1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

MATTEO BRUNOZZI, 

an individual, 

Lead Case No. 3:14-cv-01128-MO

Plaintiff, No. 3:14-cv-01131-MO

v. OPINION AND ORDER

CABLE COMMUNICATIONS, INC., 

a foreign corporation, 

 Defendant.

MOSMAN, J., 

Plaintiff Matteo Brunozzi and Defendant Cable Communications, Inc. (“CCI”) have filed 

competing motions for summary judgment. Mr. Brunozzi’s Motion for Partial Summary 

Judgment [41] seeks summary judgment regarding his Fair Labor Standards Act (“FLSA”) claim 

and his ORS 652.140 claim for failure to pay all wages at the end of employment. CCI’s Motion 

for Summary Judgment [32] seeks summary judgment regarding all of Mr. Brunozzi’s claims. 

For the reasons set forth below, Mr. Brunozzi’s Motion for Partial Summary Judgment [41] is 

DENIED and CCI’s Motion for Summary Judgment [32] is GRANTED.

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2 – OPINION AND ORDER

BACKGROUND

CCI is a cable installation company. It employs technicians to install cable television and 

internet services for Comcast. Mr. Brunozzi applied for a position with CCI on or about October 

25, 2013. Deposition of Matteo Brunozzi (“Brunozzi Depo.”), 12:12–22. CCI hired Plaintiff on 

or about November 1, 2013, and Plaintiff began working for CCI on or about November 19, 

2013. VanNorstrand Decl., ¶ 2. 

At the start of his employment, Mr. Brunozzi was provided with a document that 

specifically explained how technicians were paid after they completed their hourly paid training 

program. This document explains that for each task the technician performs during the week 

there is a dollar value assigned to it. At the end of the week all the task values are added up to get 

to a total dollar amount – the “Piece Rate Total.” Then it is determined whether the employee 

performed any work in excess of 40 hours during the pay period. If so, the total amount of hours 

worked is divided into the Piece Rate Total to determine the average hourly rate. The technician 

is then paid a “Piece Rate OT Premium” on that rate for all hours over 40. The Piece Rate Total 

is then divided by 60 and multiplied by 70 and then the Piece Rate Total is subtracted back out of 

this number to come up with a total amount available for the “Production Bonus.” If an 

employee was paid overtime for that week, that amount is also subtracted from the preliminary 

Production Bonus calculation. At that point, a Production Bonus is finalized and paid to the 

employee. If the employee worked overtime that week, then they are also paid an Overtime 

Premium component on the Production Bonus. This is all explained in the Technician Pay Rate 

Program given to Plaintiff, which he signed stating that he read it, had a chance to ask questions 

to his satisfaction, and understood how it worked. 

After the hourly paid training program, technicians, such as Mr. Brunozzi, fill out daily 

work sheets (“Daily Sheets”) to indicate how many hours they worked and which tasks they 

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3 – OPINION AND ORDER

performed. Each day Mr. Brunozzi filled out one of these sheets and signed it stating “I hereby 

certify that the tasks completed, mileage driven, and hours worked as indicated are true and 

complete. I have received all rest breaks and meal periods to which I was entitled.” Mr. Brunozzi 

specifically testified at his deposition that he filled out these Daily Sheets truthfully every day 

and that he believed it was fair for CCI to rely on his representations as to the information he 

provided. At the end of each week, Mr. Brunozzi would be given a “Weekly Payroll Report” 

showing the hours he worked and the amounts, including overtime that CCI calculated was due 

to him based on the work he performed. It was from these sheets that CCI would cut the checks 

to employees.

Mr. Brunozzi was scheduled to work on Saturday, April 5, 2014. VanNorstrand Decl., ¶ 

3. Mr. Brunozzi failed to show for work that day. Id. Just two days prior, Mr. VanNorstrand held 

a meeting with all Portland CCI employees and made it clear that failure to show up for work 

could result in termination. Id. at ¶ 5; see also Brunozzi Depo., 70:3-17. When Mr. Brunozzi 

returned to work on April 7, after missing his April 5 shift, Mr. VanNorstrand terminated Mr. 

Brunozzi’s employment. VanNorstrand Decl., at ¶ 6. Mr. Brunozzi alleges that he made multiple 

complaints to his supervisors in the weeks before he was fired concerning CCI’s failure to pay 

overtime, and that he specifically objected to working on April 5 unless he was properly paid all 

his overtime amounts for his overtime hours worked. 

LEGAL STANDARD

Summary judgment is appropriate if the pleadings, depositions, and other documents on 

file show that there is no genuine issue as to any material fact and that the moving party is 

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The court views the record in the 

light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 

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(1986). If the movant shows that no genuine issue exists for trial, the non-movant cannot then 

rest on the pleadings but must respond by “citing to particular parts of materials in the record, 

including deposition, documents, electronically stored information, affidavits or declarations, 

stipulations (including those made for purposes of the motion only), admissions, interrogatory 

answers, or other materials. Fed. R. Civ. P. 56(c)(1). When the record taken as a whole could not 

lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 

On a motion for summary judgment, all reasonable doubt as to the existence of a genuine 

issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 

(9th Cir. 1976). The inferences drawn from the underlying facts must be viewed in the light most 

favorable to the party opposing the motion. Valandingham v. Bojorquez, 866 F.2d 1135, 1137 

(9th Cir. 1989). 

DISCUSSION

I. Wage and Overtime Claims

The parties each seek summary judgment in their favor regarding Mr. Brunozzi’s wage 

and overtime claims. Mr. Brunozzi argues that CCI’s wage scheme violates the Oregon state law 

overtime regulations and the FLSA through a bonus structure calculated by subtracting overtime 

wages. Mr. Brunozzi further argues that these overtime violations resulted in a violation of ORS 

652.140 because he was not paid all the wages he was due at the time of his termination. CCI 

argues that it fully complied with the requirements of Oregon law and the FLSA, and that what 

Mr. Brunozzi calls deficiencies in the bonus scheme are unregulated contractual agreements to 

which Mr. Brunozzi freely bound himself. 

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5 – OPINION AND ORDER

A. Oregon Overtime Regulation

OAR 839-020-0030(1) commands that “all work performed in excess of forty (40) hours 

per week must be paid for at the rate of not less than one and one-half times the regular rate of 

pay when computed without benefits of commissions, overrides, spiffs, bonuses, tips or similar 

benefits.” OAR 839-020-0030(3)(b)(A) provides the method for calculating the regular rate 

when an employee is paid based on a piece rate agreement: “[w]here an employee is employed 

on a piece-rate basis, the regular hourly rate of pay is determined by adding together the total 

earnings, (excluding commissions, spiffs, bonuses, tips or similar benefits) for the work week 

and dividing this sum by the number of hours worked in the week for which such compensation 

is to be paid.” OAR 839-020-0030(3)(b)(B) makes it clear that, upon calculating the regular rate 

of pay, an employee paid based on a piece-rate agreement is entitled to receive an additional 

50% of the regular rate for each hour worked over 40 in a week: “[f]or example, an employee 

who has earned $500 during a 50 hour work week must be paid an additional sum of $50 for the 

ten overtime hours, for a total of $550 (50 hours at $10 per hour and the ten overtime hours at 

$5.00 per hour).” 

 It is undisputed that CCI paid Mr. Brunozzi the required overtime pay for all the overtime 

hours he worked. All of Mr. Brunozzi’s overtime pay related arguments have to do with his 

belief that his Piece Rate OT Premium should not have been deducted from his bonus; that doing 

so had the practical impact of diluting the value of his overtime pay. But Oregon law does not 

require that bonuses be included in overtime pay calculations. And Oregon law leaves 

unregulated—that is it allows the parties freedom to contract with each other as they see fit—the 

payment of bonuses. Because Mr. Brunozzi has failed to make any legally significant arguments 

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6 – OPINION AND ORDER

regarding the Oregon overtime pay regulations, CCI’s Motion for Summary Judgment [32] 

regarding Mr. Brunozzi’s First Claim is granted.

B. FLSA Overtime Provision

Similar to the Oregon regulations, the FLSA provides that a piece-rate employee must be 

paid an additional 50% of his or her “regular rate” for each hour worked in excess of 40 hours in 

a single week. The “regular rate” is computed by “adding together total earnings for the 

workweek” and dividing that sum “by the number of hours worked in the week.” 29 C.F.R. § 

778.111. The only material difference between the Oregon and federal regulations is that the 

federal regulations require that all non-discretionary bonuses be included in earnings for the 

week, whereas the Oregon regulation does not. 29 U.S.C. § 207(e)(3). Expressed in a formula, 

overtime under the federal regulations is calculated as follows:

Regular Rate = (Piece Rate Total + Bonus)/Total Hours Worked

Overtime Pay = 0.5*Regular Rate*(Total Hours Worked – 40)

An important omission from the FLSA overtime provision is anything that attempts to 

regulate how bonuses should be calculated. 29 C.F.R. § 778.111. CCI calculates its employees’ 

bonuses according to the following formula: 

Bonus = 70*(Piece Rate Total/60) – (Piece Rate Total + Piece Rate Premium for Overtime)1

Mr. Brunozzi contends that this bonus scheme violates the FLSA. Mr. Brunozzi argues that by 

subtracting the Piece Rate Premium for Overtime from the Bonus before calculating the Regular 

Rate, CCI is illegally deflating the Regular Rate, the key input in the Overtime Pay formula, 

resulting in illegally depressed Overtime Pay amounts.

 1 The Piece Rate Premium for Overtime is calculated according to the following formula: 

Piece Rate Premium for Overtime = 0.5* (Piece Rate Total/Total Hours Worked)* Overtime Hours Worked

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7 – OPINION AND ORDER

Mr. Brunozzi’s briefing includes a mathematical example that shows that under CCI’s 

bonus scheme the difference in pay between an employee who works 5 hours of overtime and an 

employee who works 10 hours of overtime is only $0.45. Pl.’s Motion for Partial Summary 

Judgment [41] at 5–8. What Mr. Brunozzi fails to appreciate is that what he believes is an illegal 

failure to pay sufficient overtime wages is in fact a perfectly legal result of an agreed upon bonus 

scheme. 

CCI does not dispute the fact that each hour of overtime worked decreases the bonus due, 

which has the effect of decreasing the Regular Rate, thereby decreasing the ultimate overtime 

payment that an employee receives. However, CCI correctly argues that the FLSA does not 

prevent employers and employees from contracting into whatever bonus scheme they desire. The 

only requirement imposed by the FLSA is that if CCI chooses to pay a bonus, it must include 

that bonus in its calculation of the Regular Rate. 29 C.F.R. § 778.111. Employers could contract 

into giving bonuses for showing up to work early and reducing bonuses for leaving early. 

Employers could contract into giving bonuses for good workplace behavior and reducing

bonuses for bad workplace behavior, such as profane or abusive language. An employer could 

offer no bonus and not violate the FLSA. Employers who ask their employees to agree to 

substandard bonus structures will be punished by the market for laborers when their employees 

are snatched up by their competitors who offer superior bonus schemes. The FLSA only requires 

that whatever bonus results from the agreed upon scheme, whether it be $1,000,000 or $0, be 

added to the employee’s total compensation for calculation of the regular rate. In Mr. Brunozzi’s 

illustration, each employee’s overtime pay was calculated in exactly the manner mandated by the 

FLSA. Both employees received the wages they were owed and they received the requisite 

overtime pay based on those wages. The fact that the employee who worked 5 additional hours 

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8 – OPINION AND ORDER

only received an additional $0.45 was not a result of a failure to pay overtime, but rather the 

result of receiving a lower bonus than the other employee who worked fewer hours. 

It is undisputed that CCI complied with the FLSA requirement regarding bonuses. 

Mr. Brunozzi never alleges that CCI failed to include his bonus in the calculation of his overtime 

wages; he only argues that the bonus was illegally calculated. As stated above, the FLSA is not 

concerned with bonus payments beyond the fact that whatever bonus is paid must be included in 

calculating overtime payments. CCI did just that. I am neither a labor czar nor a majority of 

Congress and therefore lack the capacity to amend the FLSA to regulate employee bonuses to 

repair the holes Mr. Brunozzi argues exist in its overtime pay regulations. CCI’s Motion for 

Summary Judgment [32] regarding Mr. Brunozzi’s Second Claim is granted.

C. Late Payment of Wages

Given my findings that Mr. Brunozzi was fully paid all overtime due under Oregon law 

and the FLSA, Mr. Brunozzi’s claims that he was owed additional overtime payments at the time 

of his termination fall away. I find that Mr. Brunozzi was fully compensated upon his 

termination by CCI as required by ORS 652.140. CCI’s Motion for Summary Judgment [32] 

regarding Mr. Brunozzi’s Fourth Claim is granted.

II. Wage Retaliation Claim

CCI’s Motion for Summary Judgment [32] also seeks to dispose of Mr. Brunozzi’s wage 

retaliation claim. This claim arises from Mr. Brunozzi’s failure to work on April 5, 2014. As a 

result of not showing up to work on April 5, Mr. Brunozzi was fired. Mr. Brunozzi’s complaint 

alleges that CCI firing him for not attending work on April 5 is merely a pretextual reason for his 

termination. Mr. Brunozzi argues that he was actually terminated as a result of wage claims he 

made regarding his overtime pay. Mr. Brunozzi’s complaint contains two statutory theories, ORS 

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9 – OPINION AND ORDER

652.355 and ORS 659A.199, for his wage retaliation claim. For the reasons set forth below, 

CCI’s Motion for Summary Judgment [32] is granted as to Mr. Brunozzi’s wage retaliation 

claim. 

1. ORS 652.355 

 ORS 652.355 states in relevant part, “[a]n employer may not discharge or in any other 

manner discriminate against an employee because . . . [t]he employee has made a wage claim or 

discussed, inquired about or consulted an attorney or agency about a wage claim.” Therefore, in 

order to prevail on this claim, Mr. Brunozzi must prove that: (1) he made, discussed, inquired 

about, or consulted with an attorney or agency about a wage claim; and (2) that action led to his 

termination. 

Viewing the facts in the light most favorable to Mr. Brunozzi, it appears as though he 

may have in fact discussed or inquired about a wage claim. In his deposition, Mr. Brunozzi states 

that he complained about three times to Travis and Reese that he did not believe he was properly 

being paid overtime. Brunozzi Depo., 80:3–23; 81:12–14. Absent controlling Oregon state case 

law to the contrary, I would find this evidence sufficient to support a triable issue of fact 

regarding whether Mr. Brunozzi made the type of wage claim protected by ORS 652.355. 

However, there is controlling Oregon case law that says these types of complaints are not 

sufficient to constitute a wage claim. 

In De Bay v. Wild Oats Market, Inc., the plaintiff brought a wrongful termination claim 

under ORS 652.355. 244 Or. App. 443 (2011). Plaintiff wrote a negative report regarding 

potentially illegal actions taken by his employer’s executive management team. Id. at 447. As a 

result of the report, the executive management team cut plaintiff’s bonus in half. Id. Plaintiff 

threatened to complain to the board of directors regarding his bonus being improperly reduced. 

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Id at 447–448. The executive management team terminated plaintiff’s employment to prevent 

him from informing the board. Id. The Oregon Court of Appeals held that this was not sufficient 

to state a claim under ORS 652.355. Id. at 449. The court held that these facts established merely 

that plaintiff had complained about his wages being cut, not that he had made or discussed a 

wage claim. Id. 

 Applying this to our case, while Mr. Brunozzi certainly complained about his overtime 

wages, like the plaintiff in De Bay, he did nothing more that could be interpreted as making, 

discussing, or inquiring about a wage claim. Although Mr. Brunozzi cites a string of cases to 

rebut the rule in De Bay, all of the cases he cites are either non-controlling federal court 

interpretations of ORS 652.355, or they are Oregon cases that pre-date De Bay and are therefore 

overruled or displaced by De Bay. Due to the controlling Oregon case law, I have no option other 

than to grant CCI’s Motion for Summary Judgment [32] with regards to Mr. Brunozzi’s ORS 

652.355 claim. 

2. ORS 659A.199 

 Mr. Brunozzi’s second wage retaliation theory is contained in ORS 659A.199. ORS 

659A.199 states in relevant part that: 

It is an unlawful employment practice for an employer to discharge, demote, 

suspend or in any manner discriminate or retaliate against an employee with 

regard to promotion, compensation or other terms, conditions or privileges of 

employment for the reason that the employee has in good faith reported 

information that the employee believes is evidence of a violation of a state or 

federal law, rule or regulation. 

CCI argues that Mr. Brunozzi cannot prove, under controlling Oregon case law, that he 

properly reported anything to anyone.

In Lamson v. Crater Lake Motors, Inc., the Oregon Supreme Court held that to 

“report” wrongdoing within the meaning of that term as used in ORS 659A.230 (which, 

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11 – OPINION AND ORDER

like ORS 659A.199, makes it an unlawful employment practice to take adverse actions 

against an employee that “reported” violations of law), the “report” must be made to an 

“entity with authority to take action to enforce” the law or rules alleged to have been 

violated. 346 Or. 628, 639–40 (2009). Since Lamson, other Oregon courts have held that 

to constitute a “report” for the purpose of whistleblower statutes, the employee must 

actually communicate some information to an outside entity with authority to enforce the 

law. In Roberts v. Oregon Mutual Insurance Company, the court of appeals cited Lamson

for the proposition that a “report” requires informing an entity or person with authority to 

take action on the complaint. 242 Or. App. 474 (2011). The court relied in part on the 

plain meaning of the term “report.” Roberts, 242 Or. App. at 482 (holding that the term 

“report” as used in Oregon’s whistleblower statutes means “to make a charge of 

misconduct against another,” or “to make known to the proper authorities: give 

notification of” (quoting Webster’s Third New Int’l Dictionary 645 (unabridged Ed. 

2002)); see also De Bay, 244 Or. App. at 449 (holding that “[i]nternal complaints, 

without more, are normally insufficient under Oregon law” to constitute a “report”). 

 Mr. Brunozzi does not allege that he “reported” anything to anyone or threatened 

to report anything to anyone. Mr. Brunozzi did not inform any entity with authority to 

enforce Oregon or federal wage laws that he believed CCI was not properly paying him 

overtime. Instead, he merely alleges that he complained to his direct supervisors Travis 

and Reese that he did not believe he was properly being paid overtime. Brunozzi Depo., 

80:3–23; 81:12–14. These types of internal complaints are not sufficient to constitute the 

type of report required for a claim under ORS 659A.199. I therefore grant CCI’s Motion 

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12 – OPINION AND ORDER

for Summary Judgment [32] with regards to Mr. Brunozzi’s ORS 659A.199 theory of 

wage retaliation.

CONCLUSION

 For the foregoing reasons, Mr. Brunozzi’s Motion for Partial Summary Judgment [41] is 

DENIED and CCI’s Motion for Summary Judgment [32] is GRANTED. All of Mr. Brunozzi’s 

claims are DISMISSED. 

IT IS SO ORDERED.

DATED this 9th day of July, 2015. 

/s/ Michael W. Mosman ___ 

MICHAEL W. MOSMAN

United States District Judge

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