Metke v. Oxford Bank

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

KEVIN J. METKE, Plaintiff/Appellant,

v.

OXFORD BANK CORPORATION, Defendant/Appellee.

No. 1 CA-CV 26-0055

FILED 09-08-2026

Appeal from the Superior Court in Maricopa County
No. CV2025-024775
The Honorable Michael S. Mandell, Judge

AFFIRMED

COUNSEL

Kevin James Metke, Phoenix
Plaintiff/Appellant

Jaburg & Wilk, P.C., Phoenix
By Alden A. Thomas, Emma J. Freeburg
Counsel for Defendant/Appellee

METKE v. OXFORD BANK
Decision of the Court

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Andrew J. Becke and Judge Samuel A. Thumma1 joined.

M O R S E, Judge:

¶1 Plaintiff Kevin Metke ("Metke") appeals the dismissal of his
claims against Oxford Bank Corporation ("Oxford Bank") in which he
sought treble damages for the late payment of an Industrial Commission of
Arizona ("ICA") retaliatory termination award.

FACTS AND PROCEDURAL BACKGROUND

¶2 On appeal from a motion to dismiss, "we must assume the
truth of all well-pleaded factual allegations and indulge all reasonable
inferences from those facts, but mere conclusory statements are
insufficient." State ex rel. Brnovich v. Ariz. Bd. of Regents, 250 Ariz. 127, 130,
¶ 7 (2020) (internal quotation omitted).

¶3 From January 8 to January 12, 2024, Oxford Bank employed
Metke as a salaried employee. On January 12, 2024, Metke called out sick,
and Oxford Bank terminated his employment.

¶4 Metke filed a complaint with the ICA, alleging Oxford Bank
terminated his employment in retaliation for his protected use of earned
paid sick time ("EPST"). The ICA entered an order in favor of Metke under
A.R.S. § 23-364 and the Arizona Administrative Code ("A.A.C.") R20-5-
1211(A) and (E). The ICA found Oxford Bank had retaliated against Metke
for exercising his EPST rights and ordered Oxford Bank to pay Metke
$19,826.25 for financial losses plus $10,000 as a deterrent against future
violations. The ICA stated that a failure to comply with the order within

1 Judge Samuel A. Thumma was on the panel assigned to this case
until retiring effective August 28, 2026. Arizona Supreme Court Chief
Justice Ann A. Scott Timmer appointed Judge Thumma to continue to serve
on the Court through December 31, 2026, to resolve those cases in which he
previously participated, like this case. See Arizona Supreme Court
Administrative Order 2026-124.

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METKE v. OXFORD BANK
Decision of the Court

ten days "may result in the matter being referred to a law enforcement
officer." Oxford Bank issued the payment 13 days after it was due.

¶5 Metke filed a complaint in superior court arguing that Oxford
Bank violated A.R.S. § 23-364(G) and A.A.C. R20-5-1213 by failing to pay
the award on time. Metke asserted that Oxford Bank owed him $89,478.75,
which he calculated as treble the amount of the late-paid award plus
interest under A.R.S. § 23-360. Four months later, Metke filed an amended
complaint arguing that the untimely payment also violated A.R.S. § 23-
355(A). Metke then moved to amend his complaint a second time.

¶6 Oxford Bank moved to dismiss Metke's complaint arguing,
among other things, that he failed to state a claim because neither A.R.S. §
23-364(G) nor A.A.C. R20-5-1213 provided him with a private cause of
action for treble damages. The court granted Oxford Bank's motion and
dismissed Metke's complaint without prejudice. The court found the ICA
award was not wages but instead "was designed to compensate [Metke] for
his financial loss and to deter future termination violations by [Oxford
Bank]." Accordingly, the court found Metke was not entitled to treble
damages under A.R.S. §§ 23-355 and -360.

¶7 Metke timely appealed and we have jurisdiction under A.R.S.
§ 12-2101(A)(1).

DISCUSSION

¶8 We review the grant of a motion to dismiss for failure to state
a claim de novo. Brnovich, 250 Ariz. at 130, ¶ 7. "Dismissal is appropriate
only if as a matter of law plaintiffs would not be entitled to relief under any
interpretation of the facts susceptible of proof." Id. (cleaned up).

¶9 Metke raises three related arguments: (1) the court incorrectly
interpreted the statutory definition of wages; (2) he is entitled to treble
damages under A.R.S. §§ 23-355 and -360; and (3) the court erred in
determining the financial-loss portion of the award was not wages.

¶10 First, Metke argues the court erred by interpreting A.R.S. § 23-
350(7) too narrowly and excluding the ICA award from the definition of
wages. Metke contends the ICA award is wages because "but for Oxford
Bank's unlawful retaliatory act, [Metke] would have continued to render
services and receive his salary."

¶11 We interpret statutes according to their plain language and
give words their ordinary meaning. State v. Gordon, 261 Ariz. 128, 131, ¶ 12

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(2025). "And where unambiguous, we apply the express terms of a
statutory provision without resorting to secondary methods of
construction." Id. at 131–32, ¶ 12 (cleaned up).

¶12 Section 23-350(7) provides "'[w]ages' means nondiscretionary
compensation due an employee in return for labor or services rendered by
an employee for which the employee has a reasonable expectation to be
paid whether determined by a time, task, piece, commission or other
method of calculation." Thus, under this definition, wages equate to unpaid
compensation for work actually performed or completed.

¶13 Metke does not argue that any portion of the award
represented unpaid compensation owed for work he already performed or
completed. Instead, he argues that because the ICA based the award on the
salary he would have earned absent the retaliation, the award was equivalent
to wages. To support his interpretation, Metke cites two cases and contends
that "Arizona courts interpret the term 'wages' broadly to effectuate the
protective purpose of the wage statutes." See Apache E., Inc. v. Wiegand, 119
Ariz. 308, 311 (App. 1978) (affirming superior court's finding that a
motorcycle parts manager's wages included commissions on all sales
whether completed by him or by one of the salesmen he oversaw); Holm v.
Gateway Anesthesia Assocs. PLLC, No. 1 CA-CV 16-0673, 2018 WL 770503, at
*12–13, ¶¶ 59, 67 (Ariz. App. Feb. 8, 2018) (mem. decision) (affirming
superior court's award of treble damages for late-paid partnership-like
profits, amounts paid by the employees that they reasonably expected to
get back, and a portion of a stipend they were owed for their work). But
both cases involved amounts that were due to the employees for services
already rendered. And even if Metke's proposed interpretation is
consistent with the protective purpose of the wage statutes, it would
include amounts not earned by the employee for labor or services rendered
and fails to align with the plain language of § 25-350(7).

¶14 Additionally, A.R.S. § 23-364(G)—the provision under which
the ICA issued Metke's award—further confirms that the ICA award is not
wages. Section 23-364(G) provides:

Any employer who fails to pay the wages or earned paid sick
time required under this article shall be required to pay the
employee the balance of the wages or earned paid sick time
owed, including interest thereon, and an additional amount
equal to twice the underpaid wages or earned paid sick time.
Any employer who retaliates against an employee or other person
in violation of this article shall be required to pay the employee an

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METKE v. OXFORD BANK
Decision of the Court

amount set by the commission or a court sufficient to compensate
the employee and deter future violations . . . .

(Emphasis added).

¶15 This statute distinguishes between an employer who "fails to
pay" wages or EPST and an employer who "retaliates against" an employee.
When an employer fails to pay wages or EPST, the employer must pay the
employee the balance of wages or sick time earned plus an additional
amount. A.R.S. § 23-364(G). In contrast, retaliation triggers a different
remedy under which the employer must pay "an amount set by the
commission or a court sufficient to compensate the employee and deter
future violations." Id. As the statute makes explicit, the remedy for Metke's
retaliatory termination claim was an ICA- or court-determined award, not
wages. See id. Thus, based on the statutory definition of wages in A.R.S. §
23-350(7) and the statutory language distinguishing between wages and an
award for retaliation in A.R.S. § 23-364(G), we affirm the superior court's
finding that the ICA award is not wages.

¶16 Metke next argues he is entitled to treble damages under
A.R.S. §§ 23-355 and -360 based on Oxford Bank's late payment. He asserts
that once the ICA quantified the lost wages and ordered the payment, the
award became "wages due" for the purpose of those statutes. This
argument presupposes that some portion of the ICA award is wages under
A.R.S. § 23-350(7), because both treble-damages provisions apply only
when an employer fails to pay wages due. See A.R.S. § 23-360 ("[a]n
employer who has been ordered . . . to pay wages due an employee and
who fails to do so" in a timely manner is liable to pay treble the amount);
A.R.S. § 23-355 ("if an employer . . . fails to pay wages due any employee,
the employee may recover . . . treble the amount of unpaid wages"). But as
discussed above, supra ¶¶ 12–15, the ICA award is not wages. Accordingly,
Metke cannot recover treble damages under either statute.

¶17 Alternatively, Metke argues that, even if the deterrence
portion of the award does not qualify as wages, the financial-loss portion
does. He characterizes that portion as "a direct, calculated, make-whole
remedy for the salary that Oxford Bank's illegal conduct prevented [him]
from earning." But as discussed, the statutory definition of wages does not
encompass any part of the ICA award, and Metke points to no legal
authority to support this conclusion. Accordingly, this argument also fails.

¶18 Metke further contends that excluding retaliation awards
from the treble-damages provisions would undermine the ten-day

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METKE v. OXFORD BANK
Decision of the Court

payment requirement and render the penalty in A.R.S. § 23-360
meaningless. But as the superior court noted, Metke was not without a
remedy as he could refer the late payment to a law-enforcement officer. See
A.A.C. R20-5-1213(G).

¶19 Because we affirm the judgment, Oxford Bank, as the
prevailing party on appeal, is entitled to costs upon compliance with
ARCAP 21. See A.R.S. § 12-341.

CONCLUSION

¶20 We affirm.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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