Matteo Brunozzi v. Cable Communications, Inc. , 851 F.3d 990 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MATTEO BRUNOZZI, an No. 15-35623
individual,
Plaintiff-Appellant, D.C. Nos.
3:14-cv-01128-MO
v. 3:14-cv-01131-MO
CABLE COMMUNICATIONS,
INC., a foreign corporation,
Defendant-Appellee.
CASEY MCCORMICK, an No. 15-35744
individual,
Plaintiff-Appellant, D.C. No.
3:14-cv-01128-MO
v.
CABLE COMMUNICATIONS, OPINION
INC., a foreign corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, Chief Judge, Presiding
Argued and Submitted November 10, 2016
Portland, Oregon
2 BRUNOZZI V. CABLE COMMUNICATIONS
Filed March 21, 2017
Before: M. Margaret McKeown and William A. Fletcher,
Circuit Judges, and Jennifer A. Dorsey, District Judge.*
Opinion by Judge Dorsey
SUMMARY**
Labor Law
The panel reversed the district court’s summary judgment
in favor of the defendant in an action brought under the Fair
Labor Standards Act and Oregon state law by plaintiffs who
worked as technicians, installing cable television and internet
services.
The panel held that the defendant’s piece-work-based pay
plan, which included a bonus designed to decrease in
proportion to an increase in the number of overtime hours
worked, violated the Fair Labor Standards Act’s overtime
provisions.
The panel reversed the district court’s summary judgment
on the technicians’ claims under Or. Rev. Stat. § 652.140(1),
which requires employers to pay all wages earned and unpaid
*
The Honorable Jennifer A. Dorsey, United States District Judge for
the District of Nevada, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BRUNOZZI V. CABLE COMMUNICATIONS 3
by the end of the first business day after a discharge or
termination.
The panel also reversed the district court’s summary
judgment on one technician’s retaliation claims under Or.
Rev. Stat. § 659A.199, which prohibits a private employer
from retaliating against an employee who has in good faith
reported information that the employee believes is a violation
of law, and Or. Rev. State. § 652.355, which prohibits an
employer from discharging or otherwise discriminating
against an employee who has discussed, made, or consulted
an attorney about a wage claim. The technician verbally
complained to his immediate supervisors that he was not
being property compensated for overtime, and he refused to
work any additional overtime hours unless he was paid an
overtime rate. The panel held that the term “reported” in
§ 659A.199 means a report of information to either an
external or internal authority. The panel held that the act of
complaining about inadequate wages is a protected activity
under § 652.355.
The panel remanded the case to the district court for
further proceedings.
COUNSEL
Phil Goldsmith (argued), Law Office of Phil Goldsmith,
Portland, Oregon; D. Michael Dale, Law Office of D.
Michael Dale, Cornelius, Oregon; David A. Schuck, Schuck
Law LLC, Vancouver, Washington; Corinna Spencer-
Scheurich, Northwest Workers’ Justice Project, Portland,
Oregon; for Plaintiffs-Appellants.
4 BRUNOZZI V. CABLE COMMUNICATIONS
Mitchell C. Baker (argued) and Alexander A. Wheatley,
Fisher & Phillips, LLP, Portland, Oregon, for Defendant-
Appellee.
Shenoa Payne, Shenoa Payne Attorney At Law PC, Portland,
Oregon, for Amicus Curiae Oregon Trial Lawyers
Association.
OPINION
DORSEY, District Judge:
Matteo Brunozzi and Casey McCormick worked as
technicians for Cable Communications, Inc. (CCI) installing
cable television and internet services. They filed separate
lawsuits against CCI alleging that the company’s
compensation plan violates the overtime provisions of the
Fair Labor Standards Act (FLSA), 29 U.S.C. § 207, and
Oregon’s statutory requirement that an employer pay all
wages earned and unpaid after terminating an employee, ORS
652.140. Brunozzi additionally alleges that CCI violated
Oregon’s laws prohibiting discrimination against a private
employee who engages in whistleblowing (ORS 659A.199)
and wage-claim discussions (ORS 652.355). The district
court granted summary judgment in favor of CCI on those
claims. The technicians appealed. We reverse.
I. Background
A. Technician work and pay
CCI employs technicians to install cable television and
internet services for Comcast customers. McCormick worked
BRUNOZZI V. CABLE COMMUNICATIONS 5
for CCI as a technician for almost one year. Brunozzi was
similarly employed by CCI for approximately five months.
The unchallenged evidence shows that the technicians’ work
tasks are assigned by CCI on a daily basis. The company
schedules the appointments with the customers; the
technicians do not have authority to change appointment
times or complete a task on a different day. These
technicians’ workweeks ordinarily exceeded 40 hours, and
they were routinely scheduled to work six-day weeks.
CCI guarantees that its technicians will earn at least the
statutory minimum wage and pays them on a piece-work
basis. This means that the technician is paid a fixed rate for
each piece of work (i.e., task) that he completes.1 CCI’s
technicians sign a document entitled “Technician Pay Rate
Program.” The agreement states that the technician’s gross
earnings are the “[t]otal amount billed to the company by the
employee for Piece Rate jobs completed in the pay period
plus any bonus received . . . .”2 It does not explain CCI’s
method for calculating the technicians’ pay, but the parties
mostly agree about how that is accomplished.
CCI begins by calculating the technician’s “Piece Rate
Total” for the week, which is the total value of the piece-work
tasks performed by him that week minus any adjustments
made for incomplete work or similar reasons. If the
technician worked over 40 hours, CCI divides the Piece Rate
1
The record does not reflect what work pieces the technicians
performed or the values that CCI assigned to them.
2
McCormick’s agreement refers to “Commission Rate” jobs while
Brunozzi’s refers to “Piece Rate” jobs. No party argues that there is a
distinction in this difference.
6 BRUNOZZI V. CABLE COMMUNICATIONS
Total by the total number of hours worked to calculate his
“average hourly” rate of pay for that week.3 This hourly rate
is then divided by two, and the resulting quotient is multiplied
by the number of overtime hours the technician worked that
week to arrive at the technician’s base overtime pay—his
“Piece Rate OT Premium.”
CCI next calculates whether the technician has earned a
“Production Bonus” by dividing the Piece Rate Total by 60,
multiplying the quotient by 70, and subtracting from that
product his Piece Rate Total and any Piece Rate OT
Premium. Finally, if the technician earned a Production
Bonus and worked overtime, CCI calculates the overtime due
on the bonus—the Production Bonus OT Premium—by
dividing the Production Bonus by the total number of hours
worked in the week, dividing the resulting quotient by two,
and multiplying that quotient by the number of overtime
hours worked in the week. A technician’s pay each week is
his Piece Rate Total plus—to the extent that they are
earned—Piece Rate OT Premium, Production Bonus, and
Production Bonus OT Premium.
B. Procedural history of the technicians’ lawsuits
Brunozzi filed his complaint in state court alleging that
CCI violated: (1) Oregon’s overtime regulations4; (2) the
3
The technicians claim that CCI’s formula for calculating their
regular rate each week is (Piece Rate Total + Bonus)/total hours worked.
They cite the district court’s orders for this proposition. But the district
court was reciting how the regular rate is calculated under the federal
regulations, not how it is calculated under CCI’s plan.
4
The district court dismissed this claim; Brunozzi does not challenge
that dismissal in this appeal.
BRUNOZZI V. CABLE COMMUNICATIONS 7
FLSA’s overtime regulations; (3) Oregon’s wage-claim- and
whistleblowing-discrimination regulations; and (4) Oregon’s
wage-payment-on-termination regulations. After CCI
removed the case to federal court, the parties filed cross-
motions for summary judgment: the company moved on all
of Brunozzi’s claims while he moved on his FLSA overtime-
violation and Oregon wage-payment-on-termination claims.
The district court entered judgment in favor of CCI on
Brunozzi’s claims; Brunozzi timely appealed.
McCormick filed his complaint in state court alleging that
CCI violated: (1) Oregon’s overtime regulations; (2) the
FLSA’s overtime regulations; (3) Oregon’s wage-payment-
on-termination regulations; (4) the Oregon Family Medical
Leave Act; (5) Oregon’s disability-discrimination regulations;
and (6) wrongful termination under Oregon common law.
After CCI removed the case to federal court, the parties filed
cross-motions for summary judgment: the company sought
judgment on all of McCormick’s claims, and he sought
judgment on his FLSA overtime-violation and Oregon wage-
payment-on-termination claims. The district court entered
judgment in favor of the company on McCormick’s FLSA
and Oregon wage-payment-on-termination claims. Then the
district court entered final judgment under FRCP 54(b) on
those claims. McCormick timely appealed.
II. Standard of Review
A district court’s decision to grant summary judgment is
reviewed de novo. Ctr. for Bio-Ethical Reform, Inc. v. Los
Angeles Cty. Sheriff Dep’t, 533 F.3d 780, 786 (9th Cir. 2008).
When the parties file cross-motions for summary judgment,
“we review each motion . . . separately, giving the nonmoving
party for each motion the benefit of all reasonable
8 BRUNOZZI V. CABLE COMMUNICATIONS
inferences.” Id. “When the underlying facts are not in
dispute, th[is] court’s only function is to determine whether
the district court correctly applied the law.” Szajer v. City of
Los Angeles, 632 F.3d 607, 610 (9th Cir. 2011) (citing
Universal Health Servs., Inc. v. Thompson, 363 F.3d 1013,
1019 (9th Cir. 2004)). “We review the district court’s
interpretation of state law, including state statutes, de novo.”
Wetzel v. Lou Ehlers Cadillac Group Long Term Disability
Ins. Program, 222 F.3d 643, 646 (9th Cir. 2000) (en banc)
(citing In re McLinn, 739 F.2d 1395, 1397–98 (9th Cir. 1984)
(en banc)).
III. Discussion
A. The technicians’ FLSA overtime-violation claims
1. Overtime pay requirements under the FLSA
“Congress enacted the FLSA in 1938 with the goal of
‘protect[ing] all covered workers from substandard wages and
oppressive working hours.’” Christopher v. SmithKline
Beecham Corp., 132 S. Ct. 2156, 2162 (2012) (alteration in
original) (quoting Barrentine v. Arkansas-Best Freight Sys.,
Inc., 450 U.S. 728, 739 (1981)). Among other things, the
FLSA requires “employers to compensate employees for
hours in excess of 40 per week at a rate of 1 ½ times the
employees’ regular wages.” Id. (citing 29 U.S.C. § 207(a)).
“The keystone of [this requirement] is the regular rate of
compensation. On that depends the amount of overtime
payments [that] are necessary to effectuate the statutory
purposes. The proper determination of that rate is therefore
of prime importance.” Walling v. Youngerman-Reynolds
Hardwood Co., 325 U.S. 419, 424 (1945) (“Youngerman-
Reynolds”).
BRUNOZZI V. CABLE COMMUNICATIONS 9
Although not defined in the FLSA, the Supreme Court has
interpreted “regular rate” to mean “the hourly rate actually
paid the employee for the normal, non-overtime workweek
for which he is employed.” Id. (citing Walling v. Helmerich
& Payne, Inc., 323 U.S. 37, 40 (1944)); Parth v. Pomona
Valley Hosp. Med. Ctr., 630 F.3d 794, 799 (9th Cir. 2010).
“The regular rate by its very nature must reflect all payments
[that] the parties have agreed shall be received regularly
during the work week, exclusive of overtime payments.” Id.
In determining the statutory regular rate, “[w]e must look ‘not
to contract nomenclature’ but to all payments, wages, piece
work rates, bonuses, or things of value” that form “part of the
normal weekly income” of the employee. Walling v. Alaska
Pac. Consol. Min. Co., 152 F.2d 812, 815 (9th Cir. 1945).
“The ‘regular rate’ of pay under the [FLSA] cannot be left to
a declaration by the parties as to what is to be treated as the
regular rate for an employee; it must be drawn from what
happens under the employment contract.” 29 C.F.R.
§ 778.108 (citing Bay Ridge Operating Co. v. Aaron,
334 U.S. 446, 464 (1948)).
For employees who are paid “on a piece-rate basis, the
regular hourly rate of pay is computed by adding together
total earnings for the workweek from piece rates and all other
sources (such as production bonuses) and any sums paid for
waiting time or other hours worked (except statutory
exclusions).” Id. § 778.111(a). “This sum is then divided by
the number of hours worked in the week for which such
compensation was paid, to yield the pieceworker’s ‘regular
rate’ for that week.” Id. A pieceworker is entitled to be paid
“the total weekly earnings at this regular rate for all hours
worked” and overtime equal to “one-half this regular rate of
pay multiplied by the number of hours worked in excess of 40
in the week.” Id. “Only additional half-time pay is required
10 BRUNOZZI V. CABLE COMMUNICATIONS
in such cases where the employee has already received
straight-time compensation at piece rates or by supplementary
payments for all hours worked.” Id.
2. Comparing the FLSA’s requirements with CCI’s
pay plan
The technicians argue that CCI’s pay plan allows it to
skirt the full burden of the FLSA’s overtime pay requirement.
The fault, they say, lies with the Production Bonus, which is
designed to decrease in proportion to an increase in the
number of overtime hours worked. CCI responds that its plan
is legally sound because the FLSA does not regulate bonus
amounts and the technicians are paid their piece-rate wages
plus overtime premiums at ½ their regular rate as required by
29 C.F.R. § 778.111.
The crux of the issue is whether CCI’s plan properly
calculates a technician’s statutory regular rate. To determine
this, we must first determine what the parties agreed a
technician is to be paid in a normal, non-overtime workweek.
See Youngerman-Reynolds, 325 U.S. at 424. We then
examine if CCI divides that sum by the total number of hours
worked in the workweek to determine a technician’s regular
hourly rate for that week. See 29 C.F.R. § 778.111(a).
The employment contract states that during a normal,
non-overtime workweek, a technician will receive the total
value of the piece-work tasks that he completed—his Piece
Rate Total—plus a Production Bonus in the amount of 1/6 his
BRUNOZZI V. CABLE COMMUNICATIONS 11
Piece Rate Total.5 Because the Production Bonus is “a
portion of regular wages [that] the [technician] is entitled to
receive under his regular wage contract[,]” it is not a true
bonus as defined by the Department of Labor (DOL).
29 C.F.R. § 778.502(a) (providing that a bonus is a sum paid
in “addition to total wages usually because of extra effort of
one kind or another, or as a reward for loyal service or as a
gift”). Having agreed that the Piece Rate Total plus 1/6 that
amount forms the technician’s normal weekly income, CCI
must divide the sum of those amounts by the total number of
hours worked in a particular week to properly determine the
technician’s regular hourly rate for that week. See
Youngerman-Reynolds, 325 U.S. at 424.
But that is not what CCI does during weeks when a
technician works overtime. Instead, CCI reduces the
Production Bonus paid during a regular forty-hour workweek
by the amount of overtime premium that it calculates is due
to the technician on his Piece Rate Total. Because a “bonus”
of 1/6 the technician’s Piece Rate Total forms part of the
technician’s income in a normal, non-overtime week,
diminishing or eliminating that “bonus” results in the
technician being paid at a reduced hourly rate during weeks
when he works overtime. An agreement, practice, or device
that lowers the hourly rate during statutory overtime hours or
weeks when statutory overtime is worked is expressly
prohibited under the regulations promulgated by the DOL
5
The formula provided in the agreement for calculating the bonus is
more complicated—(70*(Piece Rate Total/60)) - Piece Rate OT
Premium—but the parties agree in their supplemental briefs that it is
correctly simplified as (1/6)*Piece Rate Total for weeks when no overtime
is worked.
12 BRUNOZZI V. CABLE COMMUNICATIONS
interpreting the FLSA.6 The regulations state that “the parties
cannot lawfully agree that the rate” that is “applicable to a
particular type of work” “shall be lower merely because the
work is performed during the statutory overtime hours, or
during a week in which statutory overtime is worked.”
29 C.F.R. § 778.316. Similarly, when discussing schemes
that establish artificially low regular rates in violation of the
FLSA, the DOL cautions “that the hourly rate paid for the
identical work during the hours in excess of the applicable
maximum hours standard cannot be lower than the rate paid
for the nonovertime hours nor can the hourly rate vary from
week to week inversely with the length of the workweek.”
Id. § 778.500(b). Agreements or practices that do this are
“ineffective.” See id. § 778.316.
The diminishing “bonus” device in CCI’s pay plan causes
it to miscalculate the technicians’ regular hourly rate during
weeks when they work overtime and allows CCI to pay the
technicians less during those weeks. We thus hold that CCI’s
pay plan violates the FLSA’s overtime provisions, and we
reverse the district court’s orders granting summary judgment
in CCI’s favor on the technicians’ FLSA claims.
B. The technicians’ claims alleging violations of ORS
652.140
Oregon Revised Statute section 652.140(1) requires
employers to pay “all wages earned and unpaid at the time of
6
The regulations contained in part 778 of title 29 of the Code of
Federal Regulations “constitute[ ] the official interpretation of the
Department of Labor with respect to the meaning and application of the
maximum hours and overtime pay requirements contained in section 7 of
the [FLSA].” 29 C.F.R. § 778.1.
BRUNOZZI V. CABLE COMMUNICATIONS 13
discharge” by “the end of the first business day after the
discharge or termination.” The district court found that CCI’s
pay plan did not violate either Oregon law or the FLSA, so it
concluded that the technicians’ ORS 652.140 claims “fall
away” and, thus, entered judgment in favor of CCI on those
claims. Because we conclude that CCI’s pay plan violates the
FLSA’s overtime provisions, we reverse the district court’s
order granting summary judgment in CCI’s favor on the
technicians’ claims under ORS 652.140.
C. Brunozzi’s retaliation claim under ORS 659A.199
Oregon law prohibits a private employer from retaliating
against an employee who “has in good faith reported
information that the employee believes is evidence of a
violation of a state or federal law, rule[,] or regulation.” OR.
REV. STAT. § 659A.199(1). To establish a prima facie case
of retaliation under ORS 659A.199, the plaintiff must
demonstrate that (1) he was engaged in a protected activity;
(2) he suffered an adverse employment decision; and (3) there
was a causal link between the protected activity and the
adverse employment decision. C.f. Ruggles v. Cal. Poly. St.
Uni., 797 F.2d 782, 785 (9th Cir. 1986) (reciting elements of
a retaliation claim under Title VII of the Civil Rights Act).
The record reflects that Brunozzi verbally complained to
his immediate supervisors on several occasions that he was
not being properly compensated for overtime. Brunozzi’s last
complaint came two days before he was terminated, when he
told his supervisor that he would not work on Saturday, April
5, 2014, “Because I’m not being paid overtime, as far as I can
tell.” Because the district court interpreted “reported” in ORS
659A.199 to mean reports only to authorities that are external
to the employer, it found that Brunozzi’s complaints to his
14 BRUNOZZI V. CABLE COMMUNICATIONS
supervisors did not constitute protected activity under the
statute and entered judgment against him on his retaliation
claim. Brunozzi argues that the district court erred when it
interpreted ORS 659A.199’s “reported” to include only
reports made to external authorities. We agree.
The legislature did not define the term “reported” as it is
used in ORS 659A.199, and no Oregon state court has
interpreted that term in the context of this statute. Our role
when interpreting a state statute as a matter of first
impression is to “determine what meaning the state’s highest
court would give to the law.” Bass v. Cty. of Butte, 458 F.3d
978, 981 (9th Cir. 2006). “Thus, we must follow the state’s
rules of statutory interpretation.” Id.
Under Oregon law, “[t]he first step [involves] an
examination of text and context.” State v. Gaines, 206 P.3d
1042, 1050–51 (Or. 2009) (en banc). In the second step,
“[t]he court will consult [proffered legislative history] after
examining text and context, even if the court does not
perceive an ambiguity in the statute’s text, where that
legislative history appears useful to the court’s analysis.” Id.
at 1050. Oregon places legislative history “on a par with
[the] text and context” of the statute. Id. at 1049. “However,
the extent of the court’s consideration of that history, and the
evaluative weight that the court gives it, is for the court to
determine.” Id. at 1050–51. In the third and final step, “[i]f
the legislature’s intent remains unclear after examining text,
context, and legislative history, the court may resort to
general maxims of statutory construction to aid in resolving
the remaining uncertainty.” Id. at 1051.
Textually, ORS 659A.199 is broad and places no limit on
the individual to whom the employee’s information must be
BRUNOZZI V. CABLE COMMUNICATIONS 15
“reported.” The statute does not provide much context other
than to suggest that it is designed to safeguard an employee
who, “in good faith[,]” has “reported information” that he
“believes is evidence of a violation of a state or federal law,
rule, or regulation.” These clues do not guide us toward
either party’s interpretation, so we must consider other
cannons of construction.
If the legislature has not defined a statutory term, Oregon
courts “ordinarily look to the plain meaning of a statute’s text
as a key first step in determining what particular terms
mean.” Comcast Corp. v. Dept. of Revenue, 337 P.3d 768,
776 (Or. 2014) (en banc). This “frequently” includes “the
approach [of] . . . consult[ing] dictionary definitions of the
terms, on the assumption that, if the legislature did not give
the term a specialized definition, the dictionary definition
reflects the meaning that the legislature would naturally have
intended.” Id. Oregon courts regularly consult Webster’s
Third New International Dictionary. Id. at n.7.
According to that dictionary, “[t]he ordinary meaning of
the verb ‘report’ is ‘to give an account of: NARRATE,
RELATE, TELL.’” Roberts v. Oregon Mut. Ins. Co.,
255 P.3d 628, 632–33 (Or. Ct. App. 2011) (quoting Webster’s
Third New Int’l Dictionary 1925 (unabridged ed. 2002)).
Oregon courts recognize that “the context in which the word
is used adds additional meaning to the definition.” Id. at 633.
Examples of other uses of the verb “report” are “to ‘make a
charge of misconduct against [another]’” or “‘to make known
to the proper authorities: give notification of.’” Id. (alteration
in original) (quoting Webster’s at 1925). But the context of
ORS 659A.199 does not provide additional meaning to make
either alternative use of “report” applicable. C.f. id.
(discussing that ORS 659A.230(1) provides context of
16 BRUNOZZI V. CABLE COMMUNICATIONS
criminal activity, complaint, investigation, and trial and civil
proceeding). We initially conclude from the text and context
of ORS 659A.199 that the Oregon legislature intended to use
the ordinary meaning of the verb “report” in this statute: to
narrate, relate, tell. This interpretation supports Brunozzi’s
argument that the legislature intended ORS 659A.199 to
cover both external and internal reports of violations.
The second step of Oregon’s statutory-interpretation
methodology is considering pertinent legislative history that
a party may proffer. Gaines, 206 P.3d at 1050. The district
court was not required to consider the legislative history of
ORS 659A.199 because no party proffered any portion of that
history to it. OR. REV. STAT. § 174.020(3). However,
Brunozzi and the Oregon Trial Lawyers Association (OTLA)
proffer pertinent portions of the legislative history to us; we
may consider that history “to the extent that [we find] it . . .
useful.” Powell’s Books, Inc. v. Kroger, 622 F.3d 1202, 1209
(9th Cir. 2010) (citing Gaines, 206 P.3d at 1050–51)
(discussing Oregon’s rules of statutory construction and how
they contrast with standard federal statutory construction).
The proffered legislative history shows that ORS
659A.199 had its genesis in House Bill 3162, which was
introduced to the Oregon Legislative Assembly during the
2009 Regular Session.7 The bill’s chief sponsor was
Representative Stiegler, and it was referred to the House
Business and Labor Committee, which held a public hearing
7
HB 3162 Enrolled, Oregon Legislative Information, 2009 Regular
Session (available at: https://olis.leg.state.or.us/liz/2009R1/Measures/
Overview/HB3162).
BRUNOZZI V. CABLE COMMUNICATIONS 17
on the measure on April 10, 2009.8 During that hearing, Rep.
Stiegler stated that H.B. 3162 puts “private employees on
equal footing with public employees at this stage of the game
who already have a whistleblowing provision in ORS 659A.”9
She explained that H.B. 3162 “levels the playing field for the
private employee” who has “tried to do the right thing by
bringing” violations of state or federal law “to the attention of
a superior in the chain of command, and ha[s] ended up
paying the price either through demotion, reduction in salary,
or loss of employment altogether.”10 At a later hearing before
the Senate, Rep. Stiegler elaborated that H.B. 3162 gives an
employee “who wants to do the right thing[,] . . . [like]
bring[ing] a bad practice to the [attention of his] higher ups,
the ability to do so without repercussion, and hopefully
give[s] the employer the opportunity to rectify that
situation.”11 Representative Chris Edwards and Senator
Diane Rosenbaum similarly explained that H.B. 3162 would
encourage “more internal reporting” by employees “so that
the company, maybe even higher up the food chain than
whoever is the bad actor, can deal with it internally and [the
8
Id.
9
Hearing on H.B. 3162 Before the House Committee on Business and
Labor, First Public Hearing, 2009 Leg., Reg. Sess. at 1:22–1:40 (Or. Apr.
10, 2009) (“April 10 Hearing”) (statement from Rep. Judy Stiegler).
10
Id. at 1:40–2:13 (statement from Rep. Stiegler).
11
Hearing on H.B. 3162 A Before the Senate Committee on
Commerce and Workforce Development, Public Hearing and Work
Session, 2009 Leg., Reg. Sess. at 37:19–37:42 (Or. May 18, 2009) (“May
18 Hearing”) (statement from Rep. Stiegler).
18 BRUNOZZI V. CABLE COMMUNICATIONS
company] can right [its] own ship without the involvement of
the government.”12
Numerous people testified in favor of H.B. 3162,
including two OTLA attorneys who stated that the bill was
necessary because Oregon law did not protect private
employees who internally report legal violations to their
employers like it protects public whistleblowers.13 And
several Oregonians who had been terminated after they
internally reported legal violations to their employers
likewise testified in favor of the bill.14
We find that the proffered legislative history is useful to
answer the question before us. Having examined the text,
context, and pertinent legislative history, we find that the
Oregon legislature intended the term “reported” in ORS
659A.199 to mean a report of information to either an
external or internal authority. We therefore reverse the
district court’s order granting summary judgment in CCI’s
favor on Brunozzi’s retaliation claim under ORS 659A.199.
D. Brunozzi’s retaliation claim under ORS 652.355
Brunozzi’s final challenge is to the district court’s entry
of summary judgment on his claim that CCI violated ORS
12
April 10 Hearing at 39:49–40:49 (statement from Rep. Edwards);
accord Hearing on H.B. 3162 A Before the Senate, Third Reading of
House Measures, 2009 Leg., Reg. Sess. at 1:30:00–1:33:00 (May 28,
2009) (“May 28 Hearing”) (statement from Sen. Rosenbaum).
13
May 28 Hearing at 4:13–8:41; May 18 Hearing at 42:56–49:01.
14
April 10 Hearing at 9:15–17:23, 20:39–28:25; May 18 Hearing at
49:07–57:10.
BRUNOZZI V. CABLE COMMUNICATIONS 19
652.355, which prohibits an employer from discharging or
otherwise discriminating against an employee who has
discussed, made, or consulted an attorney about “a wage
claim.” Brunozzi complained to his supervisors on several
occasions that CCI had failed to properly pay him overtime
wages, and he refused to work any additional overtime hours
(and specifically on Saturday, April 5, 2014) “unless [he] was
paid an overtime rate of pay” for those hours. On this
evidence, the district court was inclined to find a triable issue
of fact regarding whether Brunozzi had made the type of
“wage claim” protected by ORS 652.355, but it concluded
that Oregon case law does not recognize complaining about
inadequate wages as such a claim.
Brunozzi relies on Brown v. American Property
Management Corp., 1 P.3d 1051 (Or. Ct. App. 2000), to
argue that Oregon law recognizes that the act of complaining
about inadequate wages is a protected activity under ORS
652.355. Brown sued his former employer, American
Property Management, for unlawful termination. Brown, 1
P.3d at 1053. Brown was a leasing agent for American and
contractually entitled to a commission on office space that he
leased. Id. Believing that he was not being properly
compensated, Brown wrote a letter to his supervisor
“complaining that [American] had not paid him for several
leases that he had negotiated” and noting that he “had
retained a lawyer who had advised him that his claims for
commissions were well-founded.” Id. at 1053–54.
But whether the employee had either filed or discussed
filing a wage claim within the meaning of ORS 652.355 was
not an issue in Brown. The Brown court focused on
causation: whether Brown had been suspended because he
discussed filing a claim or, as American claimed, to avoid
20 BRUNOZZI V. CABLE COMMUNICATIONS
future liability. Brown thus cannot be read as interpreting
ORS 652.355 to provide a bright-line rule that an employee
makes, discusses, or inquires about a “wage claim” any time
he complains about inadequate wages.
Nor does De Bay v. Wild Oats Market, Inc., 260 P.3d 700
(Or. Ct. App. 2011), relied upon by the district court, control
this inquiry. The employee in De Bay argued “that the
allegations of his complaint [we]re sufficient to state a claim
for common-law wrongful discharge because they allege[d]
facts from which it can be shown that he was terminated for
exercising important societal obligations and rights
recognized in . . . ORS 652.355,” but the district court
dismissed this claim. De Bay, 260 P.3d at 703. The appellate
court affirmed for two reasons: (1) De Bay had “not alleged
that he made a wage claim or even discussed a wage claim
with anyone,” and (2) “[i]n any event,” “ORS 652.355
provides an adequate remedy for those who have suffered
retaliation for bringing a good faith wage claim[,]” so an
employee cannot bring “a common-law wrongful discharge
claim based on th[at] conduct.” Id. at 704 (citing Carlson v.
Crater Lake Lumber Co., 796 P.2d 1216 (Or. Ct. App. 1990),
adh’d to as modified on recons., 804 P.2d 511 (Or. Ct. App.
1991)). To the extent that De Bay can be read to construe and
apply ORS 652.355, it is factually distinguishable because De
Bay’s complaints focused on management’s “criminal,
illegal, and fraudulent business practices” related to
communications to stockholders and other investors and “the
retaliatory reduction of his bonus” as a result of those
complaints, not inadequate wages. Id. at 703.
With no Oregon state-court opinion deciding whether
complaints like Brunozzi’s constitute a “wage claim” under
ORS 652.355, we turn to Oregon’s rules of statutory
BRUNOZZI V. CABLE COMMUNICATIONS 21
interpretation. See Perri v. Certified Languages Intern., LLC,
66 P.3d 531, 539 (Or. Ct. App. 2003), overruled on other
grounds by, Cejas Comm. Interiors, Inc. v. Torres-Lizama,
316 P.3d 389 (Or. Ct. App. 2013). We again begin with the
text and context of the statute. ORS 652.355 makes it an
unlawful employment practice to fire or discriminate against
an employee because he has “made a wage claim or
discussed, inquired about[,] or consulted an attorney or
agency about a wage claim.” The legislature defined “wage
claim” in ORS 652.320(7) to mean “an employee’s claim
against an employer for compensation for the employee’s
own personal services, and includes any wages,
compensation, damages or civil penalties provided by law to
employee in connection with a claim for unpaid wages.”
Because this is a circular definition—a “wage claim” is
“an employee’s claim”—and the Oregon legislature has not
further defined “claim” in this context, we look to Webster’s,
which defines the noun “claim” to mean “an authoritative or
challenging request: demand. . . .” Webster’s Third New Int’l
Dictionary 414 (unabridged ed. 1986). It gives other
meanings for “claim,” but neither the text nor context of the
statute indicates that any meaning is more applicable than the
ordinary one. Having examined the statute’s text and context,
we find that the Oregon legislature intended “wage claim” in
ORS 652.355 to mean a demand or request that an employee
has against his employer for compensation due and owing for
the employee’s personal services.15
Applying this definition to the facts of this case leads us
to conclude that part of Brunozzi’s claim for retaliation under
15
We do not consider the legislative history for ORS 652.355 or
652.320 because no party has proffered it.
22 BRUNOZZI V. CABLE COMMUNICATIONS
ORS 652.355 survives summary judgment. Brunozzi
testified in deposition that he informed his supervisor that he
was not working on Saturday, April 5, 2014, “Because I’m
not being paid overtime, as far as I can tell.” He stated that
“[o]n or about April 5, 2014, I objected to [CCI’s] failure to
pay me my overtime wages, and I further notified [CCI] that
I would not work additional overtime hours unless I was paid
an overtime rate of pay.” And Brunozzi further stated that he
made other complaints to his supervisors that he was not
being paid overtime.
Brunozzi’s refusal to work additional overtime unless he
was paid an overtime rate for those hours was a demand for
future payment and does not qualify as a wage claim under
Oregon law. See Perri, 66 P.3d at 538–40 & n.8 (concluding
“that a wage claim for purposes of ORS 652.320(9)
[renumbered to subsection (7) when the statute was amended
in 2001] and ORS 652.355 must be either a claim for
payment for services previously rendered or a claim for
wages, compensation, damages, or civil penalties in
connection with a claim for unpaid wages—that is, a claim
for wages for services previously rendered”). But his
complaints that CCI had failed to properly compensate him
for overtime were at least discussions or inquiries about a
demand for past-due wages if not the actual making of such
a demand. These complaints were precursors to Brunozzi’s
filing of a formal demand in court for past-due overtime
wages, and they qualify for protection under ORS 652.355.
Accordingly, we reverse the district court’s order granting
summary judgment in CCI’s favor on Brunozzi’s ORS
652.355 claim.
REVERSED and REMANDED for further
proceedings consistent with this opinion.