LED COURT OfAPPl f. DIVIS10tJ ! I- MAR IN THE COURT OF APPEALS OF THE STATE OF WASHI UJ STATE OF WASHINGTON DIVISION III
RUBY JUMAMIL, No. 43620 -5 -II
Appellant,
V.
LAKESIDE CASINO, LLC, a Washington PUBLISHED OPINION
limited liability company d/ b /a FREDDIE' S CLUB CASINO OF FIFE; NOEL COON and JANE DOE I, husband and wife; SUSAN MUDARRI and JOHN DOE, husband and wife; and DOUG WEST and JANE DOE II, husband and wife,
ts.
1— PENOYAR, J. P. T. Ruby Jumamil appeals the trial court' s summary dismissal of
defendant Noel Coon from her wage withholding and wage rebating claims and dismissal of
defendant Doug West from her wage rebating claim under RCW 49. 52. 050 and RCW 49. 52. 070.
Jumamil initially filed various wage claims against Lakeside Casino, LLC, d /b /a Freddie' s Club Casino of Fife ( the Casino), her former place of employment; Coon, the Casino' s sole LLC
manager; and West, one of the Casino' s poker room floor supervisors. After the summary
dismissal of Coon and West, a jury found the Casino liable for willful wage withholding and
rebating. Shortly after the trial court entered judgment against the Casino, the Casino filed for
bankruptcy.
Jumamil now argues that the trial court improperly dismissed Coon from her wage
withholding claim because he willfully withheld her wages after learning about the Casino' s
dealer support policy, which required that poker dealers gamble an average of six hours a week
1 Judge Penoyar is serving as a judge pro tempore of the Court of Appeals, Division II, pursuant to CAR 21( c). 43620 -5 -II
to retain their seniority and which policy ultimately led to the withholding of Jumamil' s wages.
Jumamil also argues the trial court improperly dismissed Coon and West from her, wage rebating
claim because Coon received and West collected a rebate of her wages by requiring her to
gamble back her wages to the Casino under the dealer support policy.
We hold a manager of an LLC is liable for improper wage withholding only where he
knowingly participated in the wrongful withholding. Because Coon failed to release Jumamil' s
withheld wages after learning about the dealer support policy, he knowingly and willfully
withheld her wages in violation of RCW 49. 52. 070. Accordingly, we reverse summary
judgment as to Coon, hold Coon liable for willful wage withholding, and remand for an entry of
costs and reasonable attorney fees against Coon under RCW 49. 52. 070. We also reverse the
summary dismissal of Coon and West from Jumamil' s wage rebating claim and remand for
further proceedings because there are genuine issues of material fact regarding whether Coon
and West collected or received a rebate of Jumamil' s wages.
We reverse and remand for further proceedings consistent with this opinion.
FACTS
1. BACKGROUND
The Casino was initially owned by Susan Mudarri and her husband, Eugene Mudarri Jr.
At that time, Noel Coon had only a two percent membership interest in the Casino. After Mr.
Mudarri' s passing, Coon increased his ownership interest to 51 percent, with Ms. Mudarri
retaining a 49 percent interest. Coon became the sole Casino manager with the " sole authority to
decide whether and when to sell the Company, its assets and / or business." Clerk' s Papers ( CP)
at 364; see also CP at 359 ( Washington Secretary of State listing Coon as the managing member
of the Casino). Coon also agreed to " oversee the Company' s business with the goal of making it 0) 43620 -5 -II
profitable and attractive for sale" and to loan up to $ 200, 000 to the Casino as needed to enable it'
to become profitable. CP at 364. Coon listed himself as the " highest- ranking" individual on the
license renewal applications to the Washington State Gambling Commission, which he signed as
the Casino' s managing member. CP at 368. Coon also identified himself as managing member
on promissory notes for payment to Hana Hou Wailea, LLC, from the Noel T. Coon Living
Trust. Coon and Ms. Mudarri shared the Casino profits equally; however, neither was entitled to
receive a salary for their services performed. Upon the sale of the Casino, Coon was entitled to
receive the first $5, 000, 000 of net proceeds.
Coon lives in Texas and visited the Casino occasionally to check in with the managers or
to have lunch in the Casino restaurant. Coon stated that he did not write checks on the Casino' s
behalf, set employee wages, or make any decisions about the payment or nonpayment of wages;
nor was he aware of any employee policies. Instead; he stated he relied on the Casino
management to make personnel, wage, and employee policy decisions. Jumamil acknowledged
that she only saw Coon eating lunch at the Casino once when another dealer pointed him out.
Jack Newton is the Casino manager.
Jumamil began working at the Casino in November 2006 and became a poker dealer in
May 2007. In May 2010, the Casino implemented a new dealer Support policy, which required
dealers to gamble an average of six hours per week to retain their seniority. If the dealers failed
to meet the six -hour- per -week average, they lost seniority, and on slow shifts would be the first
dealers sent home. Doug West, a poker room floor supervisor who handles scheduling and
2 Dealer support is a practice where poker dealers who are not dealing play at another dealer' s table to keep the game from ending due to a lack of other poker players playing. 3 43620 -5 -II
hiring of poker dealers, stated dealer support was voluntary. In contrast, Daniel Carruthers, a
poker dealer and poker room floor supervisor, testified:
Saying that dealer support was not " mandatory" gives the impression that dealers had a clear choice as to whether they gambled or not. In reality, that " choice" was forced upon dealers who needed to make a difficult financial calculation: will we make more money in the extra hours that we keep than we will lose gambling for six hours? ... I would not characterize my decision to gamble during that time as a " choice" of my own free will.
CP at 183.
West was involved in developing, implementing, and, enforcing the dealer support
policy. 3 West authored a memorandum on the policy in which he cautioned that dealers will find
themselves " on the bottom instantly if they fail one week to maintain a 6 hour average," and that
dealers " showing a commitment to the success of the room may also be rewarded with additional
shifts as they become available." CP at 243. One dealer noted that the Casino referred to the
gambling by dealers under the policy as " keeping [ their] stars." CP at 272. The poker room
floor supervisors recorded the dealer support hours in a " Dealer Tracking Log," which
documented the dealers' gambling time to the quarter hour. CP at 190.
Under the policy, the dealers mostly played Texas Hold' em poker, which required all
players to make forced bets known as blinds. Thus, the dealers could not sit at a table for six
hours and not bet any money. The Casino took $ 3. 00 in the form of the " rake" and a $ 0. 20
jackpot administration fee from each hand played. CP at 111. Jumamil acknowledged that a
small percentage of the money she was required to gamble under the dealer support policy went
directly to the Casino, while the rest went to the other players. Jumamil stated that even though
the majority of her money did not go directly to the Casino, the Casino considered dealers' a
3 The Casino designated West as its CR 30( b)( 6) corporate designee. 4 43620 -5 - II
gambling as " support[ ing] the casino." CP at 256. Also, West noted that the spike in recent
business at the Casino was due largely to dealers providing dealer support per the policy.
Jumamil did her weekly six hours of dealer support for a few weeks. But a month or so
after the Casino instituted the dealer support policy, Jumamil spoke with West and told him she
could no longer provide the minimum six hours of dealer support because she recently had a 4 baby and could not put in the extra hours. West responded, " Well, then you' re not going to
have a job," and that Jumamil was " not the only one that just had a baby." CP at 263. After
Jumamil stopped providing the six -hour - -week average of dealer support, she was sent home per
early three to four times because her seniority dropped. Jumamil' s last day of providing any
dealer support was August 6, 2010.
Other dealers noted the financial and time burdens the dealer support policy created.
Tera Frydenlund, a poker dealer, stated it was difficult to find six hours a week extra to gamble
and that it was almost like an extra shift, which was especially difficult because, as a single
mom, she had to arrange for child care. Carruthers stated he had to stop providing dealer support
because he was losing too much money. He also recently had a baby and did not have the extra
time to provide dealer support.
On August 17, 2010, approximately two weeks after Jumamil stopped providing dealer
support, West terminated Jumamil for " excessive dealer mistakes and inadequate hand speed."
CP at 63. West stated that dealer support was not discussed with Jumamil and it was not
contemplated as a reason for Jumamil' s termination.
4 West stated the dealers could receive minimum wage, while providing dealer support during their paid breaks or if they came in before or after a shift. Jumamil; Tera Frydenlund, a poker dealer; and Carruthers contest West' s statement. Jumamil also stated there often was not enough time to provide dealer support during breaks and that dealers often did not get as frequent of breaks as West and Coon claim. R 43620 -5 - II
At the beginning of October 2010, Jumamil sent a letter to the Casino claiming wrongful
termination, wage withholding, and wage rebating. After receiving Jumamil' s letter, the Casino
stopped the dealer support policy on October 15, 2010, which West testified was due to the
potential of this lawsuit.
II. PROCEDURAL HISTORY
Jumamil filed her complaint on October 19, 2010, alleging seven causes of action; only
relevant here are her wage claims under RCW 49. 52. 050 and RCW 49. 52. 070. Coon moved for
summary judgment on the basis that he had not willfully or intentionally withheld Jumamil' s
wages, nor had he received a rebate of any of Jumamil' s wages. The trial court, finding no
material issue of fact, granted Coon' s motion for summary judgment.
West then moved for summary judgment on the basis that he had not received or
collected any rebate of Jumamil' s wages. The trial court granted summary judgment, dismissing
West as well.
A jury returned a verdict against the Casino in favor of Jumamil on her minimum wage
act claim, her wage rebating claim, and her wrongful discharge claim. The jury found that ( 1)
the Casino had failed to compensate Jumamil for all her hours worked; ( 2) the Casino' s failure to
compensate Jumamil was willful; ( 3) the total amount of wages the Casino did not pay to
Jumamil was $ 288. 99; ( 4) the Casino had required Jumamil to rebate wages to the Casino; ( 5)
the Casino' s rebate of Jumamil' s wages was willful; ( 6) the total amount of wages the Casino
required Jumamil to rebate was $ 811. 20; ( 7) the Casino had discharged Jumamil in violation of
public policy; and ( 8) the total amount of Jumamil' s damages proximately caused by the
Casino' s wrongful termination was $ 28, 000. 00. The trial court also awarded Jumamil
125, 000. 00 in attorney fees and $ 10, 000. 00 in costs. Approximately two weeks after the trial 0 43620 -5 - II
court issued the judgment against the Casino, the Casino filed for bankruptcy. See In re Lakeside 5 Casino, LLC, No. 12- 44552 -BDL (Bankr. W.D. Wash. June 28, 2012).
Jumamil timely appealed. Shortly after filing her appeal, Jumamil filed a separate
lawsuit against Newton for wage withholding and wage rebating in violation of RCW 49. 52. 070.
In July 2012, Newton made an offer of judgment to Jumamil for $ 2, 794.48, which Jumamil
6 ultimately accepted. Although the evidence regarding the jury trial and the second lawsuit
against Newton were not part of the trial court' s record on summary judgment, a commissioner
of this court granted West and Coon' s motion to include it in the record on appeal because the
documents may change the result of the appeal." CP at 638.
ANALYSIS
I. STANDARD OF REVIEW
We review an order for summary judgment de novo, engaging in the same inquiry as the
trial court. Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P. 3d 1068 ( 2002). Summary
judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law." CR 56( c). " A material
fact is one upon which the outcome of the litigation depends." Clements v. Travelers Indem.
Co., 121 Wn.2d 243, 249, 850 P. 2d 1298 ( 1993).
We construe all facts and the reasonable inferences from those facts in the light most
favorable to the nonmoving party. Jones, 146 Wn.2d at 300. Summary judgment is proper only
5 The Casino' s bankruptcy case is still pending. 6 This number was by doubling the wages Jumamil claimed were due ($ 288. 99 for reached
Willful non - payment of wages and $ 811. 20 for willful rebating) plus 12 percent interest. 7 43620 -5 -II
if reasonable persons could reach but one conclusion from the evidence presented. Bostain v.
Food Express, Inc., 159 Wn.2d 700, 708, 153 P. 3d 846 ( 2007).
II. MOTION TO STRIKE
West and Coon argue Jumamil improperly used facts and evidence in her arguments on
appeal that were not before the trial court at summary judgment. With the exception of the
supplemental exhibits the commissioner of our court ordered we would consider on appeal, we
consider only the facts and evidence before the trial court at summary judgment in reaching our
decision on appeal.
III. JUMAMIL' S CLAIMS ARE NOT BARRED ON APPEAL
A. JUMAMIL' S CASE IS NOT MOOT
West and Coon argue Jumamil' s claims are moot because after West and Coon were
summarily dismissed, Jumamil accepted payment from Newton for the same wage claims she
initially alleged against West and Coon. But, Jumamil may still receive effective relief and, thus,
her wages claims are not moot.
A case is moot if a court can no longer provide effective relief. SEIUHealthcare 775NW
v. Gregoire, 168 Wn.2d 593, 602, 229 P. 3d 774 ( 2010); see also City of Sequim v. Malkasian,
157 Wn.2d 251, 259, 138 P. 3d 943 ( 2006) ( "` The central question of all mootness problems is
whether changes in the circumstances that prevailed at the beginning of litigation have
forestalled any occasion for meaningful relief. "' ( quoting 13A CHARLES ALAN WRIGHT, ARTHUR
R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3533. 3, at 261 ( 2d ed.
1984))). Under RCW 49. 52. 070, when the employee prevails in her wage claims, she is entitled
to exemplary damages together with legal costs and reasonable attorney fees. Thus, "[ w] here
liability is found, the civil remedy is personal liability for exemplary damages and attorney fees." 43620 -5 -II
Morgan v. Kingen, 166 Wn.2d 526, 538, 210 P. 3d 995 ( 2009) ( emphasis added). " By providing
for costs and attorney fees, the Legislature has provided an effective mechanism for recovery
even where wage amounts wrongfully withheld may be small." Schilling v. Radio Holdings,
Inc., 136 Wn.2d 152, 159, 961 P. 2d 371 ( 1998). Here, Newton paid Jumamil only her exemplary
damages for her wage claims, but not her legal costs or attorney fees. Because Jumamil is
entitled to costs and attorney fees in addition to the exemplary damages, the court can still
provide Jumamil effective relief and her case is not moot.
West improperly relies on Yates v. State Board for Community College Education, 54
Wn. App. 170, 773 P. 2d 89 ( 1989) to argue that Jumamil' s case is moot because she has since
accepted payment for her wage claims from Newton. Yates, a guidance counselor at Columbia
Basin College, filed an action for wages allegedly owed while his union was in the process of
negotiating payroll contract issues with Columbia Basin. Yates, 54 Wn. App. at 171, 173. After
Yates filed his complaint, Columbia Basin and the union reached an agreement and Yates
accepted payment of his wages under the newly - settled contract. Yates, 54 Wn. App. at 173 -74.
Yates argued that his acceptance of payment did not moot his claim for attorney fees and costs
because " he was paid only after he was forced to bring suit and incur those fees." Yates, 54 Wn.
App. at 175. The court rejected Yates' s argument and stated, " Contrary to his argument he was
forced to bring suit, if anything his suit was premature to resolution of good faith negotiations."
Yates, 54 Wn. App. at 176.
Here, there was no bargaining or negotiating over Jumamil' s claims as there was in Yates.
And Jumamil did not prematurely file a suit against West and Coon. Instead, Jumamil had to sue
to recover damages for her wage claims after West terminated her employment at the Casino.
The record does not show that the Casino offered to negotiate or discuss Jumamil' s claimed
X 43620 -5 -II
damages with her; but instead, shortly after Jumamil notified the Casino of her intent to sue, the
Casino stopped its dealer support policy due to the potential of a lawsuit. Thus, Yates is not
controlling here and Jumamil' s case is not moot.
B. JUMAMIL' S WAGE CLAIMS ARE NOT BARRED BY RES JUDICATA
West and Coon also contend res judicata bars Jumamil from continuing' to assert her
wage claims against them because Jumamil accepted payment from Newton on wage claims
identical to those alleged against West and Coon and then dismissed Newton with prejudice.
Thus, they maintain that Jumamil cannot relitigate these identical wage claims against them.
Because West and Coon failed to argue res judicata below and because the claims against West
and Coon were not subsequent to the claim against Newton, Jumamil' s wage claims against
West and Coon are not barred by res judicata.
Whether res judicata bars an action is a question of law we review de novo. Lynn v.
Dep' t of Labor & Indus., 130 Wn. App. 829, 837, 125 P. 3d 202 ( 2005). Res judicata is a
doctrine of claim preclusion. Williams v. Leone & Keeble, Inc., 171 Wn.2d 726, 730, 254 P. 3d
818 ( 2011). It bars the relitigation of claims and issues that were litigated, or could have been
litigated, in a prior action. Pederson v. Potter, 103 Wn. App. 62, 67, 11 P. 3d 833 ( 2000). The
person asserting the defense of res judicata bears the burden of proof. Hisle v. Todd Pac.
Shipyards Corp., 151 Wn2d 853, 865, 93 P. 3d 108 ( 2004). " The threshold requirement of res
judicata is a final judgment on the merits in the prior suit." Hisle, 151 Wn.2d at 865. " Once that
threshold is met, res judicata requires sameness of subject matter, cause of action, people and
parties, and ` the quality of the persons for or against whom the claim is made. "' Hisle, 151
Wn.2d at 865 -66 ( quoting Rains v. State, 100 Wn.2d 660, 663, 674 P. 2d 165 ( 1983)).
10 43620 -5 -II
Res judicata is an affirmative defense that is waived if it is " not affirmatively pleaded;
asserted with a motion under CR 12( b), or tried by the express or implied consent of the parties."
Farmers Ins. Co. of Wash. v. Miller, 87 Wn.2d 70, 76, 549 P. 2d 9 ( 1976); see also CR 8( c). A
claim for res judicata will not be considered for the first time on appeal. See Milligan v.
Thompson, 110 Wn. App. 628, 633, 42 P. 3d 418 ( 2002) ( refusing to consider appellant' s res
judicata argument because appellant did not argue res judicata when he opposed the respondent' s
summary judgment motion in the trial court). We consider " only evidence and issues called to
the attention of the trial court." RAP 9. 12.
Further, there was no prior action in this case. Jumamil filed her complaint against
Newton on July 2, 2012, after the trial court summarily dismissed West and Coon and after
Jumamil appealed their dismissal. Res judicata prevents the relitigation of claims from a prior
action. Hisle, 151 Wn.2d at 865. West and Coon, who bear the burden of proof here, have
pointed to no law, nor were we able to find any, that allows a subsequent action to give
preclusive effect under the doctrine of res judicata to a prior action. Because West and Coon
failed to argue res judicata in the trial court and because there was no other action prior to
Jumamil' s claims against West and Coon, res judicata does not bar Jumamil' s wage claims
against West and Coon.
IV. WAGE STATUTES —RCW 49. 52. 050 AND RCW 49. 52. 070
Jumamil contends the trial court erred when it summarily dismissed Coon from her wage
withholding claim under RCW 49. 52. 050 and RCW 49. 52. 070 ( collectively " the wage statutes ")
because Coon was Jumamil' s employer and he willfully withheld her wages. Jumamil also
argues that the trial court erred when it summarily dismissed Coon and West from her wage
rebating claim under the wage statutes. Coon responds he cannot be liable for wage withholding 11 43620 -5 -II
because he had no involvement with the payment or non - payment of wages and he did not
intentionally or knowingly withhold Jumamil' s wages.? In response to Jumamil' s wage rebating
claim, Coon and West maintain that Jumamil failed to establish any issue of material fact that
they ever received or collected a rebate of her wages.
A. THE WAGE STATUTES
The legislature enacted the statutes at issue —RCW 49. 52. 050 and RCW 49. 52. 070 —in
1939, which are sometimes referred to as the " Anti- Kickback" statutes. Ellerman v. Centerpoint
Prepress, Inc., 143 Wn.2d, 514, 519, 22 P. 3d 795 ( 2001). . Any " employer or officer, vice
principal or agent of any employer" is guilty of a misdemeanor if he or she "[ s] hall collect or
receive from any employee a rebate of any part of wages theretofore paid by such employer to
such employee," or if he or she "[ w]ilfully and with intent to deprive the employee of any part of
his or her wages" pays the employee less than the wage to which the employee is entitled. RCW
49. 52. 050( 1) -( 2). Any " employer or any officer, vice principal or agent of any employer" who
violates RCW 49. 52. 050( 1) -( 2) shall be liable to the employee " for twice the amount of the
wages unlawfully rebated or withheld by way of exemplary damages, together with costs of suit
and a reasonable sum for attorney' s fees." RCW 49. 52. 070.
When interpreting statutory language, the court' s goal is to carry out the legislature' s
intent. Ellerman, 143 Wn.2d at 519 ( citing Seven Gables Corp. v. MGMIUA Entm' t Co., 106
Wn.2d 1, 6, 721 P. 2d 1 ( 1986)). " In ascertaining this intent, the language at issue must be
evaluated in the context of the entire statute." Ellerman, 143 Wn.2d at 519 ( citing In re Sehome
Park Care Ctr., Inc., 127 Wn.2d 774, 778, 903 P. 2d 443 ( 1995)).
7 West makes similar arguments, but Jumamil did not appeal the trial court' s dismissal of the wage withholding claim against West. Thus, we need not respond to West' s arguments. 12 43620 -5 -II
The wage statutes were enacted to prevent abuses by employers in the labor- management
setting and they reflect the legislature' s strong policy in favor of payment of wages to
employees. Ellerman, 143 Wn.2d at 519; Schilling, 136 Wn.2d at 157. The " fundamental
purpose of the legislation, as expressed in both the title and body of the act, is to protect the
wages of an employee against any diminution or deduction therefrom by rebating,
underpayment, or false showing of overpayment of any part of such wages." Schilling, 136
Wn.2d at 159 ( quoting State v. Carter, 18 Wn.2d 590, 621, 140 P. 2d 298, 142 P.2d 403 ( 1943)).
Thus, these wage statutes must be liberally construed to advance the legislature' s intent to
protect employee wages and assure payment. Schilling, 136 Wn.2d at 159.
B. WAGE WITHHOLDING CLAIM
Coon argues he is an absentee owner of the Casino, he had no involvement with the
payment or nonpayment of wages, and he had no knowledge of the dealer support policy. Thus,
he contends he cannot be liable for the willful and intentional withholding of Jumamil' s wages.
It is true that Jumamil was terminated before Coon was aware of the dealer support policy, but
because Coon was Jumamil' s employer and he failed to pay Jumamil her previously withheld
wages after learning about the dealer support policy, he knowingly and willfully participated in
the willful withholding of her wages and is personally liable under RCW 49. 52. 070.
1. EMPLOYER
Coon argues he was merely an absentee part owner of the Casino and was not Jumamil' s
employer. Under the wage statutes, " employer" refers " to the individual, association of
individuals, or corporation engaged in private business, for whom an employee performs the
services for which he is hired." Carter, 18 Wn.2d at 620. A member -manager- director of an
LLC is an employer. Dickens v. Alliance Analytical Labs., LLC, 127 Wn. App. 433, 440, 442, 13 43620 -5 -II
111 P. 3d 889 ( 2005). Here, Coon is the sole manager of the Lakeside Casino, LLC, and thus, is
an employer.
2. WILLFUL WITHHOLDING
Relying on Ellerman, Coon argues that he cannot be liable for willful wage withholding
because only persons who have control over the payment of wages and who act pursuant to that
authority may be found liable under the wage claims statutes. Jumamil responds that Ellerman is
inapposite because its holding applies only to low -evel employees responsible for payroll. l
Jumamil further argues Coon willfully withheld her wages by failing to pay her wages after
Coon learned of the dealer support policy at the beginning of October 2010, when Jumamil sent
a presuit demand letter to the Casino. We agree with Jumamil.
Under the plain meaning of the wage statutes, an LLC manager is liable for improper
wage withholding only where he knowingly participated in the wrongful withholding. See RCW
49. 52. 050, . 070. The critical determination for liability under RCW 49. 52. 050( 2) and RCW
49. 52. 070, therefore, is whether the employer' s failure to pay wages was willful. " Willful"
means that the "` person knows what he is doing, intends to do .what he is doing, and is a free
agent. "' Schilling, 136 Wn.2d at 159 -60 ( quoting Brandt v. Impero, 1 Wn. App. 678, 681, 463 P. 2d 197 ( 1969)). " The nonpayment of wages is willful `when it is the result of a knowing and
intentional action. "' Schilling, 136 Wn.2d at 160 ( quoting Lillig v. Becton -Dickinson, 105
Wn.2d 653, 659, 717 P. 2d 1371 ( 1986)). Accordingly, the employer must have knowledge of
any wage withholding policies and fail to correct any improper wage withholding to be liable
under RCW 49. 52.070 for wage withholding.
14 43620 -5 - II
Where the " failure to pay wages owed was willful, the party responsible for the payment
of wages may be personally liable." Morgan, 166 Wn.2d at 536. In Morgan, Funsters Grand
Casino, Inc.' s two officers withheld wages from its employees for two pay periods while in
Chapter 11 bankruptcy. Morgan, 166 Wn.2d at 532. The court held the " legislature intended,
under RCW 49. 52.070, to impose personal liability on the officers in cases like this because the
officers control the financial decisions of the corporation." Morgan, 166 Wn.2d at 536. " In
other words, the officers control the choices over how the corporation' s money is used, and ( in
cases of unpaid wage claims) RCW 49. 52. 070 imposes personal liability when the officers
choose not to pay wages owed." Morgan, 166 Wn.2d at 537.
Generally, the issue of whether an employer acts willfully for purposes of RCW
49. 52. 070 is a question of fact. Schilling, 136 Wn.2d at 160. However, where there is no dispute
as to the material facts, we will resolve the case on summary judgment. Schilling, 136 Wn.2d at
160 ( citing CR 56( c)); see also State v. Clark, 129 Wn.2d 211, 225, 916 P. 2d 384 ( 1996) ( when
reasonable minds could reach but one conclusion from the evidence presented, questions of fact
be determined law); Reichelt Manville Johns - Corp., 107 Wn.2d 761, 770, may as a matter of v.
733 P. 2d 530 ( 1987) ( if no genuine issue of material fact is presented when the motion for
summary judgment is heard, the issue may be summarily resolved).
Here, Coon is listed as the sole manager of the Casino in the amendments to the Casino' s
operating agreement; he is also listed as the manager and highest ranking officer in the renewal
application for the Washington State Gambling Commission. Under the operating agreement,
Coon agreed to " oversee the Company' s business with the goal of making it profitable and
attractive for sale." CP at 364. Coon had the " sole authority to decide whether and when to sell
the Company, its assets and /or business." CP at 364. During his time as manager, Coon also 15 43620 -5 - II
made substantial cash infusions into the Casino. Coon learned about the dealer support policy at
the beginning of October 2010, but failed to pay Jumamil her previously withheld wages.
Given the operating agreement and Coon' s actions as the LLC' s manager, it is clear he,
like the officers in Morgan, had authority over the financial decisions of the Casino and the
payment of wages. Still, until he became aware of the dealer support policy he did not exercise
his authority to withhold Jumamil' s wages. But once Coon learned of the dealer support policy
in October 2010, he became a knowing participant. And his subsequent failure to compensate
Jumamil. for the wages already withheld was knowing and intentional, and thus willful under
RCW 49. 52. 070. Accordingly, Coon is liable for willfully withholding Jumamil' s wages and
summary judgment dismissing him from the case was improper.
Coon argues Ellerman applies and requires a finding that he cannot be liable for wage
withholding. Ellerman addressed whether Betty Handly was a vice principal under the wage
statutes and could be held liable for willfully withholding Michael Ellerman' s wages. 143
Wn.2d at 519. The court held that a " vice principal cannot be said to have willfully withheld
wages unless he or she exercised control over the direct payment of the funds and acted pursuant
to that authority." Ellerman, 143 Wn.2d at 521.. The court noted that holding vice principals
liable using the common law definition of "vice principal " 8 would be inconsistent with the plain
language of the wage statutes and " could result in substantial unfairness by imposing personal
liability on managers or supervisors who had no direct control over the payment of wages."
Ellerman, 143 Wn.2d at 522. Ellerman, however, does not affect our holding because it applies
8 Under the common law, " an employee is considered a vice principal of the. employer if he or she has the authority to direct and supervise the work of the other employee." Ellerman, 143 Wn.2d at 520. The ultimate test of whether an employee is a vice principal " is the power of superintendence and control." Ellerman, 143 Wn.2d at 521. 16 43620 -5 -II
only to vice principals and agents, and Coon is Jumamil' s employer. Once Coon learned about
the dealer support policy and failed to compensate Jumamil for her previously withheld wages,
he knowingly and intentionally participated in the wage withholding and is liable under RCW
49. 52. 070.
Jumamil has already received payment for her withheld wages from Newton, but we
reverse the grant of summary judgment dismissing Coon and remand for an entry of costs and
reasonable attorney fees against Coon as mandated by RCW 49. 52. 070.
C. WAGE REBATING CLAIM
Coon and West contend Jumamil failed to come forward with sufficient facts to create a
material issue of fact regarding whether they either collected or received a rebate of wages from
Jumamil. We disagree and hold there are sufficient facts, when viewed in the light most
favorable to Jumamil, that create a genuine issue of material fact regarding whether Coon and
West collected or received a rebate of Jumamil' s wages.
Under the wage statutes, any employer, officer, vice principal, or agent of the employer
shall be guilty of a misdemeanor if he or she collects or receives a rebate of any part of the
employee' s wages. RCW 49. 52. 050( 1). Any employer, officer, vice principal, or agent of any
employer who violates RCW 49. 52. 050( 1) shall be liable in a civil action for twice the amount of
the wages unlawfully rebated, together with legal costs and reasonable attorney fees. RCW
49. 52. 070. The fundamental purpose of the wage statutes " is to protect the wages of an
employee against any diminution or deduction therefrom by rebating ... of any part of such
wages." Carter, 18 Wn.2d at 621. The aim of the wage statutes is to ensure that the employee
realizes the full amount of his or her wages, and that the employer does not evade his or her
17 43620 -5 -II
obligation to pay wages by a device calculated to effect a rebate of part of them. Carter, 18
Wn.2d at 621.
1. REBATING OF WAGES
Coon and West contend the dealer support policy was voluntary and did not amount to a
rebating of Jumamil' s wages. Neither the wage statutes nor case law define " rebate" in the
context of the wage statutes. We note, however, that " rebate" is a familiar legal term, and when
a familiar legal term is undefined in a statute, the term " is given its familiar legal meaning."
Cashmere Valley Bank v. State Dep' t ofRevenue, 175 Wn. App. 403, 417, 305 P. 3d 1123 ( 2013)
quoting Rasor v. Retail Credit Co., 87 Wn.2d 516, 530, 554 P. 2d 1041 ( 1976)), review granted,
Wn.2d _, 316 P. 3d 494 ( 2014). A rebate, then, is "[ a] return of part of a payment, serving
as a discount or reduction." BLACK' s LAw DICTIONARY 1381 ( 9th ed. 2009).
Our Supreme Court in Carter also generally referred to a rebate as a return of any part of
the employee' s wages. 18 Wn.2d at 622 ( It is " unlawful for an elected public official to collect
or receive a rebate, or return, of any part of an employee' s wages. ") ( emphasis added). Carter
further held that the rebate need not be rebated or returned to the hand that actually paid out the
wages. 18 Wn.2d at 622 ( It does not matter if the rebate " goes into the coffers of the county or
into the pocket of the elected public official who has the authority to appoint and to remove the
employee. "). Additionally, where the return of wages is voluntary, it is not a rebate under the
wage statutes. Carter, 18 Wn.2d at 622 -23. In Carter, shortly after Carroll Carter took office as
county treasurer of King County, Earl Kline, the chief clerk of the treasurer' s office, called a
meeting of the employees in the county treasurer' s office to discuss the employees raising money
to pay off Carter' s $ 3, 500 political debt. Carter, 18 Wn.2d at 615 -17. The employees agreed to
raise the money through contributions based on relative proportions of their salaries, which Kline 18 43620 -5 -II
collected on Carter' s behalf. Carter, 18 Wn.2d at 617. Carter was not a part of the meeting, nor
was he aware of the employee' s intention to raise money to pay his political debt. Carter, 18
Wn.2d at 617. The court held the contributions were not a rebate of wages under the wage
statutes, and instead were to a voluntary contribution to paying off Carter' s debt:
Having once received his wages in full, the employee is at liberty to do what he will with his earnings, so long as he does not violate some positive rule of law governing his action. He may keep the money in his pocket, invest it, spend it, or give it away. . . . If an employee exercises his free choice in making a contribution, even though in response to a request, his act does not amount to a rebate of his wages.
Carter, 18 Wn.2d at 622 -23.
Here, although Jumamil received her earnings, she was not able to exercise her free
choice in deciding whether or not to use her wages to gamble, as the employees in Carter were
able to freely decide to contribute to paying off Carter' s political debt. Jumamil, Frydenlund,
and Carruthers explained the policy was involuntary in that they had to decide between gambling
with their own money during their own time or losing their seniority and hours of work. West
also cautioned dealers in his memorandum on the policy that employees would find themselves
on the bottom instantly if they fail one week to maintain a 6 hour average." CP at 243. There
are sufficient facts, when viewed in the light most favorable to Jumamil, that create a genuine
issue of material fact regarding whether Jumamil was required to rebate, or return, a portion of
her wages through gambling at the Casino under the dealer support policy.
Coon and West maintain that because the majority of Jumamil' s gambling money went to
the other Texas Hold' em players and only a very small percentage of her gambling losses would
have gone to the Casino in the form of the $ 3. 00 rake and $ 0. 20 jackpot administration fee the
Casino collected for each game, there was no rebating of her wages. The wage statutes,
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however, do not allow for the rebating of even a small percentage of an employee' s wages.
RCW 49. 52. 050( 1) ( " Any employer or officer, vice principal or agent of any employer" shall be
guilty of a misdemeanor if he or she "[ s] hall collect or receive from any employee a rebate of
any part of wages. ") ( emphasis added). Thus, Coon' s and West' s argument fails.
2. COLLECTING OR RECEIVING A REBATE OF WAGES
Coon and West next argue that Jumamil failed to present any evidence that they collected
or received a rebate of Jumamil' s wages. 9 Again, neither the wage statutes nor case law explain
what it means to " collect" or " receive" a rebate of wages in the context of the wage rebate
statutes. When interpreting a statute, we give effect to the statute' s plain meaning. Dep' t of
Ecology v. Campbell & Gwinn, LLC, 146 Wn. 2d 1, 9 - 10, 43 P. 3d 4 ( 2002). To determine the
plain meaning of an undefined term, we may look to the dictionary. Estate of Haselwood v.
Bremerton Ice Arena, Inc., 166 Wn.2d 489, 498, 210 P. 3d 308 ( 2009).
To be held civilly liable under RCW 49. 52. 070 for wage rebating, the employer, officer,
vice principal, or agent of the employer must have either collected or received a rebate of the
employee' s wages. " Collect" means " to receive, gather, or exact from a number of persons or
other sources." WEBSTER' S THIRD NEW INT' L DICTIONARY 444 ( 2002). " Receive" means " to
take possession or delivery of or " to come into possession of." WEBSTER' S THIRD NEW INT' L
DICTIONARY 1894 ( 2002). There does not have to be an actual physical collection or receipt of
wages to satisfy the wage statutes' mandate. It is enough "` where the employee gives up or
9 Relying on Ellerman, West also argues he must have " willfully exercised control over the non- payment of wages," to be held liable for collecting a rebate of Jumamil' s wages. Resp' t' s West' s) Br. at 39. Ellerman, however, applies only to willful wage withholding under RCW 49. 52. 050( 2) and not to wage rebating under RCW 49. 52. 050( 1). The wage rebating section of the statute does not contain the requirement that the rebating is willful and with intent to deprive, as the wage withholding section does. Thus, Ellerman does not apply to RCW 49. 52. 050( 1) and
West' s argument fails. 20 43620 -5 -II
cedes a portion of his contractual wage to or in favor of or at the instance of the employer or one
acting for or on behalf of the employer. "' Carter, 18 Wn.2d at 593 ( quoting United States v.
Laudani, 134 F. 2d 847, 849 ( 3d Cir. 1943)).
Jumamil contends West collected a rebate of her wages on the Casino' s behalf. Under
the wage statutes, West is an agent of his employer. See Ellerman, 143 Wn.2d at 522 ( quoting
BLACK' S LAw DICTIONARY 85 ( 4th ed. 195 1) ( An " agent" is a " person authorized by another to
act for him."')). The evidence demonstrates that West was involved in developing,
implementing, and enforcing the dealer support policy. West authored a memorandum
explaining the dealer .support policy and explaining to the dealers how it worked and the
consequences for not meeting the hour - six - per - week average of gambling. When Jumamil
approached West about being unable to complete her gambling hours under the dealer support
policy because she just had a baby, West told her that she was not the only one who just had a
baby and that she may not have a job if she did not gamble per the policy. The Casino also
designated West as its CR 30( b)( 6) corporate designee on the dealer support policy. Based on
this evidence, West arguably gathered or exacted Jumamil' s wages while acting for and on
behalf of the Casino. Thus, when the evidence and the reasonable inferences therefrom are
viewed in the light most favorable to Jumamil, there is a genuine issue of material fact regarding
whether West collected a rebate of any of Jumamil' s wages.
Jumamil contends that she " gambled away her wages ` in favor ofCoon" and thus Coon,
as her employer, received a rebate of her wages. Appellant' s Reply Br. at 18. Arguably, as
Jumamil' s employer, Coon came into possession of a rebate of Jumamil' s wages when she
gambled with them at the Casino because gambling required her to cede a portion of her wages
in the form of the $ 3. 00 rake and $ 0. 20 jackpot administration fee) to the Casino, which Coon,
21 43620 -5 -II
as the owner, benefited from. West noted the recent spike in the Casino' s business, which he
attributed to the dealer support policy. Coon has the sole authority to decide when to sell the
Casino and gets the first $5, 000,000. 00 from the sale. Additionally, Coon is the sole manager of
the Casino and has the sole authority " to oversee the Company' s business with the goal of
making it profitable and attractive for sale." CP at 364. He also infused substantial funds into
the Casino and shares profits from the Casino equally with Ms. Mudarri. When the evidence and
all reasonable inferences therefrom are viewed in the light most favorable to Jumamil, there is a
genuine issue of material fact whether Coon received a rebate of any of Jumamil' s wages.
V. ATTORNEY FEES
Jumamil requests attorney fees under RCW 49. 52. 070, RCW 49. 46. 090( 1), and RAP
18. 1. RCW 49. 52. 070 provides for an award of reasonable attorney fees and costs for employees
who prevail in a wage claim civil action. RCW 49. 46. 090( 1) provides for an award of
reasonable attorney fees and costs for employees who prevail in a violation of the Minimum
Wage Act civil action. Because Coon is liable under RCW 49. 52. 070 for willful wage
withholding, Jumamil is entitled to reasonable attorney fees for prevailing on that claim.
Jumamil, however, has not yet prevailed on her wage rebating claim against Coon and/ or West.
Jumamil' for attorney fees to wage If on Accordingly, we deny s request related rebating.
remand, however, the trial court determines Coon and /or West are liable for wage rebating, the 10 trial court may award reasonable attorney fees and costs under RCW 49. 52. 070.
i0 At oral argument, Jumamil' s attorney mentioned attorney fees in the amount of $ 125, 000. This number corresponds to the amount the trial court awarded Jumamil after the jury trial. It is
likely that some of the $ 125, 000 in attorney fees were accrued after the motions for summary judgment and, thus, are possibly not related to the wage- rebating claim. 22 43620 -5 -II
We hold Jumamil' s wage claims are not moot and are not barred by res judicata. We
hold a manager of an LLC is liable for improper wage withholding only where he knowingly
participated in the wrongful withholding. Because Coon continued to withhold Jumamil' s wages
after learning about the dealer support policy at the beginning of October 2010, he knowingly
and willfully withheld her wages in violation of RCW 49. 52. 070 and is liable to her for attorney
fees. Regarding Jumamil' s wage rebating claim, we hold there are material issues of fact
regarding whether Coon received and West collected a rebate of any of Jumamil' s wages.
Because the trial court already determined the dealer support policy required a rebate of
Jumamil' s wages, we remand only for further proceedings regarding whether Coon and West
received or collected a rebate of any of Jumamil' s wages.
We reverse and remand for further proceedings consistent with this opinion.
We concur:
Hunt, J.