Corrie Wiedmann vs. The Bradford Group, Inc., & others
Case Details
- Citation
- 444 Mass. 698
- Procedural Posture — the stage the case had reached
- appeal
- State
- Massachusetts
- Circuit
- 1st Circuit
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
Plaintiff employee prevailed on wage claim under Massachusetts weekly wage law, obtaining summary judgment for unpaid commissions and attorney's fees, with spoliation sanctions imposed against defendants. However, appellate court vacated treble damages award and judgment against one individual defendant due to insufficient evidence of employer status.
Excerpt
Corrie Wiedmann vs. The Bradford Group, Inc., & others. Middlesex. April 4, 2005. July 21, 2005. Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Labor, Wages, Failure to pay wages. Contract, Employment. Practice, Civil, Preservation of evidence, Summary judgment, Damages, Attorney’s fees, Answer, Amendment. Damages, Breach of contract, Attorney’s fees. Statute, Construction. Discussion of the weekly wage law, G. L. c. 149, §§ 148-159C. [703-704] Discussion of the statutory duty of employers to keep certain employee records for two years. [704] In a civil action that the plaintiff former employee brought against the defendants (the company that formerly employed the plaintiff and three individuals) for payment of commissions that the plaintiff claimed the defendants owed her, the judge hearing a motion for sanctions for spoliation of evidence did not abuse her discretion in ruling that the defendants, who had not retained the plaintiffs employment records, could not, without documentary support, challenge the plaintiffs calculations as to her commissions or assert that the plaintiff was overpaid, where the defendants were on notice of the plaintiffs claim prior to the destruction of the records; where the destruction of the records unfairly prejudiced the plaintiff, both in proving her case and in refuting the defendants’ claims that she was overpaid, and put an unfair burden on her to show what the documents would have shown if they were produced; and where the defendants had a statutory duty to maintain employee records relevant to the payment of wages [704-707]; moreover, the judge properly granted summary judgment in favor of the plaintiff, where, without testimony concerning the defendants’ challenges to the plaintiffs calculations, all that was before the judge were mere assertions by the defendants concerning the terms of the plaintiffs oral employment contract [707-708]. In a civil action for payment of commissions allegedly owed to the plaintiff, the former employee of the defendants, the judge granting summary judgment in favor of the plaintiff correctly determined that the weekly wage law, G. L. c. 149, §§ 148-159C, applied, where there was no dispute concerning the total from which deductions would be taken or about the applicable formulas and deductions other than whether a deduction for group payroll should always be taken, and thus, the amount owed the plaintiff was arithmetically determinable. [708-709] In a civil action for payment of commissions allegedly owed to the plaintiff, the former employee of the defendants, the judge granting summary judgment in favor of the plaintiff erred in ruling that G. L. c. 149, § 150, the weekly wage act, required her to award treble damages to the plaintiff; therefore, this court vacated the award and remanded for reconsideration whether treble damages were warranted. [709-710] The judge in a civil action for payments of commissions allegedly owed to the plaintiff erred in holding one individual defendant liable as an employer under the weekly wage act, G. L. c. 149, § 148, where the individual defendant had a management role, but where there was insufficient evidence as a matter of law that the individual defendant directed and participated to a substantial degree in formulating the corporation’s policy. [710-712] In a civil action, the judge did not abuse her discretion in denying the defendants’ motion to amend their answer to add counterclaims, where the motion was filed over a year after the deadline for motions pursuant to Mass. R. Civ. R 15, after the conclusion of discovery, and only a few days before the matter was scheduled to be disposed; and where the judge rejected the reason given for the failure to add counterclaims, secretarial inadvertence, given that the defendants had filed two answers with the same omission prior to making the motion. [712-713] Civil action commenced in the Superior Court Department on September 14, 2001. Motions to amend the answer and for sanctions for spoliation of evidence were heard by Janet L. Sanders, J.; the case was heard by Leila R. Kern, J., on a motion for summary judgment; entry of separate and final judgment was ordered by Julian T. Houston, J., and a motion for attorney’s fees was heard by him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Danielle E. deBenedictis for the defendants. Kevin S. Sullivan for the plaintiff. Thomas F. Reilly, Attorney General, & Karla E. Zarbo, Assistant Attorney General, for the Commonwealth, amicus curiae, submitted a brief. Doing business as BBA Technical Services. T. Earl Harvey, also known as Thomas E. Harvey; Michael J. O’Mara; and Bruce Higginbotham. Ireland, J. This case involves a dispute concerning the formula that was to be used to calculate Come Wiedmann’s (plaintiff’s) commissioned wages pursuant to the terms of an oral employment contract. The dispute led to the plaintiff’s commencing an action in September, 2001, asserting claims under the common law and G. L. c. 149, § 148, the weekly payment of wages law (weekly wage law). In the course of the lawsuit, the plaintiff discovered that the defendants did not retain her employment records. On February 5, 2003, she filed a motion for sanctions based on the defendants’ spoliation of evidence relevant to proving the terms of the oral contract. A Superior Court judge granted the plaintiffs motion and ordered that, absent documentary support, the defendants could not challenge the plaintiffs calculations of her earned commissions or assert that the plaintiff was overpaid. The judge invited the plaintiff to file a motion for summary judgment, which she did. A second judge allowed the motion for summary judgment, held the three individual defendants fiable pursuant to G. L. c. 149, § 148, and granted the plaintiff treble damages, as well as attorney’s fees and costs. In granting the plaintiff treble damages, the judge stated that she was required to do so by the statute. G. L. c. 149, § 150. The defendants appealed, asserting that it was error to (1) grant the motion for sanctions for spoliation without which summary judgment would not have been granted; (2) grant the motion for treble damages and attorney’s fees; (3) enter judgment against Bruce Higginbotham; and (4) deny the defendants’ motion to amend their answer to assert counterclaims against the plaintiff. We transferred this case from the Appeals Court on our own motidn. We affirm the allowance of the plaintiff’s motions for sanctions for spoliation, summary judgment, and for attorney’s fees and costs, and affirm the denial of the defendants’ motion to amend their answer. Because we conclude that the statute does not mandate the entering of treble damages for the plaintiff, we vacate the award of treble damages and remand the case to the Superior Court for reconsideration of the issue. We further conclude that there is insufficient evidence to support a finding that Bruce Higginbotham was an employer under G. L. c. 149, § 148. Accordingly, we vacate the judgment against him. Facts and procedural background. We set out the essential facts, which are not disputed, leaving certain details for our discussion of the issues. The plaintiff worked for the defendants from February, 1999, until September 22, 2000, when she voluntarily left. Thomas Earl Harvey was the president, treasurer, clerk, and owner of The Bradford Group, Inc.; Michael J. O’Mara was the office manager and ran the company; Bruce Higginbotham was a group leader and general manager of the company. In April, 2000, the plaintiff was given a commission-only position as a recruiter in a group under Higginbotham. Commission statements from May through September, 2000, reveal that the plaintiff drew money against her commission payments. The terms of the plaintiff’s employment contract were oral, and the commission structure was set by O’Mara. We need not set out the specific details of how the plaintiff’s commissions were calculated, because the only dispute about their calculation is whether group payroll always had to be deducted before the plaintiff’s commissions were determined. The plaintiff claims that the only time that group payroll was to be deducted was if a monthly goal was not reached. In a deposition, she stated that this was a moot point because the monthly goal was always met. Consistent with the plaintiff’s position, monthly commission statements showing the calculations of her commissions for May through August, 2000, do not reflect any group payroll deductions. On October 4, 2000, after the plaintiff had left her job and inquired about commissions owed her, she had a meeting with O’Mara and Higginbotham. In that meeting, O’Mara told her that there had been an error in the calculation of her commission payments for September — group payroll had not been deducted. O’Mara said that he reworked the figures in order to correct them. Accordingly, the September commission statement, unlike previous commission statements, shows a deducfor group payroll and a balance owed to the plaintiff of approximately $1,000, for which she was given a check. O’Mara told the plaintiff that no other commissions would be forthcoming. In the course of the lawsuit, the defendants recalculated the plaintiff’s earlier commissions statements, and claim that the plaintiff was overpaid a total of $8,486.19. On November 10, 2000, through counsel, the plaintiff sent a letter demanding full payment of commissions she claimed she was owed. In the letter, she also requested copies of all of her records, including employment records, commission schedules, and records of fees received. Although O’Mara testified in a deposition and an affidavit that the defendants responded to the letter through counsel, the plaintiff testified that she never received a response from the defendants. The record does not contain a copy of any response to the plaintiffs letter. As required, the plaintiff contacted the Attorney General’s office and was given permission to pursue the case as a civil matter. G. L. c. 149, §§ 148, 150. On September 14, 2001, the plaintiff, with new counsel, commenced this action. Her accompanying motion for an ex parte trustee attachment in the amount of $50,000 was granted. During the course of discovery, the defendants were unable to provide the plaintiff’s employment records to her, which led to the plaintiff’s filing a motion for sanctions for spoliation. The records were kept electronically, but paper copies of commission statements and the reports used to determine commissions were also made. These paper records were lost or destroyed after the defendants were on notice that the plaintiff had a potential claim against them. Moreover, the electronic copies were unretrievable because the computer software that was used to read the documents was corrupted and the company that created the software was out of business. The defendants stated that they did not believe that the plaintiff would take any further action against them because she did not contact them after her attorney sent them the letter demanding payment and records. The defendants vacated their Boston office in December, 2001. As discussed, the defendants appealed from the decisions granting the plaintiff’s motions for sanctions for spoliation, summary judgment, treble damages, and attorney’s fees against all defendants, as well as from denial of their motion to amend their answer to add counterclaims. Discussion. 1. G.L. c. 149, §§ 148-159C. One purpose of the weekly wage law is to ensure that employees receive prompt payment of wages. American Mut. Liab. Ins. Co. v. Commissioner of Labor & Indus., 340 Mass. 144, 147 (1959). See Boston Police Patrolmen’s Ass’n v. Boston, 435 Mass. 718, 720 (2002) (clear purpose of weekly wage law is to prevent unreasonable detention of wages). General Laws c. 149, § 150, limits the defenses available to an employer for nonpayment of wages and permits a private right of action. General Laws c. 149, § 148, applies, “so far as apt, to the payment of commissions when the amount of such commissions, less allowable or authorized deductions, has been definitely determined and has become due and payable to such employee.” See Commonwealth v. Savage, 31 Mass. App. Ct. 714, 716 (1991). Relevant cases have addressed whether a plaintiffs commission structure allowed him or her to bring an action under the weekly wage law. See, e.g., id. at 716-718 (holding that weekly wage law did not apply to real estate broker whose commissions were episodic, and where broker functioned, and filed taxes, as independent contractor); Cum-pata v. Blue Cross Blue Shield of Mass., Inc., 113 F. Supp. 2d 164, 168 (D. Mass. 2000) (holding that weekly wage law did not apply to commissions earned beyond base salary under separate contract). Although the Savage court inferred from the title of the weekly wage law that it applied to commissions that were paid on a weekly basis, nothing in the weekly wage law itself requires the weekly payment of wages. Id. at 716. Rather, it sets out different payment deadlines for different types of employees. G. L. c. 149, § 148. The paragraph of § 148 that is relevant to commissions states that it applies “so far as apt” to commissions that are definitely determined and have become due and payable. The parties do not dispute the applicability of this particular provision of the weekly wage law. See generally Barthel v. One Community, Inc., 233 F. Supp. 2d 125, 126-127 (D. Mass. 2002) (rejecting defendants’ argument that weekly wage law applied only to weekly payment of commissions for purposes of motion to dismiss). However, as we discuss, infra, the defendants argue that the sum owed the plaintiff was not “definitely determined” and, therefore, the weekly wage law does not apply. 2. Employers’ statutory duties. Employers are required to keep, for two years, records concerning their employees’ working hours and payment of wages, and the Attorney General is entitled to access to these records. G. L. c. 151, § 15. The Attorney General has the authority to demand access to any documents that bear on a question of wages. G. L. c. 151, § 3. Moreover, any employer who fails to keep the requisite records is subject to a civil citation or order pursuant to the weekly wage law. G. L. c. 151, § 19. These requirements create a presumption that the records are relevant to disputes over wages brought either by the Attorney General or by private parties. See G. L. c. 149, §§ 27C, 148, 150. These duties apply to the defendants. 3. Issues, a. Spoliation. The defendants argue that it was error to grant the motion for sanctions for spoliation, without which summary judgment would not have been granted. As discussed, the sanction imposed was that the defendants were precluded from challenging the plaintiff’s calculations or asserting that the plaintiff was overpaid unless they produced supporting documentation. Because they could not provide that documentary support, the order had the effect of precluding the oral testimony of witnesses to contest these issues. The defendants argue that because the agreement concerning the calculation of the plaintiff’s commissions was oral, it does not matter whether the plaintiff’s employment records are available, because the documents would have no bearing on the issue in the case. Indeed, they concede that the documents would support only the plaintiff’s case, because the defendants did not apply the contested deductions to the plaintiff’s commissions until the alleged error was discovered by O’Mara after the plaintiff left the defendants’ employ. They argue further that the documents were lost or destroyed pursuant to the closing of the defendants’ Boston office and the “breakdown” of the defendants’ computer, and thus, the sanction was too severe. They also argue that, in any event, oral testimony would be the only way to determine the facts in this case. “The destruction of relevant evidence . . . has a pernicious effect on the truth-finding function of our courts.” Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 553 (2002). The doctrine of spoliation allows a court to impose sanctions and remedies for the destruction of evidence in civil litigation, “based on the premise that a party who has negligently or intentionally lost or destroyed evidence known to be relevant for an upcoming legal proceeding should be held accountable for any unfair prejudice that results.” Keene v. Brigham & Women’s Hosp., Inc., 439 Mass. 223, 234 (2003) (default appropriate against hospital that lost records critical to plaintiffs case). See Kippenhan v. Chaulk Servs., Inc., 428 Mass. 124, 127 (1998) (spoliation sanction appropriate where reasonable person would realize that evidence might be relevant to possible action). “In the spoliation context... a judge has broad discre-tian to impose a variety of sanctions against the defendant for the breach of [a] statutory duty . . . .” Keene v. Brigham & Women’s Hosp., Inc., supra at 235. “[Ejxclusion of evidence both sanctions the party responsible for destroying certain evidence and remedies the unfairness that such spoliation created.” Gath v. M/A-Com, Inc., 440 Mass. 482, 488 (2003). See Kippenhan v. Chaulk Servs., Inc., supra at 128 (exclusion of evidence as sanction for spoliation is “minority position”; most jurisdictions only allow trier of fact to draw unfavorable inference from spoliation of evidence). However, the sanction should be narrowly “addressed to the precise unfairness that would otherwise result.” Keene v. Brigham & Women’s Hosp., Inc., supra at 235, quoting Fletcher v. Dorchester Mut. Ins. Co., supra at 550. In this case, the judge did not abuse her discretion by ruling that the defendants, without documentary support, could not challenge the plaintiff’s calculations or assert that the plaintiff was overpaid. See Gath v. M/A-Com, Inc., supra at 491 (spoliation sanction reviewed under abuse of discretion standard). The judge found that the defendants were on notice of the plaintiffs claim when they received the letter from the plaintiff’s attorney in 2000, “within weeks” of the plaintiff’s leaving the defendants’ employ. That letter not only notified them of a potential claim for commissions, but also requested employment records, which still existed at the time the letter was sent. The judge found that the defendants nevertheless destroyed the documents, offering as their only excuse that they did not think the plaintiff would be filing a claim against them. Despite the defendants’ assertion that the lost records, in any event, did not contain any relevant information, there is support in the record for the judge’s finding that the records contained “commission statements and worksheets used to calculate commissions.” See Keene v. Brigham & Women’s Hosp., Inc., supra at 237 (absent evidence to contrary, judge entitled to make adverse inference that missing records would aid plaintiffs case). The judge was correct in holding that the destruction of the documents unfairly prejudiced the plaintiff, both in proving her case and in refuting the defendants’ claims that she was overpaid. In addition, the destruction of the documents put an unfair burden on the plaintiff to show what the documents would have shown if they were produced. Moreover, the defendants had a statutory duty to maintain records relevant to payment of wages. In these circumstances, there was no abuse of discretion. See Keene v. Brigham & Women’s Hosp., Inc., supra at 237 (concluding default against hospital that lost records critical to plaintiff’s case appropriate). b. Summary judgment. We need not belabor a discussion of the appropriateness of summary judgment. The defendants’ only argument is that it was not appropriate for the court to sanction them for spoliation, which we have addressed. The record does not cont
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