Decl.") ¶ 3, ECF No. 110.)[1] Opal's software enables companies to create marketing content and distribute that content across multiple channels, including various social media platforms. (Id. ¶ 4.) Opal's software provides a platform for companies to collaborate, refine, and approve advertising campaigns from inception to delivery. (Decl. David Gorman Supp. Def.'s Mot. Summ. J. ("Gorman Decl.") ¶ 7, ECF No. 112.) Through Opal, the companies' final advertising campaign is distributed to various social media sites (Facebook, Twitter, etc.) using outside, third-party distribution platforms such as Hootsuite, Sprinklr, Spredfast, Shoutlet, and others, (Id.¶ 7.) To work effectively, Opal's software needs to work seamlessly with its customers' computer systems, and with the software of those third-party platforms. (Decl. Damien Munsinger ("Munsinger Decl.") Ex. 4, attaching Dep. David Gorman taken May 3, 2017 ("Gorman Dep.") at 100:14-20, ECF No. 111-4.) The software solutions that enable seamless functionality is called an "integration," and it is custom engineered by writing, testing, and committing code. (Gorman Decl. ¶ 7, ECF No. 112.)

         David Gorman, Opal Vice President of Product, and Daniel Barrett, Senior Director of Engineering, identified the need for an integration software specialist, and submitted the hiring request to Opal Chief Executive Officer Stephen Giannini, who makes all Opal hiring and firing decisions. (Gorman Decl. ¶¶ 4-5, ECF No. 112.) Giannini knew Plaintiffs wife socially, and Giannini looked up Plaintiffs profile on Linked In, and noted that Plaintiff graduated from college in 1995, the same year that Giannini graduated from college. (Giannini Decl. ¶¶ 8-9, ECF No. 110.) Thus, Giannini understood Plaintiff to be roughly the same age as Giannini, and assumed Plaintiff was over the age of 40 when he began working at Opal. (Id.)

         Opal hired Plaintiff as its Lead Enterprise Engineer. (Second Am. Compl. ("SAC") ¶ 6, ECF No. 94; Giannini Decl. Ex. 1, ECF No. 110.) Before hiring, Plaintiff met with Barrett, Gorman, Customer Success Manager Oliver Stewart, and Opal co-founder George Huff, and discussed integrations. (Decl. Courtney Angeli ("Angeli Decl.") Ex. D, attaching Dep. Greg Robillard taken Apr. 17, 2017 ("Pl. Dep.") at 88:6-17, ECF No. 117-4.) Plaintiff directed Gorman to his GitHub account to review programming code that he had written previously. (Pl. Dep. 87:21-88:1, ECF No. 117-4.) And, Plaintiff explained to Gorman that he had successfully implemented integrations at Chirpify, a prior employer. (Gorman Decl. ¶ 11, ECF No. 112.) Opal did not post the Lead Enterprise Engineer job, and no formal job description was ever created.

         Plaintiffs employment began November 10, 2014. Plaintiffs starting salary was $90, 000 annually, paid monthly, and included health, dental, and vision benefits, and three weeks of paid time off ("PTO"). (Giannini Decl. Ex. 1, ECF No. 110.) Plaintiffs immediate supervisor was Gorman. (Id.) Barrett also supervised Plaintiff. (Decl. Daniel Barrett Supp. Def s Mot. Summ. J. ("Barrett Decl.") ¶ 3, ECF No. 108.) Plaintiff signed an Employment Agreement on November 10, 2014. The Employment Agreement included a section entitled "Confidential Information." (Giannini Decl. Ex. 1 at 2-4, ECF No. 110-1). Plaintiff agreed that he would not improperly disclose any of Opal's Confidential Information. (Id.)

         Opal hired Plaintiff specifically to perform software engineering work necessary to create integrations, which included designing, scoping, coding, and deploying integrations. (Gorman Decl. ¶ 9, ECF No. 112.) Plaintiff acknowledges that he "was hired to facilitate and manage integrations." (Munsinger Decl. Ex. 1, attaching Pl's Supplemental Dep. taken Sept. 5, 2018 ("Pl. Supp. Dep.") at 75:8-14, ECF No. 126-1.)

         Plaintiffs job duties at Opal varied and included sales, customer service, coding and programming, providing routine technical support, technical integrations (including integrating Opal's software with customers' existing marketing software), troubleshooting, and making Opal's software available as a new product offering. (SAC ¶ 6, ECF No. 94.) In engineering integrations, Plaintiff needed to use an application programming interface ("API"). An API is a set of subroutine definitions, protocols, and tools for building application software, which helps define methods of communication between various software components and platforms. (Gorman Decl. ¶ 10, ECF No. 112.)

         While working for Opal, Plaintiff worked on the Spredfast integration. In doing that work, Plaintiff described that Spred fast had upgraded their API, and that he was required to upgrade Opal's API for it to have continued functionality. (Pl. Dep. 61:24-63:6, ECF No. 117-4.) Plaintiff testified that he wrote the code to rebuild the wrapper for Opal's API, which allows one server to communicate with another server. (Id.) Plaintiff also re-wrote the Sprinklr API wrapper for Opal's side of things, and he worked with the Sprinklr team to ensure functionality. (Pl Dep. 63:1-64:9, ECF No. 117-4.) In March to May 2015, Plaintiff worked on the Shoutlet integration, which involved a "very general Ruby wrapper to communicate with the Shoutlet API." (Pl's Dep. 167:16-22, ECF No. 117-4.)

         Plaintiff was forty-one at the time he began his employment with Opal. In December 2014, Plaintiff invited coworkers to his forty-second birthday party, and noted that afterward several employees, including Barrett, age thirty-one, and Gorman, age thirty, began treating him differently. (Pl Dep. 119:23-120:4, ECF No. 117-4.)

         Plaintiff contends that Barrett said "thanks dad" when referring to Plaintiff, and that others at Opal referred to him as "old Greg," and "Dad." (Pl Dep. 132:3-12, 133:8-134:3, ECF No. 117-4.) Plaintiff understood the terms to be perjorative, dismissive, and used to undercut him. (Id. at 113:22-25.) Gorman referred to a job applicant as "some old guy in his forties," and criticized others for referring to their computer displays as "monitors" as opposed to "screens." (Id. at 132:9-12, 132:19-133:4, 153:3-18, 265:25-266:9.) Plaintiff also recalled other Opal employees posting a meme depicting Steve Buscemi dressed as a high schooler on Opal's internal messaging system called "Slack." (Id. at 137:23-139:5; Angeli Decl. Ex. E, attaching Dep. Mary Artz ("Artz Dep.") 28:24-29:4, Ex. 165, ECF No. 117-5.) Also, executive team members described Facebook as an activity for old people. (Pl Dep. 132:3-17, ECF No. 117-4.)

         Plaintiff contends that the job he was hired to do was ill-defined, and that he felt the customer success team's ("CX team") demands left him no time to perform programming. (Decl. Greg Robillard Supp. Resp. Summ. J. ("Pl. Decl.") ¶ 15, ECF No. 116.) Plaintiff initiated a meeting with Gorman to discuss his job scope, assistance with communication, and managing expectations. (Id.) Plaintiff asserts that his conversation with Gorman did not cover his engineering abilities or skills. (Id.) Plaintiff insists that he "didn't really get any negative feedback which is why my termination was so surprising." (Pl Dep. 158:3-7, ECF No. 117-4; Pl Decl. ¶ 15, ECF No. 116.)

         In January 2015, Plaintiff was asked to build and manage a Sprinklr integration for Nike, an important Opal client. (Munsinger Decl. Ex. 5, attaching Dep. M. Stephen Giannini taken May 18, 2017 ("Giannini Dep.") 90:10-19, ECF No. 111-5.) Plaintiff represented to Stewart, the Nike account manager, that the integration was ready to demonstrate. (Id. at 94:19-24.) However, the integration failed during the demonstration with the client. (Munsinger Decl. Ex. 6, attaching Dep. Daniel Barrett taken June 13, 2017 ("Barrett Dep.") 197:19-198:22, ECF No. 111-6.)

         Matt Oxley, Opal's Vice President of Customer Success, informed Barrett of other instances where Plaintiff was failing to provide engineering status updates to CX account managers. (Id. at 218:4-11.) Barrett described that Oxley and Gorman designated a project manager, Clara Luneke, to compile status updates for new client integrations for engineering work assigned to Plaintiff to ensure that the CX account managers were receiving timely information about Plaintiffs progress on the integrations. (Id. at 217:17-219:6; Pl Decl. ¶16, ECF No. 116.)

         Barrett contends that he had some conversations with Plaintiff about his performance shortcomings. Barrett stated he had made such efforts "internally, in the sense of I started changing my approach in the way that I communicated tasks and expectations, but I didn't document that in any kind of formal written process." (Angeli Decl. Ex. C, attaching Barrett Dep. at 184:15-22, ECF No. 117-3.) Barrett detailed a meeting over coffee with Plaintiff in January 2015 in which the two "discuss[ed] performance issues and [ ] concerns." (Barret Dep. at 206:17-210:1, ECF No. 111-6.) Barrett also recalled a "side conversation" in which Barrett told Plaintiff he would stop "hand-holding him" with regard to his duties, "which Barrett characterized as "shield[ing Plaintiff] from his own incompetence by trying to actually resolve issues myself and that I was no longer going to do that." (Barrett Dep. 226:5-228:4, ECF No. 117-3.) Barrett explained he did not recall "sharing specifics about how [he] was communicating [criticisms] of [Plaintiff] to Mr. Gorman" but also noted that he told Gorman about the January 2015 performance meeting with Plaintiff and generally recalled reassuring Gorman that he was addressing Robillard's performance concerns. (Id. at 213:10-12; 235:19-236:2; 225:1-6, ECF No. 117-3.) On February 18, 2015, Barrett sent Gorman a message via Slack stating that "I want Greg gone." (Gorman Dep. 242:8-25, Ex. 36, ECF No. 117-2 at 112.) When Gorman asked what was triggered Barrett's message, Barrett informed Gorman it was "[t]he utter lack of urgency combined with the complete 'well what do you want me to do about it' attitude, plus the total lack of technical competency and thoroughness[.]" (Id.)

         In March 2015, Plaintiff was again tasked with creating an integration demonstration environment for a working group within Apple. (Munsinger Decl. Ex. 7, attaching Dep. Matt Oxley taken on June 27, 2017 ("Oxley Dep.") 130:18-25, ECF No. 111-7.) Oxley believes the failure to timely complete the integration demonstration environment caused Apple to choose not to work with Opal. (Id. at 126:21-127:25.) Plaintiff maintains the difficulty with the Apple integration was caused by Sprinklr, not Opal. (Pl. Decl. ¶ 22, ECF No. 116.)

         Plaintiff contends that Gorman and Barrett plotted to get him fired. (Barrett Dep. 207:23-211:19; 215:21-216:15, ECF No. 117-3; Gorman Dep. 257:13-24, ECF No. 117-2.) On April 30, 2015, Barrett and Gorman met with Operations Manager Jacqueleine Marushia-Laurain concerning Plaintiff s job performance. (Decl. Robert Scott Supp. Def.'s Mot. Summ. J. ("Scott Decl." ¶¶ 15, 16 & Ex. 2, ECF No. 109.) Marushia-Laurain noted the absence of any formal documentation about Robillard not meeting expectations, and she inquired about the clarity of expectations and follow-up conversations. (Angeli Decl. Ex. F, attaching Dep. Jacqueleine Marushia-Laurain taken June 29, 2017 ("Marushia-Laurain Dep.") Ex. 45, ECF No. 117-6 at 39.) Marushia-Laurain asked Barrett to detail concrete examples of Plaintiff s performance difficulties. (Id.) Barrett authored a document entitled "Salient Events," detailing several instances of Plaintiffs shortcomings. (Barrett Dep. Ex. 38, ECF No. 117-3 at 75.) However, it is unclear whether Barrett discussed any of the events with Plaintiff in a formal way. (Barrett Dep. 188:23-190:2, 190:11-192:8, ECF No. 117-3.)

         Marushia-Laurain testified that her discussions with Barrett and Gorman led to a corrective action plan by which Opal would transition Plaintiff into a more suitable role, entitled Account Integrations Manager. (Marushia-Laurain Dep. 127:6-17, 136:7-19, 140:6-141:10, Exs. 45, 54, ECF No. 117-6 at 39-40; Scott Dep. 95:25-96:14, ECF No. 111-8.) On May 11, 2015, Marushia-Laurain informed Scott and Giannini about her discussions with Barrett and Gorman, and the plan for transitioning Plaintiff to the new role. (Marushia-Laurain Dep. Ex. 54, ECF No. 117-6; Scott Decl. ¶¶ 15-16 & Exs. 1&2, ECF No. 109.) The plan identified specific areas where Plaintiffs performance was not meeting expectations and identified specific areas needing improvement, including communication, ownership, proactive behavior, and attitude. (Scott Decl. Ex. 2, ECF No. 109.) Gorman indicated that Plaintiff had been provided multiple opportunities to course correct, but persistently had failed. (Gorman Dep. 299:25-300:7, Ex. 46, ECF No. 117-2.) The Plan to transition Plaintiff into the new role was set to occur in June 2015. (Munsinger Decl. Ex. 8, attaching Dep. Robert Scott taken May 23, 2017 ("Scott Dep.") 109:9-21, ECF No. 111-8.)

         On May 29, 2015, Plaintiff was expected to attend an important meeting with Stewart and Opal client Whole Foods. Plaintiff had confirmed via text the previous day that he would be attending the meeting. (Munsinger Decl. Ex. 9, attaching Dep. Oliver Stewart taken Oct. 2, 2017 ("Stewart Dep.") 56:20-57:14, ECF No. 111-9.) On the morning of March 29, 2015, Plaintiffs wife was heading out of town, and his son became emotional in her absence, requiring his attention. (Pl. Dep. 225:8-21, ECF No. 117-4; Pl. Decl. ¶ 18, ECF No. 116.) Plaintiff did not inform Stewart that morning that he would not be on the phone call, and during the call, Stewart attempted to reach Plaintiff, but was unable to do so. (Stewart Dep. 51:1-5, ECF No. 111-9.) Plaintiff reached out to Stewart after he arrived at work to apologize for missing the meeting. (Pl. Dep. 223:2-224:14, ECF No.117-4.)

         After Plaintiff missed the meeting, Stewart was furious and contacted Oxley, his boss. (Stewart Dep. 45:23-46:4, ECF No. 111-9.) Oxley believed Opal's relationship with Whole Foods was in jeopardy as a result of the missed call and integration demonstration because the relationship with client was at a pivotal moment. (Oxley Dep. 84:2-11, ECF No. 111-7.) Oxley called Giannini, who was out of the office. Oxley informed Giannini about the situation, and that he, Oxley, did not want to continue working with Plaintiff. (Id.; Giannini Dep. 151:7-23, ECF No. 111-5.) Oxley also informed Scott that Plaintiff had "blown off the Whole Foods meeting. (Scott Dep. 112:6-22, ECF No. 111-8.) Scott called Giannini and explained that he was recommending that Plaintiff be terminated. (Giannini Dep. 152:21-153:9, ECF No. 111-5.) Giannini viewed the missed call as acute and represented a serious disregard for the value of Opal's customer relationships; thus, he decided to terminate Plaintiffs employment. (Giannini Decl. ¶ 11, ECF No. 110.)

         Plaintiff was surprised that a short time after missing the meeting, Robert Scott, Opal's General Counsel, and Gorman called Plaintiff into a meeting and abruptly fired him. At the meeting, Opal informed Plaintiff that he was being fired because he missed a meeting, and for performance reasons, including a delayed the Apple integration. (Pl. Dep. 155:19-156:13, 23018:231:3, ECF No. 117-4.) Scott testified that he suspected that Plaintiff had not been told about performance issues. (Angeli Decl. Ex. G, attaching Scott Dep. 120:2-121:23, ECF No. 117-7.)

         Shortly after terminating Plaintiff, Giannini and Scott called a company-wide meeting, and notified Opal employees that Opal had fired Plaintiff for cause, and that despite providing Plaintiff opportunities to improve, Plaintiff had not improved, and left Opal with no decision but to terminate Plaintiff. (Scott Dep. 43:8-44:2, 46:16-47:3, 50:4-51:14, ECF No. 117-7.)

         After Plaintiffs termination, Opal did not fill the Lead Enterprise Engineer position. (Giannini Dep. 19:12-20:15, ECF No. 111-5; Barrett Dep. 167:11-15, ECF No. 111-6.) Opal states that integration duties were absorbed by Barrett and other backend engineers. (Barrett Dep. 167:11-15; Giannini Dep. 19:7-21.) Plaintiff contends that his integrations job duties were absorbed by Alex Hunley, then thirty-two years old, and that his CX duties were handled by Mark Wood, then twenty-nine. (Gorman Dep. 262:20-263:11, ECF No. 117-2; Marushia-Laurain Dep. 212:17-25, ECF No. 117-6; Angeli Decl. Ex. K, attaching Stewart Dep. 15:20-25, ECF No. 117-11.)

         The day Plaintiff was terminated, Barrett visited Plaintiffs personal GitHub account and there found the Shoutlet code publicly available. (Barrett Dep. at 41:9-15, ECF No. 126-2.) While working for Opal, from March to May of 2015, Plaintiff created an integration code entitled "Shoutlet" that he posted or "pushed" to his public GitHub repository or account. (Munsinger Decl. Ex. 1, attaching Supp. Dep. Greg Robillard taken Sept. 5, 2018 ("Pl. Supp. Dep.") 52:1-19, 57:20-22, ECF NO. 126-1.) Plaintiffs personal GitHub user page, including his repositories, contain source code and are publicly available. (Pl Answer to Am. Countercls. ¶¶ 18-22, ECF No. 101.) After finding the code on Plaintiffs public GitHub site, Barrett copied it and placed it into Opal's private GitHub repository. (Barrett Dep. at 41:18-24, ECF No. 126-2.) Barrett informed Gorman that he found the Shoutlet code on Plaintiffs public GitHub account. (Barrett Dep. at 44:2-6, ECF No. 126-2.)

         On June 15, 2015, Plaintiff sent an email to a prospective employer at the software company Bidsketch which included the web address for the Shoutlet code on Plaintiffs GitHub repository. (Munsinger Decl. Ex. 2, ECF No. 111-2.) On October 7, 2015, Plaintiff sent an email to another prospective employer at software company The Dyrt, also including the address for the Shoutlet code on his GitHub repository. (Munsigner Decl. Ex. 3, ECF No. 111-3.)

         Shortly after Plaintiffs employment with Opal ended, Plaintiff created a second publicly-available repository on GitHub that included code that he wrote while at Opal, entitled "Suez." (Pl. Supp. Dep. 60:19-61:11, ECF No. 126-1.) Plaintiff stated that he created the Suez code from memory based on something he did for Opal, and that he had copied from Stack Overflow. (Pl. Supp. Dep. 61:12-18, ECF No. 126-1.)

         When Scott reviewed documents produced in this case, he realized that Plaintiff had directed others outside of Opal to review Opal's code. (Decl. Robert Scott ¶ 10, ECF No. 124.) On December 5, 2016, Opal sent a Cease and Desist letter to Plaintiffs attorney, demanding that Plaintiff remove Opal's code from his public GitHub account. (Munsinger Decl. Ex. 1, ECF No. 63-1.) On December 12, 2016, Opal sent a follow-up letter to Plaintiffs attorneys. (Id.) On March 13, 2017, Opal sent a third letter, renewing the demands of the prior letters. (Munsinger Decl. Ex. 2, ECF No. 63-2.) On March 29, 2017, Opal amended its Answer to add the current counterclaims. On April 16, 2017, Plaintiff removed the Shoutlet repository from his publicly available GitHub account. On June 10, 2017, Plaintiff removed the Suez repository from his publicly available GitHub account. (Munsinger Decl. Supp. Mot. Compel ¶ 3, ECF No. 70.) On June 26, 2018, Plaintiff filed a Second Amended Complaint, adding claims for retaliation. In claims six, seven, and eight, Plaintiff alleges that Opal has added its confidentiality and trade secret counterclaims because he has asserted state and federal wage violations and age discrimination by filing this action. (SAC ¶¶ 73-109, ECF No. 94.)

         Opal now moves for summary judgment on all of Plaintiff s claims. Opal contends that it is entitled to summary judgment on Plaintiffs age discrimination claim because the same person who terminated Plaintiff was responsible for his hiring and was aware that Plaintiff was over forty years old when hired. Opal argues that Plaintiff cannot establish a prima facie case of age discrimination because he was not performing his job satisfactorily, and even if he could state a prima facie case of age discrimination, his claim would fail because he was not replaced with a younger employee. Opal seeks summary judgment on Plaintiffs federal and state wage claims, arguing that Plaintiff s job falls within the computer employee exemption. Opal maintains that it did not promise Plaintiff three weeks of vacation, and it did not fail to pay him all wages due at termination. Opal moves for summary judgment on Plaintiffs invasion of privacy and defamation per se claims because the alleged statements were not published to a third party and he cannot establish that the alleged statements were made with malice.

         Opal also seeks summary judgment on its counterclaims against Plaintiff for breach of contract, Oregon's Uniform Trade Secrets Act, and Defend Trade Secrets Act. Opal argues that Plaintiff breached his Employment Agreement by posting its confidential information on a public website. Opal also contends that Plaintiff has admitted to posting its confidential coding information on his public website.

         Lastly, Opal seeks summary judgment on Plaintiffs three retaliation claims, all of which are premised on Opal asserting counterclaims. According to Opal, because its counterclaims are not baseless, may fairly be considered compulsory, and there is no evidence of retaliatory motive, it is entitled to summary judgment on Plaintiffs retaliation claims.

         Plaintiff cross-moves for partial summary judgment on Opal's counterclaims for breach of contract and trade secret violations. Plaintiff argues that creating the Shoutlet repository was within the scope of his employment and that Opal consented to its posting on a public website. Plaintiff seeks summary judgment on his retaliation claims, contending that no reasonable juror could conclude that Opal's counterclaims are brought in good faith or are reasonably based in fact and law. Finally, Plaintiff seeks summary judgment on Opal's affirmative defense of failure to mitigate, arguing that he has reasonably sought other employment since his termination from Opal.

         Legal Standard

         Summary 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." FED. R. Civ. P. 56(a). A party seeking summary judgment bears the burden of establishing the absence of a genuine issue of material fact. Celotex v. Catrett, 477 U.S. 317, 323 (1986). If the moving party demonstrates no issue of material fact exists, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324. A party cannot defeat a summary judgment motion by relying on the allegations set forth in the complaint, unsupported conjecture, or conclusory statements. Hernandez v. Spacelabs Med, Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). Summary judgment thus 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.

         In determining whether to grant summary judgment, the court must view the evidence in the light most favorable to the nonmoving party. Curley v. City of N. Las Vegas, 772 F.3d 629, 631 (9th Cir. 2014); Hernandez, 343 F.3d at 1112. All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). However, deference to the nonmoving party has limits. The nonmoving party must set forth "specific facts showing a genuine issue for trial." FED. R. CIV. P. 56(e) (emphasis added). The "mere existence of a scintilla of evidence in support of the plaintiffs position [is] insufficient." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Therefore, where "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted).

         Where, as here, the parties have each filed motions for summary judgment, "[e]ach motion must be considered on its own merits." Fair Housing Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). "In fulfilling its duty to review each cross-motion separately, the court must review the evidence submitted in support of each cross-motion." Id.; Acosta v. City Nat'l Corp., 922 F.3d 880, 885 (9th Cir. 2019). The Court must deny both motions if it finds a genuine issue of material fact precludes resolution, "[b]ut if there is no genuine dispute and one or the other party is entitled to prevail as a matter of law, the court will render judgment." 10A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 2720 (4th ed. 2019).


         I. Plaintiffs Wage and PTO Claims

         In his first and second claims for relief, Plaintiff seeks damages for Opal's failure to pay overtime wages, in violation of the Fair Labor Standards Act ("FLSA") and Oregon wage laws. 29 U.S.C. § 207; OR. REV. STAT. §§ 653.055, 653.261. Plaintiff alleges that his work for Opal did not qualify for exemption from overtime, that he worked 540 hours of overtime, and that he is entitled to wages, penalties, interest, and attorney fees. In his third claim for relief, Plaintiff alleges that Opal promised him three weeks of paid time off, and that Opal breached that agreement when it failed to pay him for two weeks of leave when it terminated him. In his fourth claim for relief, Plaintiff asserts that Defendants failed to pay him all wages and compensation owed at the time of his termination, and that under O.R.S. § 652.140, he is owed overtime compensation, PTO, and associated penalties and attorney fees.

         Opal moves for summary judgment on Plaintiffs wage claims, arguing that he qualified as a computer employee, exempt from overtime requirements. Opal also argues that Plaintiff was not promised three weeks of PTO, and therefore, it has not committed any state or federal wage violations.

         A. Computer Employee Exemption

         The FLSA creates a private cause of action for an employee to recover unpaid overtime wages and back pay against his employer, if the employee is not paid the statutory wage. Flores v. City of San Gabriel, 824 F.3d 890, 895 (9th Cir. 2016). The FLSA requires that employers pay their employees time and one-half for any work exceeding forty hours per week. 29 U.S.C. § 207(a)(1); OR. REV. STAT. §§ 653.055, 653.261 (same). However, certain executive, professional, and administrative employees are exempt from overtime requirements. See 29 U.S.C. § 213 (describing exempt jobs). To be considered exempt, an employee must satisfy three tests: (1) salary basis test, requiring that an employee receive a predetermined amount, not subject to reductions for quality or quantity of the work performed; (2) the salary level test, providing the employee receive a minimum amount; and (3) the duties test, which focuses on whether the employee's "primary duties" are those of an executive, professional, or administrative employee. Curry v. Matividad Med. Or., Case No. 5:11-cv-04662 EJD, 2013 WL 2338110, at *3 (N.D. Cal. May 28, 2013) (discussing FLSA computer employee exemption standards); see 29 C.F.R. §§ 541.602 (defining salary basis), 541.600 (defining salary level), 541.700(a) (defining primary duty as the "principal, main, major or most important duty the employee performs"). The amount of time an employee spends performing exempt work can be a "useful guide" to assessing whether the employee's primary duty is exempt work, and "employees who spend more than 50 percent of their time performing exempt work will generally satisfy the primary duty requirement. Time alone, however, is not the sole test[.]" 29 C.F.R. § 541.700(b).

         Federal and state law provide an exemption from overtime for employees hired as computer systems analysts, computer programmers, software engineers, and other similarly skilled workers in the computer field. 29 U.S.C. § 213(a)(1); 29 C.F.R. § 541.400; Or. REV. STAT. § 653.020(3); Or. ADMIN. R. 839-020-0125(2)(h). The relevant federal and state regulatory provisions use nearly identical language to define the computer employee exemption. To qualify, the employee must be paid a minimum rate of $27.63 per hour, and the employees' primary job duties must consist of the following:

(A) the application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications;
(B) the design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;
(C) the design, documentation, testing, creation, or modification of computer programs related to machine operating systems; or (D) a combination of duties described in subparagraphs (A), (B), and (C), the performance of which requires the same level of skills[.]

29 U.S.C. § 213(a)(17); see also 29 C.F.R. § 541.400(b); Or. ADMIN. R. 839-020-0125(2)(h) (providing same primary job duties). The Supreme Court has determined that exemptions under the FLSA are to be given a "fair reading." Encino Motorcars, LLC v. Navarro, 138 S.Ct. 1134, 1142 (2018) (finding automobile service advisors were exempt from overtime regulations).

         B. Plaintiff's Job Duties at Opal Fall Within Computer Employee Exemption

         The parties do not dispute that Plaintiff was paid on a salary basis and that he earned an annual salary equivalent to $90, 000, well above the minimum salary level. (Giannini Decl. Ex. 1, ECF No. 110.) (providing Plaintiffs salary is $90, 000 per year, paid monthly). The parties dispute only whether Plaintiffs primary duties satisfy the computer employee exemption.

         Plaintiff argues that he performed some job duties that fall within the computer exemption, but that his primary job duties were more akin to non-exempt technical IT support staff. Plaintiff contends that he spent less than two hours each day coding, instead spending most of his time attending customer sales demonstrations, customer meetings, coordinating with partners, configuring software, and assisting with customer issues. (Pl's Decl. ¶ 59, ECF No. 116.) According to Plaintiff, because there is a genuine dispute about his primary job duties, summary judgment should be denied. Opal responds that when taking Plaintiffs deposition and declaration testimony as true, his job duties clearly fall within computer employee exemption. The court agrees with Opal.

         Plaintiffs primary duties included a combination of the duties covered in 29 U.S.C. § 213(a)(17). Bobadilla v. MDRQ No. 03 Civ. 9217, 2005 WL 2044938, at *7-8 (S.D.N.Y. Aug. 24, 2005) (describing numerous exempt activities performed by employee). For example, in his Declaration, Plaintiff provides that seventy percent of his time "was spent configuring software (i.e., adding users and managing licenses), assisting the Tech Support team with customer issues, attending customer sales demos and meetings, and meeting and coordinating with third party software providers." (Pl's Decl. ¶ 59, ECF No. 116.) In his Declaration, Plaintiff further elaborates on the assistance he provided to Tech Support. Plaintiff indicates that a low-level tech support staff would elevate users' questions to him if they related to integrations. (Id. ¶ 60.) Plaintiff would then call the Opal user in order the accurately diagnose the problem. (Id.% 61.) Plaintiff describes that the issues that were brought to his attention were not "problems or bugs" that could be fixed with coding, but often were caused by network problems or user error. (Id. ¶ 62.) Plaintiff provides that other times, the errors were related to integrations or were caused by misconfigured settings of third-party partners (such as Spredfast, Shoutlet, or Sprinklr). In such situations, Plaintiff would have to open a "ticket" with technical support, then relay their response to the end user. (Id. ¶ 63.) Plaintiff also provides that some problems Opal users experienced were on Opal's end, the "majority of the time the 'fix' did not involve any coding or programming" but he would resolve the issue by adjusting the customer's settings. (Id.¶ 65.)

         In his deposition, Plaintiff described a similar process of replicating a problem that the user described, diagnosing the issue, then depending on the situation, writing code to fix the problem. (Pl's Dep. 49:17-23, 50:20-51:17, ECF No. 117-4.) Plaintiff testified that he would spend a couple of hours each day consulting with users. (Id. at 55:20-23.) Plaintiff also acknowledged that it was his responsibility to ensure the "bugs" got fixed, and that he possessed the necessary technical skills and ability fix the users' problems himself. (Id. at 48:2-18.) Thus, as described by Plaintiff, he was engaged in exempt work by applying analysis techniques and procedures, including consulting with users, to determine software or system functionality. See Grills v. Hewlett-Packard Co, 88 F.Supp.3d 822, 826-27 (N.D. Ohio 2015) (finding that skilled computer employee was exempt under § 213(a)(17) and 29 C.F.R. § 541.400 where his primary duties involved troubleshooting issues elevated from help desk, and required him to find root cause of issue, run tests, and create a solution to resolve the issue); Ortega v. Bel Fuse, Inc., Case No. 15-21229-CIV-Altonaga, 2016 WL 1588393, at *12-13 (S.D. Fla. Apr. 20, 2016) (finding employee satisfied computer employee exemption where evidence showed he was responsible for troubleshooting, managed a production database, operated two test databases, and operated wireless network).

         Additionally, Plaintiff described that while working for Opal, he conducted three security reviews for Opal clients, and that he was responsible for "writing the whole thing." (Pl Dep. 58:5-14, ECF No. 117-4.) Additionally, Plaintiff admits that he worked on programming a custom integration for Nike in early 2015, he re-wrote the integration for Sprinklr, he created a Ruby library for the Shoutlet API, as well as other integrations. (Pl's Decl. ¶¶ 20-21, 33, ECF No. 116.) As part of his work on integrations for Nike and Apple, he created "demonstration environments" to show how the Opal platform would operate prior to bringing the application "live" for the client. (Pl Decl. ¶¶ 20-22, ECF No. 116.) Plaintiff acknowledges that he was "hired at Opal to coordinate the integrations" and that he considered himself to be part of the back-end engineering team. (Pl Dep. 47:23-48:1, 87:4-8, ECF No. 117-4.) Again, as described by Plaintiff, he designed, analyzed, and tested the computer programs (the integrations) that were related to user or system design specifications, which fall well within the primary duties of a computer employee under § 213(a)(17).

         After his employment with Opal ended, Plaintiff described his capabilities as developing "high quality web applications, both as a back-end developer and database administrator." (Scott Decl. Ex. 1 at 2, ECF No. 124-1.) On his resume following his employment with Opal, Plaintiff identified his job duties while employed with Opal as:

Leveraged third-party APIs to build social media publishing tools for integration with Shoutlet, Spredfast, and Sprinklr. Wrote Ruby gems with RSpec tests to support integrations. Helped back-end team refactor and troubleshoot Ruby on Rails code base. Supported sales, customer success teams with software demos and configurations.

(Pl Dep. 91:9-20, ECF No. 117-4.)

         Also, during Plaintiffs tenure at Opal, it employed two "Support Specialists" who were compensated considerably less than Plaintiff, earning approximately $42, 000 and $35, 000 per year. (Scott Decl. at ¶¶ 7-8, ECF No. 109.) Plaintiffs annual salary was more than the two support specialists combined.

         Based on Plaintiffs own description of the work he performed at Opal, he performed work more complex than that of a non-exempt IT help desk worker. Opal correctly classified him as exempt. Because there is no genuine issue of fact as to whether Plaintiff was correctly classified as an exempt computer employee, ...

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