# Hemmings v. Tidyman's Inc.

> Court of Appeals for the Ninth Circuit · April 11, 2002 · 285 F.3d 1174

URL: https://www.frixlaw.com/law-library/cases/7010163

## Case

- **Full name:** Connie HEMMINGS and Patty Lamphiear v. TIDYMAN'S INC., a Washington Corporation, Defendant-Appellant Connie Hemmings and Patty Lamphiear v. Tidyman's Inc., a Washington Corporation
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** April 11, 2002
- **Citations:** 285 F.3d 1174; 2002 WL 537689
- **Precedential status:** Published
- **Opinion:** Dissent by Pregerson
- **Judges:** Gould, Pregerson, Thomas
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7010163

## How later opinions describe it (automated extraction)

- recognizing that waiver of appeal bars underlying challenges to conviction and sentence if waiver is knowingly and voluntarily made
- recognizing enforceability of knowing and voluntary waiver of appeal rights

## Opinion text

PREGERSON, Circuit Judge,
dissenting specially in part:
Because I believe that the district court correctly construed Washington state law to permit double damages in a discrimination suit where an employer willfully withholds wages, I respectfully dissent from Part IX.
I.
Double Damages are Recoverable Under State Law
In addition to violations of state and federal anti-discrimination laws, Plaintiffs alleged that Tidyman’s violated a Washington statute prohibiting employers from willfully depriving employees of any wages due under statute, ordinance, or contract obligations. See RCW § 49.52.050. 1 Unlike the anti-discrimination claims, violation of the willful deprivation of wages statute requires the employer to pay the employee twice the amount of wages withheld (“double damages”). See RCW § 49.52.070. 2 Before the jury rendered its verdict, Tidyman’s filed a motion seeking to strike the double damages claim by arguing that as a matter of law Washington’s willful deprivation of wages statute is *1205 unavailable in discrimination cases. The district court ruled against Tidyman’s, and the jury found that “Tidyman’s willfully and with intent” deprived Lamphiear of part of her past wages because of her gender by paying Lamphiear less than she was entitled to receive.
The majority disagrees with the district court and concludes that: (1) the statutory scheme, RCW § 49.52.050 (the willful deprivation of wages statute) and RCW § 49.52.070 (the double damages provision) does not authorize a doubling of past lost wages for a discrimination victim; and (2) even if the statutory scheme applied, the doubling statute is inappropriate because a “bona fide dispute” existed over whether past wages were due, which is a recognized defense to the doubling statute. I disagree with both of these contentions.
The majority opinion concludes that the double damages provision is not available in cases, like this one, in which the employer failed to pay an equal wage in violation of anti-discrimination laws. Rather, the majority asserts that the double damages provision should only apply in cases where the employer failed to pay an accrued wage that he was obligated to pay. The majority contends that the term “obligated” in § 49.52.050 precludes the application of the double damages provision in this case because Tidyman’s had no “obligation” to pay the plaintiffs. The majority argues that the wages owed to the plaintiffs “did not stem from a ‘statute, ordinance, or contract’; rather, it resulted from a retrospective jury verdict.”
This conclusion ignores the plain terms of Washington state law. Washington law obligates employers to pay equal wages and compensate workers whose wages have been paid in a discriminatory manner. Section 49.12.175 of the RCW, which prohibits wage discrimination based on gender, provides that a female employee is “entitled to recover in a civil action the full amount of compensation that she would have received had she not been discriminated against.” Thus, RCW § 49.12.175, read in conjunction with RCW § 49.52.050 and RCW § 49.52.070, establishes the right to double damages for wages withheld from Lamphiear on account of her gender.
Applying the state’s double damages statute in cases like Lamphiear’s, where wages are withheld because of employment discrimination, is consistent with the Supreme Court of Washington’s interpretation of § 49.52.050, the state’s willful deprivation of wages statute. In interpreting § 49.52.050, the Supreme Court of Washington held that the “statute must be liberally construed to advance the Legislature’s intent to protect employee wages and assure payment.” Schilling, 961 P.2d at 375 (emphasis supplied). Indeed, the Supreme Court of Washington has held that the “critical determination” in a double damages case under this section is “whether the employer’s failure to pay wages was “willful.’ ” Schilling, 961 P.2d at 375. Because the failure to pay employees on an equal basis is clearly willful, double damages are appropriate in this case.
The case for applying § 49.52.070 to discrimination cases is further strengthened by Washington’s anti-discrimination law. RCW § 49.60.020 provides that “the provisions of this chapter shall be construed liberally for the accomplishment of the purposes thereof.” Contrary to the defendant’s argument, nothing in either the Washington statutes or case law describes RCW § 49.60, the anti-discrimination statute, as an exclusive remedy. The failure to pay equal wages in violation of state and federal anti-discrimination laws may, therefore, fall within the type of conduct prohibited by RCW § 49.52.050.
The majority concludes in the alternative that, regardless of the reach of *1206 §§ 49.52.050 and 49.52.070, their application is inappropriate in this instance because Tidyman’s qualifies for the “bona fide” dispute exception. This exception bars double damages in cases in which there is a bona fide dispute as to whether the employer is obligated to pay the amounts in question. See Chelan County Deputy Sheriffs’ Ass’n, 745 P.2d at 11. While this is an accurate statement of the law in Washington, it is not appropriately applied in this instance. First, an employer’s obligation to pay equal and comparable compensation among its male and female employees cannot be subject to a bona ñde dispute. Second, in Chelan County, the Supreme Court of Washington held that the question whether the employer’s actions were a “willful violation” or instead a response to a “bona fide dispute” is a factual question, appropriate for the jury. Id. at 11. See also Pope v. Univ. of Washington, 121 Wash.2d 479 , 852 P.2d 1055, 1062 (1994). In the instant case, the jury found that Tidyman’s’ failure to pay the full wages due was the “result of knowing and intentional action of the employer.” See e.g., Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir.1995). The jury’s verdict thus forecloses Tidy-man’s’ argument that its failure to pay adequate wages to Lamphiear was the result of a bona fide dispute.
Because applying double damages in this case is consistent with the remedial purposes of the Washington law and because there is no bona fide dispute as to Tidyman’s’ obligation to pay equal wages, I would affirm the district court’s decision denying Tidyman’s’ motion to disallow double damages.
. Section 49.52.050 provides that "any employer ... who ... (2) willfully and with intent to deprive the employee of any part of his wages, shall pay any employee a lower wage than the wage such employer is obligated to pay such employee by any statute, ordinance, or contract” is guilty of a misdemean- or.
. Section 49.52.070 requires any employer in violation of § 49.52 ,050(l)-(2) to pay the employee “twice the amount of the wages unlawfully rebated or withheld by way of exemplary damages.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7010163. Public record. Not legal advice.