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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Geneva Woods Pharmacy, Inc. v. Thygeson (04/25/2008) sp-6255
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| GENEVA WOODS PHARMACY, | ) |
| INC., | ) Supreme Court No. S-12388 |
| ) | |
| Appellant, | ) Superior Court No. 3AN-05-4056 CI |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| ROXANNE THYGESON, | ) No. 6255 April 25, 2008 |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Mark Rindner, Judge.
Appearances: Stanley T. Lewis, Birch,
Horton, Bittner and Cherot, Anchorage, for
Appellant. Richard W. Maki and David H.
Shoup, Tindall Bennett & Shoup, Anchorage,
for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Bryner,
Justice, not participating.]
EASTAUGH, Justice.
I. INTRODUCTION
Roxanne Thygeson sued her former employer, Geneva Woods
Pharmacy, claiming unpaid overtime. Geneva Woods had not kept
accurate records of her work hours, and at trial it estimated
from patient records and other documents the hours she had
worked. The validity of the documentary evidence was heavily
disputed. The trial court found that Thygeson had made an
average of fifteen professional visits per week and had therefore
worked nine and one-half hours of overtime per week for seventy-
three weeks. Although Geneva Woods raises numerous factual
disputes, the outcome here turns on whether the trial court
clearly erred in finding that Thygeson made fifteen professional
visits per week. Because it did not clearly err, we affirm.
II. FACTS AND PROCEEDINGS
Roxanne Thygeson is a registered nurse. She was
employed by Geneva Woods Pharmacy from July 2002 to May 2004 as
the director of nursing for the pharmacys home infusion
department. Her job involved in-home patient care and
administrative tasks. In May 2004 she voluntarily resigned her
position as director of nursing, citing an inability to be a full-
time nurse and a competent administrator. Thygeson continued to
work as a registered nurse for Geneva Woods until she resigned
completely in July 2004.
After resigning, Thygeson learned that Geneva Woods had
misclassified her as an employee who was exempt from receiving
overtime pay. In January 2005 Thygeson filed a complaint in
superior court to recover unpaid overtime wages under the Alaska
Wage and Hour Act1 (AWHA) and the federal Fair Labor Standards
Act2 (FLSA) for a seventy-five-week claim period. Geneva Woods
conceded that Thygeson had been misclassified as an exempt
employee under the AWHA. Thygeson moved for partial summary
judgment on the issue of liability on the AWHA claim and Geneva
Woods moved for partial summary judgment on the FLSA claim.
In October 2005 the trial court granted partial summary
judgment to Thygeson on the AWHA liability issue. It also
granted partial summary judgment to Geneva Woods on the FLSA
claim because Thygeson was an exempt employee under the FLSA.
A six-day bench trial began on February 28, 2006 to
determine Thygesons overtime compensation under the AWHA. The
length of the trial was largely due to the absence of accurate
records of the number of hours Thygeson worked. There was ample
but confusing evidence, based on time cards, nursing notes,
progress notes, witness testimony, and mileage logs, concerning
the number of hours Thygeson had worked.
Thygeson submitted weekly time cards to Geneva Woods.
The time cards show the days Thygeson worked and occasionally
show the names of patients she visited. The trial court found
that Thygesons time cards are not an accurate record of the
number of hours she worked because Geneva Woods had instructed
Thygeson to write eight hours per day on her time cards
regardless of how many hours she actually worked. Geneva Woods
did not challenge this finding at trial and does not dispute it
on appeal.
Thygeson also prepared nursing notes, progress notes,
and mileage logs. She created either a nursing note or a
progress note after every patient visit. Her notes typically,
but not always, identified the patient and stated how much time
she spent with the patient. Thygeson used her own car to make in-
home patient visits and kept the mileage log so she could be
reimbursed for travel.
Geneva Woods and Thygeson agreed at trial that the time
cards, nursing notes, progress notes, and mileage logs showed
that the average number of hours Thygeson worked per professional
visit was three hours, not including administrative time. Geneva
Woods and Thygeson agree that Thygesons administrative duties
account for an additional ten percent of her time.
Twelve witnesses testified. Depositions of three
witnesses, who did not testify at trial, were also before the
court. The witnesses included Geneva Woodss vice president of
finance, payroll manager, nurses, customers, and patients.
Thygeson also testified at length. The trial court fully found
Thygesons testimony credible that she was working in excess of 40
hours per week . . . and generally found her to be credible where
her testimony was supported . . . by the testimony of other
witnesses.
Relying on witness testimony, time cards, nursing
notes, progress notes, and mileage logs, the trial court found
that Thygeson had made fifteen professional visits per week for
seventy-three of the disputed weeks. It also found that
Thygesons mileage logs were representative of the average number
of professional visits completed per week; that the mileage logs
supported an inference of fifteen professional visits per week;
and that witness testimony and other documents supported the
accuracy of the mileage logs.
The court did not consider the nursing notes and
progress notes, created by Thygeson after patient visits, to be
the best evidence of how many professional visits Thygeson made
each week. The trial court found that the notes provided some
evidence of the amount of overtime that Thygeson worked but were
not conclusive because the notes were internally inconsistent and
occasionally showed Thygeson seeing the same patient on the same
day during overlapping but different time intervals. In general,
the trial court found that the records offered by the parties
were not reliable for the purposes of establishing the plaintiffs
hours of work.
Geneva Woods had paid Thygeson an annual base salary of
$66,500, an on-call salary of four dollars per hour for evening
and weekend work, an education allowance of $1,500 per year, and
a car allowance. The base salary was intended to pay Thygeson
for eight hours of work per day, five days per week. The on-call
pay was in addition to her base salary. Both parties agree that
Thygesons hourly overtime wage was $47.95 for hours for which
Thygeson was not paid for being on-call and $43.95 for hours for
which Thygeson was previously paid for being on-call.
The trial court calculated Thygesons overtime award by
finding that Thygeson worked forty-nine and one-half hours per
week for seventy-three weeks of the seventy-five-week claim
period. Put another way, the court found that Thygeson saw
fifteen patients per week, each of whom required three hours of
work, and performed administrative tasks that increased her hours
by ten percent. The claim period also included two weeks during
which Thygeson attended a conference. The trial court found, and
Geneva Woods does not contest, that Thygeson worked twenty hours
of overtime per week during the two conference weeks. The trial
court ultimately awarded Thygeson $32,397.33 in unpaid wages,
$7,313.24 in prejudgment interest, $32,397.33 in liquidated
damages,3 and $156,390.56 in costs and attorneys fees.
Geneva Woods appeals.
III. DISCUSSION
A. Standard of Review
Geneva Woods argues that the finding Thygeson worked
nine and one-half hours of overtime per week is clearly erroneous
and that it presented sufficient evidence either to show that
Thygeson did not work overtime or to negate the reasonableness of
her overtime claim.
We review the trial courts factual determinations,
including those pertaining to the credibility of a witness, for
clear error.4 We will conclude that there was clear error only
if after a thorough review of the record, we come to a definite
and firm conviction that a mistake has been made.5
B. The Trial Court Did Not Clearly Err in Finding that
Thygeson Made Fifteen Professional Visits Per Week.
The AWHA requires an employer to keep a record of the
hours worked each day and each workweek by each employee.6
Because Geneva Woods failed to keep accurate records of the
number of hours Thygeson worked, the trial court calculated
Thygesons overtime hours by counting the average number of
professional visits she made per week. Although Geneva Woods and
Thygeson disputed many issues, including the validity of the
documentary evidence, the dispositive dispute on appeal is
whether the trial court erred in determining how many
professional visits Thygeson made each week. The trial court
calculated that Thygeson made fifteen professional visits per
week, resulting in nine and one-half hours of overtime per week.
When an employer maintains accurate records of the
number of hours an employee works, the employee has the burden of
proving that she was not properly compensated.7 But if there are
no accurate records, per Barios v. Brooks Range Supply, Inc., the
burden is on the employer to disprove the employees claim for
unpaid overtime wages:
When an employer fails to keep records, an
employee may prove her claim if she presents
sufficient evidence from which the court may
draw a just and reasonable inference. If the
employee meets this minimum threshold, the
burden shifts to the employer to come forward
with evidence of the precise amount of work
performed or with evidence to negative the
reasonableness of the inference to be drawn
from the employees evidence.[8]
Geneva Woods concedes that it failed to keep accurate
records; that the Barios and Anderson v. Mt. Clemens Pottery Co.
burden-shifting standard applies;9 that Thygeson is only required
to show sufficient evidence to allow the trial court to draw a
just and reasonable inference that overtime wages are due;10 and
that Thygeson met the minimal burden of proof required by Barios
and Mt. Clemens Pottery Co.11 As a result, Geneva Woodss appeal
is based on a challenge to the trial courts finding that Thygeson
worked nine and one-half hours of overtime per week (the
consequence of finding she made fifteen professional visits per
week) during the seventy-three-week claim period.
1. Geneva Woods did not come forward with evidence of
the precise amount of work Thygeson performed and
did not negate the reasonableness of Thygesons
overtime claim.
To establish the number of hours Thygeson worked,
Geneva Woods called two witnesses at trial and produced over
18,000 documents during discovery. Kim Warner, Geneva Woodss
Vice President of Finance, testified that the documents, which
included Thygesons payroll records, the time sheets . . . nursing
notes, . . . progress notes . . . [and] other documents . . .
related to patient care, were used to count how many professional
visits occurred during the claim period. Warners spreadsheet
summary of the documentary evidence showed that Thygeson saw 840
patients during the claim period. If it were accurate, a count
of 840 professional visits during the seventy-three-week period
would show that Thygeson did not work overtime.12
Geneva Woods argues that its patient visit summary is
accurate evidence of the number of professional visits Thygeson
made because Geneva Woods did not lose, misplace, or fail to
produce even a single nursing note and Thygeson acknowledged
completing a nursing note for every patient visit she made during
the claim period. Geneva Woodss argument is flawed because it
presupposes the accuracy of the documents used to create the
patient visit summary and mischaracterizes the meaning of
Thygesons acknowledgment at trial. Thygesons acknowledgment,
that she completed a nursing note or progress note after every
patient visit, is not an acknowledgment that the patient visit
summary is accurate nor is it a concession that the source
documents used to create the summary are accurate. In fact,
there was ample evidence at trial about the general inaccuracy of
the nursing notes and progress notes.
Geneva Woodss argument also misconstrues Thygesons
acknowledgment as an acknowledgment of the accuracy of the
criteria Warner used to determine whether a patient visit
occurred. Thygeson, using Warners patient visit summary and her
own standards, calculated that she made 1,104 patient visits
during the claim period.13 Warner testified that her count did
not include fifty-four possible professional visits that Thygeson
made because the visits did not generate nursing notes. The
trial court found that Geneva Woodss patient visit summary was
inaccurate because the progress notes used to create the summary
were inconsistent and internally poor.
Based on our review of the nursing note and progress
note evidence we agree that it is inconsistent. We therefore
hold that the trial court did not commit clear error by
concluding that Geneva Woodss nursing note analysis did not
provide sufficient evidence to establish the precise number of
professional visits made by Thygeson.
The second witness Geneva Woods called was Janet Arens,
Thygesons supervisor. Arens testified that her supervision of
Thygeson was very loose, and that she thought Thygeson saw
between three and twenty patients per week with an average
patient load between ten and twelve patients per week. The trial
court found that [Arenss] analysis while providing some useful
information is not completely accurate and is not adequate . . .
to determine the precise amount of work performed by Thygeson.
Because the witness admitted that her supervision was very loose,
the court did not err in characterizing this evidence as not
legally sufficient to rebut Thygesons overtime claim. This
evidence is neither precise enough nor conclusive enough to show
that Thygesons wage claim is unreasonable.
2. The trial courts factual findings are not
clearly erroneous.
Based on the appellate record, we are unconvinced that
the trial court committed clear error in finding that Thygeson
worked nine and one-half hours of overtime per week. The record
does not leave us with a definite and firm conviction that a
mistake has been made.14 The mileage logs and Thygesons testimony
support the trial courts finding that Thygeson saw fifteen
patients per week. And Geneva Woodss patient visit summary and
witness testimony do not demonstrate that the finding of fifteen
patient visits was clearly erroneous.15
We hold that Geneva Woods failed to meet its burden
under Barios and did not come forward with more or better
evidence than Thygeson that more accurately showed the number of
hours she worked.16 We also hold that the trial court did not
commit clear error by finding Thygesons testimony credible when
the testimony is supported by some documentary evidence.
IV. CONCLUSION
We therefore AFFIRM.
_______________________________
1 AS 23.10.060 (failure to pay time and a half); AS
23.10.065(a) (failure to pay minimum wage); AS 23.10.100 (failure
to keep pay records).
2 Federal Fair Labor Standards Act, 29 U.S.C. 201-19
(2000).
3 Geneva Woods did not contest the liquidated damages
claim at trial; it did not plead a defense of good faith. In an
action to recover unpaid overtime wages [AS] 23.10.110(d) gives
discretion to the court to decline to award liquidated damages if
the defendant shows by clear and convincing evidence that the
defendant acted in good faith. Fred Meyer of Alaska, Inc. v.
Bailey, 100 P.3d 881, 887 (Alaska 2004).
4 Barios v. Brooks Range Supply, Inc., 26 P.3d 1082,
1085, 1087 (Alaska 2001) (Witness credibility determinations are
left to the trial court. (citing American Computer Inst., Inc. v.
State, Student Loan Corp., 995 P.2d 647, 651 (Alaska 2000))).
5 Id.
6 AS 23.10.100(a).
7 Barios, 26 P.3d at 1086; See also Hutka v. Sisters of
Providence in Wash., 102 P.3d 947, 954-55 (Alaska 2004).
8 Barios v. Brooks Range Supply, Inc., 26 P.3d 1082, 1086
(Alaska 2001) (quoting Anderson v. Mt. Clemens Pottery Co., 328
U.S. 680, 687-88 (1946) (superseded by statute on other grounds
as stated in Carter v. Panama Canal Co., 463 F.2d 1289, 1293
(D.C. Cir. 1972))) (footnotes omitted).
9 Id. at 1086; Anderson v. Mt. Clemens Pottery Co., 328
U.S. 680, 687-88 (1946).
10 Barios, 26 P.3d at 1086 (discussing Mt. Clemens Pottery
Co., 328 U.S. at 687); see also Hutka, 102 P.3d at 954-55.
11 Barios, 26 P.3d at 1086; Mt. Clemens Pottery Co., 328
U.S. at 687-88.
Geneva Woods correctly concedes that Thygeson met the
minimal evidentiary threshold required to shift the evidentiary
burden to Geneva Woods. Thygeson testified that she performed
administrative tasks in addition to seeing at least fifteen
patients per week. And the mileage logs she kept support her
contention that she saw on average fifteen patients per week.
The trial court fully found Thygesons testimony that
she worked in excess of forty hours per week credible and
generally found her testimony credible where it was supported by
documentary evidence or other witnesses.
12 Because the trial court calculated that the average
patient visit lasts three hours and that administrative time
increases the time Thygeson works by ten percent, 840
professional visits over seventy-three weeks is roughly the
equivalent of seventy-three thirty-eight-hour work weeks.
13 During rebuttal at oral argument on appeal, Geneva
Woodss attorney stated that I believe that the evidence is
[uncontested] that [Thygeson] testified that if she saw a patient
she inserted in- and out-times. If counsel thought Thygeson had
not contested Geneva Woodss contention that only nursing notes
and progress notes with in- and out-times represent professional
visits, counsel was mistaken. Thygeson testified at trial that a
patient name and a time-in and time-out, or patient name, and . .
. a fax, [would count] . . . as a visit. During closing
arguments, Thygesons attorney argued that the criteria used to
count the number of patient visits should include nursing notes
without in- and out-times. Thygesons attorney also cross-
examined Warner on the criteria she used to count professional
visits and questioned the validity of Warners criteria for
counting nursing notes.
14 Barios, 26 P.3d at 1085.
15 The trial court and Thygeson questioned why Geneva
Woods failed to introduce its billing records to show the precise
number of hours Thygeson worked.
16 Barios, 26 P.3d at 1086.
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