Metke v. Oxford Bank

Opinion

NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

KEVIN J. METKE, Plaintiff/Appellant,

v.

OXFORD BANK CORPORATION, Defendant/Appellee.

No. 1 CA-CV 26-0055

FILED 09-08-2026

Appeal from the Superior Court in Maricopa County No. CV2025-024775

The Honorable Michael S. Mandell, Judge

AFFIRMED

COUNSEL

Kevin James Metke, Phoenix Plaintiff/Appellant

Jaburg & Wilk, P.C., Phoenix By Alden A. Thomas, Emma J. Freeburg Counsel for Defendant/Appellee

METKE v. OXFORD BANK

Decision of the Court

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which Presiding Judge Andrew J. Becke and Judge Samuel A. Thumma1 joined.

M O R S E, Judge:

¶1 Plaintiff Kevin Metke ("Metke") appeals the dismissal of his claims against Oxford Bank Corporation ("Oxford Bank") in which he sought treble damages for the late payment of an Industrial Commission of Arizona ("ICA") retaliatory termination award.

FACTS AND PROCEDURAL BACKGROUND

¶2 On appeal from a motion to dismiss, "we must assume the truth of all well-pleaded factual allegations and indulge all reasonable inferences from those facts, but mere conclusory statements are insufficient." State ex rel. Brnovich v. Ariz. Bd. of Regents, 250 Ariz. 127, 130,

¶ 7 (2020) (internal quotation omitted).

¶3 From January 8 to January 12, 2024, Oxford Bank employed Metke as a salaried employee. On January 12, 2024, Metke called out sick, and Oxford Bank terminated his employment.

¶4 Metke filed a complaint with the ICA, alleging Oxford Bank terminated his employment in retaliation for his protected use of earned paid sick time ("EPST"). The ICA entered an order in favor of Metke under A.R.S. § 23-364 and the Arizona Administrative Code ("A.A.C.") R20-5- 1211(A) and (E). The ICA found Oxford Bank had retaliated against Metke for exercising his EPST rights and ordered Oxford Bank to pay Metke $19,826.25 for financial losses plus $10,000 as a deterrent against future violations. The ICA stated that a failure to comply with the order within

1 Judge Samuel A. Thumma was on the panel assigned to this case until retiring effective August 28, 2026. Arizona Supreme Court Chief Justice Ann A. Scott Timmer appointed Judge Thumma to continue to serve on the Court through December 31, 2026, to resolve those cases in which he previously participated, like this case. See Arizona Supreme Court Administrative Order 2026-124.

3

METKE v. OXFORD BANK

Decision of the Court

ten days "may result in the matter being referred to a law enforcement officer." Oxford Bank issued the payment 13 days after it was due.

¶5 Metke filed a complaint in superior court arguing that Oxford Bank violated A.R.S. § 23-364(G) and A.A.C. R20-5-1213 by failing to pay the award on time. Metke asserted that Oxford Bank owed him $89,478.75, which he calculated as treble the amount of the late-paid award plus interest under A.R.S. § 23-360. Four months later, Metke filed an amended complaint arguing that the untimely payment also violated A.R.S. § 23- 355(A). Metke then moved to amend his complaint a second time.

¶6 Oxford Bank moved to dismiss Metke's complaint arguing, among other things, that he failed to state a claim because neither A.R.S. § 23-364(G) nor A.A.C. R20-5-1213 provided him with a private cause of action for treble damages. The court granted Oxford Bank's motion and dismissed Metke's complaint without prejudice. The court found the ICA award was not wages but instead "was designed to compensate [Metke] for his financial loss and to deter future termination violations by [Oxford Bank]." Accordingly, the court found Metke was not entitled to treble damages under A.R.S. §§ 23-355 and -360.

¶7 Metke timely appealed and we have jurisdiction under A.R.S. § 12-2101(A)(1).

DISCUSSION

¶8 We review the grant of a motion to dismiss for failure to state a claim de novo. Brnovich, 250 Ariz. at 130, ¶ 7. "Dismissal is appropriate only if as a matter of law plaintiffs would not be entitled to relief under any interpretation of the facts susceptible of proof." Id. (cleaned up).

¶9 Metke raises three related arguments: (1) the court incorrectly interpreted the statutory definition of wages; (2) he is entitled to treble damages under A.R.S. §§ 23-355 and -360; and (3) the court erred in determining the financial-loss portion of the award was not wages.

¶10 First, Metke argues the court erred by interpreting A.R.S. § 23- 350(7) too narrowly and excluding the ICA award from the definition of wages. Metke contends the ICA award is wages because "but for Oxford Bank's unlawful retaliatory act, [Metke] would have continued to render services and receive his salary."

¶11 We interpret statutes according to their plain language and give words their ordinary meaning. State v. Gordon, 261 Ariz. 128, 131, ¶ 12

4

METKE v. OXFORD BANK

Decision of the Court

(2025). "And where unambiguous, we apply the express terms of a statutory provision without resorting to secondary methods of construction." Id. at 131–32, ¶ 12 (cleaned up).

¶12 Section 23-350(7) provides "'[w]ages' means nondiscretionary compensation due an employee in return for labor or services rendered by an employee for which the employee has a reasonable expectation to be paid whether determined by a time, task, piece, commission or other method of calculation." Thus, under this definition, wages equate to unpaid compensation for work actually performed or completed.

¶13 Metke does not argue that any portion of the award represented unpaid compensation owed for work he already performed or completed. Instead, he argues that because the ICA based the award on the salary he would have earned absent the retaliation, the award was equivalent to wages. To support his interpretation, Metke cites two cases and contends that "Arizona courts interpret the term 'wages' broadly to effectuate the protective purpose of the wage statutes." See Apache E., Inc. v. Wiegand, 119 Ariz. 308, 311 (App. 1978) (affirming superior court's finding that a motorcycle parts manager's wages included commissions on all sales whether completed by him or by one of the salesmen he oversaw); Holm v. Gateway Anesthesia Assocs. PLLC, No. 1 CA-CV 16-0673, 2018 WL 770503, at *12–13, ¶¶ 59, 67 (Ariz. App. Feb. 8, 2018) (mem. decision) (affirming superior court's award of treble damages for late-paid partnership-like profits, amounts paid by the employees that they reasonably expected to get back, and a portion of a stipend they were owed for their work). But both cases involved amounts that were due to the employees for services already rendered. And even if Metke's proposed interpretation is consistent with the protective purpose of the wage statutes, it would include amounts not earned by the employee for labor or services rendered and fails to align with the plain language of § 25-350(7).

¶14 Additionally, A.R.S. § 23-364(G)—the provision under which the ICA issued Metke's award—further confirms that the ICA award is not wages. Section 23-364(G) provides:

Any employer who fails to pay the wages or earned paid sick time required under this article shall be required to pay the employee the balance of the wages or earned paid sick time owed, including interest thereon, and an additional amount equal to twice the underpaid wages or earned paid sick time. Any employer who retaliates against an employee or other person in violation of this article shall be required to pay the employee an

5

METKE v. OXFORD BANK

Decision of the Court

amount set by the commission or a court sufficient to compensate the employee and deter future violations . . . .

(Emphasis added).

¶15 This statute distinguishes between an employer who "fails to pay" wages or EPST and an employer who "retaliates against" an employee. When an employer fails to pay wages or EPST, the employer must pay the employee the balance of wages or sick time earned plus an additional amount. A.R.S. § 23-364(G). In contrast, retaliation triggers a different remedy under which the employer must pay "an amount set by the commission or a court sufficient to compensate the employee and deter future violations." Id. As the statute makes explicit, the remedy for Metke's retaliatory termination claim was an ICA- or court-determined award, not wages. See id. Thus, based on the statutory definition of wages in A.R.S. § 23-350(7) and the statutory language distinguishing between wages and an award for retaliation in A.R.S. § 23-364(G), we affirm the superior court's finding that the ICA award is not wages.

¶16 Metke next argues he is entitled to treble damages under A.R.S. §§ 23-355 and -360 based on Oxford Bank's late payment. He asserts that once the ICA quantified the lost wages and ordered the payment, the award became "wages due" for the purpose of those statutes. This argument presupposes that some portion of the ICA award is wages under A.R.S. § 23-350(7), because both treble-damages provisions apply only when an employer fails to pay wages due. See A.R.S. § 23-360 ("[a]n employer who has been ordered . . . to pay wages due an employee and who fails to do so" in a timely manner is liable to pay treble the amount); A.R.S. § 23-355 ("if an employer . . . fails to pay wages due any employee, the employee may recover . . . treble the amount of unpaid wages"). But as discussed above, supra ¶¶ 12–15, the ICA award is not wages. Accordingly, Metke cannot recover treble damages under either statute.

¶17 Alternatively, Metke argues that, even if the deterrence portion of the award does not qualify as wages, the financial-loss portion does. He characterizes that portion as "a direct, calculated, make-whole remedy for the salary that Oxford Bank's illegal conduct prevented [him] from earning." But as discussed, the statutory definition of wages does not encompass any part of the ICA award, and Metke points to no legal authority to support this conclusion. Accordingly, this argument also fails.

¶18 Metke further contends that excluding retaliation awards from the treble-damages provisions would undermine the ten-day

6

METKE v. OXFORD BANK

Decision of the Court

payment requirement and render the penalty in A.R.S. § 23-360 meaningless. But as the superior court noted, Metke was not without a remedy as he could refer the late payment to a law-enforcement officer. See A.A.C. R20-5-1213(G).

¶19 Because we affirm the judgment, Oxford Bank, as the prevailing party on appeal, is entitled to costs upon compliance with ARCAP 21. See A.R.S. § 12-341.

CONCLUSION

¶20 We affirm.

MATTHEW J. MARTIN • Clerk of the Court FILED: JR