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1

 The parties requested oral argument; however, the Court finds that this motion is

appropriate for resolution without oral argument in light of the extensive briefing and lengthy

ORDER REGARDING MOTION

FOR SUMMARY JUDGMENT - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

FRANCES CLAIRMONT, 

Plaintiff,

v.

GENUITY INC., et al.,

Defendants.

Case No. C02-1876L

ORDER REGARDING PAUL

O’BRIEN’S MOTION FOR 

SUMMARY JUDGMENT

FRANCES CLAIRMONT, 

Plaintiff,

v.

PAUL A. O’BRIEN,

Defendant.

I. INTRODUCTION

This matter comes before the Court on a motion for summary judgment filed by

individual defendant Paul O’Brien.1

 (Dkt. #127). Plaintiff Frances Clairmont is a former

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oral argument regarding the other individual defendants’ motions for summary judgment.

ORDER REGARDING MOTION

FOR SUMMARY JUDGMENT - 2

employee of the now bankrupt Genuity, Inc. Plaintiff alleges that O’Brien, the former Senior

Vice President of Sales of Genuity, wilfully denied commissions she earned during her

employment. O’Brien counters that she was paid all commissions owed, and any nonpayment

was the result of a bona fide dispute over whether the commissions were actually owed.

For the reasons set forth in this Order, the Court grants in part and denies in part

O’Brien’s motion for summary judgment.

II. DISCUSSION

A. Background Facts.

The relevant facts are set forth in detail in this Court’s March 24, 2005 Order Granting

Individual Defendants’ Motions for Summary Judgment, and will not be repeated here. (Dkt.

#125). Instead, the Court will briefly set forth O’Brien’s role in the relevant events, viewing the

facts in the light most favorable to plaintiff.

O’Brien served as Genuity’s Senior Vice President of Sales from January, 2001 until the

first week of April, 2002. O’Brien reviewed minutes from meetings of Genuity’s Sales

Compensation Committee (the “Committee”), and, according to plaintiff’s version of the facts,

he attended some meetings. In rare cases when the Committee could not resolve an issue, the

issue could be escalated to O’Brien for review. Declaration of Paul O’Brien (“O’Brien Decl.”)

at ¶ 14. O’Brien, for all practical purposes, ended his duties as Senior Vice President of Sales,

and became a “lame duck,” as of March 11, 2002. O’Brien Dep. at 59.

According to the Genuity 2001 Sales Incentive Plan (the “Plan”), billings value credit was

a component of the sales force’s incentive compensation. “Billings are defined as the net value

of all eligible invoices issued in a given period.” Declaration of Lawrence Locker (“Locker

Decl.”), Ex. 2 (the Plan) at p. 9. For example, a salesperson could earn billings credit simply

because one of his or her customers increased their usage of a Genuity product, even if that

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2

 According to Clairmont, a “true-up” is a way to compensate sales people for existing

orders that generate more revenue than expected. Clairmont Dep. at 182. 

ORDER REGARDING MOTION

FOR SUMMARY JUDGMENT - 3

salesperson did not bring in the customer or sell any products. O’Brien Dep. at 156. The

Committee sent an e-mail to the sales force on October 26, 2001, stating that effective October

1, 2001, the company was eliminating the billings component from the compensation structure

for certain positions. Locker Decl., Ex. 15. The e-mail stated that the change was not being

made to save the company money; instead, “it [was] being done to alleviate problems associated

with billing and focus on order value and renewals for [the fourth quarter of the year].” Id. The

e-mail further explained, “There will be no true ups2

 unless it is brought to the RVP and Sales

Comp Committee.” Id. O’Brien was one of the primary decision-makers in the decision to

eliminate billings value commissions and to make the change retroactive.

Clairmont voluntarily settled her claims against Genuity. She sued three individual

defendants in July 2002. In August 2002, she filed an amended complaint naming two

additional individual defendants. In October 2004, Clairmont filed a separate action against

O’Brien, which was subsequently consolidated with the case against the other five individual

defendants. On March 24, 2005, the Court granted the other five individual defendants’ motions

for summary judgment and dismissed plaintiff’s claims against them.

B. Summary Judgment Standard.

On a motion for summary judgment, the Court must “view the evidence in the light most

favorable to the nonmoving party and determine whether there are any genuine issues of material

fact . . . .” Holley v. Crank, 386 F.3d 1248, 1255 (9th Cir. 2004). All reasonable inferences

supported by the evidence are to be drawn in favor of the nonmoving party. See Villiarimo v.

Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002). “[I]f a rational trier of fact might

resolve the issues in favor of the nonmoving party, summary judgment must be denied.” T.W.

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3

 Clairmont has identified several inaccuracies in O’Brien’s testimony, and she argues

that the credibility issue precludes summary judgment. The Court, however, does not engage in

a credibility determination because in the context of a summary judgment motion the Court

construes the facts in the light most favorable to Clairmont.

ORDER REGARDING MOTION

FOR SUMMARY JUDGMENT - 4

Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987).3

C. Wage Withholding.

1. Legal Standards.

Clairmont alleges that O’Brien unlawfully withheld wages from her in violation of

Washington law. The relevant statute, RCW 49.52.070, provides:

Any employer and any officer, vice principal or agent of any employer who shall

violate any of the provisions of subdivisions (1) and (2) of RCW 49.52.050 shall

be liable in a civil action by the aggrieved employee or his assignee to judgment

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 . . .

Section 1 of RCW 49.52.050 provides for liability against employers who “rebate” employees’

wages; that section plainly does not apply here. Section 2 provides for liability against any

“employer or officer, vice principal or agent of any employer,” who

Wilfully 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; . . .

RCW 49.52.050; see also Pope v. Univ. of Washington, 121 Wn.2d 479, 491 n.4 (1994)

(rejecting argument that the statute “establishes liability without fault”). Accordingly,

pursuant to the plain language of the relevant statutes, O’Brien can be held individually

liable only upon a showing of willfulness.

An employer does not “willfully” withhold wages if a bona fide dispute exists as to

the obligation of payment. See, e.g., Lillig v. Becton-Dickinson, 105 Wn.2d 653, 659

(1986). “The nonpayment of wages is willful when it is the result of a knowing and

intentional action and not the result of a bona fide dispute.” Id. (citing Ebling v. Gove’s

Cove, Inc., 34 Wn. App. 495 (1983)). A bona fide dispute exists when it is “fairly

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ORDER REGARDING MOTION

FOR SUMMARY JUDGMENT - 5

debatable” whether a portion of the wages must be paid. See Allstot v. Edwards, 114 Wn.

App. 625, 634 (2002). “Lack of intent may be established either by a finding of carelessness

or by the existence of a bona fide dispute. . . . Affirmative evidence of intent to deprive an

employee of wages, however, is necessary to establish liability under RCW 49.52.050.” 

Pope, 121 Wn.2d at 491 n.4. The issue of whether individuals have willfully withheld wages

is typically an issue of fact. However, in some circumstances, the issue can be resolved at

summary judgment. See, e.g., Brinson v. Linda Rose Jt. Venture, 53 F.3d 1044, 1050 (1995)

(affirming grant of summary judgment when plaintiff provided only “conclusory” statements

regarding wilfulness).

2. Commissions Issues.

As an initial matter, it is undisputed that O’Brien, as Senior Vice President of Sales,

had the requisite authority over the payment of wages to be held individually liable. See

Ellerman v. Centerpoint Press, 143 Wn.2d 514, 523 (2001). That authority, however, existed

only during his tenure in the position. Clairmont’s claim for wrongful withholding is based

on the same commissions issues underlying her claims against the other individual

defendants. Some of those issues, however, arose only after O’Brien stepped down from his

position and left the company; he cannot, therefore, be responsible for them. The Court

therefore considers only the commissions issues that arose during O’Brien’s tenure as the

Senior Vice President of Sales. 

With the exception of Clairmont’s claim to billings value credit, she has presented no

evidence that O’Brien ever made a decision regarding her disputed commissions. Instead,

Clairmont argues that he should be held individually liable for two primary reasons. First,

Clairmont argues that O’Brien promised her supervisor, Mary Crebassa, that if they closed

the Microsoft WebTV Dial deal, they would be given the appropriate commission. Even if

O’Brien made that statement, he did not wilfully withhold Clairmont’s wages because the

two-year agreement was never executed. Instead, the parties ultimately executed a month-toCase 2:02-cv-01876-RSL Document 153 Filed 06/20/05 Page 5 of 9
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4

 O’Brien argues that he did not act alone in making the change. Whether or not others

were involved in the decision is irrelevant for purposes of this motion.

ORDER REGARDING MOTION

FOR SUMMARY JUDGMENT - 6

month contract, which Genuity terminated in February 2002. Crebassa informed Clairmont

right away that because of the nature of the final contract and the product, they would not

receive a commission on the Microsoft deal. Crebassa Dep. at 123 (stating that she informed

Clairmont that they would not “get credit” for the Microsoft deal); Declaration of Shannon

McMinimee (“McMinimee Decl.”), Ex. F (Crebassa explaining that they had commission

questions because “there was no written commission plan for the Dial product”). 

Second, Clairmont argues that O’Brien wilfully withheld her wages because he was aware of

her claims by virtue of his position, and had the authority to resolve them. These facts,

however, fall far short of establishing that O’Brien intended to deprive her of wages. 

Instead, the Committee, not O’Brien had primary responsibility to consider the issues, but

never reached a decision regarding the disputed commissions.

The lack of a decision from the Committee, however, is not dispositive of all

Clairmont’s claims against O’Brien. O’Brien participated in the decision to eliminate

billings value credit and to make the change retroactive, as a practical matter, to the

beginning of 2001.4

 Clairmont argues that the change had the effect of depriving her of

billings value credit for the WebTV Dial deal for August, September, and October 2001. 

Although O’Brien argues that Clairmont was not entitled to the disputed billings value credit

because the deal never posted to the Arbor Billings database, Clairmont has raised a genuine

issue of fact regarding that issue. 

Genuity undisputedly retained the discretion to modify its compensation plan at any

time. However, in making the change retroactive to the beginning of the year, after

employees had performed the work, the company arguably deprived its employees of

compensation already earned. Compare Lillig, 105 Wn.2d at 600 (finding lack of intent

where amount of bonus due under compensation plan was subject to some discretion), with

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ORDER REGARDING MOTION

FOR SUMMARY JUDGMENT - 7

Ebling, 34 Wn. App. at 500 (affirming finding of wilfulness where employer lowered

employee’s commission rate then applied the lower commission rate to transactions that were

executed before, but closed after, the change). The fact that an employee could appeal the

issue to the Regional Vice President and the Committee does not preclude a finding of intent. 

In essence, the policy change shifted the burden to employees to convince the Committee

that they were entitled to payments they had arguably already earned in the first three

quarters of the year. O’Brien informed employees that in general, the company was “not

going to have a wholesale true-up of [the Plan]. . . . My general feeling was we were not

going to open the flood gates here to have true-ups going on. . . . To the best of my

knowledge that was my story and I was sticking to it.” O’Brien Dep. at 114. Clairmont

appealed, but the issue was not resolved in her favor. The issue of whether O’Brien intended

for the change to result in the deprivation of earned wages is an issue of fact to be resolved at

trial. At the least, he acted intentionally in changing the policy, and the resulting wage

deprivation was foreseeable. 

In sum, issues of fact remain regarding whether Clairmont received the appropriate

amount of billings value credit on the WebTV Dial deal for August, September, and October

2001, and whether O’Brien acted wilfully to deprive her of wages earned. 

D. Document Destruction.

Clairmont argues that an inference of wilfulness is created because she requested but

never received copies of the Committee’s meeting minutes. Although Clairmont admits that

O’Brien “does not appear to be at fault for the loss of those documents,” she argues that an

inference against him is nonetheless appropriate because “his interests are closely aligned

with those of his former employer and colleagues.” Plaintiff’s Opposition at 13. The mere

fact that defendants’ interests are aligned is insufficient to support an inference of wilfulness

against O’Brien.

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ORDER REGARDING MOTION

FOR SUMMARY JUDGMENT - 8

E. Rule 56(f) Continuance.

Although Clairmont deposed O’Brien as a non-party witness earlier in this litigation,

she requests a continuance to depose him now that she has named him as a defendant. To

obtain a Fed. R. Civ. P. 56(f) continuance, plaintiffs must make “‘(a) a timely application

which (b) specifically identifies (c) relevant information, (d) where there is some basis for

believing that the information sought actually exists.’” See Employers Teamsters Local Nos.

175 & 505 Pension Trust Fund v. Clorox Co., 353 F.3d 1125, 1129 (9th Cir. 2004) (internal

quotation and citation omitted). The burden is on the party seeking additional discovery to

proffer sufficient facts to show that the evidence sought exists, and that it would prevent

summary judgment. Id. at 1129-1130.

In granting Clairmont’s motion to consolidate the case against O’Brien with the one

against the other defendants, the Court noted that Clairmont knew about Mr. O’Brien’s

relevance to this litigation since she filed her case in July 2002, yet she waited until October

2004 to bring an action against him. The Court found that plaintiff’s delay in suing Mr.

O’Brien was egregious. Clairmont’s current attempt to take advantage of her delay by

arguing that discovery in the case against O’Brien is still in its early stages must fail. 

Moreover, Clairmont has already deposed O’Brien, she has not identified additional facts she

hopes to gain that would preclude summary judgment, and she cancelled his second

deposition, which was scheduled for May 17, 2005. In light of these facts, plaintiffs’ request

for additional time to conduct discovery is denied. See, e.g., Employers Teamsters Local

Nos. 175 & 505 Pension Trust Fund v. Clorox Co., 353 F.3d at 1129-30 (“The district court

does not abuse its discretion by denying further discovery if the movant has failed diligently

to pursue discovery in the past, or if the movant fails to show how the information sought

would preclude summary judgment”).

III. CONCLUSION

For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART

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ORDER REGARDING MOTION

FOR SUMMARY JUDGMENT - 9

defendant Paul O’Brien’s motion for summary judgment (Dkt. #127). Clairmont may pursue

her claim that O’Brien wilfully denied her billings value commissions for the Microsoft 

WebTV Dial deal for August, September, and October 2001; the remainder of her claims are

dismissed.

DATED this 20th day of June, 2005.

A

Robert S. Lasnik

United States District Judge

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