Robillard v. Opal Labs, Inc.

• Citation: 428 F.Supp.3d 412
• Decision Date: 17 December 2019
• Docket Number: Case No. 3:16-cv-00780-AC
• Parties: Greg ROBILLARD, Plaintiff, v. OPAL LABS, INC., Defendant. Opal Labs, Inc. Counter-Claimant, v. Greg Robillard, Counter-Defendant.
• Court: U.S. District Court — District of Oregon

428 F.Supp.3d 412

Greg ROBILLARD, Plaintiff,

v.OPAL LABS, INC., Defendant.

Opal Labs, Inc. Counter-Claimant,

v.Greg Robillard, Counter-Defendant.

Case No. 3:16-cv-00780-AC

United States District Court, D. Oregon, Portland Division.

Signed December 17, 2019

Courtney Angeli, Angela M. Ferrer, Buchanan Angeli Altschul & Sullivan LLP, Tyler Francis, Angeli Law Group LLC, Portland, OR, for Plaintiff.

Jose A. Klein, Damien T. Munsinger, Klein Munsinger LLC, Portland, OR, for Defendant.

OPINION AND ORDER

JOHN V. ACOSTA, United States Magistrate Judge

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 Plaintiff's 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 Plaintiff's 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 Plaintiff's wife socially, and Giannini looked up Plaintiff's 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.

Plaintiff's employment began November 10, 2014. Plaintiff's 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.) Plaintiff's 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.)

Plaintiff's 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 Spredfast 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...