93321604.4 0052941-00001 

Karen L. O’Connor, OSB No. 953710 

karen.oconnor@stoel.com 

John B. Dudrey, OSB No. 083085 

john.dudrey@stoel.com 

STOEL RIVES LLP

760 SW Ninth Avenue, Suite 3000 

Portland, OR 97205-2584 

Telephone: (503) 224-3380 

Facsimile: (503) 220-2480 

Attorneys for Defendants 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

PORTLAND DIVISION 

NANCY ALLISON and HOLLY 

BURNEY, both in their individual capacities 

and, in addition, as a collective action on 

behalf of others similarly situated, 

Plaintiffs, 

v. 

SCOTT DOLICH and ANNA 

JOSEPHSON, individuals, and PARK 

KITCHEN LLC and THE BENT BRICK, 

LLC, Oregon limited liability companies, 

Defendants. 

Case No.: 3:14-cv-01005-AC 

DEFENDANTS’ RESPONSE TO 

PLAINTIFFS’ MOTION FOR 

SUMMARY JUDGMENT 

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TABLE OF CONTENTS 

Page 

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TABLE OF AUTHORITIES ......................................................................................................... ii 

I. INTRODUCTION ............................................................................................................. 1

II. FACTUAL BACKGROUND ............................................................................................ 1 

III. ARGUMENT ..................................................................................................................... 7 

A. Plaintiffs Face the Full Burden of Persuasion in Their Motion for 

Summary Judgment ............................................................................................... 7 

B. Questions of Fact Preclude Summary Judgment on Plaintiffs’ Retaliation 

Claims .................................................................................................................... 8 

1. There Are Questions of Fact as to Whether Ms. Allison and 

Ms. Burney Engaged in Protected Activity ............................................... 9 

2. There Are Questions of Fact as to Whether Ms. Allison and 

Ms. Burney Were Terminated Because of Their Alleged Protected 

Activity .................................................................................................... 11 

3. There Are Questions of Fact as to Ms. Allison and Ms. Burney’s 

Damages ................................................................................................... 12 

C. Plaintiffs’ Spreadsheet Outlining Their Minimum Wage Damages Is 

Inadmissible, and In Any Case Presents Questions of Fact That Preclude 

Summary Judgment ............................................................................................. 14 

D. Plaintiffs’ Motion Must Be Denied to the Extent It Seeks Recovery for 

Employees Who Did Not Opt In .......................................................................... 19 

E. Plaintiffs’ Motion Must Be Denied to the Extent It Seeks Recovery for 

Opt-in Employees Beyond the Limitations Period .............................................. 23 

IV. CONCLUSION ................................................................................................................ 26 

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Cases 

Adair v. City of Kirkland, 

185 F.3d 1055 (9th Cir. 1999) .................................................................................................16 

Blanton v. City of Murfreesboro, 

856 F.2d 731 (6th Cir. 1988) ...................................................................................................12 

Bonilla v. Las Vegas Cigar Company, 

61 F. Supp. 2d. 1129 (D. Nev. 1999) .......................................................................................22 

Braswell v. City of El Dorado, Ark., 

187 F.3d 954 (8th Cir. 1999) ...................................................................................................12 

Bythewood v. Unisource Worldwide, Inc., 

413 F. Supp. 2d 1367 (N.D. Ga. 2006) ....................................................................................10 

Cancilla v. Ecolab, Inc., 

No. C 12-03001 CRB, 2013 WL 1365939 (N.D. Cal. Apr. 3, 2013) ......................................21 

Cappuccio v. Pepperdine Univ., 

No. CV 13-3125 DSF, 2014 WL 12573366 (C.D. Cal. Sept. 17, 2014) .................................12 

Chavez v. Lumber Liquidators, Inc., No. C-09-04812 SC, 

2011 WL 809453 (N.D. Cal. Mar. 2, 2011) .............................................................................21 

Clover v. Total Sys. Servs., Inc., 

176 F.3d 1346 (11th Cir. 1999) ...............................................................................................10 

Cumbie v. Woody Woo, Inc., 

596 F.3d 577 (9th Cir. 2010) .......................................................................................10, 12, 14 

EEOC v. Pacific Sea Food, Inc., 

No. CV-08-1143-ST, 2010 WL 1998878 (D. Or. Apr. 20, 2010) .............................................9 

Friedman v. Live Nation Merchandise, Inc., 

833 F.3d 1180 (9th Cir. 2016) ...............................................................................................7, 8 

Frye v. Baptist Memorial Hospital, Inc.

495 F. App’x 669 (6th Cir. 2012) ............................................................................................20

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TABLE OF AUTHORITIES 

(continued) 

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Gessele v. Jack in the Box, Inc., 

6 F. Supp. 3d 1141 (D. Or. 2014) ............................................................................................21

Harkins v. Riverboat Services, Inc., 

385 F.3d 1099 (7th Cir. 2004) .................................................................................................21 

Justice v. Rockwell Collins, Inc., 

117 F. Supp. 3d 1119 (D. Or. 2015) ........................................................................................11 

Kasten v. Saint-Gobain Performance Plastics Corp., 

563 U.S. 1 (2011) ...........................................................................................................9, 10, 11 

Ketchum v. City of Vallejo, 

523 F. Supp. 2d 1150 (E.D. Cal. 2007)....................................................................................22 

Kilgore v. Outback Steakhouse of Fla., Inc., 

160 F.3d 294 (6th Cir. 1998) ...................................................................................................17 

Lambert v. Ackerley, 

180 F.3d 997 (9th Cir. 1999) ...................................................................................................13 

Mayes v. Kaiser Found. Hosps., 

917 F. Supp. 2d 1074 (E.D. Cal. 2013)................................................................................8, 11 

McElmurry v. US Bank Nat’l Ass’n, 

No. CV-04-642-HU, 2005 WL 2078334 (D. Or. Aug. 24, 2005) ...........................................16 

Moore v. Appliance Direct, Inc., 

708 F.3d 1233 (11th Cir. 2013) ...............................................................................................12 

Overnight Motor Transp. Co. v. Missel, 

316 U.S. 572 (1942) .................................................................................................................16 

Rocksmore v. Hanson, 

No. 3:14-cv-01114-MO, 2015 WL 852938 (D. Or. Feb. 24, 2015) ........................................10 

Rosenfield v. GlobalTranz Enterprises, Inc., 

811 F.3d 282 (9th Cir. 2015) ...............................................................................................9, 10 

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TABLE OF AUTHORITIES 

(continued) 

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Shakur v. Schriro, 

514 F.3d 878 (9th Cir. 2008) .....................................................................................................7 

Snapp v. Unlimited Concepts, Inc., 

208 F.3d 928 (11th Cir. 2000) .................................................................................................13 

Standard Oil Co. of California v. Moore, 

251 F.2d 188 (9th Cir. 1957) ...................................................................................................15 

Thomas v. Talyst, Inc., 

No, C07-202JLR, 2008 WL 570806 (W.D. Wash. Feb. 28, 2008) .........................................22 

Travis v. Gary Cmty. Mental Health Ctr., Inc., 

921 F.2d 108 (7th Cir. 1990) ...................................................................................................13 

Tumulty v. FedEx Ground Package Sys., Inc., 

No. C04-1425P, 2005 WL 1979104 (W.D. Wash. Aug. 16, 2005) .........................................14 

Statutes 

Fair Labor Standards Act ....................................................................................................... passim 

FLSA § 115(a)(3) .............................................................................................................................8 

FLSA § 206 ....................................................................................................................................19 

FLSA § 206 (a)(1)(C) ....................................................................................................................16 

FLSA § 207 ....................................................................................................................................19 

FLSA § 215(a)(3) .......................................................................................................................9, 12 

FLSA § 216(b) .........................................................................................................................12, 19 

FLSA § 255 ....................................................................................................................................19 

FLSA § 256 ........................................................................................................................19, 20, 21 

FLSA § 256(a) ...............................................................................................................................20 

FLSA § 256(b) .........................................................................................................................19, 20 

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TABLE OF AUTHORITIES 

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Rules 

Fed. R. Civ. P. 56 .............................................................................................................................7 

Federal Rule of Evidence 1006 ......................................................................................................15 

Regulations 

29 C.F.R. § 531.54 .........................................................................................................................17 

29 C.F.R. § 778.105 .......................................................................................................................16 

Other Authorities 

Jack B. Weinstein & Marger A. Berger, Weinstein’s Federal Evidence Sec. 

1006.07[2] (Mark S. Brodin, ed. Mathhew Bender 2d ed. 2017) ............................................15 

Ninth Circuit Model Jury Instruction 5.5, http://www3.ce9.uscourts.gov/juryinstructions/node/111 ...............................................................................................................14 

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I. INTRODUCTION 

The claims in this case are replete with factual issues which must be determined by a 

fact-finder, and genuine issues of material fact exist on every claim asserted by Plaintiffs. For 

the reasons explained below, Plaintiffs’ Motion For Summary Judgment (“Plaintiffs’ Motion”) 

should be denied in its entirety. 

II. FACTUAL BACKGROUND 

Scott Dolich is the owner of Park Kitchen and the former owner of now-closed The Bent 

Brick. Park Kitchen provides dinner service seven nights a week. Mr. Dolich’s restaurants have 

always focused on high quality service, as highlighted on Park Kitchen’s website: 

We believe that the greatest factor in the success of our restaurant is the quality of 

our people. We work hard to attract, hire and train our knowledgeable, friendly, 

hard-working and team oriented staff. 

For much of the time period relevant to this case, Anna Josephson was the General 

Manager, in charge of the “front of the house” staff, and reported directly to Mr. Dolich. (Dolich 

Decl. ¶3.) Nancy Allison worked as a server for Park Kitchen for about five years, beginning in 

2009. (Dolich Decl. ¶4.) Ms. Allison was offered a Floor Manager position in the summer of 

2013; she turned down the job, stating that she did not have the time to assume management 

responsibilities due to her personal business, Nan-Made Objects (“Nan-Made”). Ms. Allison, 

however, helped backfill management duties in the interim. Mr. Dolich and Ms. Josephson made 

clear they would hire a new Floor Manager, who would become her direct boss. Ms. Allison did 

not have a good relationship with Nate Smith, who was promoted into the Floor Manager 

position, and she resisted the fact that he was now her superior. (Dolich Decl. ¶6.) 

Even after Mr. Smith’s promotion, Ms. Allison continued to work as the Manager of the 

Day (the “MOD”) on Saturdays and Sundays, two of her three weekly serving shifts. Her other 

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regular shift was on Monday, and she was on call on Fridays. On Thursdays she attended 

manager and staff meetings, and spent a few hours on wine purchasing. In the MOD role, she 

was the lead of the front of the house during those shifts. Up until her termination, Ms. Allison 

attended the weekly Thursday management meetings. (Dolich Decl. ¶7.) Holly Burney worked 

as a server at Park Kitchen for approximately seven years. (Dolich Decl. ¶4.) Her regular shifts 

were Friday and Saturday, and she was on call on Mondays. (Dolich Decl. ¶5.) 

Defendants’ employees have always worked under a formal tip pool policy that provided 

a cut to the back of the house staff. There were never any complaints, including by Ms. Allison 

or Ms. Burney. (Dolich Decl. ¶8.) Effective March 1, 2014, Park Kitchen rolled out changes to 

its tip pool policy. Because of her regular attendance at the Thursday manager meetings, Ms. 

Allison was privy to these policy revisions. Ms. Allison repeatedly stated that she was on board 

with the policy changes. Ms. Allison never expressed a personal concern about the tip pool 

policy during her employment. The revised tip pool policy was rolled out as part of a broader 

new service policy, the idea being to improve overall service, which would result in increased 

tips for all. (Dolich Decl. ¶9.) 

Management met with staff to explain the new service model and changes to the tip pool 

policy at the staff meeting on February 27, 2014. Mr. Dolich and Ms. Josephson distributed the 

policy, went through it, and addressed questions. The new policy was revisited again during the 

staff meeting on Thursday, March 13, 2014. Earlier that day, Ms. Allison had again reiterated 

that she was fine with the changes to the policy and that she understood it, but she suggested to 

Mr. Dolich and Ms. Josephson that if they explained to staff what they had explained to her, it 

would go a long way. Mr. Dolich did exactly that at the staff meeting that day. (Dolich Decl. 

¶10.) 

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In early 2014, prior to the roll-out of the revised tip pool policy, Ms. Allison began 

coming to management with various concerns she reported “others” had. Ms. Allison repeatedly 

made clear that these were not her concerns, but rather that she, as the MOD, was passing along 

others’ concerns. Her regular refrain was “a little bird told me...,” but she failed to provide 

specifics. Her reports encompassed three common and recurring themes: (a) other employees 

were unhappy with Ms. Josephson and Mr. Smith; (b) customers were not happy; and (c) once 

the tip pool changes were effective, other employees (whom she would not identify) were not 

happy with the tip pool. (Dolich Decl. ¶11.) 

As the MOD, Ms. Allison served an important role, particularly on her Sunday and 

Monday shifts when no other management employees worked in the front of the house. Mr. 

Dolich looked to her to be aware of any concerns or issues, and he appreciated her passing on 

what was relayed as concerns by staff about the tip pool policy so they could be addressed. 

(Dolich Decl. ¶12.) 

Mr. Dolich and Ms. Josephson looked into every concern Ms. Allison raised, but were 

unable to substantiate them. For example, Ms. Allison had reported that a particular long-term 

customer was unhappy; Park Kitchen followed up and found Ms. Allison’s report to be false. 

The same was true with her reports that other staff members were unhappy with Mr. Smith or the 

tip pool policy. (Dolich Decl. ¶13.) During this same time period, Ms. Allison’s performance on 

the restaurant floor and her interactions with fellow staff took a negative turn. (Dolich Decl. 

¶14.) 

Park Kitchen is a small and intimate restaurant. Typically only two servers work dinner 

service, and everyone is expected to be on the top of their game and come to work ready to 

deliver first-rate customer service. Mr. Dolich and Ms. Josephson began to see changes in Ms. 

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Allison’s performance in early 2014. Although not an exhaustive list, the following are 

examples of what transpired: 

• On Sunday, March 2, on the heels of the roll-out of the new service model, Ms. Allison 

was scheduled to be working as the MOD. She was scheduled to be at work at 2:00 p.m. 

to check the messages for reservations, and determine if the on-call server was needed. 

Ms. Allison did not report to work promptly, so Mr. Dolich checked the books and 

determined a third server was needed. At 3:25, Ms. Allison still had not reported to 

work, so they scrambled to find coverage. When Ms. Allison did finally report to work, 

she treated the on-call server very poorly—she cut him early, did not help him with table 

numbers or other general information, and reported that “the guy was useless.” Although 

she was not formally written up, Ms. Allison was counseled about this incident and 

informed that her behavior was unacceptable. (Dolich Decl. ¶14.) 

• In addition to Ms. Allison and Ms. Burney, two other servers worked at Park Kitchen 

during the early 2014 time frame: Brandon Page and Beth Harding. In about midMarch, Mr. Dolich learned that Mr. Page had had problems with Ms. Allison on the days 

when she was the MOD, and that he did not want to work with her because of her 

negative attitude, which made him uncomfortable. Mr. Dolich learned that Ms. Harding 

had approached Mr. Smith, to let him know that she did not share Ms. Allison’s negative 

attitude and complaints, and that she, too, was uncomfortable working Ms. Allison, 

particularly when she was the MOD. (Dolich Decl. ¶15.) 

• Despite follow-up with Ms. Allison that management had looked into the concerns she 

reported and did not find support for them, Ms. Allison continued to rehash the same 

issues. She also was informed that she should encourage employees to speak directly to 

Mr. Dolich, Ms. Josephson or Mr. Smith so the problem could be addressed head-on 

rather than through indirect communication. Ms. Allison still took it upon herself to be 

the self-appointed liaison for other employees’ ostensible (but never confirmed) 

concerns. Her presence on the restaurant floor grew increasingly sour. (Dolich Decl. 

¶16.) 

Ms. Allison and Ms. Burney each raised complaints about the tip pool policy. The first 

such complaint occurred when Ms. Allison and Ms. Burney worked together on the Saturday 

shift. On one Saturday around the time the tip pool changes became effective, Ms. Allison and 

Ms. Burney approached Mr. Smith when the restaurant was empty after dinner service. They 

voiced their dislike of the changes to the policy. For example, they did not think that everyone 

being on an hourly point system was fair, and they believed they would be working more hours 

but making less. On one other occasion, Ms. Burney expressed to Mr. Smith her dislike of the 

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other changes to the service model, including that she had to come in two hours earlier on one 

shift to perform side work. Mr. Smith reported these concerns to Mr. Dolich and Ms. Josephson, 

who followed up with Ms. Burney to clarify that Mr. Smith was not behind the policy changes; it 

was Ms. Josephson and Mr. Dolich who made the decision. (Dolich Decl. ¶17.) 

In early- to mid-2013, Ms. Allison requested to reduce her schedule to devote more time 

to Nan-Made. Every January, management redid the schedule, and asked staff if they had any 

interest in filling the gaps in the schedule. Ms. Allison did not want to pick up any additional 

shifts when asked. With Ms. Allison reducing her schedule, Park Kitchen needed to hire another 

server, and did so. Shortly thereafter, Ms. Allison reported that her business had not earned as 

much as she had anticipated, and she asked for another shift. As Park Kitchen had recently hired 

another server, there were no available shifts. However, to the extent Ms. Allison wanted 

additional hours, she had numerous opportunities to come in on call, which she regularly turned 

down. (Dolich Decl. ¶18.) 

Following Mr. Dolich learning of the concerns raised by Mr. Page and Ms. Harding about 

Ms. Allison, Mr. Dolich and Mr. Smith met with Ms. Allison on March 20, 2014, following the 

manager and staff meetings, intending to again review with her that they had looked into her 

concerns, and that her attitude and performance on the floor—and particularly as the MOD—

were making her co-workers uncomfortable. Mr. Dolich told her that her concerns on behalf of 

“others” were not checking out. He was candid with her and asked if she was happy in her job. 

He again asked if she had any problems and encouraged her to tell him versus attributing 

concerns to others. Mr. Dolich asked her if she felt she was capable of performing both her 

MOD and wine buying duties. Ms. Allison said no, and then said that she no longer wanted any 

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management responsibility—that she wanted to continue only in the server role. Regardless, her 

serving schedule would remain the same. (Dolich Decl. ¶19.) 

After the meeting, Mr. Dolich continued to think about the situation, and he realized that 

he had lost confidence in her ability to appropriately represent Park Kitchen on the floor. He 

decided to end Ms. Allison’s employment, and he called her on Friday, March 21 to end the 

relationship. He was candid with her that her attitude on the restaurant floor had become “toxic” 

and was negatively impacting overall staff morale. Ms. Allison responded that Mr. Dolich and 

the restaurant “will fail,” that customers “won’t come back,” and “all the employees don’t like 

working there.” She came in later that same day to pick up her final paycheck, and she said at 

that time that she was planning to transition out of Park Kitchen “within a month anyway.” 

(Dolich Decl. ¶20.) 

In March, prior to Ms. Allison’s termination, Ms. Burney invited Mr. Dolich to meet for 

coffee, and told him she did not think the tip pool policy was lawful. Mr. Dolich shared with her 

that he had consulted with his attorney to confirm its legality. Otherwise, Mr. Dolich told her, he 

would never have implemented the policy, and he would never request that his staff work under 

an unlawful policy. Unsolicited, Ms. Burney asked Mr. Dolich if he wanted her to leave Park 

Kitchen. Mr. Dolich told her that he could not answer that question for her, but told her that if 

she wanted to work at Park Kitchen, there was a job for her. (Dolich Decl. ¶21.) Because Mr. 

Dolich wanted Ms. Burney to continue in her employment, he gave her some time to further 

consider whether she would agree to the tip pool policy, despite the fact that everyone else had 

signed the tip pool policy on or around February 27. (Dolich Decl. ¶22.) 

On April 5, Ms. Burney refused to sign the policy “because it is illegal.” Ms. Burney 

said that she would continue to work at Park Kitchen, and even under the tip pool policy, but she 

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would not sign the policy. Ms. Josephson told her they wanted her to stay and asked her to sign 

the policy, and further explained that by signing the tip pool policy she was not stating that she 

agreed with it. Ms. Burney said she was not going to sign it, so Ms. Josephson then presented 

her with her termination notice. (Dolich Decl. ¶23.) 

III. ARGUMENT 

A. Plaintiffs Face the Full Burden of Persuasion in Their Motion for Summary 

Judgment. 

 The Court is certainly familiar with the basic standards governing summary judgment 

motions under Rule 56. As the Ninth Circuit explained last year: 

Summary judgment is appropriate only if, taking the evidence and 

all reasonable inferences drawn therefrom in the light most 

favorable to the non-moving party, there are no genuine issues of 

material fact and the moving party is entitled to judgment as a 

matter of law. There is no issue for trial unless there is sufficient 

evidence favoring the nonmoving party for a jury to return a 

verdict for that party. If the evidence is merely colorable, or is not 

significantly probative, summary judgment may be granted. In 

determining whether there is sufficient evidence to support a grant 

of summary judgment, we review the record as a whole. 

Friedman v. Live Nation Merchandise, Inc., 833 F.3d 1180, 1184-85 (9th Cir. 2016) (internal 

quotation marks, brackets, and citations omitted). 

Although Plaintiffs’ description of the Rule 56 summary judgment standard tracks the 

statement above, it fails to mention what is perhaps the most critical point: that they face the full 

burden of persuasion in their Motion because they bear the burden of persuasion at trial on their 

claims. Shakur v. Schriro, 514 F.3d 878, 890 (9th Cir. 2008). This is a significant burden: 

“[w]hen the moving party also bears the burden of persuasion at trial, to prevail on summary 

judgment it must show that the evidence is so powerful that no reasonable jury would be free to 

disbelieve it.” Id. (internal quotation marks and citation omitted; emphasis added). As explained 

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below, Plaintiffs cannot carry this burden on either their retaliation claims or on their minimum 

wage claims. 

B. Questions of Fact Preclude Summary Judgment on Plaintiffs’ Retaliation 

Claims. 

The elements of a retaliation claim under the Fair Labor Standards Act (“FLSA”) are as 

follows: “(1) the plaintiff must have engaged in statutorily protected conduct under § 115(a)(3) 

of the FLSA, or the employer must have erroneously believed that the plaintiff engaged in such 

conduct; (2) the plaintiff must have suffered some adverse employment action; and (3) a causal 

link must exist between the plaintiff’s conduct and the employment action.” Mayes v. Kaiser 

Found. Hosps., 917 F. Supp. 2d 1074, 1080 (E.D. Cal. 2013) (internal quotation marks and 

citation omitted). 

These elements must be viewed with Plaintiffs’ summary judgment burden (viz., the 

burden of persuasion) in mind. Ordinarily, it is the defendant who moves for summary judgment 

and the plaintiff who benefits from the notion that “the evidence and all reasonable inferences 

drawn therefrom [be taken] in the light most favorable to the non-moving party.” Friedman, 833 

F.3d at 1184. This case presents the opposite scenario: the Plaintiffs are the moving party, and 

the benefit of all reasonable inferences belongs to Park Kitchen. Judge Stewart has aptly 

explained how this principle works in an employment discrimination or retaliation case where 

the plaintiff moves for summary judgment: 

Even assuming that Perez engaged in protected activity and that 

the EEOC has met its prima facie burden, the EEOC would still 

not be entitled to summary judgment on the issue of liability. In 

Title VII retaliation cases, once the plaintiff has established a 

prima facie case, the burden of production shifts to the defendant 

to articulate a legitimate, nonretaliatory explanation for its 

decisions. Where an employer does so, the legally mandatory 

inference of retaliatory discrimination arising from the plaintiff’s 

prima facie case drops away. The burden of production again falls 

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on the EEOC to show that the explanation is a pretext for 

impermissible retaliation. This burden merges with the plaintiff’s 

ultimate burden of persuading the court that he is the victim of 

retaliation. 

Normally, when the parties reach this point, the plaintiff is merely 

attempting to stave off summary judgment by the employer and 

again has the advantage of having all reasonable inferences from 

the facts drawn in his or her favor. But here, defendants have that 

advantage. In order to obtain summary judgment, the EEOC must 

go well beyond proving that Perez is entitled to his day in court: it 

must establish that no reasonable factfinder could conclude that 

defendants did not discriminate against him. This it cannot do. 

EEOC v. Pacific Sea Food, Inc., No. CV-08-1143-ST, 2010 WL 1998878, at *3-4 (D. Or. Apr. 

20, 2010) (internal quotation marks and citations omitted) (emphasis added). Judge Stewart 

denied the EEOC’s summary judgment motion in Pacific Sea Food. This Court should do the 

same with Plaintiffs’ Motion. 

1. There Are Questions of Fact as to Whether Ms. Allison and 

Ms. Burney Engaged in Protected Activity. 

“To fall within the scope of the [FLSA’s] antiretaliation provision, a complaint must be 

sufficiently clear and detailed for a reasonable employer to understand it, in light of both content 

and context, as an assertion of rights protected by the statute and a call for their protection.” 

Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 14 (2011). The concept of fair 

notice is critical to the functions of the FLSA’s retaliation protections: the FLSA “seeks to 

establish an enforcement system that is fair to employers[; t]o do so, the employer must have fair 

notice that an employee is making a complaint that could subject the employer to a later claim of 

retaliation.” Id. at 13; see also Rosenfield v. GlobalTranz Enterprises, Inc., 811 F.3d 282, 286 

(9th Cir. 2015) (“[N]ot all amorphous expressions of discontent related to wages and hours 

constitute complaints filed within the meaning of § 215(a)(3).” (brackets in original; internal 

quotation marks and citation omitted)). 

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In addition, the complaint to the employer must be objectively reasonable and made in 

good faith. Rocksmore v. Hanson, No. 3:14-cv-01114-MO, 2015 WL 852938 at *9 n.6 (D. Or. 

Feb. 24, 2015); Bythewood v. Unisource Worldwide, Inc., 413 F. Supp. 2d 1367 , 1373 (N.D. 

Ga. 2006). Per Bythewood, “[t]he objective reasonableness of plaintiff’s belief is ‘measured 

against existing substantive law.’” Id. quoting Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 

1351 (11th Cir. 1999). 

Summary judgment is improper because a reasonable juror could conclude that Ms. 

Allison and Ms. Burney did not engage in protected activity under the FLSA. See Rosenfield,

811 F.3d at 286 (“Whether a complaint has been filed that provides adequate notice to the 

employer is a question to be resolved as a matter of factual analysis on a case-by-case basis.” 

(internal quotation marks and citation omitted)). 

There is evidence in the record to suggest that Ms. Allison and Ms. Burney complained 

about the tip pool on the grounds that they believed it to be unfair and on the grounds that they 

believed it to be unlawful. The former likely would not qualify as protected activity and would 

instead be an “expression[] of discontent related to wages.” Id. (internal quotation marks and 

citation omitted). The latter might qualify as protected activity under Kasten and Rosenfield,

although in reaching such a conclusion the jury would have to consider the effect of Cumbie v. 

Woody Woo, Inc., 596 F.3d 577 (9th Cir. 2010). 

At the time Ms. Allison and Ms. Burney were terminated Defendants’ tip pool policy was 

lawful based on Cumbie, as this Court concluded in its original summary judgment order issued 

on December 7, 2015. Any honest assessment of the retaliation claims in this case must include 

this as a consideration, and more specifically whether an employee makes “a complaint that 

could subject the employer to a later claim of retaliation” that is both in good faith and 

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objectively reasonable when she complains about (or refuses to comply with) a policy that was 

lawful at the time she complained about it. Kasten, 563 U.S. at 13. 

A reasonable juror, viewing the evidence in the totality, could reach either conclusion 

about Ms. Allison and Ms. Burney’s statements as a whole. Or, to state it in the context of the 

Plaintiffs’ summary judgment burden, the record evidence is insufficient to show that a 

reasonable juror must conclude that Ms. Allison and Ms. Burney’s statements to Defendants 

about the tip pool were “sufficiently clear and detailed for a reasonable employer to understand 

it, in light of both content and context, as an assertion of rights protected by the statute and a call 

for their protection.” Id. at 14. This precludes summary judgment in favor of Plaintiffs. 

2. There Are Questions of Fact as to Whether Ms. Allison and 

Ms. Burney Were Terminated Because of Their Alleged Protected 

Activity. 

 The FLSA protects employees from being subject to retaliation because they engaged in 

protected activity. Mayes, 917 F. Supp. 2d at 1080. However, it does not insulate them from the 

ordinary consequences they might face for misconduct, poor performance, or otherwise failing to 

live up to the employer’s expectations. See Justice v. Rockwell Collins, Inc., 117 F. Supp. 3d 

1119, 1137-38 (D. Or. 2015) (granting summary judgment for the employer on plaintiff’s FLSA 

retaliation claim where the employer offered legitimate, non-discriminatory reasons for his 

termination). 

Here, Defendants have offered testimony explaining that Ms. Allison was terminated 

because of her poor work performance, including her inability to work cooperatively with the 

rest of the staff and her poor attitude on the service floor. A reasonable juror could accept this 

evidence as true and conclude that Ms. Allison’s poor work performance, not any complaints 

about the tip pool, prompted her dismissal. Likewise, a reasonable juror could conclude that Ms. 

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Burney was terminated because she refused to sign receipt of a lawful (see Cumbie and this 

Court’s December 7, 2015 summary judgment order) employment policy, irrespective of what 

the policy contained or whether doing so constituted protected activity. Accordingly, there are 

questions of fact as to whether Ms. Allison and Ms. Burney’s alleged protected activity was the 

cause of their termination. 

3. There Are Questions of Fact as to Ms. Allison and Ms. Burney’s 

Damages. 

 In addition to the fact questions on the merits of their claims, there are fact questions on 

Ms. Allison and Ms. Burney’s claims to damages. 

 First, whether to award liquidated damages in a FLSA retaliation claim is discretionary, 

not mandatory. See Moore v. Appliance Direct, Inc., 708 F.3d 1233, 1241 (11th Cir. 2013) 

(citing Section 216(b)’s statement that “an employer ‘shall be liable for such legal or equitable 

relief as may be appropriate to effectuate the purposes of section 215(a)(3) of this title’” 

(emphasis omitted)); see also Braswell v. City of El Dorado, Ark., 187 F.3d 954, 958 (8th Cir. 

1999); Blanton v. City of Murfreesboro, 856 F.2d 731 (6th Cir. 1988). The Court should await a 

finding from the jury on Ms. Allison and Ms. Burney’s claims before deciding this issue. See 

Cappuccio v. Pepperdine Univ., No. CV 13-3125 DSF (AJWx), 2014 WL 12573366, at *1 (C.D. 

Cal. Sept. 17, 2014) (denying liquidated damages to FLSA retaliation plaintiff, despite jury 

verdict in his favor, in an exercise of discretion). 

Second, there are fact questions on whether Ms. Allison and Ms. Burney are entitled to 

non-economic damages and, if so, in what amount. The range of facts a jury could consider in 

deciding whether to award non-economic damages is virtually limitless. By way of example, a 

jury might consider that Ms. Allison intended to leave her employment with Park Kitchen to 

focus on her crafting business, or that Ms. Burney typically worked only a few shifts per week, 

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and that neither of them sought to return to restaurant work, as evidence that neither suffered 

significant emotional distress from their respective terminations. Additionally, there is no 

evidence in the record before this Court which suggests that either Ms. Allison or Ms. Burney 

experienced even an iota of emotional distress; neither declaration submitted in support of the 

motion makes any mention whatsoever of any emotional distress, generally or specifically. 

Plaintiffs cannot definitively establish that there are no genuine issues of material fact on 

their claims for alleged emotional distress associated with their respective terminations when 

their respective declarations provide no evidence whatsoever in support of such an assertion. 

The determination of whether and to what extent either of them suffered emotional distress is a 

quintessential fact question for the jury following trial, not for the Court on a paper record which 

contains no support at all for such a finding. 

Finally, it remains an open question in the Ninth Circuit whether punitive damages are 

available in a FLSA retaliation claim. See Lambert v. Ackerley, 180 F.3d 997, 1011 (9th Cir. 

1999) (declining to rule on whether punitive damages were available because “the defendants 

have waived the issue of the availability of punitive damages by failing to raise it below”). The 

circuit courts are split on the issue. Compare Travis v. Gary Cmty. Mental Health Ctr., Inc., 921 

F.2d 108 (7th Cir. 1990); Snapp v. Unlimited Concepts, Inc., 208 F.3d 928 (11th Cir. 2000). 

Defendants urge the Court to adopt the Eleventh Circuit’s view and to conclude that punitive 

damages are not available in FLSA retaliation claims. See Tumulty v. FedEx Ground Package 

Sys., Inc., No. C04-1425P, 2005 WL 1979104, at *10-11 (W.D. Wash. Aug. 16, 2005) (punitive 

damages unavailable for FLSA claims).

Even if the Court concludes that punitive damages are available as a matter of law, it 

would still be improper to award summary judgment to Plaintiffs on the punitive damages issue. 

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In order to prove entitlement to punitive damages in any amount (let alone the $186,560 and 

$113,400 Ms. Allison and Ms. Burney seek, respectively), Plaintiffs must show that Defendants’ 

conduct toward them was “malicious, oppressive or in reckless disregard of [their] rights.” Ninth 

Circuit Model Jury Instruction 5.5, http://www3.ce9.uscourts.gov/jury-instructions/node/111. 

Assuming this inherently fact-bound determination is satisfied, the amount of the punitive award 

is subject to an even more nuanced standard: if the jury finds “that punitive damages are 

appropriate, [it] must use reason in setting the amount.” Id. (emphasis added). 

There are ample facts in the record to support a finding that no punitive damages should 

be awarded, including: the facts previously identified concerning Ms. Allison and Ms. Burney’s 

claims for non-economic damages; the absence of any other violations of the FLSA by 

Defendants; Defendants’ attempts to comply with the FLSA by engaging assistance from human 

resources firms and, when necessary, legal counsel; and the ambiguous state of the law in the 

Ninth Circuit regarding tip pools following Cumbie.1 Defendants are entitled to have the punitive 

damages determination made by a jury. 

C. Plaintiffs’ Spreadsheet Outlining Their Minimum Wage Damages Is 

Inadmissible, and In Any Case Presents Questions of Fact That Preclude 

Summary Judgment. 

 Exhibit 1 to the Declaration of Michèle Lauzier in Support of Plaintiffs’ Motion For 

Summary Judgment (“Lauzier Declaration”) is a spreadsheet (“the Spreadsheet”) that purports to 

simplify Plaintiffs’ minimum wage claims. Plaintiffs ask the Court to accept the Spreadsheet as 

a summary of information gathered during discovery and to use the Spreadsheet as the basis on 

 

1

 These same considerations, and in particular the effect of the Cumbie decision on Defendants’ 

implementation of their tip pool, establish a question of a fact on whether Defendants had 

legitimate business reasons for their decisions regarding Ms. Allison and Ms. Burney and as to 

whether any violation of the FLSA by Defendants was willful. (Pls.’ Mtn. pg. 27 (legitimate 

business reasons) and pgs. 28-29 (willfulness).) Plaintiffs’ Motion should be denied on these 

points. 

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which to award specific amounts of damages to particular individuals. Ms. Lauzier’s declaration 

states that “the information in the [S]preadsheet is taken from payroll records [of Defendants].” 

(Lauzier Decl. ¶ 2.) However, her declaration does not explain or acknowledge that, in fact, 

many of the columns of information are not based on Defendants’ payroll records. Specifically, 

the “FMW” column, the “Trejo” column, the “BadTips” column, and the remaining columns to 

the right of those columns are Plaintiffs’ calculations, and that information did not come from 

any payroll records of Defendants. To the contrary, those columns present Plaintiffs’ theory of 

this case, and Plaintiffs’ arguments as to what Plaintiffs suggest is the appropriate calculation of 

damages. 

Although Federal Rule of Evidence 1006 allows a party to admit a summary in lieu of 

voluminous records, it does not permit admission of the summary if it contains information that 

goes beyond the scope of the underlying records. Standard Oil Co. of California v. Moore, 251 

F.2d 188, 223 (9th Cir. 1957). “This situation may occur if facts or assumptions drawn from the 

preparer’s knowledge or experience is included in his or her testimony.” Jack B. Weinstein & 

Marger A. Berger, Weinstein’s Federal Evidence Sec. 1006.07[2] (Mark S. Brodin, ed., Matthew 

Bender 2d ed. 2017). The Spreadsheet falls into precisely that trap by including Plaintiffs’ 

claimed unpaid minimum wages and liquidated damages alongside their summaries of 

Defendants’ payroll records. The Spreadsheet is therefore inadmissible on that basis. 

Aside from the admissibility problems, Plaintiffs’ suggestion that calculating their 

minimum wage damages is a simple mathematical exercise that does not require the resolution of 

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disputed facts is mistaken, as their Spreadsheet leaves several material questions of fact 

unanswered.2

 

First, Plaintiffs calculate their minimum wage damages on a pay period basis. (Pls.’ Mtn. 

pgs. 24-25.) However, the FLSA minimum wage is calculated on a workweek basis. 29 U.S.C. 

§ 206(a)(1)(C) (“Every employer shall pay to each of his employees who in any workweek is 

engaged in commerce . . . $7.25 an hour . . . .”). The difference is critical. In order to recover, a 

FLSA minimum wage claimant must establish that he or she was underpaid for an entire 

workweek, defined as “a fixed and regularly recurring period of 168 hours—seven consecutive 

24-hour periods.” 29 C.F.R. § 778.105; Overnight Motor Transp. Co. v. Missel, 316 U.S. 572 

(1942) (endorsing the workweek basis for determining compliance with the FLSA’s overtime 

provisions, which like the minimum wage provisions impose requirements based on the 

workweek). 

Establishing underpayment for some other time period (e.g., a day, a seven-day period 

that is not the employer’s workweek, a payroll cycle, etc.) is insufficient. See, e.g., Adair v. City 

of Kirkland, 185 F.3d 1055, 1063 (9th Cir. 1999) (“The district court properly rejected any 

minimum wage claim the officers might have brought by finding that their salary, when averaged 

across their total time worked, still paid them above the minimum wage.”); McElmurry v. US 

Bank Nat’l Ass’n, No. CV-04-642-HU, 2005 WL 2078334, at *5 (D. Or. Aug. 24, 2005) (“The 

appropriate analysis for a federal FLSA minimum wage violation is one based on the 

workweek.”). It is up to the jury to sort through Defendants’ timekeeping and payroll records to 

 

2

 It is unclear why Plaintiffs feel compelled to point out that “[a] copy of [the Spreadsheet] was 

produced to the defendants on March 21, 2017, and they have not objected that it is inaccurate.” 

(Pls.’ Mtn. pg. 23.) Defendants were under no obligation to raise any objections to the 

Spreadsheet at the time it was served. 

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determine whether, in any workweek during the limitations period, Defendants’ tip pool caused 

Plaintiffs’ wages to fall below the statutory minimum. The pay period analysis is irrelevant. 

Second, even a cursory review of the Spreadsheet shows that it is based on questionable 

assumptions and calculation problems. For example, Plaintiffs calculate the amount of tips 

“stolen” by Defendants and paid to back-of-the-house and managerial employees by “[d]ividing 

that stolen amount among the . . . tip-eligible employees in proportion to their hours worked.” 

(Pls.’ Resp. pg. 24.) In effect, Plaintiffs attempt to reinvent Defendants’ tip pools to include only 

front-of-the-house employees and to distribute the tips among them as they deem appropriate, 

viz., “in proportion to their hours worked.” (Id.) While this is a legally acceptable way to 

distribute tips among the participants in a tip pool it is not the only way: the regulations are clear 

that “Section 3(m) does not impose a maximum contribution percentage on valid mandatory tip 

pools . . . .” 29 C.F.R. § 531.54; Kilgore v. Outback Steakhouse of Fla., Inc., 160 F.3d 294 (6th 

Cir. 1998). It is up to a jury to decide whether Plaintiffs’ post hoc recalculation of the 

distribution of tips is proper. 

As a further example, consider the case of Andrea Baiz-Escobedo, a Bent Brick 

employee who Plaintiffs claim is entitled to $63,932.02 in unpaid minimum wages and 

liquidated damages. (Pls.’ Mtn. pg. 25.) According to the Spreadsheet, this calculation is based 

in part on the following time and pay data: 

Source Name Payday Hrs Pay Tips FMW Trejo BadTips OKHrs ShareHrs ShareBadTips FMWViol 

Harland BaizEscobedo, 

Andrea 

7/2/15 52.71 487.57 908.92 382.15 105.42 2569.15 110.25 0.48 1228.30 1122.88 

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QB BaizEscobedo, 

Andrea 

7/3/15 52.71 487.57 908.92 382.15 105.42 2569.15 110.25 0.48 1228.29 1122.87 

(Lauzier Decl. Ex. 1, pg. 18.) 

The data for these entries comes from two different sets of payroll records: the Harland 

records and the QuickBooks records. (Lauzier Decl. ¶2.) Plaintiffs’ calculation assumes that the 

two entries represent two completely distinct payments, despite the fact that the hours, pay, and 

tips in the two entries are identical. The only difference in the two entries is the date of payment: 

the Harland records indicate the date as July 2, 2015, while the QuickBooks entry indicates it as 

July 3, 2015. (Lauzier Decl. Ex. 1, pg. 18.)3

 A similar problem applies to the other employees 

who appear on pages 18-24 of the Spreadsheet: their entries are counted twice, once for the 

Harland records and once for the Quick Book records. (Id. pgs. 18-24 (see, e.g., Alison 

McGinley and Adele Kennedy). This error both overstates (i.e., doubles, for these entries) the 

recovery for the opt-in employees, and calls into question the reliability of the underlying 

analysis. A reasonable juror could conclude from this that the Spreadsheet as a whole is not 

reliable and cannot form the basis for Plaintiffs’ recovery. 

As a final example, Plaintiffs’ characterization of the following employees as “TipOK” 

(i.e., working in a tip-eligible position) changes over a period of time: Brandon Page, Nic 

Petersen, Nate Smith and Camille Titus. Plaintiffs offer no explanation, let alone evidence, as to 

why this is the case. 

 For these reasons, the Court should deny Plaintiffs’ Motion as to the damages 

calculations for their minimum wage claims. 

 

3

 It is unclear why Plaintiffs calculate slightly different “ShareBadTips” and “FMWViol” figures 

based on the same underlying hours, pay and tip data. Standing by itself, this represents yet 

another problem with the reliability of Plaintiffs’ analysis. 

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D. Plaintiffs’ Motion Must Be Denied to the Extent It Seeks Recovery for 

Employees Who Did Not Opt In. 

Plaintiffs’ Motion seeks to assert claims and recover damages for individuals who are not 

entitled to recover in this case. To date, Plaintiffs have not filed “Consents to Join” for either 

Ms. Burney or Ms. Allison—the two named plaintiffs who began this action. Plaintiffs’ failure 

to follow this basic statutory requirement now bars their claims. It is undisputed that Ms. 

Allison’s employment terminated on March 21, 2014, and Ms. Burney’s employment terminated 

on April 5, 2014. More than three years have passed since those dates; indeed, more than three 

years have passed since Plaintiffs filed their Complaint. As of the date of the filing of this 

Response, however, neither Ms. Burney nor Ms. Allison have filed Consents to Join, a failure 

which is fatal to their participation in the collective. 

Section 216(b) of the FLSA provides for a private right of action: 

Any employer who violates the provisions of section 206 or 

section 207 of [the FLSA] shall be liable to the employee or 

employees affected in the amount of their unpaid minimum wages, 

or their unpaid overtime compensation, as the case may be, and in 

an additional equal amount as liquidated damages. . . . An action 

to recover the liability prescribed in either of the preceding 

sentences may be maintained against any employer (including a 

public agency) in any Federal or State court of competent 

jurisdiction by any one or more employees for and in behalf of 

himself or themselves and other employees similarly situated. No 

employee shall be a party plaintiff to any such action unless he 

gives his consent in writing to become such a party and such 

consent is filed in the court in which such action is brought. 

29 U.S.C. § 216(b) (emphasis added). In addition, Section 256 of the FLSA provides that 

[i]n determining when an action is commenced for the purposes of 

section 255 of this title, an action . . . under the Fair Labor 

Standards Act . . . shall be considered to be commenced on the date 

when the complaint is filed; except that in the case of a collective 

or class action instituted under the Fair Labor Standards Act . . . it 

shall be considered to be commenced in the case of any individual 

claimant-- 

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(a) on the date when the complaint is filed, if he is 

specifically named as a party plaintiff in the complaint and his 

written consent to become a party plaintiff is filed on such date in 

the court in which the action is brought; or 

(b) if such written consent is not so filed . . . on the 

subsequent date on which such written consent is filed in the court 

in which the action was commenced. 

29 U.S.C. § 256 (emphasis added). 

 While the Ninth Circuit has not directly addressed this issue, other circuits and district 

courts within the Ninth Circuit (including the District Court of Oregon) have dismissed FLSA 

collective action claims when named plaintiffs have not timely filed consents. In Frye v. Baptist 

Memorial Hospital, Inc., the court affirmed the district court’s dismissal of the FLSA collective 

action because the named plaintiff failed to file a written consent with the court within the 

FLSA’s limitations period. 495 F. App’x 669, 677 (6th Cir. 2012). In that case, the plaintiff’s 

last payday was April 27, 2007, and he filed to file a written consent to collective action within 

three years of his final paycheck. Id. at 675. In holding that the plain language of Section 256 

requires named plaintiffs to file written consents, the Eleventh Circuit held that the statute 

unambiguously provides that collective actions “shall be 

considered to be commenced” for statute-of-limitations purposes 

“on the date when the complaint is filed, if he is specifically named 

as a party plaintiff in the complaint and his written consent to 

become a party plaintiff is filed on such date.” [29 U.S.C.]

§ 256(a) (emphasis added). If any doubt remains, subsection (b) 

confirms the written-consent requirement by providing that an 

FLSA collective action commences “on the subsequent date on 

which such written consent is filed.” Id. § 256(b). Accordingly, 

courts construe the above language to do what it says: require a 

named plaintiff in a collective action to file a written consent to 

join the collective action.” 

Id. 

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 In Gessele v. Jack in the Box, Inc., 6 F. Supp. 3d 1141 (D. Or. 2014), Judge Brown 

explored this specific issue, in depth, and granted summary judgment in favor of the employer in 

a case in which the named plaintiffs filed to file consents within the statute of limitations period. 

The Gessele case notes: 

The language of Section 256 is clear: in a representative action, a 

plaintiff’s case is deemed to have commenced only when his or her 

own signed consent has been filed. . . . Thus, regardless whether 

signed consents are necessary for named plaintiffs to join a 

representative action, Section 256 makes clear that even for named 

plaintiffs signed consents are required to mark the commencement

of the action. 

Id. at 1156-57 (internal quotation marks and citations omitted). 

 Similarly, in Cancilla v. Ecolab, Inc., No. C 12-03001 CRB, 2013 WL 1365939 (N.D. 

Cal. Apr. 3, 2013), the court held that a FLSA collective action does not commence until the 

named plaintiff files a written consent. Id. at *2. The Cancilla court dismissed the FLSA 

collective action because the plaintiff did not file a written consent within the limitations period, 

and therefore, the FLSA collective action did not commence within the limitations period and 

was barred as untimely. 

The Cancilla court relied on Harkins v. Riverboat Services, Inc., 385 F.3d 1099 (7th Cir. 

2004), in which the Seventh Circuit held that a party’s failure to file written consent to join was 

dispositive, noting that “[i]t makes no difference that you are named in the complaint, for you 

might have been named without your consent. The rule requiring written, filed consent is 

important because a party is bound by whatever judgment is eventually entered in the case. . . . 

We are inclined to interpret the statute literally.” Id. at 1101; see also Chavez v. Lumber 

Liquidators, Inc., No. C-09-04812 SC, 2011 WL 809453 (N.D. Cal. Mar. 2, 2011) (same); 

Ketchum v. City of Vallejo, 523 F. Supp. 2d 1150, 1155 (E.D. Cal. 2007) (collective action not 

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deemed commenced with respect to each individual plaintiff until his or he consent has been 

filed). 

That the statutory requirement may seem repetitive or unnecessary does not override the 

plain and unambiguous requirement and language of the statute. In Bonilla v. Las Vegas Cigar 

Company, 61 F. Supp. 2d. 1129, 1139 (D. Nev. 1999), the Court noted: 

It is indeed redundant and unusual to make named plaintiffs file 

their consents with the Court. Notwithstanding the fact that the 

statutory requirements are repetitive or wasteful, they are the 

unambiguous requirements which Congress has duly enacted. It is 

not for the courts to rewrite statutes which they find unwise. 

Moreover, the requirements are hardly onerous or burdensome. 

All Plaintiffs were required to do is file their consents with the 

Court . . . . 

(Citations omitted.) See also Thomas v. Talyst, Inc., No, C07-202JLR, 2008 WL 570806 (W.D. 

Wash. Feb. 28, 2008) (whether requirement to file consent is wasteful or wise is irrelevant; 

courts should not rewrite unambiguous statutory language). 

Neither Ms. Allison nor Ms. Burney has met the plain and unambiguous requirement of 

filing a Consent to Join, and thus neither of them have commenced their FLSA claim within the 

statutory time period. Moreover, the applicable time for M. Allison and Ms. Burney to file 

“Consents to Join” has expired. This Court adopted Plaintiffs’ proposed schedule, which 

approved notices to be sent to potential members of the Collective, and provided 60 days within 

which prospective members could file Consents. That time period closed on May 27, 2017, 

without Consents to Join filed by either Ms. Allison or Ms. Burney. 

Even if the Court were to allow a late filing, the most generous application of the 

applicable statute of limitations would look back from April 1, 2016 (the date of Plaintiffs’ 

Motion for Conditional Certification) to either April 2014 (for a non-willful violation) or April 

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2013 (for a willful violation), while the damages on which Plaintiffs seek a ruling from this 

Court extend back to 2011—a difference of at least two years.

E. Plaintiffs’ Motion Must Be Denied to the Extent It Seeks Recovery for Opt-in 

Employees Beyond the Limitations Period. 

Plaintiffs assert that there has been a stay in effect since September 26, 2014, tolling the 

statute of limitations since that date. Plaintiffs are incorrect, and this error significantly impacts 

the damages Plaintiffs seek to recover. 

The Court entered a minute order on September 29, 2014, tolling the statute of limitations 

“pending further order.” (Docket 21.) At the same time, the court set a briefing schedule for 

Plaintiffs to file their motion for tolling: “Plaintiffs are to file their . . . motion for tolling . . . no 

later than October 10, 2014.” The Court also set a further briefing schedule for that motion. 

(Docket 21.) Plaintiffs timely filed their Motion on October 10, 2014. (Docket 27.) Defendants 

responded on October 27, 2014 (Docket 38), and Plaintiffs filed a reply on November 14, 2014. 

(Docket 45.) The court held oral argument on Plaintiffs’ Motion on December 16, 2014, and on 

that same date, the Court issued an Opinion and Order which ordered unequivocally that 

“Plaintiffs’ Motion to Toll and for Corrective Notice is denied.” (Docket 47.) 

The Court carefully laid out the FLSA’s provisions pertaining to the Statute of 

Limitations, and also explored whether and when tolling was appropriate, ultimately holding that 

“[t]his action has not been certified as a collective action. Plaintiffs are relying solely on a 

request for contact information made on May 5, 2014, before this action was even filed. 

Defendants’ refusal to provide contact information prior to issuance of the court’s final order 

authorizing notice was not improper and, therefore, equitable tolling is not justified.” (Docket 

47, pg. 15.) 

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The Court also explored whether Defendants’ communications at a staff meeting would 

serve as grounds for tolling, and rejected that argument as well. In short, the Court’s September 

29, 2014 minute order regarding tolling was issued “pending further order” on tolling, and the 

December 16, 2014 was, in fact, that further order, and as of December 16, 2014, there was no 

tolling order in place. Plaintiffs did not seek to toll the statute of limitations again until filing 

their Motion for Conditional Certification on April 1, 2016, when Plaintiffs sought to notify the 

potential collective members and to “toll the statute of limitations in the interim.” The Court 

ultimately granted that motion, tolling the statute of limitations at that time, but between 

December 16, 2014 and April 1, 2016, based on this Court’s clear and unequivocal rulings, the 

applicable statute of limitations was not tolled, which directly and significantly impacts a number 

of the collective members’ claims. 

Because the statute of limitations was not tolled prior to April 1, 2016, the “look back” 

period for individual “opt-ins” begins on that date, not—as Plaintiffs suggest—on or around 

September 29, 2014. That nearly 18-month period is significant. Only four Plaintiffs (Rebecca 

Elroy, Teal Garrells, Elizabeth McElligott, and Brad Bohrer) filed “Consents to Join” prior to 

April 1, 2016. For each of those individuals, the statute of limitations “look back” begins on the 

date their Consent to Join was filed with the Court. However, the vast majority of “Consents to 

Join” were filed in October 2016 (Tiffani Cordeiro, Camille Titus, Nate Hillenkamp, Mark 

MacMinn, Beth Harding, Suzanne Latham, Nik Petersen), one in November 2016 (Faith 

Holifield), and the remaining eight in April and May 2017. For these individuals, their “look 

back” period begins, at the earliest, on either April 1, 2016 (upon the filing of Plaintiff’s Motion 

for Conditional Certification), or September 28, 2016, which is the date the Court granted 

Plaintiffs’ Motion for Conditional Certification. 

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Regardless of which of the later dates apply, Plaintiffs have submitted evidence to the 

court for damages which correspond to dates which are based on the statute of limitations being 

tolled since September 26, 2014, which the Court’s docket and orders show plainly is not the 

case. At a minimum, this creates fact issues with respect to the applicable time period, as well as 

whether and to what extent it impacts the claims of certain members of the collective. 

In addition, several of the Plaintiffs are barred from recovery entirely by the applicable 

statute of limitations. The Spreadsheet and information filed in support of Plaintiffs’ Motion 

assumes that the statute of limitations has been tolled since September 2014, which is incorrect. 

Eric Pavey’s Consent to Join was filed with the Court on May 2, 2017. (Docket 169.) Based on 

their own evidence, Mr. Pavey worked for approximately four months between July 2012 and 

November 2012. (Lauzier Decl. Ex. 1, pgs. 36-39.) As the statute of limitations was not tolled 

until April 1, 2016, applying even the more generous three-year statute of limitations from that 

time precludes Mr. Pavey’s claim for damages entirely. 

The same is true for Mary Bartlett. Ms. Bartlett’s Consent to Join was filed on May 19, 

2017. (Docket 178.) Ms. Bartlett worked for Defendants between September 2011 and March 

2013. (Lauzier Decl. Ex. 1, pgs. 29-42.) The three-year statute of limitations for any claims Ms. 

Bartlett may have had expired in March 2016, which is prior to the tolling of the statute of 

limitations beginning on April 1, 2016. Similarly, Deanna Ternes submitted a Consent to Join on 

May 23, 2017 (Docket 179), and she worked between March 2013 and June 2013. (Lauzier 

Decl. Ex. 1, pgs. 42-44.) At a minimum, Ms. Ternes’ claims for damages must be reduced by 

the period of time barred by the applicable statute of limitations (i.e., damages prior to April 

2013). 

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There are factual questions pertaining to the damages of several other collective members 

as well. Depending upon whether the Court determines that a two-year statute of limitations 

applies rather than a three-year statute of limitations, the claims of Nik Petersen, Brandon Page, 

and Nicola Breuer could be eliminated entirely or reduced.4

 Mr. Petersen, for example, incurred 

no damages within the two-year statutory time frame extending back from April 1, 2016, nor did 

Ms. Breuer. Mr. Petersen and Ms. Breuer are eligible for damages only if this court determines 

that a three-year statute of limitations period should apply, which significantly reduces the 

amount of damages claimed by Plaintiffs in their motion. Mr. Page worked only four pay 

periods within the two-year statute of limitations period, and 20 pay periods if a three-year 

statute applies.5

 

IV. CONCLUSION 

For the reasons stated above, the Court should deny Plaintiffs’ Motion For Summary 

Judgment. 

 DATED: July 3, 2017. STOEL RIVES LLP 

s/ Karen L. O’Connor 

Karen L. O’Connor, OSB No. 953710 

John B. Dudrey, OSB No. 083085 

Attorneys for Defendants 

 

4

Again based on their own evidence, Mr. Petersen was employed for the pay periods June 20, 

2011-August 5, 2013 (Lauzier Decl. Ex. 1, pgs. 27-45; Mr. Page for the pay periods October 4, 

2013-July 1, 2015 (Lauzier Decl. Ex. 1, pgs. 47-62); and Ms. Breuer for the pay periods May 3, 

2013-June 5, 2013 (Lauzier Decl. Ex. 1, pgs. 6-7.) 

5

 For the reasons stated in Section III.D and Section III.E, the Court should deny Plaintiffs’ 

Motion to the extent it seeks summary judgment on Defendants’ statute of limitations defense. 

(Pls.’ Mtn. pg. 28.)” 

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