IN THE UNITED ST A TES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

NATASHA MARSHALL, 

Plaintiff, 

3:14-cv-01333-PK 

v. 

OPINION AND ORDER 

POLLIN HOTELS II, LLC, 

Defendant. 

PAPAK, Magistrate Judge: 

PlaintiffNatasha Marshall brings this employment action against defendant Pollin Hotels 

II, LLC ("Pollin"), asserting claims for unpaid overtime wages, unlawful wage deductions, late 

payment of wages, failure to provide reasonable safety accommodations, and wrongful 

discharge. 1 Now before the comi are Pollin's Motion for Summary Judgment (#32) and 

Marshall's Motion for Pa1tial Summary Judgment (#40). For the reasons provided below, both 

motions are granted in part and denied in part. 

SUMMARY JUDGMENT STANDARD 

Summary judgment is appropriate "if the movant shows that there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 

56(a). A party taking the position that a material fact either "cannot be or is genuinely disputed" 

must support that position either by citation to specific evidence of record "including 

depositions, documents, electronically stored information, affidavits or declarations, stipulations 

1 Marshall pleaded failure to provide reasonable safety accommodations and constructive 

discharge as a single cause of action, but they are more appropriately considered as separate 

claims. See Or. Rev. Stat.§ 659A.290(b)-(c). 

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(including those made for purposes of the motion only), admissions, inte!Togatory answers, or 

other materials," by showing that the evidence of record does not establish either the presence or 

absence of such a dispute, or by showing that an opposing party is unable to produce sufficient 

admissible evidence to establish the presence or absence of such a dispute. Fed. R. Civ. P. 56( c ). 

The substantive law governing a claim or defense detennines whether a fact is material. See 

ivforelandv. Las Vegas i\Ietro. Police Dep't, 159 F.3d 365, 369 (9th Cir. 1998). 

Summary judgment is not proper if material factual issues exist for trial. See, e.g., 

Celotex Corp. v. Catrett, 477 U.S. 318, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 248 (1986); Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 116 

S. Ct. 1261 (1996). In evaluating a motion for summary judgment, the court must draw all 

reasonable inferences in favor of the nomnoving party and may neither make credibility 

determinations nor perform any weighing of the evidence. See, e.g., Lytle v. Household lvlfg., 

Inc., 494 U.S. 545, 554-55 (1990); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 

150 (2000). On cross-motions for summary judgment, the coutt must consider each motion 

separately to determine whether either party has met its burden with the facts constrned in the 

light most favorable to the other. See Fed. R. Civ. P. 56; see also, e.g., Fair Haus. Council v. 

Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). 

BACKGROUND2 

I. The Parties 

Marshall began working for Poll in at the Sheraton Po1tland Airpo1t Hotel in Portland, 

Oregon (the "Hotel") on or about April 11, 2012. Marshall frequently worked over 40 hours a 

week and was paid an ove1time rate for at least some of that time. Stuart Ticknor was the 

2 Except where expressly indicated otherwise, I construe the evidentiary record according to the 

legal standard governing motions for summary judgment under Federal Civil Procedure Rule 56. 

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Assistant General Manager at the Hotel at all relevant times. Melissa Smith was Pollin's Human 

Resources Director at all relevant times. 

II. Time Clock and .Meal Break Issues 

Upon Marshall's hire, she agreed to accurately record her time by punching in and out on 

a time clock at the start and end of her work and lunch periods. Marshall's supervisors instructed 

her to take a 30-minute lunch break near the middle of any shift over six hours long. Marshall 

understood that her lunch breaks were unpaid. Importantly, when Marshall took a lunch break 

that lasted less than 30 minutes, the break was still unpaid. 

III. Wage Deductions 

Pollin made deductions from Marshall's wages to satisfy four writs of gatnishment. 

Asset Recovery and Investigations ("Asset Recovery") was the garnishor on three of the writs. 

Asset Recovery served Pollin with the first writ on March 22, 2013. That writ was defective in 

that it did not contain the garnishor's address. As a result, there was a delay between the time 

Marshall's wages were deducted for the writ and the time the deducted amounts were actually 

paid over to Asset Recovery. 

The State of Oregon also garnished Marshall's wages for personal income taxes she 

owed. Both the Oregon writ and the other two Asset Recovery writs properly contained the 

garnishor's address. Consequently, there was no delay in paying the amounts deducted for those 

writs to the garnishors. 

Pollin also withheld taxes for Old-Age, Survivors, and Disability Insurance ("OASDI") 

and Medicare benefits from Marshall's wages. Those withholdings related to Marshall's receipt 

of short-term disability payments from a third-party provider. In some instances, the amount of 

the withholdings exceeded what was permissible under applicable law. 

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IV. Domestic Violence Incidents and Safety Accommodations 

On or about May 24, 2013, Marshall informed Smith that she had recently broken up 

with her boyfriend, Timothy Glaze, because he had assaulted her. She further informed Smith 

that she had left the home she was sharing with Glaze and was staying with a friend. Marshall 

asked Smith to keep all of that information confidential. Given the recent events and resulting 

change in Marshall's living situation, Marshall also asked Smith to have her disability checks3 

sent to the Hotel. Smith responded as follows: 

I will not say anything, however, I seriously hope that you pressed charges and 

filed a restraining order. I also hope that this was the first and last time this 

happened to you. You are an amazing, beautiful, kind and very special person. If 

I can be of any other assistance, please let me know. 

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

This was the first time Pollin learned Marshall was a victim of domestic violence. Smith 

honored Marshall's requests and did not discuss the incident with anyone else at the Hotel. She 

also made Marshall's disability checks available for pickup at the Hotel. 

As far as Smith knew, Marshall had in fact ended her relationship with Glaze in May of 

2013. That belief was supp01ied by the fact that Marshall subsequently asked Smith to remove 

Glaze from her emergency-contact listing and to have Marshall's disability checks sent to a 

different residential address. There was no overt indication at this point that Glaze posed a tlu·eat 

to Marshall at the Hotel. 

Marshall began a short-term disability leave on or about May 26, 2013. She returned to 

work on July 8, 2013. She was promoted to front-desk supervisor in August of2013. 

3 Presumably, the disability checks were for Marshall's disability leave that began on May 26, 

2013. 

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On or about December 15, 2013, Marshall failed to show up for work, and as explained 

below, she would never again work another shift at the Hotel. That same day, Marshall sent 

Ticknor the following email: 

Let me start by saying I am so sony for today. Not keeping you in the loop isn't 

my style at all. I always make sure top have good communication with u. Today 

wasn't normal for me though. 

Please keep in confidence what I'm sharing with u (Melissa can know). I don't feel 

safe at work. My ex seen me Sat night with my girls and flipped out on me. He 

beat me up. He has been texting me threats non stop. Threatening my life, safety, 

friends, family and anything and everyone that has anything to do with me that he 

knows. When I showed up to work today. He was there waiting for me. I sped 

off not looking back. After lastnight I couldn't take any chances because I dont 

know what he is gonna do. I am very scared/concerned. At this point I cannot 

come to work. I have never felt like this before in my life. I'm way out in the 

country at a safe house until I figure it out. 

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

This was the first time Ticknor learned Marshall was a victim of domestic violence. 

Ticknor immediately responded as follows: "First and foremost is the issue of your safety. 

Please do not compromise anything in regard to your safety. I am going to CC Melissa into this 

communication. I will plan on you being absent (excused) tomorrow." Id. Smith also 

responded that same day, stating as follow: 

First, are you okay? Have you/are you going to seek medical treatment? Second, 

have you/are you going to press charges/file a restraining order? We will do 

everything we can to keep you safe at work, a restraining order will help. I 

believe we can trespass him from the property without it, but will double check. 

Third, please know that you are very important to us and I am here to help 

anyway I can. I will be in office at 9:30 if you want to talk. Take care of you and 

your family. 

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Smith Deel. Ex. 12, at 1 (#34-12). Smith followed up with Marshall less than three hours later, 

confoming that Pollin could trespass her assailant and asking if it was Glaze. 4 Smith further 

info1med Marshall that she needed the assailant's address so she could send notice of the trespass 

order. 

Smith sent Marshall yet another email that same day, stating: "I know you are feeling 

hopeless, but you are not alone. I want to help you and I think I can if you will let me." Smith 

Deel. Ex. 13, (#34-13). Ticknor also followed up with Marshall that afternoon, asking if she was 

alright. Marshall responded as follows: 

:'(I'm not ok at all. I'm so messed up and not together. I am being stalked, taunted 

and t01mented. I am scared to communicate with others because I dont know who 

is talking to him. He has went to my parents and Iii sisters looking for me. He has 

been calling the hotel because hes texting me telling me stuff like" I can leave 

now cuz your off today". He's Just crazy and I can't trust him. 

This isn't the first time he has hit me! ! He has never went to this extreme though. 

I'm lost Stu!! He is going to cause a scene with me @work and I dont feel safe 

knowing that ifI'm there he will know. He is going to do something to me. I'm 

sony for putting everyone thru this. People having to cover for me etc. I love my 

job but I cannot be there. He is gonna hurt me! I'm so sony :'(! ! ! ! 

Ticknor Deel. Ex. 6 (#35-6). Ticknor was not sure what Marshall's email meant regarding her 

ability to be at work, and he was unable to reach her by phone. 

Two days later, on December 18, 2013, Smith emailed Marshall and asked her to call the 

Hotel. Marshall said she would call that day, but she did not. The next day, Smith sent Marshall 

the following email: 

We are very concerned about you and your welfare. Your sporadic 

communication with us only heightens that. I am confused by some of your 

comments in your emails on whether you plan on returning to work. I believe that 

4 There is no evidence that Marshall ever responded and affomatively identified Glaze as the 

assailant. Indeed, the parties have not cited any evidence identifying the culprit of the December 

2013 attack and the subsequent threats. Therefore, I will identify that individual as "the 

assailant" throughout the remainder of this Opinion and Order. 

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I can help you personally and put systems in place for you to return to work 

safely, but I can't do that without speaking to you. Please call me today so we can . 

discuss. You can call me in the office or on my cell phone, both numbers are 

listed in my signature line. 

Smith Deel. Ex. 15 (#34-15). Four days later, Marshall responded as follows: "Until my safety 

isn't at risk. I cannot return to work. I'm terrified after what has happened so far. I can have my 

sister come to pick up my final check. Thank you for everything!" Smith Deel. Ex. 16 (#34-16). 

Smith understood Marshall's reference to her "final check" as a resignation and responded 

with the following email: 

Id. 

Natasha, 

We are so sony that you are going through all of this. We too, are very concerned 

for your safety. I hope that you have contacted the police, filed a report, a 

restraining order, emergency housing and counseling to help you. 

I will consider this email your resignation. Please keep in contact with us, so we 

may know you are alright. 

You were selected as our Associate of the Quarter. I have your award and will 

leave at the front desk, so that your sister may come and pick it up for you at her 

convenience. She can also pick up your final manual check for, NET$ 122.34, 

see attached. 

We wish you all the best and please know that you are in our thoughts. 

Melissa Smith 

Marshall responded as follows: "I can't quit Melissa!! My emotions are out of whack. I 

need my job! Is it to late to figure out a plan for me to return. I can't let my team down and I 

love you and Stu." Id. 

In response, Smith told Marshall that her previous emails had led Smith to believe that 

she had resigned her position and if she wanted to keep her job, she needed to speak with Smith 

that day. Marshall then called Smith and accepted Smith's offer to accompany her to file charges 

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and get a restraining order. Marshall also promised to email Smith her ex-boyfriend's address so 

that Follin could get the trespass order in place. 

However, three days later, Marshall cancelled her meeting with Smith to file charges and 

talk to a counselor. Marshall informed Smith that she did not want to press charges or talk to 

anyone about the incident. Marshall stated that she expected to obtain her assailant's address that 

day, but she further stated that she was concerned about sending the notice and did not 

understand the need for it. 

Smith responded by telling Marshall that she would hold off on sending the trespass 

notice. Smith additionally provided Marshall with the info1mation for the domestic-violence 

clinic where she had made an appointment for her. Smith also told Marshall to keep in contact 

with her and Ticknor and let them know what her plans were. 

Marshall emailed Ticknor that same day and asked to come back to work on December 

29, 2013. Follin scheduled Marshall to work on December 29 as she requested, but Marshall 

called in sick. On December 31, 2013, Marshall again emailed Ticknor to schedule a shift, this 

time for January 1, 2014. Ticknor obliged, but Marshall failed to show up for that shift or 

explain her absence. Marshall also failed to show up or explain her absence for subsequent shifts 

she was scheduled for. 

On January 6, 2014, Smith emailed Marshall about her continued failure to repmi to work 

or contact her supervisors and stated that unless Marshall contacted Smith to explain her actions, 

Marshall would be considered to have voluntarily quit. Marshall responded that same day, 

stating that she had thought she would be able to return to work but was still being stalked and 

had become fearful enough to relocate out of Portland. Marshall asked Smith to send her last 

check to a Eugene, Oregon address. Marshall's employment was terminated the following day. 

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Smith Deel. Ex. 20 (#34-20). Marshall's termination form showed that the termination was 

voluntarily and that she was potentially eligible for rehire. Id. 

DISCUSSION 

As stated above, Marshall asserts the following five causes of action (1) unpaid overtime 

wages, (2) unlawful wage deductions, (3) late payment of wages, (4) failure to provide 

reasonable safety accommodations, and ( 5) wrongful discharge. Pollin moves for summary 

judgment on each of Marshall's causes of action. Marshall moves for pmtial summary judgment 

establishing Pollin's liability for unpaid overtime wages, unlawful wage deductions, and late 

payment of wages. Marshall expressly reserves the amount of her damages for trial. I address 

each of Marshall's causes of action, separately, below. 

I conclude that neither party is entitled to summary judgment on Marshall's claims for 

unpaid ove1time. Marshall is entitled to partial summary judgment establishing Pollin's liability 

on her claims for unlawful deductions and late payment of wages to the extent those claims are 

based on deductions for the March 22, 2013 Asset Recovery writ of garnishment. Pollin is 

entitled to pmtial summary judgment on Marshall's claim for unlawful wage deductions to the 

extent the claim is based on deductions other than those for the March 22, 2013 Asset Recovery 

writ of garnishment. Pollin is also entitled to summary judgment on Marshall's claims for failure 

to provide reasonable safety accommodations and wrongful discharge. 

I. Unpaid Overtime Wages 

A. Legal Standard 

Marshall asserts her unpaid ove1time claim solely under the FLSA. See Comp!.~~ 14-26 

(#1-1). To prevail on an unpaid ove1time claim under the FLSA, the plaintiff must prove the 

following four elements: (1) the uncompensated activity constitutes "work," (2) the time worked 

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is not de minimis and is reasonable in relation to the principal activity, (3) the employer had 

actual or constructive knowledge of the plaintiffs overtime work, and ( 4) the amount of time 

worked. Dixon v. City of Forks, No. C08-5189FDB, 2009 WL 1459447, at *3-6 (W.D. Wash. 

May 26, 2009) (citations omitted). Even ifthe plaintiff lacks records ofhours worked, she can 

neve1iheless carry her burden on the final element by proving that she "perfonned work for 

which [she] was improperly compensated" and producing "sufficient evidence to show the 

amount and extent of that work as a matter of just and reasonable inference." Anderson v. J\!lt. 

Clemens Pottery Co., 328 U.S. 680, 688 (1946). 

B. The Parties' Arguments 

The parties primarily dispute whether Marshall can establish the first element of her 

unpaid overtime claim. Pollin argues that it is entitled to summary judgment on the claim 

because Marshall has failed to identify any uncompensated periods of time that she worked. 

Pollin further argues that it already paid Marshall for all of the alleged unpaid ove1iime periods. 

Marshall argues that Pollin had a legal obligation to provide her with 30-minute meal 

breaks. Marshall contends that when her meal breaks were interrupted (i.e. when they lasted less 

than 30 minutes) Pollin was required to compensate Marshall for the entire break. According to 

Marshall, if she had been properly compensated for all of her breaks that lasted less than 30 

minutes, she would have accrued additional overtime. Marshall further argues that PoHin failed 

to compensate her for some of the time that she actually logged on her time cards. 

C. Analysis 

Neither party is entitled to summary judgment on Marshall's unpaid overtime claim. 

Marshall's time card reports contain numerous time deductions for breaks that lasted less than 30 

minutes, many of which lasted less than 20 minutes .. " See Baze Deel. Ex. 2, Ex. 3 (#41-2, #41-

OPINION AND ORDER-PAGE 10 

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3). It is undisputed that Pollin did not pay Marshall for those breaks. See Ticknor Deel. if 5 

(#35) ("Pollin's policy was to pay for all time clocked in and out .... "). 

The FLSA does not require employers to provide meal breaks. See Gessele v. Jack in 

the Box, Inc., No. 3:1 O-CV-00960-ST, 2013 WL 1326538, at *6 (D. Or. Apr. 1, 2013) (citing 

California Dairies Inc. v. RSUI Indem. Co., 617 F.Supp.2d 1023, 1043 (E.D. Cal. 2009)); Nelson 

v. Waste lYigmt. of Alameda Cty., Inc., No. C 99-0120 SI, 2000 WL 868523, at *3 (N.D. Cal. 

June 19, 2000), afj'd, 33 F. App'x 273 (9th Cir. 2002). However, the FLSA does require 

payment of ove1time wages for all "hours worked" in excess of 40 hours per week. 29 U.S.C. § 

207(a)(l). 

A "bona fide meal period" does not count as "hours worked." 29 C.F.R. § 785.19; 

Gessele, 2013 WL 1326538, at *6; Nelson, 2000 WL 868523, at *3. However, the Depaitment 

of Labor's Wage and Hour Division ("WHD") draws an impo1tant distinction between "bona fide 

meal periods" and "rest periods." While bona fide meal periods may be unpaid, rest periods must 

be compensated. The applicable WHD policy statements5 provide as follows: 

Rest periods of short duration, running from 5 minutes to about 20 minutes, are 

common in industry. They promote the efficiency of the employee and are 

customarily paid for as working time. They must be counted as hours worked. 

29 C.F.R. § 785.18 

Bona fide meal periods are not worktime. Bona fide meal periods do not include 

coffee breaks or time for snacks. These are rest periods. The employee must be 

completely relieved from duty for the purposes of eating regular meals. Ordinarily 

30 minutes or more is long enough for a bona fide meal period. A shorter period 

may be long enough under special conditions. The employee is not relieved if he 

is required to perform any duties, whether active or inactive, while eating. 

Id. § 785.19(a). 

5 The Depaitment of Labor's interpretations of the FLSA are entitled to judicial deference. See, 

e.g., Gessele, 2013 WL 1326563, at *23 (citing Baldwin v. Trailer Inns, Inc., 266 F3d 1104, 

1112 n.4 (9th Cir. 2001)). 

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The WHD's Field Operations Handbook provides a factor test to detennine whether 

special conditions exist that are sufficient to qualify breaks shorter than 30 minutes as bona fide 

meal breaks. 

Meal periods of less than 30 minutes during which the employee is completely 

relieved for purposes of eating a meal may be bona fide - and thus not hours 

worked - when ce1iain special conditions are present (Reg 785.19). The 

conditions reviewed to make this determination, which should be considered in 

context on a case-by-case basis, include: 

(a) Work-related interrnptions to the meal period are sporadic and minimal. 

(b) Employees have sufficient time to eat a regular meal. Periods less than 20 

minutes should be given special scrutiny to ensure that the time is sufficient to eat 

a regular meal under the circumstances presented. 

( c) The period involved is not just a short break for snacks and/or coffee but 

rather is a break to eat a full meal, comes at a time of the day or shift that meals 

are nonnally consumed, and occurs with no more frequency than is customary. 

(d) There is an agreement (e.g. CBA) between the employees and employer that 

the period ofless than 30 minutes is sufficient to eat a regular meal. 

( e) Applicable State or local laws do not require lunch periods in excess of the 

period indicated. 

Field Operations Handbook,§ 31b23, available at 

http://www.dol.gov/whd/FOH/FOH _ Ch3 l .pdf. 6 

Thus, Pollin was required to compensate Marshall for breaks that lasted less than 30 

minutes unless (1) Marshall was completely relieved from her work duties during those breaks 

and (2) "special conditions" were present. 7 See 29 C.F.R. §§ 785.18-.19(a). Importantly, Pollin 

6 A 2007 policy statement from the WHD lists the same factors. FLSA2007-1NA, available at 

http://www.dol.gov/whd/opinion/FLSANA/2007 /2007_05_14_ 0lNA _FLSA.htm. 

7 Although§ 785.18 states that rest breaks typically last "about 20 minutes" or less, The Field 

Operation Handbook makes clear that breaks of less than 20 minutes, although particularly 

suspect, may qualify as bona fide meal breaks. Cf Alvarez v. IBP, Inc., No. CT-98-5005-RHW, 

2001WL34897841, at *14 (E.D. Wash. Sept. 14, 2001) ("29 C.F.R. § 785.18 provides that no 

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bears the burden of proving both complete relief from duty and the existence of special 

conditions.8 See id. § 785.19(a); Alvarez, 2001 WL 34897841, at *14 (discussing the burden of 

proof(quoting Bernardv. IBP, 154 F.3d 259, 265 (5th Cir. 1999))). 

The parties genuinely dispute whether Marshall was completely relieved from duty 

during her breaks. Marshall testified that when she clocked in from a lunch break of less than 30 

minutes, it was because she was "required to perfonn work." Marshall Deel. if 2 (#53). 

However, Ticknor testified that there was always someone to cover for Marshall during her 

breaks. Ticknor Deel. if 3 (#58). That factual dispute precludes summary judgment for Pollin. 

See 29 C.F.R. § 785. l 9(a) ("The employee must be completely relieved from duty for the 

purposes of eating regular meals."). 

I am not persuaded by Pollin's argument that it already paid Marshall for the periods of 

alleged overtime at issue in this litigation. In support of that argument, Pollin offers evidence 

that it paid Marshall $550 in response to a demand letter. According to Pollin, $550 is sufficient 

to cover approximately 9 .5 hours at Marshall's ove1time wage rate plus the statutory penalty for 

late payment of wages. However, the undisputed evidence establishes that the sum of all 

Marshall's unpaid breaks that lasted less than 30 minutes is far greater than 9.5 hours. See Plf. 's 

Reply 5-6 n.4 (#52) (citing Baze Deel. Ex. 2, Ex. 3 (#41-2, #41-3). Therefore, Pollin's post-

"special conditions" would pennit an unpaid meal break ofless than 20 minutes."), adopted as 

modified, 339 F.3d 894 (9th Cir. 2003). 

8 Some district courts within the Ninth Circuit apply a "predominate benefit test" in detennining 

whether an employee was completely relieved from duty during a meal break. Nelson, 2000 WL 

868523, at *3. The critical question under that test is whether the disputed time was spent 

primarily for the employer's benefit or for the employee's benefit. Roy v. Cly. of Lexington, S. 

Carolina, 141F.3d533, 544 (4th Cir. 1998) (citation omitted), cited in, Alvarez, 339 F.3d at 913. 

The defendant bears the burden of proof under the predominate benefit test as well. Nelson, 

2000 WL 868523, at *3. 

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termination payment to Marshall does not entitle it to summary judgment on her unpaid overtime 

claim. 

However, because Pollin has presented evidence of special conditions, summary 

judgment is not appropriate for Marshall either. The WHD's Field Operations Handbook 

info1ms my analysis. With respect to the first factor, Marshall testified that her lunch breaks 

were frequently and substantially interrupted by guest needs and employee absences. See 

Marshall Deel. iiii 2-9 (#53). However, as stated above, Ticknor testified that there was always 

someone to cover for Marshall during her breaks. Ticknor Deel. ii 3 (#58). Ticknor further 

testified that some of the work tasks that allegedly interrupted Marshall's breaks were nothing 

more than "busy wo_rk" that was not required to be completed by any pai1icular deadline. Id. at ii 

6. Therefore, a reasonable trier of fact could find that work-related interruptions to Marshall's 

meal breaks were "sporadic and minimal." See Field Operations Handbook,§ 3lb23. 

Regarding the second factor, Pollin has presented evidence that it consistently 

encouraged Marshall to take full, 30-minute lunch breaks. See Ticknor Deel. iiii 2, 3, Ex. 1 (#48, 

#48-1); Smith Deel. ii 5 (#34). Because a reasonable trier of fact could believe Ticknor's 

testimony that somebody was always available to cover for Marshall during those breaks, a 

reasonable trier of fact could also find that Marshall always had "sufficient time to eat a regular 

meal." See Field Operations Handbook,§ 3lb23. 

Moreover, Marshall's time cards show that she took the majority of her breaks "at a time 

of the day or shift that meals are normally consumed." See Baze Deel. Ex. 2, Ex. 3 (#41-2, #41-

3). Therefore, a reasonable trier of fact could also find for Pollin on the third factor. See Field 

Operations Handbook, § 31 b23. 

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With respect to the fourth factor, this is no evidence that Marshall and Pollin ever agreed 

that periods of less than 30 minutes were sufficient to eat a regular meal. See Field Operations 

Handbook, § 31 b23. However, the absence of such an agreement is insufficient to warrant 

summary judgment in Marshall's favor. 

Finally, regarding the fifth factor, Oregon law requires employers to provide employees a 

continuous 30-minute break for each work period over six hours. Or. Admin. R. 839-020-0050. 

However, this comi has previously construed that rule as merely requiring employers to provide 

30-minute breaks; it does not require employers to police their employees' breaks. Weir v. Joly, 

No. 3:10-CV-898-HZ, 2011WL6778764, at *7 (D. Or. Dec. 23, 2011). As the Weir court 

explained: 

Weir also seems to take the position that an employer must pay an employee for a 

break of less than 30 minutes, no matter the reason. For instance, if the employee 

took a 29-minute meal break and happened to clock in a minute before 30 

minutes had passed, the employer must pay the employee for the entire 30 

minutes. Although Oregon comis have not spoken on this issue, I do not agree 

with Weir's interpretation of the rule. The rule requires that employers "provide" a 

meal break of 30 continuous minutes during which the employee is relieved of all 

duties. OAR 839-020-0050. To require an employer to police when an employee 

clocks in and out would be an unreasonable burden on the employer. The outcome 

would be an employee who could take a proper meal break, but then demand that 

it [be] paid simply by clocking in early. 

Id at *7 (footnote omitted).9 As stated above, Pollin has presented evidence that it provided 

Marshall with continuous 30-minute meal breaks. See Ticknor Deel. 'if'il 2, 3, Ex. 1 (#48, #48-1); 

Smith Deel. 'if 5 ( #34 ). 

Thus, viewing the evidence in the light most favorable to Pollin, a reasonable trier of fact 

could find that Marshall was always relieved from duty during her sh01iened meal breaks and 

9 Although the Weir comi's analysis centered primarily on Oregon law, the plaintiff's claims in 

that case included an FLSA claim for unpaid overtime. See Comp!. at 'if'il 15, 26-27 (#1), Weir, 

2010 WL 4853256. 

OPINION AND ORDER-PAGE 15 

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those breaks were taken under special conditions. Consequently, Marshall is not entitled to 

summary judgment establishing Pollin's liability for unpaid overtime wages in relation to unpaid 

meal breaks. 

Marshall also seeks partial summary judgment establishing Pollin's liability for unpaid 

overtime wages in relation to time for which she was actually clocked in but not paid. In 

support, Marshall offers evidence that she was not paid for 0.1 hours that she logged on April 29, 

2012. Marshall also offers evidence that she was not compensated for 0.04 hours that she logged 

during the pay period running from May 1, 2012 through May15, 2012. Although Marshall's 

time cards for the above-mentioned periods accurately reflect the times she clocked in and out, 

the total amount of recorded time is slightly off. 

The WHD permits employers to round hours worked under the FLSA. The relevant 

policy statement provides as follows: 

"Rounding" practices. It has been found that in some industries, particularly where time 

clocks are used, there has been the practice for many years of recording the employees' 

starting time and stopping time to the nearest 5 minutes, or to the nearest one-tenth or 

quarter of an hour. Presumably, this anangement averages out so that the employees are 

folly compensated for all the time they actually work. For enforcement purposes this 

practice of computing working time will be accepted, provided that it is used in such a 

manner that it will not result, over a period of time, in failure to compensate the 

employees properly for all the time they have actually worked. 

29 C.F.R. § 785.48(b). 

Ticknor testified that, prior to 2013, Follin used time card software that rounded logged 

time. Ticknor Deel. ~ 6 ( #48). Ticknor fo1iher testified that discrepancies caused by the 

rounding worked to Marshall's benefit at least as often as they worked to her detriment. Id. 

Therefore, a reasonable trier of fact could find that the discrepancies between Marshall's 

recorded hours and her actual pay was the result of permissible rounding. See 29 C.F.R. § 

785.48(b). 

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Moreover, Marshall has only shown that she was uncompensated for 0.14 hours of 

logged time. Therefore, a reasonable trier of fact could also find that the uncompensated logged 

time is de minimis and, as such, did not require compensation under the FLSA. See Alvarez, 339 

F.3d at 903; Anderson, 328 U.S. at 692 ("When the matter in issue concerns only a few seconds 

or minutes of work beyond the scheduled working hours, such trifles may be disregarded [under 

the FLSA]. "). Marshall is not entitled to pmiial summary judgment establishing Pollin's unpaid 

ove1iime liability in relation to time for which she was clocked in but not paid. 10 

In sum, neither pmiy is entitled to summary judgment on Marshall's unpaid ove1iime 

claim. 

II. Unlawful Wage Deductions 

A. Legal Standard 

To succeed on an unlawful wage deductions claim, the plaintiff must establish that the 

defendant made a deduction from the plaintiff's wages, that the deduction was not authorized by 

Oregon Revised Statutes section 652.610(3), and that the defendant thereby failed to pay all of 

the plaintiff's wages when due. See Allen v. Cly. of Jackson Cty., 7 P.3d 739, 748 (Or. App. 

2000). Section 652.610(3)(a) authorizes employers to deduct poliions of employee wages when 

the employer is "required to do so by law." 

10 In opposition to Pollin's Motion for Summary Judgment, Marshall presented evidence that 

Pollin manually altered her time clock to show that she took lunches she did not actually take 

and to show that she clocked out from work earlier than she actually did. However, Marshall 

does not raise that argument in her Motion for Partial Summary Judgment as an additional .basis 

of unpaid ove1iime wages liability. Therefore, I do not determine whether Marshall is entitled to 

partial summary judgment establishing Pollin's liability on her unpaid overtime claim for 

manually altering her time clock to show that she took lunches she did not actually take and to 

show that she clocked out from work earlier than she actually did. 

OPINION AND ORDER-PAGE 17 

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B. The Parties' Arguments 

Pollin argues that it is entitled to summaiy judgment on Marshall's unlawful wage 

deductions claim because the deductions it made from Marshall's wages were authorized by law. 

Pollin fmiher argues that Marshall's unlawful wage deductions claim is time-barred to the extent 

it is based on writs of garnishment. Pollin also contends that Marshall's unlawful wage 

deductions claim is preempted by federal law to the extent it is based on deductions for Medicare 

and OASDI taxes. 

Marshall argues that the March 22, 2013 Asset Recovery writ of garnishment was invalid 

because it did not include the garnishor's address. As a result, Marshall argues, that writ could 

not serve as a basis for lawful wage deductions. Marshall also contends that Pollin failed to 

timely remit the wages it deducted for the Mai·ch 22, 2013 writ to the gamishor. Marshall fmiher 

argues that the amounts Pollin deducted for Medicare and OASDI taxes were greater than 

permitted by applicable law. Finally, Marshall argues that her unlawful wage deductions claim 

is not preempted by federal law because 26 U.S.C. § 6413 permits her to sue Pollin for 

overcollected taxes. 

C. Analysis 

Marshall's unlawful wage deductions claim is based on withholdings for Medicare and 

OASDI taxes and deductions used to satisfy four separate writs of garnishment: (1) a March 22, 

2013 Asset Recovery writ, (2) a July 13, 2013 Asset Recovery writ, (3) an October 1, 2013 Asset 

Recovery writ, and (4) an Oregon Department of Revenue writ. I address the writs of 

garnishment and the tax withholdings, separately, below. 

Marshall is entitled to paitial summmy judgment establishing Pollin's liability on her on 

her unlawful wage deductions claim to the extent the claim is based on deductions for the March 

OPINION AND ORDER-PAGE 18 

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22, 2013 Asset Recovery writ of garnishment. Pollin is entitled to partial summary judgment on 

the remainder of Marshall's unlawfol wage deductions claim. 

1. Deductions for Garnishments 

At the outset, I reject Pollin's argument that Marshall's unlawfol wage deductions claim is 

time-barred under Oregon Revised Statutes section 18.700(2) to the extent the claim is based on 

deductions for writs of garnishment. Section 18. 700(2) provides that a debtor must challenge a 

garnishment within "120 days after a copy of the writ of garnishment is delivered to the debtor, if 

the garnishee is the employer of the debtor and the challenge is based on an exemption that is 

claimed for wages earned by the debtor from the garnishee" or within "30 days after a copy of 

the writ of garnishment is delivered to the debtor, if the challenge is made on any other basis." 

However, that provision is clearly limited to situations where the challenger (!) claims an 

exemption, (2) asse1is that the amount specified in the writ of garnishment is greater than the 

total amount owed by the debtor, (3) asserts that property is not garnishable property, or (4), in 

the case of a third pa1iy, claims a possessory interest in the garnished prope1iy. Id. at § 

18.700(5). Marshall does not assert an exemption, error in the amount of the writ, garnishment 

of property not subject to garnishment, or a third-paiiy interest. Therefore, the limitations period 

in section 18.700(2) is inapposite. 

Marshall is entitled to partial summary judgment establishing Pollin's liability on her 

unlawfol wage deductions claim to the extent the claim is based on deductions for the March 22, 

2013 Asset Recovery writ of garnishment. Pollin argues that it was required by law to garnish 

Marshall's wages in response to that writ. In supp01i of that argument, Pollin cites Oregon 

Revised Statutes § 18.665(1 ), which provides as follows: 

The garnishee has no duty to determine whether . . . the writ of garnishment is 

valid. If a garnishee response is required, the garnishee must make a diligent 

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effort to determine whether the garnishee is the employer of the debtor and 

whether the garnishee has possession, control or custody of any garnishable 

property of the debtor as described in ORS 18.615. If the garnishee has 

possession, control or custody of garnishable property, the garnishee must hold 

the property, or as much of the property as is necessary to satisfy the garnishment, 

as required by ORS 18.600 to 18.850, and thereafter make delivery of the 

property in the manner required by ORS 18.600 to 18.850. 

Id. (emphasis added). 

Pollin omitted the emphasized language from the portion of section 18.665(1) that it 

quoted in its brief. That language is important because it shows that an employer is required by 

law to hold and deliver an employee's garnishable property only if it is required to deliver a 

garnishee response. See also id. at§ 18.838 ("If the writ does not comply with Oregon law, the 

writ is not effective to garnish any prope1iy of the Debtor, but you still must complete and 

deliver the Garnishee Response."). Imp01iantly, a garnishee "has no duty to prepare and deliver 

a garnishee response if ... [t]he garnishor fails to serve the garnishee with all items required 

under ORS 18.650." Id at § 18.682(2). One such item is a "writ of garnishment in substantially 

the form provided by ORS 18.830." Id. at§ 18.650(1)(a). The form provided by section 18.830 

requires the address of the garnishor. 

It is undisputed that Asset Recovery failed to include its address on the March 22, 2013 

writ of garnishment. See Marshall Deel. Ex. 1, at 2 (#51-1 ). Therefore, Pollin was not required 

to prepare and deliver a garnishee response to that writ. See Or. Rev. Stat.§ 18.682(2). Nor was 

the writ effective to garnish Marshall's wages. See id. at § 18.838. Consequently, Pollin was not 

"required by law" to deduct Marshall's wages to satisfy the writ, and all such deductions 

constituted unlawful wage deductions. See id. at§ 652.610(3)(a). Marshall is entitled to 

summary judgment establishing Pollin's liability on her unlawful wage deductions claim to the 

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extent the claim is based on deductions for the March 22, 2013 Asset Recovery writ of 

garnishment. 

Conversely, the garnishor's address was included on the remaining writs of garnishment 

underlying Marshall's unlawful wage deductions claim. See Marshall Deel. Ex. 2 at 3, Ex. 3 at 3, 

Ex. 4 at 3 (#51-2 - #51-4). It is also undisputed that the wages deducted for those writs were 

timely remitted to the garnishors. Marshall does not present any other argument as to why 

deductions for those writs were unlawful. 11 As stated above, Oregon employers are generally 

required by law to hold and deliver garnishable prope1iy that is in their possession, custody, or 

control. Or. Rev. Stat. § 18.665(1 ). A reasonable trier of fact therefore could not find that 

deductions from Marshall's wages pursuant to the remaining writs were unlawful. See id at§ 

652.610(3)(a) (authorizing employers to deduct employee wages when it is required to do so by 

law). Consequently, Pollin is entitled to pmiial summary judgment on Marshall's unlawful wage 

deductions claim to the extent the claim is based on the July 13, 2013 and October 1, 2013 Asset 

Recovery writs and the Oregon Department of Revenue writ. 

11 Pollin produced only the March 22, 2013 Asset Recovery writ during discovery. Marshall 

therefore argues that Federal Rule of Civil Procedure 37(c) requires the court to disregard all the 

other writs. Marshall misstates Rule 37(c). That rule does not unequivocally require the court to 

disregard evidence a party failed to produce in response to a discovery request. Rather, the rule 

grants the court broad discretion in deciding what sanctions are appropriate. See Fed. R. Civ. P. 

37(c)(l)(C). Moreover, the rule makes clear that sanctions are not appropriate when the failure 

to disclose was substantially justified or harmless. Id. 37( c )(1 ). In this case, it is undisputed that 

Marshall received all of the writs prior to the beginning of this litigation. See Dozono Deel. Ex. 

3 (#46-3); Smith Deel. Ex. 8 (#34-8). Marshall therefore cannot argue that she was somehow 

surprised by the existence of the other wits. Moreover, at oral argument, the cou1i offered 

Marshall additional time to respond to the other writs, and Marshall declined. Consequently, 

Pollin's failure to produce the writs during discovery was harmless, and it is entitled to rely on 

them in litigating the present motions for summmy judgment. 

OPINION AND ORDER-PAGE 21 

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2. Tax Withholdings 

Pollin is also entitled to partial summary judgment on Marshall's unlawful wage 

deductions claim to the extent the claim is based on deductions for Medicare and OASDI taxes. 

I agree with Pollin that those portions of the claim are preempted by federal law. In Fredrickson 

v. Starbucks, this court determined that an Oregon unlawful wage deductions claim based on tax 

withholdings was preempted by federal law. 980 F. Supp. 2d 1227 (D. Or. 2013). The plaintiffs 

in that case were a class of Starbucks employees who alleged, inter alia, that Starbucks made 

unlawful wage deductions by estimating the amount of its employees' tips and withholding state 

and federal taxes based on the estimated amounts rather than amounts actually claimed by the 

employees. Id. at 1233-34. The plaintiffs were not "challenging the validity of any federal or 

state tax law or regulation." Id. at 1239. Nor were the plaintiffs seeking to recover the amounts 

Starbucks withheld. Id. at 1239-40. Rather, they were only seeking to recover statutory 

penalties under Oregon law. Id. The court neve1iheless determined that the plaintiffs action was 

a tax refund suit in disguise, and as such, it was preempted by federal law. Id. at 1236-45. 

The Fredrickson comi relied on section 7422 of the Internal Revenue Code, which 

defines and restricts tax refund suits, in pertinent paii, as follows: 

No suit or proceeding shall be maintained in any court for the recovery ... of any 

sum alleged to have been excessive or in any manner wrongfitlly collected, until a 

claim for refund or credit has been duly filed with the Secretary, according to the 

provisions of law in that regard, and the regulations of the Secretary established in 

pursuance thereof. 

26 U.S.C. § 7422(a) (emphasis added). Importantly, section 7422(f)(l) provides that tax refund 

suits "may be maintained only against the United States." The Fredrickson court found that the 

plaintiffs' suit fell squarely within section 7422's definition of a tax refund suit because it sought 

to recover a "sum" that was allegedly wrongfully withheld from their wages. 

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The Fredrickson court also relied on the Ninth Circuit's holding in Brennan v. SW. 

Airlines Co., 134 F.3d 1405 (9th Cir. 1998), amended sub nom., 140 F.3d 849. The plaintiffs in 

that case were a class of airline passengers who brought state-law claims against three airline 

companies for collecting a tax that was not authorized by law. Id. at 1408. Focusing on the 

language of section 7422(a), the comi dete1mined, "the statute means that if someone wrongfully 

collects money as a tax, then a suit to recover the sum constitutes a tax refund suit, even if the 

sum did not literally constitute an 'internal revenue tax.'" Id. at 1410 (citation omitted). As in 

Fredrickson and Brennan, Marshall's unlawful wage deductions claim falls squarely within 

section 7422(a)'s definition of a tax refund suit, and is therefore preempted, to the extent the 

claim is based on tax withholdings. 

Marshall's argument regarding 26 U.S.C. § 6413 does not change my conclusion. That 

provision instructs employers to reimburse employees for overcollected taxes. Marshall argues 

that section 6413 permits an employee to bring suit against her employer for overcollected taxes. 

In support, Marshall contends that the Brennan court held that similar language in 26 U.S.C. § 

6415( c) provides a private right of action against ta'i: collectors for refunds of overcollected 

amounts. I am unpersuaded. 

The Brennan comi held that section 6415( c) was inapplicable to the plaintiff's claim 

because it applies only to overcollections that result from clerical or mechanical errors. 134 F.3d 

at 1413-14. Because the court found that section 6415 was inapplicable, it did not consider 

whether it created a private right of action to recover overcollected amounts from the defendant 

airline companies. 12 However, several decisions relied on by the Brennan court clearly held that 

12 In her Sur-Response, Marshall states: "Brennan held that ... § 6415 'allows a claim for 

mathematical and teclmical errors.'" Supp. Brief2 (#61). I take issue with Marshall's 

representation and selective quoting of Brennan. The quoted language is found in a parenthetical 

OPINION AND ORDER-PAGE 23 

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section 6415 does not create a private right of action. See Kaucky v. SW. Airlines Co., 109 F.3d 

349, 353 (7th Cir. 1997); Sigmon v. SW. Airlines Co., 110 F.3d 1200, 1205 (5th Cir. 1997); 

Lehman, 930 F. Supp. at 915; accord Um/andv. PLANCO Fin. Servs., Inc., 542 F.3d 59, 69 (3d 

Cir. 2008). I agree with the reasoning of those decisions and, on that same reasoning, hold that 

section 6413 does not create a private right of action against employers who fail to reimburse 

employees for overcollected taxes. Rather, when an employer fails to reimburse its employee for 

overcollected taxes, the employee's remedy is to file a claim against the United States for a 

refund. See 26 C.F.R. § 31.6402(a)-2(b). Thus, section 6413 does not create an exception to the 

preemptive effect of section 7422. Follin is therefore entitled to summary judgment on 

Marshall's unlawful wage deductions claim to the extent the claim is based on tax withholdings. 

In sum, Marshall is entitled to partial summary judgment establishing Pollin's liability on 

her unlawful wage deductions claim to the extent the claim is based on deductions for the March 

22, 2013 Asset Recovery writ of garnishment. Follin is entitled to paiiial summary judgment on 

the remainder of Marshall's unlawful wage deductions claim. 

III. Late Payment of Wages 

A. Legal Standard 

Oregon Revised Statutes section 652.140 requires employers to pay all wages owed to an 

employee within set time frames upon termination of employment. If the employee is 

discharged or leaves by mutual agreement, all wages are due the next business day. Id. § 

following a citation to Lehman v. USA IR Group, Inc., 930 F. Supp. 912, 915 (S.D.N. Y.1996). 

See Brennan, 134 F.3d at 1414. The full quote-as provided by the Brennan court-is as 

follows: § 6415(c) at most allows a claim for mathematical and technical enors .... " Id. 

(quoting Lehman, 930 F. Supp. at 915 (emphasis added)). Marshall omitted the emphasized 

language. Moreover, the sentence immediately preceding the above-quoted text from Lehman 

provides: "§ 6415(c) does not create a private cause of action." Lehman, 930 F. Supp. at 915 

(emphasis added). Thus, the Brennan court clearly did not hold that section 6415 "allows for a 

claim for mathematical and technical enors." Cf Supp. Brief2 (#61). 

OPINION AND ORDER-PAGE 24 

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652.140(1). If the employee quits with notice, all wages are due immediately at the end of 

employment. Id.§ 652.140(2)(a). If the employee quits without notice, all wages are due by the 

earlier of the next payday or five days after the end of employment. Id. § 652.140(2)(b). 

When an employer fails to pay wages as required by section 652.140, it is subject to the 

statutory penalty prescribed by section 652.150. That penalty is limited to "100 percent of the 

employee's unpaid wages or compensation unless the employer fails to pay the full amount of the 

employee's unpaid wages or compensation within 12 days after receiving [a written notice of 

nonpayment]." Id. § 652.150(2)(a). 

B. Tile Parties' Arguments 

Follin argues that it is entitled to summary judgment on Marshall's late payment of wages 

claim because it issued the above-mentioned $550 post-tennination payment to Marshall within 

12 days of receiving Marshall's written notice of nonpayment. Follin further argues that it is 

entitled to summary judgment on Marshall's late payment of wages claim because Marshall 

failed to report the hours she worked, thereby preventing Follin from calculating the amount of 

compensation allegedly owed. Finally, Follin argues that it is entitled to summary judgment on 

Marshall's late payment of wages claim because Marshall failed to present any evidence that 

Pollin's failure to pay was willful. 

Marshall argues that she is entitled to summary judgment on her late payment of wages 

claim to the same extent she is entitled to summary judgment on her claims for unpaid overtime 

wages and unlawful wage deductions. 

C. Analysis 

Marshall's late payment of wages claim is completely dependent on her claims for unpaid 

overtime wages and unlawful wage deductions. Marshall is therefore entitled to partial summaiy 

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judgment establishing Pollin's liability on her late payment of wages claim to the extent the claim 

is based on deductions for the March 22, 2013 Asset Recovery writ of garnishment. See Wilson 

v. Smurfit Newsprint Corp., 107 P.3d 61, 75 (Or. App. 2005) (holding that unlawful wage 

deductions subject a defendant to liability for penalty wages under Oregon Revised Statutes 

sections 652.150 and 652.615.) 

I reject Pollin's argument that its post-termination payment to Marshall entitles it to 

summary judgment on Marshall's late payment of wages claim. As explained above, the 

undisputed evidence of record establishes that the post-termination payment was insufficient to 

cover all of Marshall's unpaid breaks that lasted less than 30 minutes. Or. Rev. Stat. § 

652.150(2)(a) (limiting the penalty for late payment of wages to 100 percent of the unpaid wages 

only ifthe employer paid the full amount of the employee's unpaid wages within 12 days of 

receiving written notice). 

Pollin's argument that Marshall failed to record the hours for which she now seeks 

compensation is even less persuasive. The very essence of Marshall's claims is that Pollin failed 

to pay her for time when she was actually clocked in and for discrete break periods when she was 

required to clock out. Therefore, Pollin's contention that it cannot calculate the amount of 

compensation allegedly owed is meritless. 

Finally, I also reject Pollin's argument that Marshall failed to present sufficient evidence 

that Pollin acted willfully in failing to pay Marshall her wages upon tennination. In the context 

oflate payment of wages, willfulness does not require malice. Young v. State, 133 P.3d 915, 919 

(Or. 2006) (citing Sabin v. Willamette-Western Corp., 557 P.2d 1344 (Or. 1976)). Rather, it 

merely requires proof "that the act or omission was purposeful and not the product of 

inadvertence." Id. (citing Sabin, 557 P.2d 1344). An employer is deemed to act willfully when 

OPINION AND ORDER-PAGE 26 

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it engages in conduct that violates an unambiguous law. See id. at 919-20. It is undisputed that 

Follin knew that the March 22, 2013 Asset Recovery garnishment did not contain an address for 

the garnishor. See Baze Deel. Ex. 26, at 8 (#41-26). As explained above, deductions for that 

writ violated Oregon law. Consequently, a reasonable trier of fact would be required to find that 

Follin acted willfully in failing to pay Marshall those pottions of her wages upon termination. 

In sum, Marshall is entitled to pattial summary judgment establishing Pollin's liability on 

her late payment of wages claim to the same extent she is entitled to partial summary judgment 

establishing Pollin's liability on her claims for unpaid overtime wages and unlawful deductions. 

IV. Failure to Provide Reasonable Safety Accommodations 

A. Legal Standard 

Oregon Revised Statutes section 659A.290(2)(c) provides: 

It is an unlawful employment practice for an employer to ... [r]efuse to make a 

reasonable safety accommodation requested by an individual who is a victim of 

domestic violence, harassment, sexual assault or stalking, unless the employer can 

demonstrate that the accommodation would impose an undue hardship on the 

operation of the business of the employer, as determined under ORS 659A.121. 

B. The Parties' Arguments 

Follin argues that it is entitled to summary judgment on Marshall's claim for failure to 

provide reasonable safety accommodations because Marshall never requested an accommodation 

as required by the statute. In response, Marshall argues that she asked Follin to "figure out a 

plan" for her to return to work and Follin failed to do so. 

C. Analysis 

Follin is entitled to sunmmry judgment on Marshall's claim for failure to provide 

reasonable safety accommodations. The plain language of section 659A.290(2)( c) requires an 

employee to request a safety accommodation before an employer can be found liable for 

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violating the statute. The only request identified by Marshall is the December 23, 2013 email 

from her to Smith, in which Marshall asked: "Is it to[ o] late to figure out a plan for me to 

return[?]" Smith Deel. Ex. 16, at 1 (#34-16). That same day, Smith offered to accompany 

Marshall to file charges and obtain a restraining order. See Smith Deel. ii 19 (#34). Smith 

fmiher offered to obtain a trespass order to prevent Marshall's assailant from coming to the hotel. 

See Smith Deel. iiif 16, 19, Ex. 13, at 2 (#34, #34-13). Therefore, Pollin unquestionably honored 

Marshall's request to "figure out a plan" for her return to work. 

However, Marshall stonewalled the plan. Marshall initially accepted Smith's offer to 

accompany her to file charges and obtain a restraining order. See Smith Deel. ii 19 (#34). She 

also promised to provide Smith her assailant's address for the purpose of sending notice of the 

trespass order. See id. However, Marshall then cancelled her meeting with Smith to file charges. 

See id. at ii 16. She also expressed reservations about the trespass notice, prompting Smith to 

hold off on sending it. See Smith Deel. ii 20, Ex. 17 (#34, #34-17). Thus, a reasonable trier of 

fact could not find that Pollin refused to figure out a plan for Marshall's return to work. 

Therefore, Pollin is entitled to summary judgment on Marshall's claim for failure to provide 

reasonable safety accommodations. 

V. Wrongful Discharge 

A. Legal Standard 

Oregon Revised Statutes section 659A.290(2)(b) prohibits discharging an employee 

because the employee is a victim of domestic violence, harassment, sexual assault, or stalking. 

Marshall proceeds on a theory of constructive discharge. In order to establish constructive 

discharge, a plaintiff must prove the following four elements: 

(I) the employer intentionally created or intentionally maintained specified 

working condition(s); (2) those working conditions were so intolerable that a 

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reasonable person in the employee's position would have resigned because of 

them; (3) the e_mployer desired to cause the employee to leave employment as a 

result of those working conditions or knew that the employee was certain, or 

substantially ce1iain, tQ leave employment as a result of those working conditions; 

and ( 4) the employee did leave the employment as a result of those working 

conditions. 

1'11cGantyv. Staudenraus, 901P.2d841, 856-57 (Or. 1995) (en bane) (footnotes omitted). 

B. The Parties' Arguments 

Follin argues that it is entitled to summary judgment on Marshall's wrongful discharge 

claim because Marshall cannot establish the first or third element of constructive discharge. 

Marshall does not directly respond to Pollin's arguments regarding the first and third elements of 

constructive discharge. Rather, Marshall generally argues that Follin failed to protect her from 

her assailant at work, thereby effectively te1minating her employment. 

C. Analysis 

Follin is entitled to summary judgment on Marshall's wrongful discharge claim. Marshall 

has failed to present any evidence that would permit a reasonable trier of fact to find that Follin 

intentionally created or intentionally maintained a workplace that was unsafe for Marshall. It is 

undisputed that Follin did not create the dangerous condition Marshall faced at the Hotel. 

Marshall's assailant created the condition. 

Moreover, Marshall cannot establish that Pollin intentionally maintained working 

conditions that permitted Marshall's assailant to continue to pose a threat to her at the Hotel. In 

order to make that showing, Marshall would have to prove that Follin desired Marshall's 

assailant to continue to pose a tln·eat to her at the Hotel or that Follin was substantially ce1iain 

that Marshall's assailant would continue to pose a tln·eat to her at the Hotel as a result of Pollin's 

OPINION AND ORDER-PAGE 29 

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actions. See id. at 855 (quoting Restatement (Second) of Torts§ 8A (1965)). 13 There is simply 

no evidence to that effect in the record. 

To the contrary, the evidence of record shows that Pollin made numerous attempts to 

eliminate the t!U'eat posed by Marshall's assailant at the Hotel. As stated above, Smith repeatedly 

attempted to help Marshall obtain a restraining order and counseling. Marshall rebuked those 

attempts. Smith also offered to trespass the assailant, but Marshall expressed reservation about 

that as well. Smi.th even expressly told Marshall that she wanted to put systems in place to 

protect her, but she needed Marshall to communicate with her in order to do that. See Smith 

Deel. Ex. 15 (#34-15) ("I can help you personally and put systems in place for you to return to 

work safely, but I can't do that without speaking to you. Please call me today so we can 

discuss."). However, Marshall failed to communicate with Smith, thereby thwarting Smith's 

ability to help Marshall safely return to work. 

Thus, the evidence of record would not pe1mit a reasonable trier of fact to find that Pollin 

intentionally maintained working conditions that permitted Marshall's assailant to continue to 

pose a threat to her at the Hotel. Marshall has therefore failed to generate a genuine issue of 

material fact on the first element of constructive discharge. Consequently, Pollin is entitled to 

summary judgment on Marshall's wrongful discharge claim. 

CONCLUSION 

For the reasons provided above, both Pollin's Motion for Summary Judgment (#32) and 

Marshall's Motion for Partial Summary Judgment (#40) are granted in part and denied in part. 

13 The 1'.IcGanty court provided a detailed discussion of the meaning of intent in the context of 

constructive discharge. See id. at 854-57. Although that discussion pertained to the third 

element of constructive discharge, the court made clear that the first element requires intent as 

well. See id. at 856 n.8. I therefore find that the same definition of intent also applies to the first 

element of constructive discharge. 

OPINION AND ORDER-PAGE 30 

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Neither party is granted summary judgment on Marshall's claims for unpaid overtime. Marshall 

is granted paiiial summary judgment establishing Pollin's liability on her claims for unlawful 

deductions and late payment of wages to the extent those claims are based on deductions for the 

March 22, 2013 Asset Recovery writ of gai·nishment. Pollin is granted summary judgment on 

Marshall's claim for unlawful wage deductions to the extent the claim is based on deductions 

other than those for the March 22, 2013 Asset Recovery writ of garnishment. Pollin is also 

granted summary judgment on Marshall's claims for failure to provide reasonable safety 

accommodations and wrongful discharge. 

Dated this 16th day of March, 2016. 

( ) (J\ ,) } 

Isl ~ t'.t,t() '\~jlfJ < 

Honorable Paul Papa 

United States Magistrate Judge 

OPlNION AND ORDER-PAGE 31 

Case 3:14-cv-01333-PK Document 62 Filed 03/16/16 Page 31 of 31