Longariello v. Windham Southwest Supervisory Union (95-275); 165 Vt 573;
679 A.2d 337
[Opinion Filed 31-May-1996]
ENTRY ORDER
SUPREME COURT DOCKET NO. 95-275
MARCH TERM, 1996
Steve J. Longariello } APPEALED FROM:
}
}
v. } Windham Superior Court
}
Windham Southwest Supervisory Union }
} DOCKET NO. 262-6-94Wmcv
In the above-entitled cause, the Clerk will enter:
Plaintiff Steve Longariello sued his former employer, Windham
Southwest Supervisory Union, alleging that the method by which he was paid
violated 21 V.S.A. § 342 and resulted in the loss of unemployment
compensation benefits, which were compensable by 21 V.S.A. § 347. In
response to defendant's motion to dismiss, the superior court held that the
claim was barred by res judicata because the issues had been adjudicated
and resolved adversely to plaintiff in his unemployment compensation
appeal, which was affirmed by this Court. See Longariello v. Department of
Employment and Training, No. 92-642 (Vt. July 30, 1993) (unpublished);
Longariello v. Department of Employment and Training, No. 94-017 (Vt. June
24, 1994) (unpublished). We reverse and remand.
Plaintiff worked as an integration specialist for defendant school
district from February 3, 1992 to June 20, 1992.(FN1) For work during this
period, plaintiff earned $12,262 and was offered two payment plans: (1) to
receive his salary over the period from February 3 to the end of August; or
(2) to receive his salary as in (1) for the months of February through May
and then to receive in June as a lump sum the amounts that would have been
paid in June, July and August. Plaintiff chose the latter option and, as a
result, received 47% of his total salary in June. On the completion of his
employment, plaintiff applied for unemployment compensation and was found
ineligible because of the method by which he was paid.(FN2) This denial was
upheld by the Employment Security Board, and eventually, by this Court.
It is undisputed that plaintiff would have been eligible for
unemployment compensation had he received his wages in equal increments
during the period he worked. It is not clear from the sparse record what
the effect of the former option above would have been on unemployment
compensation eligibility.
The superior court granted defendant's motion to dismiss because
"[t]his case has been fully litigated and adjudicated, including appellate
review by the Vermont Supreme Court." Res judicata, also known as claim
preclusion, applies if there is a final judgment in former litigation in
which the parties, subject matter and causes of action are identical or
substantially identical to those before the court in this case. See Berlin
Convalescent Center v. Stoneman, 159 Vt. 53, 56, 615 A.2d 141, 143 (1992).
It bars claims that were litigated and those which should have been raised
in the prior litigation. See id, 615 A.2d at 143-44. The related doctrine
of collateral estoppel, or issue preclusion, bars relitigation of an issue
that was actually litigated and decided in a prior case between the parties
resulting in a final judgment on the merits, where that issue was necessary
to the resolution of the action. See id., 615 A.2d at 144.
Neither res judicata nor collateral estoppel applies here. Plaintiff
could not have litigated in the administrative appeal system of the
Department of Employment and Training the legality of defendant's wage
payment scheme under 21 V.S.A. § 342. Nor did plaintiff actually litigate
this issue. The fact that plaintiff now seeks damages measured in part by
the loss of unemployment compensation benefits does not change the fact
that he could not, and did not, litigate his current liability theory.
In the alternative, defendant argues that the dismissal should be
affirmed because the complaint does not allege facts that would entitle
plaintiff to relief under 21 V.S.A. § 347, the remedy provision. This
argument was not considered by the superior court, and the record is
inadequate to allow us to rule on it here.
Plaintiff alleges liability under § 342(b), which provides in
pertinent part:
any person having employees in his service doing and transacting
business within the state may . . . pay bi-weekly or semi-monthly
in lawful money or checks, each of his employees, the wages
earned by the employee to a day not more than six days prior to
the date of payment. If a collective bargaining agreement so
provides, the payment may be made to a day not more than 13
days prior to the date of payment.
Without factual development in this case, we cannot determine whether this
section has been violated. We note, however, that the facts developed in
the earlier proceeding, as placed before the court by defendant in
connection with the motion to dismiss as set forth above, suggest a
violation of this section because part of plaintiff's wages were held back
to be paid at the end of his employment or in the months after the
employment ended.
Nevertheless, defendant argues there is no remedy for any violation of
§ 342 because plaintiff's wages have been paid. Section 347 provides a
forfeiture remedy for violation of § 342 but provides: "no action may be
maintained under this section unless at the time the action is brought the
wages remain unpaid or improperly paid," 21 V.S.A. § 347. Defendant's
argument ignores the words "improperly paid" which plainly mean something
beyond continuing failure to pay.(FN3) Nothing in Lanphear v. Tognelli, 157
Vt. 560, 563, 601 A.2d 1384, 1386
(1991), a case holding that the remedies in § 347 are inapplicable for
violations of minimum wage laws, suggests that § 347 cannot reach the
adverse consequences of uncorrected payment delays.
Plaintiff also appeals two protective orders issued by the court. The
first relates to discovery and was issued because the dismissal made
plaintiff's discovery requests moot and this Court had ruled that the
information was not discoverable. We agree that the court could find that
the requests involved "undue burden or expense" and acted within its
discretion. V.R.C.P. 26(c).
The second protective order was issued in response to plaintiff's
repetitive filings of motions to alter or amend the court's judgment and
directed that future filings by plaintiff be accompanied by an attorney's
affidavit that they comply with V.R.C.P. 11. In light of our disposition,
we strike this protective order.
Reversed and remanded; protective order dated March 25, 1995 is
stricken.
BY THE COURT:
_______________________________________
Frederic W. Allen, Chief Justice
_______________________________________
Ernest W. Gibson III, Associate Just
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Footnotes
FN1. Because there has been no adjudication on the merits, the facts
are derived from the earlier decisions in the unemployment compensation
appeal as attached to defendant's motion to dismiss.
FN2. 21 V.S.A. § 1338(d)(2) requires that in addition to the wages
paid in the highest calendar quarter of the employee's base period, the
employee must be paid in the base period additional wages equal to 40% or
more of that amount. In this case, the base period is the year before
plaintiff's application for benefits, see 21 V.S.A. §§ 1301(16)(A),
1301(17)(B), and plaintiff earned no other wages during that year. Since
the amount paid in the first quarter of 1992 does not equal at least 40% of
the amount earned in the second (and highest) quarter, the requirement of §
1338(d)(2) was not met. It would have been met if plaintiff had been paid
in equal installments over the period of his employment.
FN3. We do not decide how, if plaintiff establishes liability, the
amount of the forfeiture would be calculated in this case.