Plaintiff Fiore was employed by PPG as a Territory?Manager, where he was responsible for servicing?11 ?of ?Loewe?s ?home? improvement ?retail ?stores. PPG required him to visit two stores a day, for four hours a day, and to visit each store at least three times per month. ?He spent many hours driving to and from his 11 stores but was not paid for his driving time. ?He was also required to review and respond to e-mail messages and voice mails from management, but was not paid for his time.? ?He was compensated on a salary basis.

Following Fiore?s termination he filed a filed a complaint ?in ?Superior ?Court ?seeking ?less ?than?$50,000.? ?PPG removed the case to federal court on ?the ?basis ?that ?attorneys? ?fees ?could ?be ?over?$400,000.?? Fiore responded by arguing that the total award including attorneys? fees in typical small? wage cases? are less? than? $75,000.??? The district court remanded the case.

After remand PPG transferred the case to arbitration. ?PPG prevailed and Fiore sought trial de novo. ?Both sides filed motions for summary judgment. ?The Superior Court granted summary judgment to Fiore holding he was not an administratively exempt employee.?? It also held the fluctuating workweek doctrine did not apply. The Superior Court initially denied summary judgment on the willfulness of the withholding on the basis of factual disputes.? ?The parties stipulated that the Superior Court should resolve the? willfulness ?issue, ?which ?it ?did ?in ?Fiore?s favor.?? ?The total damages awarded, after doubling, was $24,406.20.?? The Superior Court awarded Fiore?s counsel $600,000 in attorneys? fees including a .25 multiplier.? PPG appealed.

The Court of Appeals affirmed on all issues except for attorneys? fees. ?The court agreed that PPG could not show that Fiore?s primary duty was administrative.?? Fiore spent the majority of time performing manual labor and making individual sales to customers at the Lowe?s stores to which he was assigned. ?PPG considered him a member of the National Field Sales Team. ?The duties ?of ?a ?Territory? Manager ?were ?largely selling.? ?He had no involvement in PPG?s advertising or promotional campaigns. ?Territory managers ?could? not ?change ?prices,? sign documents or formulate procedures.

The Court of Appeals rejected the argument that Fiore promoted sales within the meaning of the administrative exemption. ?Fiore?s job wasn?t to promote sales generally but rather to make particular sales transactions to individual customers. ?He didn?t perform work requiring the?exercise of discretion and independent judgment. It wasn?t enough that Fiore?s interactions with customers or Loewe?s employees weren?t scripted for him.? ?He couldn?t vary the set promotional materials.? ?Therefore, he did not perform non- manual field work directly related to the operations or management policies of the business.

Relying on Judge Leighton?s decision in Monahan v. Emerald Performance Materials LLC, 705 F. Supp. 2d 1206 (W.D. Wash. 2010), the Court of Appeals? ?held? ?that? ?the? ?fluctuating?? workweek doctrine is not available to the employer where, as here, the employer didn?t pay overtime contemporaneously with the work performed and there?? was? ?no? ?clear? ?mutual? ?understanding? ?in advance that overtime would be paid.

The? Court ?of? Appeals ?rejected ?PPG?s ?argument that an employee must show that the employer did not have a genuine belief it had properly classified him as exempt in order to obtain double damages. PPG management had participated in meetings where the propriety of Fiore?s classification was discussed. ?The Company refused to introduce the facts ?it ?had? provided ?to? legal ?counsel ?for ?an opinion ?whether ?Fiore ?was ?exempt.?? ?The? court noted that the ?Territory Managers? position used to be called ?Retail Sales Representative, and indicated an intentional effort to evade the duty to pay overtime.

PPG argued that Fiore should be estopped from claiming more than $75,000 based on his represented to the federal district court. ?The Court of Appeals disagreed.?? PPG had turned the case from a typical low-wage case to a ?test case? for PPG territory managers throughout the country. These? changed ?circumstances ?were? enough ?to avoid judicial estoppel.

The?? Court? ?of? ?Appeals? ?upheld? ?the?? Superior Court?s calculation of the lodestar.? ?The court also rejected PPG?s argument that the amount the attorneys? fees were disproportionate to the amount recovered.?? The Court of Appeals held that the Superior Court properly included the hours Fiore spent in a losing effort in arbitration and litigating the protective order and motion to remand.?? The Court of Appeals agreed it was proper for the Superior Court to make an adverse inference from PPG?s refusal to provide information on how much time its attorneys had spent litigating the case, even as PPG claimed the time Fiore spent was excessive.

The? Court ?of? Appeals ?held ?that ?the? Superior Court ?had ?erred ?in ?awarding ?a? .25 ?multiplier. The Court of Appeals held that the case was not high-risk and did not require novel theories.?? It was at bottom a straightforward wage claim.? The lodestar award properly compensation Fiore?s attorneys for the amount of time PPG required them to spend on it.?The Court of Appeals held it was legal error for the Superior Court to have awarded a multiplier based on the risk created by the RCW requiring a party that does not improve at trial its position from arbitration to pay the other party?s fees and costs.? The court held that the risk resulted from a legislative policy preference of discouraging appeals from arbitration decisions so awarding a multiplier in this circumstance incentivized something the legislature has sought to discourage.

Fiore v. PPG Indus. Inc., 169 Wn. App. 325, 279?P.2d 972 (Div. I 7/2/2012) (Dwyer, Appelwick, Lau).