Gessele v. Jack In The Box Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JESSICA GESSELE, ASHLEY ORTIZ, 3:14-cv-01092-HZ

NICOLE GESSELE, TRICIA

TETRAULT, and CHRISTINA OPINION & ORDER

MAULDIN, on behalf of themselves and

all others similarly situated,

Plaintiffs,

v.

JACK IN THE BOX, INC., a corporation

of Delaware,

Defendant.

Jon M. Egan

240 6th Street

Lake Oswego, OR 97034-2931

Jim W. Vogele

812 N.W. 17th Avenue

Portland, OR 97209

Attorneys for Plaintiff

Douglas S. Parker

Heather St. Clair

Ian Maher

Lane Powell PC

601 S.W. Second Avenue

Suite 2100

Portland, OR 97204

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David Symes

Symes Law Office LLC

39085 Pioneer Boulevard

Suite 1003

Sandy, OR 97055

Attorneys for Defendant

HERNÁNDEZ, District Judge.

This matter comes before the Court on Defendant’s Rule 50(b) Motion for Judgment as a

Matter of Law Regarding Plaintiffs’ Unpaid Break Claims, ECF 419. For the reasons that follow,

the Court grants Defendant’s Motion.

BACKGROUND

Because the parties are familiar with the facts of this fourteen-year litigation, the Court

sets out only the facts that are relevant to the pending Motion.

Plaintiffs were employed by Defendant Jack in the Box in its Oregon restaurants at

various times. Plaintiffs received their final paychecks from Defendant on the following dates:

Tricia Tetrault: July 11, 2008

Ashley Ortiz: December 26, 2008

Nicole Gessele: March 20, 2009

Jessica Gessele: November 23, 2009

Christina Mauldin: March 30, 2010.

On August 13, 2010, Jessica Gessele, Ashley Gessele, Nicole Gessele, and Tricia Tetrault

filed a putative class-action Complaint (Gessele I, Case No. 3:10-CV-00960-ST) in this Court

against Jack in the Box for violations of the minimum-wage and overtime provisions of the Fair

Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., and various Oregon wage-and-hour

laws.

On May 16, 2011, Jessica Gessele, Ashley Gessele, Nicole Gessele, and Tricia Tetrault

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filed a First Amended Complaint in Gessele I in which they added Christina Luchau as a named

Plaintiff.

On August 13, 2012, Jessica Gessele, Ashley Gessele, Nicole Gessele, Tricia Tetrault,

and Christina Luchau filed a Motion to Certify Oregon Rule 23(b)(3) Classes and Alternative

Motions to Either Certify Hybrid FLSA Classes or Certify FLSA 216(b) Collectives.

On January 28, 2013, Magistrate Judge Stewart issued Findings and Recommendation in

Gessele I in which she recommended, among other things, denying the Motion to Certify as to

Plaintiffs’ proposed Rule 23(b)(3) meal break class. On April 1, 2013, Judge Ancer Haggerty

entered an Order adopting the January 28, 2013, Findings and Recommendation.

After resolving various motions, Judge Anna Brown entered a Judgment on May 15,

2014, dismissing Gessele I without prejudice.

On June 10, 2014, Jessica Gessele, Ashley Ortiz (formerly Ashley Gessele), Nicole

Gessele, Tricia Tetrault, Christina Mauldin (formerly Christina Luchau), and Jason Diaz1 filed a

putative class action against Defendant in Multnomah County Circuit Court (Gessele II) in which

they alleged claims for violation of Oregon’s wage-and-hour laws, violation of the FLSA, breach

of fiduciary duty, and equitable and quasi-contractual claims for return of money. On July 9,

2014, Defendant removed Gessele II to this Court.

On August 31, 2015, the parties filed Cross-Motions for Summary Judgment.

On March 10, 2016, Judge Brown issued an Opinion and Order in which she, among

other things, granted Defendant’s Motion as to Plaintiffs’ FLSA claims and granted Plaintiffs’

Motion in part as to Defendant’s eighth affirmative defense: private right of action.

1 On December 13, 2016, Judge Brown granted Defendant’s Motion for Partial Summary

Judgment as to Diaz’s claims on the basis that his claims were subject to mandatory arbitration.

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On March 2, 2017, Plaintiffs filed a Motion for Rule 23(b)(3) Class Certification.

On June 12, 2017, Judge Brown issued an Opinion and Order in which, among other

things, she denied Plaintiffs’ request to certify the unpaid break class.

On March 27, 2020, Plaintiffs filed a Renewed Motion to Certify Unpaid Break Class.

On June 5, 2020, Judge Brown issued an Opinion and Order in which she denied

Plaintiffs’ Renewed Motion to Certify Unpaid Break Class.

On January 21, 2021, Gessele II was reassigned to this Court.

On September 15, 2021, Plaintiffs filed a Motion for Reconsideration of Courts’ Previous

Denial of Class Certification for Plaintiffs’ Unpaid Break Class. On November 27, 2021, this

Court issued an Opinion and Order in which it adhered to Judge Brown’s previous Opinions and

Orders denying Plaintiffs’ Motions to Certify the Unpaid Break Class.

This matter proceeded to trial on October 17, 2022. At the close of Plaintiffs’ case

Defendant moved for judgment as a matter of law on Plaintiffs’ meal break claims. The Court

denied Defendant’s Motion. The Court addressed the meal break issue again at the close of

Defendant’s case and advised the parties that the Court would permit the issue to go the jury, but

it would also permit the parties to file post-trial motions on that issue.

On October 24, 2022, the jury returned a Verdict in which, among other things, it found

for Plaintiffs on their meal break claim and that Plaintiffs were entitled to lost wages for that

claim totaling $700.27.

On May 23, 2023, the Court entered a Judgment. On June 14, 2023, Defendant filed a

Rule 50(b) Motion for Judgment as a Matter of Law Regarding Plaintiffs’ Unpaid Break Claims.

The Court took Defendant’s Motion under advisement on July 12, 2023.

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STANDARDS

Federal Rule of Civil Procedure 50 governs motions for judgment as a matter of law.

Under Rule 50(a), a party must first move for judgment as a matter of law before the case is

submitted to the jury and “specify. . . the law and facts that entitle the movant to the judgment.”

Fed. R. Civ. P. 50(a)(2). Under Rule 50(b) . . . “the movant may file a renewed motion for

judgment as a matter of law.” Fed. R. Civ. P. 50(b).

“A Rule 50(b) motion for judgment as a matter of law should be granted when ‘the

evidence permits only one reasonable conclusion, and that conclusion is contrary to the jury's

verdict.’” Andrews v. Brennan, No. 22-35081, 2023 WL 4637114, at *1 (9th Cir. July 20,

2023)(quoting EEOC v. Go Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir. 2009)). The court

may grant a Rule 50 motion for judgment as a matter of law only when “there is no legally

sufficient basis for a reasonable jury to find for that party on that issue.” Krechman v. County of

Riverside, 723 F.3d 1104, 1109 (9th Cir. 2013) (internal citations omitted). “A jury's verdict

must be upheld if it is supported by substantial evidence . . . even if it is also possible to draw a

contrary conclusion from the same evidence.” Wallace v. City of San Diego, 479 F.3d 616, 624

(9th Cir. 2007). “[I]n entertaining a motion for judgment as a matter of law, the court . . . may

not make credibility determinations or weigh the evidence.” Go Daddy Software, Inc., 581 F.3d

at 961 (quotation omitted). Rather, “[t]he evidence must be viewed in the light most favorable to

the nonmoving party, and all reasonable inferences must be drawn in favor of that party.” Id.

DISCUSSION

At issue in Defendant’s Rule 50(b) Motion is whether before June 1, 2010, Oregon law

required that an employee who was required to return to work from a meal break before 30

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minutes must be paid for the entire 30-minute meal period or paid only for the time the employee

returned to work.

I. Oregon Meal Break History

At all relevant times Oregon Revised Statute § 653.055(1) provided:

(1) Any employer who pays an employee less than the wages to which the

employee is entitled under O.R.S. 653.010 to 653.261 is liable to the

employee affected:

(a) For the full amount of the wages, less any amount actually paid

to the employee by the employer; and

(b) For civil penalties provided in O.R.S. 652.150.

Oregon Revised Statute § 653.261(1)(a), in turn, authorizes the Oregon Bureau of Labor and

Industries (“BOLI”) to regulate meal and rest breaks:

The Commissioner of [BOLI] may adopt rules prescribing such minimum

conditions of employment, excluding minimum wages, in any occupation

as may be necessary for the preservation of the health of employees. The

rules may include, but are not limited to, minimum meal periods and rest

periods, and maximum hours of work. . . .

Pursuant to § 653.261(1)(a) the BOLI Commissioner promulgated Oregon Administrative Rule

839-020-0050.

A. O.A.R. 839-020-0050 before June 1, 2010

Prior to January 12, 2009, O.A.R. 839-020-0050 provided in pertinent part:

“(1) Every employer shall provide to each employee an appropriate meal

period and an appropriate rest period.

(a) Appropriate meal period means:

(A) A period of not less than 30 minutes during which the

employee is relieved of all duties for each work period of not less

than six or more than eight hours.”

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Gafur v. Legacy Good Samaritan Hosp. & Med. Ctr., 213 Or. App. 343, 346–47 (2007), rev'd in

part, 344 Or. 525 (2008)(quoting O.A.R. 839-020-0050(1)(2007)). See also Maher Decl., ECF

433, Ex. 1 (2004 O.A.R. 839-020-0050)(same).

BOLI amended O.A.R. 839-020-0050 effective January 12, 2009, but did not

substantively change the language of the meal-period provision. Specifically, after January 12,

2009, but before June 1, 2010, O.A.R. 839-020-0050 provided in pertinent part:

[E]very employer shall provide to each employee, for each work period of

not less than six or more than eight hours, a meal period of not less than

30 continuous minutes during which the employee is relieved of all duties.

Decl. of Robert Parker in Supp. of Def.’s Opp. to Mot. for Reconsideration of Cert. for Unpaid

Break Class (“Parker Decl. II”), Ex. B at 2, ECF 272 (O.A.R. 839-020-0050(2)(a)(2009)).

Oregon courts consistently concluded that the pre-June 1, 2010 version of O.A.R.

839-020-0050 did not entitle employees to wages for unprovided meal breaks. For example, in

2007 the Oregon Court of Appeals concluded in Gafur that the trial court did not err when it

dismissed the plaintiffs’ meal break claims that were based on the plaintiffs’ allegation that the

“defendant did not provide them meal breaks and did not pay them for the time that they would

have spent on those breaks . . . in other words [that the plaintiffs] worked . . . eight straight hours

but did not receive wages for eight and one-half hours.” 213 Or. App. at 348. The Court of

Appeals explained:

Under O.R.S. 653.055, [the plaintiffs’ meal break] allegation[s] would

state a claim only if plaintiffs were “entitled under O.R.S. 653.010 to

653.261” to wages for meal breaks. Neither those statutes nor the rules

promulgated to implement them state that an employee is entitled to wages

for meal breaks; O.A.R. 839–020–0050(1)(a) requires meal breaks but not

paid meal breaks. Therefore, the court did not err in dismissing plaintiffs'

claims based on entitlement to wages for unreceived meal breaks.

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Id. (emphasis in original). Similarly, in Wren v. RGIS Inventory Specialists, the plaintiffs brought

a wage-and-hour class action in which they alleged, among other things, that “managers

sometimes did not give [the plaintiffs] meal breaks, denied requests for meal breaks in order to

finish inventories more quickly[,] and altered time sheets to reflect meal breaks that were not

actually taken.” No. C-06-05778 JCS, 2009 WL 2612307, at *15 (N.D. Cal. Aug. 24, 2009). The

court granted the defendant’s motion for summary judgment as to the plaintiffs’ Oregon meal

break claims noting “Plaintiffs do not offer any authority that there is a private right of action

under Oregon wage and hour laws for missed meal breaks, and the Court finds none.” Id., at *17.

The court concluded “under Oregon wage and hour statutes, there is no private right of action for

missed meal breaks.” Id., at n.11 (citing Gafur, 213 Or. App. at 348). See also Bell v. Addus

Healthcare, Inc., No. C06-5188RJB, 2007 WL 2344972, at *6 (W.D. Wash. Aug. 14, 2007)

(finding the plaintiff did not have a private right of action for her claim that she was “entitled to

additional compensation because [the defendant] required her to work through paid meal

periods” noting “[u]nder Oregon law, employees are entitled to a ‘period of not less than 30

minutes during which the employee is relieved of all duties.’ OAR 839-020-0050(1)(a). If an

employer does not provide the meal period, then the commissioner of the Oregon Bureau of

Labor and Industries (‘BOLI’) may enforce civil penalties against the employer. OAR 839-020-

1010(1)(j)” but there is no provision under Oregon law for “a private right of action if her

employer requires her to work through her meal period.”).

Relying on Gafur courts also concluded that under Oregon law before June 1,

2010, employees were not entitled to 30 minutes of wages when they received less than a 30

minute meal break. For example, Liborio v. Del Monte Fresh Produce N.A., Inc., involved,

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among other things, “requiring or permitting minimum wage workers to don or doff protective

work clothes during the required 30 minute meal period.”2 No. 0710-11657, 2010 WL 6001799,

at 2 (Or. Cir. Sep. 23, 2010). The plaintiffs asserted “that class members are entitled to recover

30 minutes' wages, not wages for the time actually spent donning and doffing protective work

clothes during the meal period.” Id. at 5. The court rejected the plaintiffs’ argument stating it was

“contrary to Gafur.” Id. The court noted the holding in Gafur that “‘O.A.R. 839-020-0050(1)(a)

requires meal breaks but not paid meal breaks,’” id. (quoting Gafur, 213 Or. App at 348)

(emphasis in Gafur), and concluded “the statutes and administrative rules do not provide that the

remedy for failing to provide an uninterrupted 30 minute meal period is to convert an unpaid

meal break into a paid 30 minute meal break.” Id. Accordingly, the Liborio court concluded “the

remedy in this case is recovery of actual time spent donning and doffing during the meal period,

not 30 minutes' wages for each meal period that may have been shortened by some donning and

doffing time.” Id.

Similarly, in Migis v. Autozone Inc., No. 0711-13531, 2010 WL 6826616 (Or. Cir.

Feb. 03, 2010), the court granted summary judgment as to “Plaintiffs claim for violation of ORS

653.261 and/or OAR 839-020-0050 for failure to pay compensation for interrupted [meal

breaks] and/or meal breaks consisting of less than 30 minutes.” (emphasis added), aff’d on cross-

appeal Migis v. Autozone, Inc., 282 Or. App. 774, 776, 778 (2016)(“reject[ing] without

discussion” the plaintiffs’ appeal of the “ trial court's rulings concerning a meal-break claim.”),

adhered to in relevant part on reconsideration, 286 Or. App. 357 (2017).

2 The case involved “practices through December 31, 2005.” Liborio, 2008 WL 8257750, at 1.

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B. O.A.R. 839-020-0050 after June 1, 2010

BOLI amended O.A.R. 839-020-0050 effective June 1, 2010, to provide in

pertinent part:

(2)(a) . . . [E]very employer shall provide to each employee, for each work

period of not less than six or more than eight hours, a meal period of not

less than 30 continuous minutes during which the employee is relieved of

all duties.

(b) . . . [I]f an employee is not relieved of all duties for 30 continuous

minutes during the meal period, the employer must pay the employee for

the entire 30-minute meal period.

O.A.R. 839-020-0050(2)(a)-(b). The law was unsettled as to the effect of the post-June 1, 2010,

meal break provision of O.A.R. 839-020-0050(2)(b) until the Oregon Court of Appeals issued

Maza v. Waterford Operations, LLC, 300 Or. App. 471 (2019). In Maza the plaintiffs, who were

hourly employees of the defendant, brought a putative class action against the defendant

asserting that the defendant paid “employee[s] less than the wages to which the employee[s]

were entitled” in violation of O.R.S. § 653.055. Specifically, the plaintiffs alleged “between

certain dates, defendants’ hourly employees took unpaid meal periods that were shorter than 30

minutes.” Maza, 300 Or. App. at 474. Plaintiffs sought certification of a class consisting of

hourly employees who “are entitled to wages and penalty wages under O.A.R. 839-020-

0050(2)(b) for the shortened meal periods.” Id. The defendant asserted class certification was

inappropriate because under O.A.R. 839-020-0050(2)(b) “if an employer has authorized a 30-

minute meal period, no liability for wages or penalty wages will attach for a shortened meal

period, unless the employee was forced to return to work early. Thus, [according to the

defendant] . . . each employee’s claim depends on the circumstances of the shortened meal

period.” Id. Plaintiffs, on the other hand, asserted fact-specific inquiries were not required

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because “the requirement to pay wages [for the full 30-minute meal period] under O.A.R. 839-

020-0050(2)(b) attaches [when] the record shows that a meal period was shortened, regardless of

the cause.” Id. at 475. The trial court agreed with the defendant’s interpretation of O.A.R. 839-

020-0050(2)(b) and declined to certify the class, but authorized the plaintiffs to file an

interlocutory appeal to address the following question: “Whether an employer can be found

strictly liable under O.A.R. 839-020-0050(2) whe[n] an employee, regardless of the

circumstances, takes less than the entire duty-free 30-minute lunch break to which the employee

is otherwise entitled?” Id. On appeal the Oregon Court of Appeals stated.

the rule’s text and context support plaintiffs’ interpretation that . . . a 30-

minute meal is mandatory and, if not taken, the employer must pay the

employee’s wages for the full 30-minutes.

Id. at 477. The court stated the plaintiff’s interpretation “is plain from the text of O.A.R. 839-

020-0050(2)(b) which explicitly requires that ‘if an employee is not relieved of all duties for 30

continuous minutes during the meal period, the employer must pay the employee for the entire

30-minute meal period.’” Id. (quoting O.A.R. 839-020-0050(2)(b)). The court, therefore,

concluded that when an employee is not relieved of all duties for the prescribed minimum 30-

minute meal period, an employer is strictly liable for the employee’s wages for the entire 30-

minute period pursuant to O.A.R. 839-020-0050(2)(b). The court vacated and remanded the

matter to the trial court “[b]ecause [its] conclusion require[d] the trial court to reconsider its

rulings regarding the certification of a class under ORCP 32A.” Id. at 480.

Thus, after Maza it is clear that pursuant to post-June 1, 2010 O.A.R. 839-020-

0050(2)(b) when an employee is not relieved of all duties for a 30-minute meal period, an

employer must pay the employee for the entire 30-minute meal period even if the employee was

11 - OPINION & ORDER

relieved of all duties for some portion of the 30 minute meal period. Whether Maza is retroactive

is an open question in Oregon state courts, however, as this Court explained in its November 27,

2021, Opinion and Order, in Maza the court was interpreting the post-June 1, 2010, version of

O.A.R. 839-020-0050. Specifically, in reaching its conclusion that O.A.R. 839-020-0050(2)

requires an employee to be paid for a full 30-minute meal break even when an employee did not

take a full 30-minute break for any reason, the Maza court explicitly relied on the language in

O.A.R. 839-020-0050(2)(b), which provides when “an employee is not relieved of all duties for

30 continuous minutes during the meal period, the employer must pay the employee for the

entire 30-minute meal period.” Before June 1, 2010, no version of O.A.R. 839-020-0050

included the language of O.A.R. 839-020-0050(2)(b) or any language similar to that provision.

In addition, Oregon courts did not interpret the pre-June 1, 2010 version of O.A.R. 839-020-

0050(2) to require employers to pay employees for the entire 30-minute meal period when the

employee did not take the full 30-minute break. This Court concluded that Maza, therefore, did

not alter the pre-June 1, 2010, meal break landscape.

II. Prior Relevant Rulings in Gessele

In Gessele I, Defendant, relying on Gafur, asserted that the proposed meal break class did

not meet the commonality and typicality requirements of Federal Rules of Civil Procedure 23(a)

because, among other things, none of the named Plaintiffs were employed by Defendant after

March 2010 and “Oregon first created a private right of action for meal break claims under OAR

839-020-0050(2)” in June 1, 2010. Gessele v. Jack in the Box, Inc., No. 3:10-CV-960-ST, 2013

WL 1326563, at *35 (D. Or. Jan. 28, 2013) ), report and recommendation adopted, No. 3:10-CV-

00960-ST, 2013 WL 1326538 (D. Or. Apr. 1, 2013). In the January 28, 2013, Findings and

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Recommendation denying class certification for Plaintiffs’ meal break claim, Magistrate Judge

Stewart rejected Defendant’s assertion and noted that at issue in Gafur was whether the plaintiffs

had a private right of action for defendant’s failure to provide them with meal breaks and “did

not pay them for the time that they would have spent on those breaks.” Id. Although Magistrate

Judge Stewart concluded “OAR 839–020–0050 was not amended to explicitly provide a private

right of action for unpaid meal breaks until” June 1, 2010, she also found that did not bar

Plaintiffs’ meal break claims because Oregon employees “have always had a private right of

action to recover for time worked for which they were not paid.” Id., at *36 (citing O.R.S.

§ 653.055). Magistrate Judge Stewart, however, did not conclude that the pre-June 1, 2010,

version of O.A.R. 839-020-0050 or Oregon law required an employer to pay an employee for a

full 30-minute meal period when the employee had a meal break that was less than 30 minutes.

Rather, she concluded Plaintiffs had a private right of action only to the extent that Plaintiffs

performed work during their shortened 30-minute meal break for which they were not paid and

only for the time they worked.

In Gessele II Defendant asserted in its eighth affirmative defense that there was no

private right of action for Plaintiffs’ meal break claims before June 1, 2010. Plaintiffs moved for

summary judgment on that defense and Defendant reiterated its argument that pursuant to Gafur

and other Oregon cases there was no private right of action under Oregon law for unpaid meal

breaks before June 1, 2010. Judge Brown granted Plaintiffs’ Motion concluding that Plaintiffs

had a private right of action for the time that Plaintiffs worked, but were not paid when they were

called back from meal breaks before 30 minutes. Gessele v. Jack in the Box, Inc., No. 3:14-CV-

1092-BR, 2016 WL 1056976, at *15 (D. Or. Mar. 10, 2016).

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III. Trial

At trial Plaintiffs stipulated that when they were called back early from their 30-minute

meal periods, they clocked in, and Defendant paid them for all of the time they worked during

their shortened meal periods. Mahr Decl., ECF 420, Ex. 4 at 3 (“[I]t’s stipulated that once they

clocked back on, they were paid for [the time they worked].”). Plaintiffs, however, asserted that

even before the June 1, 2010 amendment to O.A.R. 839-020-0050, Oregon law required that

when employees were called back from meal breaks before 30 minutes, they were entitled to be

paid for the entire 30 minute meal period regardless of the amount of the meal period that the

employees actually worked. For example, Plaintiffs asserted that if an employee was required to

return to work after 27 minutes of her meal period, that employee was entitled to receive a full

30 minutes of wages, rather than the three minutes of wages comprising the difference between

27 minutes and 30 minutes.

Plaintiffs’ expert explained generally at trial that she calculated Plaintiffs’ proposed meal

break lost wages by reviewing named Plaintiffs’ time cards and when a Plaintiff took a meal

period that was less than 30 minutes, the expert included a full 30 minutes in that Plaintiff’s meal

break lost wages calculation regardless of the amount of time that the individual Plaintiff worked

during her meal period. Maher Decl., ECF 420, Ex. 1 at 6-7. Based on that system of calculation,

Plaintiffs’ expert found Plaintiffs had a total of $700.27 in meal break lost wages.

Defendant moved for judgment as a matter of law, objected to Plaintiffs’ method of

calculation, and asserted that before June 1, 2010, Oregon law did not require employees to

receive a paid meal break and that Plaintiffs, therefore, were entitled only to wages for the time

they worked when they were called back early from a meal break. Defendant pointed out that

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Plaintiffs stipulated they were paid for all of the time they worked when they were called back to

work early from their meal breaks, and according to Defendant, therefore, Plaintiffs did not have

any meal break lost wages. Defendant asserted its interpretation was supported by earlier rulings

in Gessele I and Gessele II as well as relevant Oregon case law. The Court permitted Plaintiffs to

present their method of calculating meal break lost wages to the jury and sent the question of

meal break lost wages to the jury. The Court, however, permitted the parties to file post-trial

motions on the question.

IV. Analysis

Defendant asserts in its Rule 50(b) Motion that before June 1, 2010, employees were not

entitled to paid for a full 30-minute meal break when they were called back to work early. Rather

employees are entitled to be paid only for the time they worked during a shortened meal break.

As noted, Plaintiffs stipulated at trial that they were paid for all of the time they worked when

they were called back from meal breaks before 30 minutes. According to Defendant, therefore, it

is entitled to judgment as a matter of law on Plaintiffs’ meal break claim, Plaintiffs should not

have been awarded any meal break lost wages, and Plaintiffs should not have been awarded

penalty wages on their meal break claims. Defendant relies on Gafur, Liborio, and Migis to

support its argument.

Plaintiffs assert that pre-June 1, 2010 O.A.R. 839-020-0050 required employees to be

paid for a full 30 minutes when their meal breaks were cut short, not just for the minutes the

employees worked in their shortened meal breaks. In their Response to Defendant’s Motion

Plaintiffs do not address Liborio or Migis. Rather, Plaintiffs assert Wren v. RGIS Inventory

Specialists, No. C-06-5778 JCS, 2007 WL 295549 (N.D. Cal. Jan. 30, 2007), and Rother v.

15 - OPINION & ORDER

Lupenko, No. CV 08-161-MO, 2011 WL 1311773, at *2 (D. Or. Apr. 1, 2011), support their

position.

In Wren the plaintiffs asserted they had a private right of action pursuant to pre-June 1,

2010 O.A.R. 839-020-0050 to recover 30-minutes of wages for unprovided meal breaks in

addition to the wages the defendant paid them for all of the time they worked.3 Although the

Wren court found the Oregon legislature did not intend to create private right of action for claims

based on failure to provide meal periods, Plaintiffs here rely on the Wren court’s statement that

O.A.R. 839-020-0050 provides “employers the option of offering a 30 minute, unpaid lunch

period during which no work is performed. Alternatively, employers may, under some

circumstances, provide a meal period during which the employee can eat while performing work

duties, in which case, the time is ‘not deducted from the employee's hours worked.’” 2007 WL

295549, at *7 (quoting O.A.R. § 839-020-0050 (2007)). The alternative provision noted by the

Wren court, however, relates to circumstances in which employees continue to perform duties or

remain on call while eating. Under those circumstances, employers were not permitted under the

pre-June 1, 2010, version of 839-020-0050 to deduct the employees’ meal period from their

wages. Neither Wren nor this case involve allegations that Plaintiffs worked continuously or

were on call during their meal periods. Plaintiffs allege that Defendant sometimes called them

back to work before the end of their 30-minute meal period. The Wren court’s statement

regarding on-duty meal periods, therefore, does not support Plaintiffs’ claim here that they

should receive a full 30 minutes of wages for meal periods that were cut short.

In Rother the trial court denied the defendant’s motion for judgment as a matter of law

3 For example, the plaintiffs asserted that when they worked eight hours without a meal break,

they were entitled to eight and one-half hours of wages.

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and declined to overturn the jury’s verdict finding that several of the plaintiffs had not been paid

for rest breaks. Rother, 2011 WL 1311773, at *2. The defendant asserted that Oregon did not

provide a private right of action for denying employees a meal break. The trial court explained

that “the defense misreads plaintiffs’ claim. The plaintiffs did not claim they should have been

given meal breaks; they claim that the time periods labeled ‘meal breaks,’ which do not need to

be compensated, were actually ‘rest periods,’ which do need to be compensated.” Id., at *2. The

Ninth Circuit affirmed the trial court’s decision regarding rest periods on appeal. The Ninth

Circuit stated that “like federal law,” Oregon “law also entitles employees to receive

compensation for breaks of less than thirty minutes.” Rother v. Lupenko, 515 F. App'x 672, 675

(9th Cir. 2013)(citing O.A.R. 839-020-0050(2)(b)). Plaintiffs’ counsel notes that he was also the

plaintiffs’ counsel in Rother and “he can verify that . . . [t]he violations in Rother took place

from 2002 through 2010.” According to Plaintiffs, therefore, Rother supports their assertion that

they are entitled to receive 30 minutes of wages for shortened meal periods. As Defendant points

out, however, the Ninth Circuit, writing in 2013, cited O.A.R. 839-020-0050(2)(b) to support its

statement. Before June 1, 2010, however, 839-020-0050 did not have a section (2)(b). See, e.g.,

Macher Decl., Ex. 1. In addition, no part of the pre-June 1, 2010 839-020-0050 contained the

language relied on by the Maza court to conclude that “if [a meal period is] not taken, the

employer must pay the employee’s wages for the full 30-minutes.” 300 Or. App. at 477 (noting

O.A.R. 839-020-0050(2)(b) requirement that “if an employee is not relieved of all duties for 30

continuous minutes during the meal period, the employer must pay the employee for the entire

30-minute meal period”). It appears, therefore, that in Rother the Ninth Circuit relied on the post-

June 1, 2010 839-020-0050 in reaching its holding. Rother, therefore, does not support Plaintiffs’

17 - OPINION & ORDER

assertion that pre-June 1, 2010 839-020-0050 required employers to pay employees wages for a

full 30 minutes even when, as here, a full 30-minute meal period was not taken.

The Court concludes that before June 1, 2010, Oregon law did not require employers to

pay employees for a 30-minute meal period when employees were called back to work before 30

minutes. Oregon law required that, at most, employers pay employees for any time they worked

during a shortened meal period. As noted, Plaintiffs stipulated that Defendant paid them for all of

the time they worked when they were called back early from their meal periods. Accordingly, the

Court concludes “the evidence permits only one reasonable conclusion, and that conclusion is

contrary to the jury's verdict.” Andrews, 2023 WL 4637114, at *1. The Court, therefore, grants

Defendant’s Rule 50(b) Motion and enters judgment as a matter of law for Defendant on

Plaintiffs’ meal break claims.

CONCLUSION

The Court GRANTS Defendant’s Rule 50(b) Motion, enters judgment as a matter of law

for Defendant on Plaintiffs’ meal break claims, and strikes lost meal break wages and meal break

penalty wages awarded to Plaintiffs.

The Court DIRECTS the parties to file an amended judgment consistent with this

Opinion and Order no later than August 29, 2023.

IT IS SO ORDERED.

DATED this __8___ day of August, 2023.

MARCO A. HERNÁNDEZ

United States District Judge

18 - OPINION & ORDER