PAGE 1 – DEFENDANT’S MEMORANDUM REGARDING SUMMARY 

JUDGMENT RULING [DKT. 217] EXCLUDING LATE FINAL 

PAY 1 DAMAGES 

LANE POWELL PC

601 S.W. SECOND AVENUE, SUITE 2100

PORTLAND, OREGON 97204

503.778.2100 FAX: 503.778.2200

719899.0002/9162329.1 

Douglas S. Parker, OSB No. 821017 

parkerd@lanepowell.com

Heather St. Clair, OSB No. 154252 

stclairh@lanepowell.com Ian T. Maher, OSB No. 221585 

maheri@lanepowell.com LANE POWELL PC

601 S.W. Second Avenue, Suite 2100 

Portland, Oregon 97204 

Telephone: 503.778.2100 

Facsimile: 503.778.2200 

David P.R. Symes, OSB No. 961350 

dsymes@symeslawoffice.com 

SYMES LAW OFFICE LLC

39085 Pioneer Blvd., Suite 1003 

Sandy, OR 97055 

Telephone: 971.801.3320 

Attorneys for Defendant JACK IN THE BOX 

INC.

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

JESSICA GESSELE, ASHLEY ORTIZ,

NICOLE GESSELE, TRICIA TETRAULT,

and CHRISTINA MAULDIN, on behalf of

themselves and all others similarly situated, 

Plaintiffs, 

v. 

JACK IN THE BOX INC. a Delaware

corporation, 

Defendant. 

Case No. 3:14-cv-01092-HZ

DEFENDANT’S MEMORANDUM 

REGARDING SUMMARY 

JUDGMENT RULING [DKT. 217] 

EXCLUDING LATE FINAL PAY 1 

DAMAGES 

The Court has indicated it will review Judge Brown’s summary judgment ruling [Order 

and Opinion at Docket 217] in relation to the damages category identified by Ms. Murphy in her 

Case 3:14-cv-01092-HZ Document 373 Filed 10/19/22 Page 1 of 14
PAGE 2 – DEFENDANT’S MEMORANDUM REGARDING SUMMARY 

JUDGMENT RULING [DKT. 217] EXCLUDING LATE FINAL 

PAY 1 DAMAGES 

LANE POWELL PC

601 S.W. SECOND AVENUE, SUITE 2100

PORTLAND, OREGON 97204

503.778.2100 FAX: 503.778.2200

719899.0002/9162329.1 

October 19 courtroom presentation as “Late Final Pay 1”. Defendants contend that the penalty 

damage category is precluded by that order and also advise the Court that Plaintiffs conceded in 

their argument that preceded that order that they are not seeking the very penalty damages now 

comprising Column J of Ms. Murphy’s most recent summary, in the record as Ex. 531. 

In its Motion for Summary Judgment on limited remedies, Dkt. 163, Defendant argued that 

Plaintiffs appeared to be seeking penalties for WBF or shoe deductions under ORS 652.150 for 

three different categories, including minimum wage, overtime, and final pay (i.e. Ms. Murphy’s 

Late Final Pay 1), and that Plaintiffs should be prohibited from recovering more than one 30-day 

penalty because those were derivative violations based on the same underlying wrongful conduct, 

i.e., deductions. Dkt. 163, pp. 2-3 (relevant pages excerpted and attached hereto). In their response 

at Dkt. 169, Plaintiffs stated that their late pay claim is limited to the franchization claim:1

 : 

“Fourth, our case is not one that seeks a derivative final-paycheck penalty solely 

for nonpayment of wages during employment. Our case has a final-paycheck 

class that seeks penalty wages for the straightforward late payment of the final 

paycheck upon franchization of Jack in the Box’s Oregon stores. That 

violation applies to the final paycheck only and does not rely on any previous 

violation of any statute during employment.” 

Dkt. 169, p. 3 (emphasis added). 

Judge Brown relied on these representations by the parties, both Defendant’s concession 

that it was not disputing the Franchise Transfer penalties (Late Final Pay 2), and Plaintiffs’ 

admission that their final pay penalty claim is limited to the “late payment of the final paycheck 

upon franchization” in crafting her Opinion and Order on these arguments at Dkt. 217. On page 

94, Judge Brown noted that “[t]he parties agree Plaintiffs’ final-paycheck claim relates only to the 

Franchise Transfer Class and is ‘not derivative or duplicative of Plaintiffs’ other claims.’ The 

final-paycheck claim, therefore, is ‘excluded from [Defendant’s] arguments about prohibiting 

multiple penalties.” Dkt. 217, p. 94, FN. 9 (citing both parties’ motions). 

1

 Jack in the Box acknowledged that Plaintiff’s claims for final pay as a result of the Franchise 

Transfer were valid (Ms. Murphy’s “Late Final Pay 2”) and excluded those claims from the 

argument to limit the penalties addressed in the chart at page 3. Id. at p. 2, FN. 3. 

Case 3:14-cv-01092-HZ Document 373 Filed 10/19/22 Page 2 of 14
PAGE 3 – DEFENDANT’S MEMORANDUM REGARDING SUMMARY 

JUDGMENT RULING [DKT. 217] EXCLUDING LATE FINAL 

PAY 1 DAMAGES 

LANE POWELL PC

601 S.W. SECOND AVENUE, SUITE 2100

PORTLAND, OREGON 97204

503.778.2100 FAX: 503.778.2200

719899.0002/9162329.1 

Judge Brown then performed an in-depth analysis of the penalty claims, including the 

minimum wage and overtime violations that occurred solely as a result of deductions, either for 

the WBF, or for shoes. Dkt. 217, pp. 94-101. No discussion of final pay was included in that 

analysis because the parties had conceded it was not at issue, outside the Franchise Transfer 

context. Id. Judge Brown then concluded that “Plaintiffs may recover statutory damages under § 

652.615 as well as penalty wages under§ 652.150 if they establish Defendant’s WBF and/or shoe 

deductions were improper and reduced employee class members’ wages below minimum wage 

or resulted in employee class members receiving insufficient overtime to the extent that dueprocess concerns are not implicated as to their WBF claims.” Id. at p. 101. The limitations 

imposed by the Court on the remedies Plaintiffs could seek are consistent with the Plaintiffs’ 

concession that they are not seeking a final pay penalty other than for the Franchise Transfer claim. 

Then, at Dkt. 217, page 127, Judge Brown granted Plaintiffs’ motion for summary judgment on 

the Franchise transfer claims due, in part, to Defendant’s concession of that liability. Id. at 127-

136. 

Plaintiffs’ claim now made at trial for final pay penalties is not plead in their complaint, 

but even if it had been, they abandoned it more than three years ago at Dkt. 169, and both the 

Defendant and the Court relied on that concession. Defendant respectfully requests that the Court 

take notice of these prior concessions as well as Judge Brown’s decision on the matter, and exclude 

Plaintiffs’ derivative Late Final Pay 1 claim presented by Ms. Murphy. 

DATED: October 19, 2022

LANE POWELL PC

By: /s/ Douglas S. Parker

Douglas S. Parker, OSB No. 821017

Heather St. Clair, OSB No. 154252

Ian T. Maher, OSB No. 221585 

Telephone: 503.778.2100

SYMES LAW OFFICE LLC

By: /s/ David P.R. Symes

David P.R. Symes, OSB No. 961350

Telephone: 971.801.3320

Case 3:14-cv-01092-HZ Document 373 Filed 10/19/22 Page 3 of 14
Page 2 - DEFENDANT’S MOTION FOR SUMMARY 

JUDGMENT NO. 3 – REMEDIES RELATED TO ALLEGED 

WRONGFUL DEDUCTIONS ARE LIMITED

LITTLER MENDELSON, PC

121 SW Morrison, Suite 900

Portland, OR 97204 

Tel: 503.221.0309

This Motion is supported by the following Memorandum of Law, the Declaration of 

Jennifer Warberg filed herewith, and the case files in both Gessele I and Gessele II. 

LR 7-1 CERTIFICATION

As required by LR 7-1(a), Defendant hereby certifies that the parties made a good faith 

effort by telephone to resolve the issues in this Motion but have been unable to do so. 

MEMORANDUM OF LAW

I. INTRODUCTION

The Court ordered the parties to file all dispositive motions and cross-motions by May 3, 

2019, and May 24, 2019, respectively. DKT #156.1

 Jack in the Box agreed to file the first round 

of motions. For the reasons set forth below, the Court should find that the remedies available to 

Plaintiffs for alleged wrongful deductions are limited as a matter of law as described herein.

II. ANALYSIS

A. Potential remedies related to alleged wrongful deductions should be limited 

to a single $200 sum. 

Plaintiffs seek impermissible double recovery of remedies under derivative theories of 

alleged wage and hour violations.2 Numerous courts have repeatedly rejected similar attempts. 

Under this derivative theory, Plaintiffs allege that, as a result of wrongful WBF and shoe 

deductions: (1) Jack in the Box failed to pay some class members the minimum wage for all 

hours worked; (2) Jack in the Box failed to pay some class members time and a half for all hours 

worked in excess of 40 per week, and; (3) Jack in the Box failed to pay some class members all 

wages due and owing at termination.3 Complaint ¶¶ 20, 26, 48-62. Based upon these alleged 

 

1

 Unless specified as Gessele I, all docket entry cites are to documents filed in Gessele II. 2

 Jack in the Box is not admitting liability on Plaintiffs’ underlying claims with its 

arguments concerning available remedies.

3

 To the extent that Plaintiffs also allege that Jack in the Box paid some class members 

their final wages late under ORS § 652.140 at the time of franchization, Jack in the Box 

concedes that such a claim is not derivative or duplicative of Plaintiffs’ other claims which stem 

Case 3:14-cv-01092-BR Document 163 Filed 05/03/19 Page 2 of 19 Case 3:14-cv-01092-HZ Document 373 Filed 10/19/22 Page 4 of 14
Page 3 - DEFENDANT’S MOTION FOR SUMMARY 

JUDGMENT NO. 3 – REMEDIES RELATED TO ALLEGED 

WRONGFUL DEDUCTIONS ARE LIMITED

LITTLER MENDELSON, PC

121 SW Morrison, Suite 900

Portland, OR 97204 

Tel: 503.221.0309

wrongful deductions, Plaintiffs seek to recover multiple statutory remedies as follows:

Statutory Provision Reason Remedy Sought

ORS § 652.150 Minimum Wage Violations A full 30-day penalty per 

class member

ORS § 652.150 Overtime Pay Violations A full 30-day per class 

member

ORS § 652.150 Final Pay Violations A full 30-day per class 

member

ORS § 652.615 Wrongful and/or 

Unauthorized Deductions 

A $200 sum per pay period

with an improper deduction 

per class member4

Jack in the Box asks the Court to follow precedent rejecting these kinds of derivative claims and 

grant it summary judgment to the extent Plaintiffs seek more than one $200 sum per person for 

wrongful deductions. 

1. Plaintiffs’ derivative claims for penalties under ORS § 652.150 are 

barred by the same-conduct rule.

The same-conduct rule prohibits plaintiffs from possibly recovering multiple statutory 

penalties where an employer engages in one kind of conduct that derivatively violates more than 

one wage and hour statute. Herb v. Van Dyke Seed Co., Case No. 3:12-cv-01070-BR, 2012 WL 

4210613, *4 (D. Or. 2012) (prohibiting the plaintiff from recovering “duplicative” penalties 

where failure to pay overtime pay was the basis of allegations that both overtime pay and final 

 

from alleged overdeductions. 

4

 It is unclear from Plaintiffs’ Complaint whether they seek two $200 sums for each pay 

period containing both WBF and shoe deductions. If so, Plaintiffs are further inappropriately 

stacking the statutory remedies they seek based upon alleged wrongful deductions. 

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Plffs’ Resp. to Jack in the Box’s Mtn for Summary Judgment [163] Page 3 

and overtime would only entitle the employee to one penalty under O.R.S. 652.150. 

However, there is no reason why multiple types of misconduct in multiple pay periods 

cannot result in multiple penalties. Defendants concede this point. Dkt. 163 at 5 (“The 

only cases permitting plaintiffs to recover multiple penalties involved employers that committed 

multiple types of misconduct.”). For example, if an employee had a shoe deduction that 

dropped them below the Oregon minimum wage, they are entitled to a minimum-wage 

penalty. This is separate from, and in addition to, if the employee has a later 

nonpayment of overtime as the result of a Workers Benefit Fund overdeduction, which 

would entitle them to an overtime penalty. There is no stacking of penalties for the same 

conduct, because each penalty addresses a different type of violation. 

Fourth, our case is not one that seeks a derivative final-paycheck penalty solely for 

nonpayment of wages during employment. Our case has a final-paycheck class that 

seeks penalty wages for the straightforward late payment of the final paycheck upon 

franchization of Jack in the Box’s Oregon stores. That violation applies to the final 

paycheck only and does not rely on any previous violation of any statute during 

employment. Jack in the Box concedes this point. Dkt. 163 at 2–3 n. 3 (“To the extent 

that Plaintiffs also allege that Jack in the Box paid some class members their final wages 

late under ORS § 652.140 at the time of franchization, Jack in the Box concedes that 

such a claim is not derivative or duplicative of Plaintiffs’ other claims which stem from 

alleged overdeductions.”). 

Fifth, Jack in the Box’s argument that a deduction from wages cannot violate the 

minimum wage is simply wrong. Oregon law specifically prohibits deductions from the 

minimum wage, separate and apart from the prohibitions in O.R.S. 652.610(3). See, e.g., 

O.R.S. 653.035, O.A.R. 839-020-0020. 

Case 3:14-cv-01092-BR Document 169 Filed 05/24/19 Page 3 of 6 Case 3:14-cv-01092-HZ Document 373 Filed 10/19/22 Page 6 of 14
statutory damages to prevent violations of [Defendant’s] due

process rights.” 

Plaintiffs acknowledge “many cases prohibit the recovery of

more than one 30-day penalty for the same conduct.” Plaintiffs,

however, state they are not seeking multiple penalties for the

same conduct. Pls.’ Resp. at 2. Plaintiffs also assert they

“have never advocated for the availability of more than one

penalty in the same workweek - a single deduction that violated

both the Oregon minimum wage and overtime would only entitle the

employee to one penalty under O.R.S. § 652.150.” Pls.’ Resp. at

2-3. Nevertheless, Plaintiffs contend they are not prohibited

from recovering both the $200 statutory damages remedy provided

in § 652.615 and the 30-day penalty provided in § 652.150 for

Defendant’s improper withholding of WBF funds and/or Defendant’s

improper shoe deductions when the deductions reduced an employee

class member’s wages below minimum wage and/or prohibited an

employee class member from receiving sufficient overtime.9 

I. Background

As noted, on June 12, 2017, the Court issued an Opinion and

Order in which it granted Plaintiffs’ Motion to Certify the WBF

Class, granted Plaintiffs’ Motion to Certify the Shoe Class,

9 The parties agree Plaintiffs’ final-paycheck claim relates

only to the Franchise Transfer Class and is “not derivative or

duplicative of Plaintiffs’ other claims.” The final-paycheck

claim, therefore, is “excluded from [Defendant’s] arguments about

prohibiting multiple penalties.”

94 - OPINION AND ORDER

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granted Plaintiffs’ Motion to Certify the Franchise Transfer

Class, and denied Plaintiffs’ Motion to Certify the Unpaid Break

Class. 

In their WBF Claim Plaintiffs allege Defendant improperly

allocated its WBF assessments between Defendant and its

employees, which resulted in an unauthorized deduction from

employees’ wages in violation of Oregon Revised Statutes 

§ 652.610(3). Plaintiffs also allege the WBF assessments

“reduced [Plaintiffs’] pay below the minimum wage” in violation

of Oregon Revised Statutes § 653.025 and “resulted in

[Plaintiffs] not receiving time-and-a-half for their overtime

hours” in violation of Oregon Revised Statutes § 653.261.

 In their Shoe Claims Plaintiffs allege Defendant improperly

deducted the price of non-slip shoes from employees’ wages in

violation of § 652.610(3). Plaintiffs also allege the shoe

deduction “resulted in Plaintiffs and the other employees

receiving less than the minimum wage, and less than time-and-ahalf for their overtime.” Compl. at ¶ 26.

II. Penalties Pursuant to Oregon Revised Statutes §§ 652.615 and

652.150

Oregon Revised Statutes § 652.615 creates “a private cause

of action for a violation of ORS 652.610 . . . for actual damages

or $200, whichever is greater.”

Oregon Revised Statutes § 653.055(1) provides any employer

“who pays an employee less than the wages to which the employee

95 - OPINION AND ORDER

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is entitled under ORS 653.010 to 653.261 is liable to the

employee affected . . . [f]or civil penalties provided in ORS

652.150.” In turn, Oregon Revised Statutes § 652.150 provides

for penalty wages in the same amount as the wages due until the

wages are paid or for up to 30 days after the due date of the

unpaid wages.

For each pay period that Defendant over-withheld WBF

assessments Plaintiffs seek $200 (or actual damages) pursuant to

§ 652.615 and 30 days of penalty wages pursuant to § 652.150 for

each class-member employee whose wages were reduced below minimum

wage or who did not receive sufficient overtime due to the

improper WBF assessments. 

 For each pay period that Defendant improperly deducted shoe

payments Plaintiffs seek $200 (or actual damages) pursuant to 

§ 652.615 and 30 days of penalty wages pursuant to § 652.150 for

each class-member employee whose wages were reduced below minimum

wage or who did not receive sufficient overtime due to the

improper shoe deduction.

Defendant asserts Plaintiffs may not recover more than a

single $200 sum or actual damages for each class-member employee

from whom Defendant improperly withheld WBF funds and may not

recover more than a single $200 sum for each class-member

employee from whom Defendant improperly took shoe deductions even

if the improper deduction also reduced a particular class-member

96 - OPINION AND ORDER

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employee’s wages below minimum wage and/or resulted in less than

full payment of overtime.10

III. Plaintiffs may recover penalties under §§ 652.615 and 

652.150 for improper WBF or shoe deductions that reduced

their pay below minimum wage or resulted in them receiving

insufficient overtime.

Oregon courts have held a plaintiff may recover more than

one penalty under Oregon’s wage-and-hour laws only when an

employer engages in misconduct that violates two separate

statutes, each with their own separate remedies and purposes. 

For example, in Hurger v. Hyatt Lake Resort, Incorporated, 170

Or. App. 320 (2000), the plaintiffs received their final

post-termination wages after the required time elapsed under

Oregon Revised Statutes § 652.140. The plaintiffs sought one

penalty under § 652.150 for late payment of wages on termination

in violation of § 652.140 and a second penalty under § 652.150

for failure to pay minimum wages in violation of § 653.261. The

plaintiffs asserted the late payment of wages on termination

meant the plaintiffs were paid less than the minimum wage (i.e.,

nothing). Id. at 322. The Oregon Court of Appeals held the late

payment of the final wages was not separately sanctionable as a

failure to pay minimum wage because the argument was a

“tail-wagging-the-dog exercise” that was unsupported by the

10 Defendant “does not dispute that class members who had

both WBF and shoe deductions would be potentially eligible to

recoup separate awards under ORS 652.615.” Def.’s Reply at 2

n.1.

97 - OPINION AND ORDER

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statute. Id. at 324–25. 

Similarly, in Herb v. Van Dyke Seed Company the plaintiff

sought to recover a penalty under § 652.150 for the defendant’s

failure to pay overtime and a second penalty under § 652.150 for

the defendant’s failure to pay all wages due on termination. 

This Court concluded the plaintiff could “not seek a penalty for

[his] employer's failure to pay overtime wages during employment

in addition to a penalty for [his] employer's alleged failure to

pay those same wages upon termination . . . , and, therefore,

Plaintiff is barred from seeking such duplicative penalties.” 

No. 3:12-CV-01070-BR, 2012 WL 4210613, at *4 (D. Or. Sept. 19,

2012).

In contrast, in Cornier v. Paul Tulacz, DVM PC, the

plaintiff alleged the defendant did not pay her for overtime

during her employment in violation of Oregon Revised Statutes 

§ 653.261 and that the defendant failed to pay her accumulated

vacation pay after she quit in violation of § 652.140. 176 Or.

App. 245, 247 (2001). The plaintiff sought two statutory

penalties under § 652.150, one for each violation. Id. The

plaintiff, however, did not assert the defendant's failure to pay

her overtime after her termination created the right to a third

penalty under § 652.150. The Oregon Court of Appeals found the

defendant's failure to pay the plaintiff constituted violations

of two distinct parts of the wage statutes and those violations

98 - OPINION AND ORDER

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arose out of different factual contexts and accrued at different

times. Id. at 248. The court, therefore, concluded the

plaintiff was entitled to the two separate penalties. Id. at

249. The court noted:

[T]his case does not present an instance of double

penalties for the same conduct . . . because here

the violation that occurred during employment was

underpayment for overtime, while the violation at

termination was nonpayment for accrued vacation.

Plaintiff has asserted separate violations for

separate acts of her employer. . . . [I]f this

case did present two claims for two penalties

based on the same employer misconduct, one of

those claims would probably fail under Hurger v.

Hyatt Lake Resort, Inc.

Id. at 250. 

Likewise, in Wilson v. Smurfit Newsprint Corporation the

plaintiffs brought several claims against the defendant,

including a claim that the defendant unlawfully withheld medical

insurance payments from the plaintiffs’ last paychecks in

violation of Oregon Revised Statutes § 652.610. 197 Or. App. at

652. The plaintiffs asserted “defendant's excess withholding

violated not only ORS 652.610(3)(a) but also ORS 652.150, because

the withholding resulted in late payment of wages on

termination.” Id. at 671. The plaintiffs, therefore, contended

the “defendant must pay each of them not only $200 under ORS

652.615 but also 30 days of penalty wages” under Oregon Revised

Statutes § 652.150. The Oregon Court of Appeals noted there were

not any cases directly on point, but cases that presented

99 - OPINION AND ORDER

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somewhat similar facts “suggest[ed] . . . plaintiffs’ argument is

correct.” Id. Specifically, the Wilson court relied on the

following discussion in Allen v. County of Jackson:

Before the creation of what is now ORS 652.615,

the way to recover an illegal deduction was to

file a normal wage claim. Nothing in the

legislature's action in creating a new, separate

claim suggests that it intended to abolish the

existing remedy; rather, the legislature added a

new remedy to the existing one.

In short, . . . when an employer deducts amounts

that are illegal under [ORS 652.615], the employee

may file one or both of two different kinds of

claims: (1) a regular wage claim under ORS

652.120 . . . or ORS 652.140 (concerning payment

of wages at termination of employment); or (2) a

specific claim for illegal deductions under ORS

652.615, which includes the minimum damage amount.

Wilson, 197 Or. App. at 671-72 (quoting Allen, 169 Or. App. 116,

133-34 (2000)). The Wilson court also noted the Oregon Supreme

Court in Taylor v. Werner Enterprises, Incorporated, held “an

employer who withholds without authorization violates both ORS

652.150 and ORS 652.610 and that the employee ‘is entitled to

recover under ORS 652.150 and ORS 652.610(3)(c).’” Wilson, 197

Or. App. at 672 (quoting Taylor, 329 Or. 461, 471 (1999)).

Here the Court finds the differences between Plaintiffs’

claims for wrongful WBF and shoe deductions are similar to the

differences between the claims in Wilson. Although Plaintiffs’

request for statutory penalties pursuant to § 652.150 for failure

to pay minimum wage or failure to pay overtime result from

Defendant’s alleged improper withholding of WBF funds and/or shoe

100 - OPINION AND ORDER

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deductions, the Court concludes they present substantially

different violations and are not conjoined in the same way as

those in Herb and Hurger.

The Court, therefore, concludes Plaintiffs may recover

statutory damages under § 652.615 as well as penalty wages under

§ 652.150 if they establish Defendant’s WBF and/or shoe

deductions were improper and reduced employee class members’

wages below minimum wage or resulted in employee class members

receiving insufficient overtime to the extent that due-process

concerns are not implicated as to their WBF claims.

IV. Plaintiffs are limited to a single $200 sum or actual

damages for improper WBF deductions and/or a single $200 sum

or actual damages for improper shoe deductions.

Defendant asserts Plaintiffs are also limited to a single

$200 sum or actual damages per class-member employee for improper

WBF deductions and/or a single $200 sum or actual damages per

class-member employee for improper shoe deductions as opposed to

a $200 sum or actual damages per class-member employee for each

pay period during which Defendant made improper deductions. 

Plaintiffs concede this point in their Response and note they

“are willing to abide by Judge Simon’s recent thoroughly

reasoned Brinkman opinion on this issue.” Pls.’ Resp. at 2. 

In Brinkman v. ABM Onsite Services - West, Incorporated, the

plaintiff brought a collective action alleging his employer

wrongfully deducted certain WBF assessments from his paychecks

101 - OPINION AND ORDER

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