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                                                                                               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,



                                                                   19
43620 -5 - II




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.




                                                23
