1 – OPINION AND ORDER

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

CASEY A. WHITLOCK,

Plaintiff, 

v.

AMERICAN FAMILY MUTUAL 

INSURANCE CO., a Wisconsin corporation,

Defendant.

Case No. 3:14-cv-01189 -ST

OPINION AND ORDER

STEWART, Magistrate Judge:

INTRODUCTION

Plaintiff, Casey A. Whitlock (“Whitlock”), filed this action on July 25, 2014, against his 

former employer, American Family Mutual Insurance Co. (“American Family”), alleging two 

claims for violations of the Fair Labor Standards Act, 29 USC § 207 (“FLSA”) and Oregon law, 

ORS 653.261. Whitlock claims that his position as a Physical Damage Field Senior Adjuster 

was incorrectly classified by American Family as “exempt” from the federal and state minimum 

wage and overtime provisions. As a result, he seeks payment of overtime wages for all hours 

worked in excess of 40 hours per week. 

This court has federal question jurisdiction over the FLSA claim pursuant to 28 USC 

§ 1331 and supplemental jurisdiction over the state law claim pursuant to 29 USC §1367. All 

Case 3:14-cv-01189-ST Document 44 Filed 01/15/16 Page 1 of 5
2 – OPINION AND ORDER

parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case 

in accordance with FRCP 73 and 28 USC § 636(c) (docket #9). 

On August 27, 2015, this court granted a motion by Whitlock’s attorney to withdraw 

(docket #21) and issued a Notice to Self-Represented Litigants (docket #22). On December 2, 

2015, the due date for dispositive motions (docket #30), American Family filed a Motion for 

Summary Judgment (docket #31). Prior to filing the motion, American Family’s attorney tried 

repeatedly to confer with Whitlock by telephone and email as required by Local Rule 7-1(a), but 

received no response, except for one email limited to the motion to compel. Dozono Decl. 

(docket #32), ¶¶ 2-3 & Exs. 1-2. 

On December 3, 2015, this court issued a Summary Judgment Advice Notice to Whitlock 

(docket #40) which was mailed to him by the Clerk (docket #41) and later remailed (docket #42). 

However, Whitlock has failed to timely file any response to the motion. For the reasons set forth 

below, American Family is granted summary judgment.

LEGAL STANDARD

Summary judgment may be granted if “no genuine issue” exists regarding any material 

fact and “the moving party is entitled to judgment as a matter of law.” FRCP 56(c). The moving 

party must show an absence of an issue of material fact. Celotex Corp. v. Catrett, 477 US 317, 

323 (1986). Once the moving party does so, the nonmoving party must “go beyond the 

pleadings” and designate specific facts showing a “genuine issue for trial.” Id at 324, citing 

FRCP 56(e). The court does “not weigh the evidence or determine the truth of the matter, but 

only determines whether there is a genuine issue for trial.” Balint v. Carson City, Nev., 180 F3d 

1047, 1054 (9th Cir 1999) (citation omitted). A “‘scintilla of evidence,’ or evidence that is 

‘merely colorable’ or ‘not significantly probative,’” does not present a genuine issue of material 

Case 3:14-cv-01189-ST Document 44 Filed 01/15/16 Page 2 of 5
3 – OPINION AND ORDER

fact. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F2d 1539, 1542 (9th Cir 1989), 

quoting Anderson v. Liberty Lobby, Inc., 477 US 242, 249-50, 252 (1986). The substantive law 

governing a claim or defense determines whether a fact is material. Addisu v. Fred Meyer, Inc., 

198 F3d 1130, 1134 (9th Cir 2000) (citation omitted). The court must view the inferences drawn

from the facts “in the light most favorable to the non-moving party.” Bravo v. City of Santa 

Maria, 665 F3d 1076, 1083 (9th Cir 2011) (citations omitted).

DISCUSSION

American Family moves for summary judgment on both claims on the basis that 

Whitlock was exempt from the overtime-pay provisions of the FLSA and state law as an 

“administrative’” employee. 29 USC § 213(a); 29 CFR § 541.200(a); ORS 653.020(3); 

OAR 839-020-0005(2). In the alternative, American Family moves for partial summary 

judgment on Whitlock’s claims for overtime arising more than two years before he filed this 

action. 29 USC § 255; ORS 12.110(3).

In support of this motion, American Family has submitted six declarations with exhibits 

by five of its employees (Doug J. Nelson (docket #33), Steve R. Steele (docket #34), Matthew 

Wheeler (docket #35), Sandy Grover (docket #36), and Jessica Yttri (docket #38)), as well as 

excerpts from Whitlock’s video depositions taken on September 30 and October 6, 2015 

(Chicoine Decl., (docket #37), Exs. 1-3). Whitlock has not addressed any of the assertions of 

fact in these declarations. Thus, pursuant to FRCP 56(3)(2) & (3), the court may consider those 

facts as undisputed for the purposes of this motion and “grant summary judgment if the motion 

and supporting materials – including the facts considered undisputed – show that the movant is 

entitled to it.” 

Case 3:14-cv-01189-ST Document 44 Filed 01/15/16 Page 3 of 5
4 – OPINION AND ORDER

Whitlock began working for American Family as an insurance claim adjuster in 2003 and 

held the position of Physical Damage Field Senior Adjuster when he left on leave in May 2014. 

American Family did not pay Whitlock overtime pay because it classified his position as falling 

within the administrative exemption from the requirement in both the FLSA and Oregon law that 

he be paid overtime for hours worked in excess of 40 hours per week. Under the FLSA, 29 USC 

§ 213(a)(1), the overtime pay requirement does not apply to “any employee employed in a bona 

fide executive, administrative, or professional capacity . . . as such terms are defined and 

delimited from time to time by regulations of the Secretary [of Labor].” Under U.S. Department 

of Labor (“DOL”) regulations, the administrative exemption is met for an employee:

(1) [Who is c]ompensated on a salary or fee basis at a rate of not less than

$455 per week . . . ;

(2) Whose primary duty is the performance of office or non-manual work

directly related to the management or general business operations of the 

employer or the employer’s customers; and

(3) Whose primary duty includes the exercise of discretion and

independent judgment with respect to matters of significance.

29 CFR § 541.200(a).

As summarized in American Family’s supporting memorandum, the undisputed facts 

reveal that Whitlock satisfies all three elements. Furthermore, as explained by American Family,

since 2003, five circuit courts, including the Ninth Circuit, have held that insurance claim 

adjusters, such as Whitlock, are administrative employees exempt from overtime pay.1

 Indeed, 

the DOL regulations specifically identify insurance claims adjusters as “generally meet[ing] the 

duties requirements for the administrative exemption.” 29 CFR § 541.203(a). Thus, American 

Family properly classified Whitlock as an exempt administrative employee under the FLSA.

 1 Robinson-Smith v. Gov’t Emps. Ins. Co., 590 F3d 886, 892-97 (DC Cir 2010); Roe-Midgett v. CC Servs., Inc.,

512 F3d 865, 869 (7th Cir 2008); In re Farmers Ins. Exch., Claims Representatives, Overtime Pay Litig., 481 F3d

1119, 1127-32 (9th Cir 2006); Cheatham v. Allstate Ins. Co., 465 F3d 578, 584-86 (5th Cir 2006); McAllister v.

Transamerica Occidental Life Ins. Co., 325 F3d 997, 998, 999-1002 (8th Cir 2003). 

Case 3:14-cv-01189-ST Document 44 Filed 01/15/16 Page 4 of 5
5 – OPINION AND ORDER

Oregon law, ORS 653.261, “in relevant respects is modeled on the FLSA.” DiNicola v. 

State, 246 Or App 526, 545, 268 P3d 632, 642 (2011), rev. denied, 352 Or 377 (2012), cert. 

denied, 134 S Ct 66 (2013). It similarly exempts certain categories of employees from overtime 

pay, including: 

An individual engaged in administrative, executive or professional work 

who:

(a) Performs predominantly intellectual, managerial or creative tasks;

(b) Exercises discretion and independent judgment; and

(c) Earns a salary and is paid on a salary basis.

ORS 653.020(3).

The implementing regulations, OAR 839-020-0005(2), define an exempt administrative 

employee similar to the FLSA. Because this definition “expands on the statutory definition in 

ways that are consistent with the rules under the FLSA,” Oregon courts “reach the same 

conclusion” as under the FLSA when applying this regulation. DiNicola, 246 Or App at 545, 

268 P3d at 643; Nolan v. Transcend Servs., Inc., No. 3:10-cv-01571-HU, 2012 WL 14021, at 

* 8- 9 (D Or Jan 4, 2012) (applying the federal test under 29 CFR § 541.200 to the state 

administrative exemption). Thus, American Family did not violate Oregon law by classifying 

Whitlock as an exempt administrative employee.

Accordingly, this court need not reach the alternative argument by American Family that 

Whitlock’s claims for overtime arising more than two years before filing are time-barred. 

ORDER

For the reasons set forth above, American Family’s Motion for Summary Judgment 

(docket #31) is GRANTED. 

DATED January 15, 2016. s/ Janice M. Stewart

Janice M. Stewart

United States Magistrate Judge

Case 3:14-cv-01189-ST Document 44 Filed 01/15/16 Page 5 of 5