Brunozzi v. Cable Commc'ns, Inc.

MATTEO BRUNOZZI, an individual, Plaintiff, v. CABLE COMMUNICATIONS, INC., a foreign corporation, Defendant.

Lead Case No. 3:14-cv-01128-MO

Lead Case No. 3:14-cv-01131-MO

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION

July 9, 2015

OPINION AND ORDER

MOSMAN, J.,

Plaintiff Matteo Brunozzi and Defendant Cable Communications, Inc. ("CCI") have filed competing motions for summary judgment. Mr. Brunozzi's Motion for Partial Summary Judgment [41] seeks summary judgment regarding his Fair Labor Standards Act ("FLSA") claim and his ORS 652.140 claim for failure to pay all wages at the end of employment. CCI's Motion for Summary Judgment [32] seeks summary judgment regarding all of Mr. Brunozzi's claims. For the reasons set forth below, Mr. Brunozzi's Motion for Partial Summary Judgment [41] is DENIED and CCI's Motion for Summary Judgment [32] is GRANTED.

BACKGROUND

CCI is a cable installation company. It employs technicians to install cable television and internet services for Comcast. Mr. Brunozzi applied for a position with CCI on or about October 25, 2013. Deposition of Matteo Brunozzi ("Brunozzi Depo."), 12:12-22. CCI hired Plaintiff on or about November 1, 2013, and Plaintiff began working for CCI on or about November 19, 2013. VanNorstrand Decl., ¶ 2.

At the start of his employment, Mr. Brunozzi was provided with a document that specifically explained how technicians were paid after they completed their hourly paid training program. This document explains that for each task the technician performs during the week there is a dollar value assigned to it. At the end of the week all the task values are added up to get to a total dollar amount - the "Piece Rate Total." Then it is determined whether the employee performed any work in excess of 40 hours during the pay period. If so, the total amount of hours worked is divided into the Piece Rate Total to determine the average hourly rate. The technician is then paid a "Piece Rate OT Premium" on that rate for all hours over 40. The Piece Rate Total is then divided by 60 and multiplied by 70 and then the Piece Rate Total is subtracted back out of this number to come up with a total amount available for the "Production Bonus." If an employee was paid overtime for that week, that amount is also subtracted from the preliminary Production Bonus calculation. At that point, a Production Bonus is finalized and paid to the employee. If the employee worked overtime that week, then they are also paid an Overtime Premium component on the Production Bonus. This is all explained in the Technician Pay Rate Program given to Plaintiff, which he signed stating that he read it, had a chance to ask questions to his satisfaction, and understood how it worked.

After the hourly paid training program, technicians, such as Mr. Brunozzi, fill out daily work sheets ("Daily Sheets") to indicate how many hours they worked and which tasks theyperformed. Each day Mr. Brunozzi filled out one of these sheets and signed it stating "I hereby certify that the tasks completed, mileage driven, and hours worked as indicated are true and complete. I have received all rest breaks and meal periods to which I was entitled." Mr. Brunozzi specifically testified at his deposition that he filled out these Daily Sheets truthfully every day and that he believed it was fair for CCI to rely on his representations as to the information he provided. At the end of each week, Mr. Brunozzi would be given a "Weekly Payroll Report" showing the hours he worked and the amounts, including overtime that CCI calculated was due to him based on the work he performed. It was from these sheets that CCI would cut the checks to employees.

Mr. Brunozzi was scheduled to work on Saturday, April 5, 2014. VanNorstrand Decl., ¶ 3. Mr. Brunozzi failed to show for work that day. Id. Just two days prior, Mr. VanNorstrand held a meeting with all Portland CCI employees and made it clear that failure to show up for work could result in termination. Id. at ¶ 5; see also Brunozzi Depo., 70:3-17. When Mr. Brunozzi returned to work on April 7, after missing his April 5 shift, Mr. VanNorstrand terminated Mr. Brunozzi's employment. VanNorstrand Decl., at ¶ 6. Mr. Brunozzi alleges that he made multiple complaints to his supervisors in the weeks before he was fired concerning CCI's failure to pay overtime, and that he specifically objected to working on April 5 unless he was properly paid all his overtime amounts for his overtime hours worked.

LEGAL STANDARD

Summary judgment is appropriate if the pleadings, depositions, and other documents on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The court views the record in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255(1986). If the movant shows that no genuine issue exists for trial, the non-movant cannot then rest on the pleadings but must respond by "citing to particular parts of materials in the record, including deposition, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials. Fed. R. Civ. P. 56(c)(1). When 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, 586 (1986).

On a motion for summary judgment, 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). The inferences drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Valandingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir. 1989).

DISCUSSION

I. Wage and Overtime Claims

The parties each seek summary judgment in their favor regarding Mr. Brunozzi's wage and overtime claims. Mr. Brunozzi argues that CCI's wage scheme violates the Oregon state law overtime regulations and the FLSA through a bonus structure calculated by subtracting overtime wages. Mr. Brunozzi further argues that these overtime violations resulted in a violation of ORS 652.140 because he was not paid all the wages he was due at the time of his termination. CCI argues that it fully complied with the requirements of Oregon law and the FLSA, and that what Mr. Brunozzi calls deficiencies in the bonus scheme are unregulated contractual agreements to which Mr. Brunozzi freely bound himself.

A. Oregon Overtime Regulation

OAR 839-020-0030(1) commands that "all work performed in excess of forty (40) hours per week must be paid for at the rate of not less than one and one-half times the regular rate of pay when computed without benefits of commissions, overrides, spiffs, bonuses, tips or similar benefits." OAR 839-020-0030(3)(b)(A) provides the method for calculating the regular rate when an employee is paid based on a piece rate agreement: "[w]here an employee is employed on a piece-rate basis, the regular hourly rate of pay is determined by adding together the total earnings, (excluding commissions, spiffs, bonuses, tips or similar benefits) for the work week and dividing this sum by the number of hours worked in the week for which such compensation is to be paid." OAR 839-020-0030(3)(b)(B) makes it clear that, upon calculating the regular rate of pay, an employee paid based on a piece-rate agreement is entitled to receive an additional 50% of the regular rate for each hour worked over 40 in a week: "[f]or example, an employee who has earned $500 during a 50 hour work week must be paid an additional sum of $50 for the ten overtime hours, for a total of $550 (50 hours at $10 per hour and the ten overtime hours at $5.00 per hour)."

It is undisputed that CCI paid Mr. Brunozzi the required overtime pay for all the overtime hours he worked. All of Mr. Brunozzi's overtime pay related arguments have to do with his belief that his Piece Rate OT Premium should not have been deducted from his bonus; that doing so had the practical impact of diluting the value of his overtime pay. But Oregon law does not require that bonuses be included in overtime pay calculations. And Oregon law leaves unregulated—that is it allows the parties freedom to contract with each other as they see fit—the payment of bonuses. Because Mr. Brunozzi has failed to make any legally significant argumentsregarding the Oregon overtime pay regulations, CCI's Motion for Summary Judgment [32] regarding Mr. Brunozzi's First Claim is granted.

B. FLSA Overtime Provision

Similar to the Oregon regulations, the FLSA provides that a piece-rate employee must be paid an additional 50% of his or her "regular rate" for each hour worked in excess of 40 hours in a single week. The "regular rate" is computed by "adding together total earnings for the workweek" and dividing that sum "by the number of hours worked in the week." 29 C.F.R. § 778.111. The only material difference between the Oregon and federal regulations is that the federal regulations require that all non-discretionary bonuses be included in earnings for the week, whereas the Oregon regulation does not. 29 U.S.C. § 207(e)(3). Expressed in a formula, overtime under the federal regulations is calculated as follows:

Regular Rate = (Piece Rate Total + Bonus)/Total Hours Worked

Overtime Pay = 0.5*Regular Rate*(Total Hours Worked - 40)

An important omission from the FLSA overtime provision is anything that attempts to regulate how bonuses should be calculated. 29 C.F.R. § 778.111. CCI calculates its employees' bonuses according to the following formula:

Bonus = 70*(Piece Rate Total/60) - (Piece Rate Total + Piece Rate Premium for Overtime)¹

Mr. Brunozzi contends that this bonus scheme violates the FLSA. Mr. Brunozzi argues that by subtracting the Piece Rate...