United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
V. ACOSTA, UNITED STATES MAGISTRATE JUDGE
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.
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
an Oregon start-up software company. (Decl. Stephen Giannini
Supp. Def.'s Mot. Summ. J. ("Giannini Decl.")
¶ 3, ECF No. 110.) 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.)
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.)
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.
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.
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.)
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.)
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.)
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.)
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.)
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.)
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
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.)
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
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.)
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.)
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.)
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.)
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.
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.)
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
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.)
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.)
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.)
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.
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.)
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.
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.
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.
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.
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
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).
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).
Plaintiffs Wage and PTO Claims
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
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.
Computer Employee Exemption
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. §
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
(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).
Plaintiff's Job Duties at Opal Fall Within Computer
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
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
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.)
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).
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).
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.)
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.
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, ...