Dobin v. CIOview Corp.

16 Mass. L. Rptr. 785
CourtMassachusetts Superior Court
DecidedOctober 29, 2003
DocketNo. 200100108
StatusPublished
Cited by6 cases

This text of 16 Mass. L. Rptr. 785 (Dobin v. CIOview Corp.) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dobin v. CIOview Corp., 16 Mass. L. Rptr. 785 (Mass. Ct. App. 2003).

Opinion

Gants, J.

The plaintiff, Amy Dobin (“Dobin”), in her Third Amended Complaint, has filed suit alleging four causes of action against her former employer, the defendant ClOview Corporation (“ClOview”): (1) failure to pay salary in violation of the Wage Act, G.L.c. 149, §§148 & 150; (2) wrongful termination in violation of public policy; (3) breach of contract for the alleged failure to pay earned commissions; and (4) breach of the implied covenant and good faith for allegedly terminating her to avoid paying her commissions that were about to be earned. Dobin has moved for partial summary judgment on the Wage Act claim, while ClOview has cross-moved for partial summary judgment on the Wage Act claim and the wrongful termination claim.

BACKGROUND

In September 1998, Scott McCready, with two other investors, began ClOview, a company that developed and sold software designed to help large information technology vendors improve their information technology purchase decisions.1 Initially, McCready was ClOview’s sole employee. Later, McCready’s wife, Ann Palermo, became its second employee and Dobin became its third.

Before becoming an employee, Dobin had been retained by ClOview as a consultant. McCready offered her a management position overseeing three account relationships and developing best practices for two of ClOview’s major customers.2 In a document entitled Job Offer for Amy Dobin, dated September 1, 1999, McCready offered her an annual salary of $75,000 per year based on a three-day workweek, as well as monthly commissions. Dobin accepted the terms of employment set forth in that Job Offer and began work as an employee in September 1999. In or about June 2000, her annual salary was increased to $95,000, still based on a three-day work week.

Dobin was timely paid her salary for the months of September 1999 through January 2000. According to McCready, in or around February 2000, McCready, Palermo, and Dobin discussed the financial condition of ClOview. McCready testified that they' recognized that ClOview, technically, was bankrupt in that it had only enough money to pay its rent, electric, and telephone bills for four to six months, but not enough to pay its three employees. They discussed the possibility of closing the company but the three of them agreed that they would keep the company alive by deferring any salary payments until business improved and the corporation could afford to pay them.

Dobin has testified that no such meeting ever occurred with McCready and Palermo. Yet, the discussion she recalls between her and McCready is similar in content to that described by McCready. According to Dobin, McCready initiated a discussion with her in late January or early February 2000 in which he told her that there was not enough money to pay salaries, just enough to pay rent and utilities for three or four months. He asked her whether she would defer her salary. She asked him whether salaries would be the first obligation paid when the money came in, and he said salaries would be paid right after rent and utilities. They discussed the possibility of selling the assets of ClOview and estimated the value of those assets. She did not consider quitting her job because she believed in the company and in McCready, and believed the company had some large deals pending. They also discussed that the salary deferral would likely be needed only in the short term because the company had a large deal pending and anticipated the receipt of venture capital. In short, Dobin admits that she agreed to defer her salary for a period of time provided that salaries would be the first things paid, after rent and utilities, when money came into the company.

Dobin received her monthly salary for February 2000 in October 2000, and her March 2000 salary in November 2000. On December 6, 2000, she was paid her salary for April and May 2000. That same day, Dobin spoke with McCready and told him that she had spoken with the Attorney General’s Office, and had learned that, under the labor laws in Massachusetts, it was unlawful to delay her compensation even if she had agreed to it. She followed up on this discussion by sending McCready an email on December 7, 2000 that listed the websites which discussed the Massachusetts labor laws. McCready replied with an email to her that same day in which he wrote:

I am very well aware of the labor laws as they pertain to Massachusetts. I think you are missing a key issue which is that you agreed to have your compensation delayed, this was done with your wishes. Your were well aware of the financial situation at ClOview at the time you did this so it was done with full knowledge. Anyway I am not the person to try and make the importance of this point to you. [786]*786Please put together a complete picture of the sales commissions you believe are owed to you under the terms of your employment.

Dobin replied by email that same evening. She wrote:

True, I was aware of the financial situation at ClOview and did agree to delay my compensation UNTIL MONEY CAME IN TO PAY THE SALARIES, AND UNDER THE CONDITION THAT WHEN THE MONEY CAME IN, THE SALARIES WOULD BE THE FIRST THINGS PAD. At the time, nobody was receiving their salaries. Since that time you have hired 2 additional employees/contractors and are paying them. In addition you are now hiring outside firms to do work for you and you are paying them. [Emphasis in original.]
I was not aware of the State Labor Laws regarding payment of wages until this week. If you were aware of the State Labor Laws, then you should have been aware that such an agreement is a direct violation of the laws. Chapter 149, section 148 of these labor laws clearly states that “No person shall by special contract with an employee or by any other means exempt himself from this section or from section one hundred and fifty.” These labor laws also state that employees must be paid weekly or bi-weekly, when in fact you have been paying us monthly.
I realize that ClOview is a small struggling start up company, but it is a corporation and it is operating in the state of Massachusetts. A1 corporations must abide by the federal and state laws governing them, regardless of the size of the company or the hardships that they face . . .
I have remained working at ClOview for 15 months because I fully believe in and support our mission and our products, and I enjoy working with you and Ann. I believe in the company’s future and would like to continue working for you. I have not filed any complaints with the Attorney General and don’t want to. I sincerely hope we can resolve these issues and move forward . . .

On December 12, 2000, McCready instructed ClOview’s accountant to prepare checks for Dobin paying her the balance due for her monthly salary. On December 13, 2000, McCready told Dobin that her employment at ClOview was being terminated, and provided her with seven checks for the period from June through December 15, 2000, each post-dated December 15, 2000. Once these checks were successfully negotiated and subsequent checks for vacation pay were delivered, Dobin had received all the salary payments due to her during the course of her employment at ClOview, albeit belatedly.

On December 13, 2000, immediately after her termination, Dobin initiated this action in Superior Court. ClOview did not receive notice of the complaint until it was served on December 22, 2000.

DISCUSSION

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Cite This Page — Counsel Stack

Bluebook (online)
16 Mass. L. Rptr. 785, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dobin-v-cioview-corp-masssuperct-2003.