Opinion
No. 63379-1-I.
January 19, 2010.
Appeal from a judgment of the Superior Court for King County, No. 08-2-32982-8, Susan J. Craighead J., entered December 16, 2009.
Affirmed by unpublished opinion per Becker, J., concurred in by Grosse and Lau, JJ.
Barmor Temporaries, Inc. (Barmor) appeals from an order granting Mary Byrd's motion for summary judgment on a claim for wrongfully withheld wages. Barmor contends there are issues of fact as to how much it owed Byrd and as to whether its failure to pay her was willful. We affirm.
The complaint names as defendants "Barmor Temporaries, Inc." d/b/a "Barmore Personnel," and "Carol Barmore" and her spouse. It is not clear whether "Barmor" or "Barmore" is the correct spelling for either the business or its owner, and the pleadings appear to use both. We use the spelling shown in the complaint, referring to the business as "Barmor" and to Carol Barmore as "Barmore."
FACTS
Barmor provides personnel staffing services to businesses in western Washington. Byrd was a sales representative for Barmor from February 2006 until April 2007. Barmor paid Byrd a base salary of approximately $1,700 per month, plus a commission, which varied from month to month and which was calculated on a commission structure set out in Byrd's employment contract.
Byrd resigned on April 20, 2007. On April 24, 2007, counsel for Barmor sent Byrd a letter, most of which is devoted to reminding Byrd of her obligations under a noncompete clause in her employment agreement and threatening legal action if she breaches those obligations. However, the letter also states, "you are entitled to receive final payment of all your outstanding commissions. Barmore will pay these commissions minus any appropriate deductions at the next established pay period."
After her next scheduled payday passed without payment, Byrd began to inquire about her unpaid commissions. Barmor was not responsive. On October 5, 2007, counsel for Byrd sent Barmor a letter claiming that she was owed commissions for February, March, and April 2007. The letter lists the clients that generated the commissions and states that each of the clients has paid the invoices for these months. The letter does not say how much Byrd claimed to be owed, but it demands payment and records regarding Byrd's pay. On October 8, 2007, Carol Barmore, Barmor's executive, sent Byrd a response letter. In it, Barmore states, "we need two more weeks from today in order to resolve this matter." The letter goes on to accuse Byrd of breaching her noncompete obligations by working for Voit Service Group and states, "I will pursue all legal remedies against you, unless you are willing to waive your commission for the above mentioned months."
On February 27, March 13, and July 10, 2008, Byrd's counsel sent Barmor's counsel letters asking for copies of records related to Byrd's earnings. Barmor did not provide any records. On April 9, 2008, Barmor's counsel sent Byrd's counsel an e-mail stating
My client stands by her last $8,000 offer in light of your client's actions. Mrs. Byrd attempted to induce Barmore clients away from Barmore while Mrs. Byrd still worked at Barmore Temporaries. My client did, in fact, lose business and has a colorable claim for intentional interference with business relationships. In exchange for accepting the settlement, Barmore is willing to release these claims against Mrs. Byrd.
On July 23, 2008, Byrd's counsel sent Barmor's counsel a copy of a summons and complaint alleging she was owed $18,000 in unpaid compensation. Byrd filed the summons and complaint on September 23, 2008, and filed a motion for summary judgment on October 7, 2008. The motion was supported by Byrd's declaration stating:
I terminated my employment with Barmore on April 20, 2007. Upon termination, I was owed my base salary for April, 2007, plus my commissions for the months of February, March, and April, 2007, for a total of $18,000.00. Although I have repeatedly requested payment, both verbally and in writing, Barmore has not paid me my employment compensation as agreed nor have they provided any reasons for not paying me.
On October 15, 2008, a courier delivered a check for $12,526.55 to Byrd's counsel. The check is dated May 9, 2008. The check bears the notation "Void after 30 days" and purports to cover all commissions owed. The check was apparently not accompanied by any explanation, either as to how the amount was calculated or why it was dated five months earlier, and was apparently not cashed.
There are two versions of the check in the summary judgment pleadings, one at Clerk's Papers (CP) 37 and the other at CP 73. The versions appear to be identical except that the version at CP 37 bears the notation "To cover all commission owed," while the version at CP 73 bears the notation "This check covers all commission owed." The summary judgment pleadings do not explain why there is a difference, but it does not appear to be material.
On October 27, 2008, Barmor filed a response supported by Carol Barmore's declaration. The declaration states that Byrd's commission payments were expressly contingent upon the customer actually paying Barmore, that Byrd's commissions for January 2007 through April 2007 totaled $28,755.36, that Byrd received commission payment checks of $7,171.01 and $8,020.44 in March 2007 and November 2007 respectively, that the gross commissions remaining unpaid were $13,563.91, and that after a deduction for expenses, Byrd was owed no more than $3,444.22. The declaration further asserts that Byrd was asked to provide documentation that supports her claim for $18,000 and that she failed to explain how she arrived at that figure or provide any evidence to substantiate it. The declaration finally asserts that by Barmor's calculations, Byrd may not be entitled to any additional money. Barmore did not explain how she arrived at these figures or include any documentation. Despite Barmore's declaration, the response to the motion for summary judgment also states that Barmore recently sent Byrd a check for $12,526.55 and that she is not entitled to any further payments.
On November 3, 2008, Byrd submitted a second declaration. On this issue of how much she was owed, Byrd states that she kept track of her commissions on a spreadsheet on Barmore's computer, that she was required to e-mail her commission numbers to Carol Barmore, Sagiv Barmore, and Isaac Barmore, and that her running spreadsheet indicated she should have received commissions of $9,000 for March and $9,000 for April 2007. The declaration also states that Byrd should have received $8,000 for her February commission on April 20, but that this amount was not paid until November 2007 when she received a check for $7,406.87 (gross commission of $8,020.44 less taxes). Byrd states that she was given the explanation that she was not paid on April 20 because the customers had not paid but that she contacted each account before she left and was told that the February invoices had been paid.
In response, Barmor submitted a declaration by Sagiv Barmor, indicating he oversaw Byrd's accounts and was one of her supervisors. Sagiv Barmor states that Barmor's records did not show Byrd was owed $18,000, that it offered to pay Byrd what it thought she was owed, and that she refused payment. This declaration does not say what Sagiv Barmor thought Byrd was owed and does not include any documentation. Barmor also submitted a declaration by attorney John Young. Young stated that he talked with Byrd's counsel in June 2008, that he told counsel Barmor's records did not show she was owed $18,000, that he asked for an accounting, that Barmor sent him a check for $12,526.55 to give to Byrd, that he held onto the check pending documentation from Byrd, and that he sent the check to counsel after he received Byrd's motion for summary judgment.
For Sagiv, we use the spelling used in his declaration.
On December 9, 2008, Barmor filed an answer and counterclaim for breach of contract, alleging that Byrd breached her employment contract. That claim remains pending.
On December 16, 2008, the trial court granted Byrd's motion for summary judgment, awarding her unpaid commissions of $18,000, damages of $18,000, and attorney fees and costs. On January 20, 2009, the court denied Barmor's motion for reconsideration. On April 9, 2009, the court entered findings pursuant to CR 54(b) and a judgment against Barmor for $54,521.75. Barmor appeals.
Neither side challenges the trial court's CR 54(b) determination, and we therefore consider the appeal on the merits even though it is taken from a decision that does not entirely resolve the dispute between the parties. RAP 2.2(d).
DECISION
The test we apply in reviewing a summary judgment is well settled:
"Summary judgment is properly granted when the pleadings, affidavits, depositions, and admissions on file demonstrate there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." The moving party bears the burden of demonstrating there is no genuine dispute as to any material fact. The appellate court engages in the same inquiry as the trial court when reviewing an order for summary judgment. All facts and reasonable inferences are considered in a light most favorable to the nonmoving party. All questions of law are reviewed de novo.
Berger v. Sonneland, 144 Wn.2d 91, 102-03, 26 P.3d 257 (2001) (footnotes omitted), quoting Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998).
In reviewing a summary judgment decision, we consider only evidence called to the attention of the trial court. To facilitate this standard of review, the trial court is required to designate the documents and other evidence it considers in its order granting a motion for summary judgment. RAP 9.12. The order in this case designates a number of documents but imprecisely states that the court considered the declaration of Byrd's attorney without specifying which declaration. It also states that the court considered "other papers and pleadings on file." This sort of designation is wholly inadequate. As neither side raises the issue, we assume the complete record considered by the trial court is identical to the materials contained in the clerk's papers.
A material fact is one upon which the outcome of the litigation depends. Morgan v. Kingen, 166 Wn.2d 526, 533, 210 P.3d 995 (2009). Although a party moving for summary judgment has the initial burden of showing there is no dispute about any issue of material fact, once that burden is met, the burden shifts to the nonmoving party. Hiatt v. Walker Chevrolet Co., 120 Wn.2d 57, 66, 837 P.2d 618 (1992). A party resisting summary judgment cannot satisfy its burden of production on the basis of conclusory allegations, speculative statements, or argumentative assertions. Las v. Yellow Front Stores, Inc., 66 Wn. App. 196, 198, 831 P.2d 744 (1992). The nonmoving party must assert specific facts. Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986). Summary judgment is appropriate if reasonable minds could reach only one conclusion after considering all of the evidence presented. Hiatt, 120 Wn.2d at 65-66.
An employer is guilty of a misdemeanor under RCW 49.52.050, and liable for double damages under RCW 49.52.070, if the employer willfully and with intent to deprive withholds wages the employer is obligated to pay. Whether an employer's withholding is willful is ordinarily a question of fact. Lillig v. Becton-Dickinson, 105 Wn.2d 653, 660, 717 P.2d 1371 (1986); Duncan v. Alaska USA Fed. Credit Union, Inc., 148 Wn. App. 52, 78-79, 199 P.3d 991 (2008). But summary judgment is nonetheless appropriate if there is no dispute as to the material facts. Morgan, 166 Wn.2d at 533; Schilling v. Radio Holdings, Inc., 136 Wn.2d 152, 160, 961 P.2d 371 (1998). An employer's failure to pay wages is willful if it is volitional, i.e., not a matter of mere carelessness but the result of knowing and intentional action. Schilling, 136 Wn.2d at 159-60. If there is a bona fide dispute regarding the payment of wages, the failure to pay them is not willful. Schilling, 136 Wn.2d at 160.
The trial court properly concluded on summary judgment that Barmor's withholding of Byrd's unpaid commissions was willful. From the outset, Barmor admitted it owed Byrd wages. As the letters and subsequent correspondence shows, Barmor withheld payment because it believed it had a claim against Byrd for breach of contract. But this claim was not established and Byrd had already earned her wages. Barmor's belief that it has a claim and its desire to use that claim as a bargaining chip is not a legitimate basis for refusing to pay Byrd. Barmor's withholding was therefore intentional and knowing. Barmor argues that its withholding is not willful because there was a dispute about the amount it owed Byrd. But Barmor never produced any records showing it owed something other than what Byrd claimed. Instead, Barmor assured Byrd she would be paid "at the next established pay period," or that it needed "two more weeks" after October 8, 2007, to resolve the matter but never tried to pay her even the amount it believed it owed until after she filed her summary judgment motion. There was not a bona fide dispute excusing Barmor's nonpayment.
The trial court also properly concluded that the amount withheld was $18,000. The record on this issue is decidedly mixed. Byrd originally claimed that she was owed base salary plus commissions for February, March, and April. But the evidence shows that she was paid her base salary and her commissions for February, even though that payment was not forthcoming until November, some seven months after she left her employment. Byrd later said her claim was for commissions of $9,000 each for March and April 2007, based on a spreadsheet on which she kept track of her commissions. Byrd included sample printouts which showed that she did keep track of her commissions and that Barmor had paid her the commission amounts for other months as she calculated them. This declaration is sufficient to establish the validity of Byrd's claim. The declarations of Carol and Sagiv say that Byrd is not entitled to $18,000. But a party resisting summary judgment cannot satisfy its burden of production on the basis of conclusory allegations or assertions. As Byrd's employer, Barmor is obligated to keep payment records and make them available on request to the employee. WAC 296-126-050. There was evidence that Byrd repeatedly requested such records. Barmor cannot defeat Byrd's claim by pointing to the lack of records that it was obligated to keep and make available on demand when it failed to make them available. Because Byrd initially met her burden and Barmor failed to meet its burden in response, Byrd was entitled to summary judgment.
Byrd has requested an award of fees on appeal. Under RCW 49.52.070, she is entitled to costs of suit and a reasonable sum for attorney fees. We award her the right to fees on appeal subject to her compliance with RAP 18.1.
Affirmed.
WE concur.