Nash v. Resources, Inc.

• Decision Date: 19 September 1997
• Docket Number: Civil No. 96-1653-RE.
• Citation: 982 F.Supp. 1427
• Parties: Marcus NASH, Plaintiff, v. RESOURCES, INCORPORATED, an Idaho corporation; and Pat Greenman, Defendants.
• Court: U.S. District Court — District of Oregon

982 F.Supp. 1427

Marcus NASH, Plaintiff, v. RESOURCES, INCORPORATED, an Idaho corporation; and Pat Greenman, Defendants.

Civil No. 96-1653-RE.

United States District Court, D. Oregon.

September 19, 1997.

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COPYRIGHT MATERIAL OMITTED

Michael R. Dehner, Michael R. Dehner, PC, Portland, OR, Philip C. Gilbert, Gresham, OR, for Plaintiff.

Richard N. Van Cleave, Kathleen Dent, Davis Wright Tremaine, Portland, OR, for Defendants.

OPINION

REDDEN, District Judge:

This is an action by Marcus Nash against defendants Resources, Incorporated ("Resources") and Pat Greenman, asserting claims under the Fair Labor Standards Act, 29 U.S.C. §§ 207 and 215(a)(3) ("FLSA") for unpaid overtime wages and retaliation; Or. Rev.Stat. § 652.610 for failure to itemize wage deductions; Or.Rev.Stat. § 652.140 for failure to pay all wages due upon termination; and wrongful discharge. Plaintiff seeks reinstatement, unpaid wages, liquidated damages, civil penalties, and punitive damages.

Nash moves for summary judgment on 1) defendants' liability under the FLSA; 2) defendants' liability for liquidated damages under the FLSA; 3) Resources' liability for civil penalty under Or.Rev.Stat. § 652.150; and 4) defendants' first, second, third and fourth affirmative defenses. Defendants move for summary judgment on 1) the claim for overtime violations under the FLSA; 2) the claim for improper deductions under Or. Rev.Stat. § 652.610; 3) the claim for retaliatory discharge under the FLSA, 29 U.S.C. § 215(a)(3); and 4) the claim for wrongful discharge. Plaintiff also moves to strike defendants' response to plaintiff's Concise Statement of Facts.

Plaintiff's motions for summary judgment are granted. Defendants' motions for summary judgment are denied. Plaintiff's motion to strike, and his alternative motion for leave to file supplemental briefing, are denied.

Factual Background

Pat Greenman formed Resources in 1987 to do contract work for cable TV systems. Resources entered into an agreement with Paragon Cable ("Paragon") under which Resources agreed to provide Paragon with cable installation services ("the cable agreement").

Under the terms of the agreement with Paragon, neither Resources nor any of its employees, agents or contractors was to be considered or deemed the employee or agent of Paragon. The cable agreement further required that Resources provide and pay for all equipment, tools, materials and other items necessary to perform the installation work, except for materials which became a permanent part of Paragon's cable plant.

Paragon agreed to provide Resources with a work order describing the work to be completed and a schedule. Resources was to "retain the exclusive authority to control and direct the order and assignment of work and the details of the work, [Paragon] being interested only in the results obtained." Resources was responsible for training installers and for designating an "authorized representative to act for and on behalf of [Resources] who shall have authority to oversee and direct day-to-day installation operations." Resources also contracted to carry workers' compensation insurance and to "ensure the proper decorum of its employees and subcontractors."

Plaintiff Marcus Nash worked for Resources in the Portland area from approximately February 12, 1996 until September 25, 1996. He was originally hired as an installer and was paid by the job. In April 1996, Nash was given an Installation Supervisor position, which paid a salary of $100 a day. Nash's duties included supervising the installers on a daily basis and acting as liaison between Resources and Paragon, in conjunction with his supervisor Kevin Albin, Resources' Regional Supervisor for the Portland area.

As a supervisor, Nash was required to be at Paragon's office by 7 a.m. to collect Paragon's work orders and assign them to particular installers. If there was too much work for the installers on hand, Nash did installment work himself; if installers failed to turn up for their assignments, Nash would either do the installation himself or assign another installer, to ensure that all the work orders were completed that day. Nash also assisted installers with technical problems.

Nash turned in "truck sheets," to show the specific jobs each installer had been given. He also turned in daily time sheets that described in detail what he had done each day, how long it took, and with whom he had been in contact. The Regional Supervisor, Albin, met with Nash each day to give him orders about where to go and what to do. According to Pat Greenman's testimony, Nash was authorized to hire and fire Resources employees and contractors, as was Albin.

Albin scheduled the hours and days Nash was expected to work. Nash testified that almost without exception, he worked six days a week, 10-12 hours a day.

Defendants contend that after he was transferred to the supervisor's position, Nash "occasionally" worked as a quality control ("QC") contractor and was paid $9.00 an hour for that work rather than his supervisor's salary of $100 a day. Defendants assert that Nash's job responsibilities "changed on a daily basis," and his "compensation varied depending on his job position and responsibilities." However, Resources kept no written job descriptions for either the supervisor position or a QC contractor position. Resources' president considered quality control part of the supervisor's job.

Although Nash did not authorize Resources to do so, it made frequent deductions from his pay. Nash's paychecks are in varying amounts, with wage deductions rarely itemized or explained. Resources had a company policy of making wage deductions for supervisors' tardy paper work. These deductions are subtracted in different ways — sometimes as a flat amount and sometimes as a percentage of the wages due.

Nash was first suspended, then terminated from his supervisor position on September 25, 1997. In October, Pat Greenman offered Nash his former position as an installer, which Nash refused. Defendants do not deny that Resources 1) refused to pay Nash any of his wages for the last nine days he worked; 2) made deductions from his pay for failures to turn in paperwork; and 3) sometimes paid him $9.00 an hour rather than his $100-per-day salary.

Standards

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment is not proper if material factual issues exist for trial. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996).

The criteria of "genuineness" and "materiality" are distinct requirements. Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The requirement that an issue be "genuine" relates to the quantum of evidence the plaintiff must produce to defeat the defendant's motion for summary judgment. The authenticity of a dispute is determined by whether there is sufficient evidence that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50, 106 S.Ct. at 2511. The materiality of a fact is determined by the substantive law on the issue. T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Assoc., 809 F.2d 626, 630 (9th Cir.1987).

The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324, 106 S.Ct. at 2553. Summary judgment 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." Id. at 322, 106 S.Ct. at 2552.

Discussion

The FLSA claim

The FLSA requires covered employers to provide overtime compensation equal to one and one-half times the regular rate at which an employee is compensated for hours worked in excess of a 40-hour work week. 29 U.S.C. § 207(a)(1). Nash moves for summary judgment on defendants' liability under the FLSA. Defendants contend that they are not liable because Nash was an independent contractor, rather than an employee.

Was Nash an employee or an independent contractor?

The employer-employee relationship subject to the reach of the FLSA is broadly defined. Rutherford Food Corp. v. McComb, 331 U.S. 722, 728, 67 S.Ct. 1473, 1475-76, 91 L.Ed. 1772 (1947). To "employ" means to suffer or permit to work. 29 U.S.C. § 203(g). The words "suffer" and "permit" as used in the statute mean "with the knowledge of the employer." Forrester v. Roth's I.G.A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir.1981). Thus an employer who knows or should have known that an employee is or was working overtime must comply with the provisions of § 207. Id. An "employer" also includes any person acting directly or indirectly in the interest of an employer. 29 U.S.C. § 203(d).

The FLSA's definition of "employee" has been called the "broadest definition that has ever been included in any one act." United States v. Rosenwasser, 323 U.S. 360, 363 n. 3, 65 S.Ct. 295, 297, 89 L.Ed. 301 (1945). See also Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 326, 112 S.Ct. 1344, 1349-50, 117 L.Ed.2d 581 (1992) (noting the "striking breadth" of the FLSA's definition of "employee"). Thus, when...