Brinkman v. Abm Onsite Servs. W., Inc.

• Decision Date: 23 April 2019
• Docket Number: Case No. 3:17-cv-00275-SI (Lead), Case No. 3:17-cv-00478-SI (Consolidated Case)
• Citation: 383 F.Supp.3d 1120
• Parties: Joseph BRINKMAN, both in his individual capacity and, in addition, as a collective action on behalf of others similarly situated, Plaintiff, v. ABM ONSITE SERVICES – WEST, INC., Defendant.
• Court: U.S. District Court — District of Oregon

383 F.Supp.3d 1120

Joseph BRINKMAN, both in his individual capacity and, in addition, as a collective action on behalf of others similarly situated, Plaintiff,

v.ABM ONSITE SERVICES – WEST, INC., Defendant.

Case No. 3:17-cv-00275-SI (Lead)

Case No. 3:17-cv-00478-SI (Consolidated Case)

United States District Court, D. Oregon.

Signed April 23, 2019

Jon M. Egan, Jon M. Egan, P.C., Lake Oswego, OR, for Plaintiff.

David G. Hosenpud, Lane Powell, PC, Portland, OR, Jennifer K. Sheffield, Pro Hac Vice, Kelly M. Lipscomb, Pro Hac Vice, Lane Powell, PC, Seattle, WA, for Defendant.

ORDER

Michael H. Simon, District Judge.

Plaintiff 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 Case 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 Case No. 3:17-cv-00478-SI ("Case '478"). The Court has consolidated these two cases.

Defendant 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.

STANDARDS

A party 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation and quotation marks omitted).

When 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, 106 S.Ct. 1348.

DISCUSSION

Plaintiff 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."

A. ORS § 652.615 Damages

Plaintiff 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.

The 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), provides:

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 the deduction is recorded in the employer's books;

(d) The deduction is authorized by a collective bargaining agreement to which the employer is a party;

(e) The deduction is authorized under ORS 18.736 ; or

(f) The deduction is made from the payment of wages upon termination of employment and is authorized pursuant to a written agreement between the employee and employer for the repayment of a loan made to the employee by the employer, if all of the following conditions are met:

(A) The employee has voluntarily signed the agreement;

(B) The loan was paid to the employee in cash or other medium permitted by ORS 652.110 ;

(C) The loan was made solely for the employee's benefit and was not used, either directly or indirectly, for any purpose required by the employer or connected with the employee's employment with the employer;

(D) The amount of the deduction at termination of employment does not exceed the amount permitted to be garnished under ORS 18.385 ; and

(E) The deduction is recorded in the employer's books.

Plaintiff and Defendant disagree over their interpretation of the plain text of the statute, the legislative history and intent, and relevant case law. The Court addresses each disagreement in turn.

1. Plain Text

Under Oregon law of statutory interpretation, the text of the statutory provision "must always be the starting point in any interpretive endeavor and is the best evidence of the legislature's intent." State v. Pers. , 316 Or. 585, 590, 853 P.2d 813 (1993) (quotation marks omitted). Defendant emphasizes that the private cause of action of ORS § 652.615 allows a victorious plaintiff to collect "actual damages or $ 200, whichever is greater." Defendant argues that the statute does not allow "$ 200 per violation" and that the Court may not read language into the statute that is not already there. See Portland Gen. Elec. Co. v. Bureau of Labor and Indus. , 317 Or. 606, 611, 859 P.2d 1143 (1993).

Plaintiff argues that language expressly allowing $ 200 per violation is not necessary, because the statute already provides that there is "a private cause of action for a violation of ORS 652.610(3)." ORS § 652.615 (emphasis added). Plaintiff asserts that the use of the singular "violation" and the article "a" must mean that a victorious plaintiff may collect $ 200 for each "violation." See Landsem Farms, LP v. Marion Cty. , 190 Or. App. 120, 127, 78 P.3d 103 (2003) (stating that a reviewing court may consider whether the legislature used a noun in the singular or plural).

The Court is unconvinced that the singular usage of "violation" in the statute is reflective of the legislature's intent to make the $ 200 penalty available "per" violation. It is equally plausible that the legislature did not wish to use the plural "violations" because doing so would wrongly suggest that a cause of action was only available to a plaintiff whose employer violated ORS § 652.610(3) multiple times, or at least more than once.

The Court also finds the Plaintiff's emphasis on the statute's use of the article "a" preceding "violation" to be unpersuasive. Although Plaintiff is correct that the article "a" may be used to indicate one in number, as in "I own a dog and two cats," the...