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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

Geneva Woods Pharmacy, Inc. v. Thygeson (04/25/2008) sp-6255, 181 P3d 1106

     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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