Marshall v. Pollin Hotels II, LLC

170 F.Supp.3d 1290

Natasha Marshall, Plaintiff,

v.Pollin Hotels II, LLC, Defendant.

3:14-cv-01333-PK

United States District Court, D. Oregon.

Signed March 16, 2016

Leslie E. Baze, Schuck Law, LLC, Vancouver, WA, for Plaintiff.

Jeffrey P. Chicoine, Miller Nash LLP, Elisa J. Dozono, Miller Nash Graham & Dunn LLP, Portland, OR, for Defendant.

OPINION AND ORDER

PAPAK, Magistrate Judge:

Plaintiff Natasha Marshall brings this employment action against defendant Pollin Hotels II, LLC (“Pollin”), asserting claims for unpaid overtime wages, unlawful wage deductions, late payment of wages, failure to provide reasonable safety accommodations, and wrongful discharge.¹ Now before the court are Pollin's Motion for Summary Judgment (# 32) and Marshall's Motion for Partial Summary Judgment (# 40). For the reasons provided below, both motions are granted in part and denied in part.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate “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). A party taking the position that a material fact either “cannot be or is genuinely disputed” must support that position either by citation to specific evidence of record “including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials,” by showing that the evidence of record does not establish either the presence or absence of such a dispute, or by showing that an opposing party is unable to produce sufficient admissible evidence to establish the presence or absence of such a dispute. Fed. R. Civ. P. 56(c). The substantive law governing a claim or defense determines whether a fact is material. See Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 369 (9th Cir.1998).

Summary judgment is not proper if material factual issues exist for trial. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995), cert. denied, 516 U.S. 1171, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996). In evaluating a motion for summary judgment, the court must draw all reasonable inferences in favor of the nonmoving party and may neither make credibility determinations nor perform any weighing of the evidence. See, e.g., Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-55, 110 S.Ct. 1331, 108 L.Ed.2d 504 (1990) ; Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). On cross-motions for summary judgment, the court must consider each motion separately to determine whether either party has met its burden with the facts construed in the light most favorable to the other. See Fed. R. Civ. P. 56 ; see also, e.g., Fair Hous. Council v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir.2001).

BACKGROUND²

I. The Parties

Marshall began working for Pollin at the Sheraton Portland Airport Hotel in Portland, Oregon (the “Hotel”) on or about April 11, 2012. Marshall frequently worked over 40 hours a week and was paid an overtime rate for at least some of that time. Stuart Ticknor was the Assistant General Manager at the Hotel at all relevant times. Melissa Smith was Pollin's Human Resources Director at all relevant times.

II. Time Clock and Meal Break Issues

Upon Marshall's hire, she agreed to accurately record her time by punching in and out on a time clock at the start and end of her work and lunch periods. Marshall's supervisors instructed her to take a 30-minute lunch break near the middle of any shift over six hours long. Marshall understood that her lunch breaks were unpaid. Importantly, when Marshall took a lunch break that lasted less than 30 minutes, the break was still unpaid.

III. Wage Deductions

Pollin made deductions from Marshall's wages to satisfy four writs of garnishment. Asset Recovery and Investigations (“Asset Recovery”) was the garnishor on three of the writs. Asset Recovery served Pollin with the first writ on March 22, 2013. That writ was defective in that it did not contain the garnishor's address. As a result, there was a delay between the time Marshall's wages were deducted for the writ and the time the deducted amounts were actually paid over to Asset Recovery.

The State of Oregon also garnished Marshall's wages for personal income taxes she owed. Both the Oregon writ and the other two Asset Recovery writs properly contained the garnishor's address. Consequently, there was no delay in paying the amounts deducted for those writs to the garnishors.

Pollin also withheld taxes for Old-Age, Survivors, and Disability Insurance (“OASDI”) and Medicare benefits from Marshall's wages. Those withholdings related to Marshall's receipt of short-term disability payments from a third-party provider. In some instances, the amount of the withholdings exceeded what was permissible under applicable law.

IV. Domestic Violence Incidents and Safety Accommodations

On or about May 24, 2013, Marshall informed Smith that she had recently broken up with her boyfriend, Timothy Glaze, because he had assaulted her. She further informed Smith that she had left the home she was sharing with Glaze and was staying with a friend. Marshall asked Smith to keep all of that information confidential. Given the recent events and resulting change in Marshall's living situation, Marshall also asked Smith to have her disability checks³ sent to the Hotel. Smith responded as follows:

I will not say anything, however, I seriously hope that you pressed charges and filed a restraining order. I also hope that this was the first and last time this happened to you. You are an amazing, beautiful, kind and very special person. If I can be of any other assistance, please let me know.

Smith Decl. Ex. 10, at 1 (# 34-10).

This was the first time Pollin learned Marshall was a victim of domestic violence. Smith honored Marshall's requests and did not discuss the incident with anyone else at the Hotel. She also made Marshall's disability checks available for pickup at the Hotel.

As far as Smith knew, Marshall had in fact ended her relationship with Glaze in May of 2013. That belief was supported by the fact that Marshall subsequently asked Smith to remove Glaze from her emergency-contact listing and to have Marshall's disability checks sent to a different residential address. There was no overt indication at this point that Glaze posed a threat to Marshall at the Hotel.

Marshall began a short-term disability leave on or about May 26, 2013. She returned to work on July 8, 2013. She was promoted to front-desk supervisor in August of 2013.

On or about December 15, 2013, Marshall failed to show up for work, and as explained below, she would never again work another shift at the Hotel. That same day, Marshall sent Ticknor the following email:

Let me start by saying I am so sorry for today. Not keeping you in the loop isn't my style at all. I always make sure top have good communication with u. Today wasn't normal for me though.

Please keep in confidence what I'm sharing with u (Melissa can know). I don't feel safe at work. My ex seen me Sat night with my girls and flipped out on me. He beat me up. He has been texting me threats non stop. Threatening my life, safety, friends, family and anything and everyone that has anything to do with me that he knows. When I showed up to work today. He was there waiting for me. I sped off not looking back. After lastnight I couldn't take any chances because I dont know what he is gonna do. I am very scared/concerned. At this point I cannot come to work. I have never felt like this before in my life. I'm way out in the country at a safe house until I figure it out.

Ticknor Decl. Ex. 5, at 1 (# 35-5).

This was the first time Ticknor learned Marshall was a victim of domestic violence. Ticknor immediately responded as follows:

“First and foremost is the issue of your safety. Please do not compromise anything in regard to your safety. I am going to CC Melissa into this communication. I will plan on you being absent (excused) tomorrow.” Id. Smith also responded that same day, stating as follow:

First, are you okay? Have you/are you going to seek medical treatment? Second, have you/are you going to press charges/file a restraining order? We will do everything we can to keep you safe at work, a restraining order will help. I believe we can trespass him from the property without it, but will double check. Third, please know that you are very important to us and I am here to help anyway I can. I will be in office at 9:30 if you want to talk. Take care of you and your family.

Smith Decl. Ex. 12, at 1 (# 34-12). Smith followed up with Marshall less than three hours later, confirming that Pollin could trespass her assailant and asking if it was Glaze.⁴ Smith further informed Marshall that she needed the assailant's address so she could send notice of the trespass order.

Smith sent Marshall yet another email that same day, stating: “I know you are feeling hopeless, but you are not alone. I want to help you and I think I can if you will let me.” Smith Decl. Ex. 13, (# 34-13). Ticknor also followed up with Marshall that afternoon, asking if she was alright. Marshall responded as follows:

:'(I'm not ok at all. I'm so messed up and not together. I am being stalked, taunted and tormented. I am scared to communicate with others because I dont know who is talking to him. He has went to my parents and lil sisters looking for me. He has been calling the hotel because hes texting me telling me stuff like “I can leave now cuz your off today”. He's Just crazy and I can't trust him.

This isn't the first time he has hit me! ! He has never went to this extreme though. I'm lost Stu!! He is going to cause a scene with me @ work and I dont feel safe

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