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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Cameron v. Chang-Craft (4/15/2011) sp-6550

Cameron v. Chang-Craft (4/15/2011) sp-6550, 251 P3d 1008

        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,   email 
        corrections@appellate.courts.state.ak.us. 

                 THE SUPREME COURT OF THE STATE OF ALASKA 

WILLIAM CAMERON and ALASKA                          ) 
AIRLINES, INC.,                                     )    Supreme Court No. S-13489 
                                                    ) 
                        Appellants,                 )    Superior Court No. 3AN-05-13737 CI 
                                                    ) 
        v.                                          )    O P I N I O N 
                                                    ) 
DEBORAH CHANG-CRAFT,                                )    No. 6550 - April 15, 2011 
                                                    ) 
                        Appellee.                   ) 
                                                    ) 

                Appeal from the Superior Court of the State of Alaska, Third 
                Judicial District, Anchorage, Sen K. Tan, Judge. 

                Appearances:        Douglas S. Parker, Littler Mendelson, P.C., 
                Portland,     Oregon,     Jennifer    M.    Coughlin,     K&L     Gates, 
                Anchorage, for Appellants. Kenneth W. Legacki, Anchorage, 
                for Appellee. 

                Before: Carpeneti, Chief Justice, Fabe and Winfree, Justices. 
                [Christen and Stowers, Justices, not participating.] 

                WINFREE, Justice. 

I.      INTRODUCTION 

                An employee filed suit against her employer for wrongful termination after 

her union refused to take her grievance to arbitration under the applicable collective 

bargaining agreement.        Relevant federal law required the employee to prove as part of 

her wrongful termination claim that her union had breached its duty of fair representation 

----------------------- Page 2-----------------------

when handling her grievance.1        During trial the employer twice moved for a directed 

verdict, arguing the employee failed to prove the union had breached its duty of fair 

representation.    The trial court denied the motions.     The jury returned a special verdict 

finding that the union had breached its duty of fair representation and that the employer 

had wrongfully terminated the employee, and awarded $479,111 as compensation for the 

wrongful termination.     The employer moved for judgment notwithstanding the verdict 

(JNOV), again arguing the employee failed to prove the union had breached its duty of 

fair representation.    The employer alternatively moved for a new trial or remittitur, 

arguing the damage award was inaccurate.  The trial court denied the motions. 

               The employer appeals the trial court's denials of its motions for a directed 

verdict, JNOV, and a new trial or remittitur.  Because the trial court did not commit legal 

error or abuse its discretion in denying the motions, we affirm the trial court's decisions 

and the entry of judgment against the employer. 

II.     FACTS AND PROCEEDINGS 

               Deborah   Chang-Craft   worked   as   a   customer   service   agent   for   Alaska 

Airlines, Inc. under a collective bargaining agreement (CBA) between Alaska Airlines 

and the International Association of Machinists and Aerospace Workers (Union). Chang- 

Craft's wrongful termination claim against Alaska Airlines centers on events occurring 

December 14 - 15, 2003, at the Alaska Airlines cargo facility where she worked. 

               Chang-Craft   claimed   that   on   the   evening   of   December   14,   coworker 

William Cameron approached her saying,  "I want to show you my new baby," and 

proceeded to use her computer to show her a picture of a gun.  Chang-Craft claimed she 

previously told Cameron several times she was not interested in guns, and this time she 

told him to leave her alone and not to bring guns to work. Chang-Craft claimed Cameron 

        1      See Vaca v. Sipes, 386 U.S. 171, 186 (1967). 

                                               -2-                                            6550 

----------------------- Page 3-----------------------

approached her again shortly thereafter and told her she displayed "the classic signs" of 

Obsessive-Compulsive Disorder (OCD). 

              Cameron claimed that after telling Chang-Craft about his new gun, she told 

him:  "It's a good thing that I don't have [a gun].    If I did, I would probably use it." 

Cameron claimed he later observed Chang-Craft appearing "agitated and upset" and out 

of concern for her health asked if she had been diagnosed with OCD.  Cameron claimed 

that in response Chang-Craft went on a diatribe about her job and coworkers. 

              The next day, December 15, Cameron met with Miranda Bowey, an Alaska 

Airlines employee services manager, detailing his version of the previous day's events. 
Union shop steward2 Cheryl Eniero was in attendance at Bowey's request, and Eniero 

listened to Cameron's initial description of the events. When Eniero asked Cameron why 

he continued to follow Chang-Craft after she had asked him to leave her alone, Cameron 

asked Eniero to leave the meeting; she did. After the meeting Bowey advised Eniero that 

she was going to call Chang-Craft to talk to management later that day.  Eniero went to 

Chang-Craft to let her know about the meeting, that the meeting was about Cameron, and 

that Eniero would be available as her Union representative at the meeting.  It is unclear 

whether Eniero told Chang-Craft about the statements she heard Cameron give Bowey, 

but her testimony at trial indicates she did not.  At some point Eniero learned that Bowey 

intended to suspend Chang-Craft's employment, but did not tell Chang-Craft. 

              According to Chang-Craft, that evening supervisor Mike Stanley told her 

"we need to see you upstairs" but assured her that a shop steward would be present at the 

meeting.  But when Chang-Craft went upstairs, Bowey "call[ed] out to [Chang-Craft]" 

and, without a shop steward present, told Chang-Craft she was suspended, she must hand 

       2      A shop steward is "[a] union official who represents union employees and 

who oversees the performance of union contracts."       BLACK'S LAW DICTIONARY 1549 
(9th ed. 2009). 

                                            -3-                                        6550 

----------------------- Page 4-----------------------

over her badge, Bowey and Stanley would escort her from the building, and if she did not 

leave quietly they would call the police. Chang-Craft felt "frantic" and "frightened" after 

Bowey   told   her   she   was   suspended.     Eniero   was   working   in   a   copy   room   and   was 

unaware that Bowey and Stanley actually called Chang-Craft to the meeting until Chang- 

Craft, upset and crying, came into the room to tell Eniero that Chang-Craft was being 

sent home.     Eniero gave Chang-Craft a "brief synopsis" of Cameron's statements to 

Bowey and told Chang-Craft to "just go ahead and go home and we'll deal with . . . it," 

and Chang-Craft left the room.  Eniero did not see Chang-Craft again that day. 

                Bowey   and   Stanley   followed   Chang-Craft   as   she   collected   her   things. 

Bowey insisted on taking Chang-Craft's badge, and Bowey yelled that she was going to 

call the police. Chang-Craft retrieved herpersonal belongings from her locker and exited 

the building.      Bowey came out after Chang-Craft, telling her to come back into the 

building; a police officer was already standing by Chang-Craft's car and more police cars 

were coming. 

                In his deposition presented at trial, Stanley testified that after Chang-Craft 

collected her belongings and was leaving the building she said "she was never setting 

foot inside this 'F-ing' place again."  Chang-Craft countered that her words were taken 

out of context, and in actuality she meant she was not going back into the building that 

night.   Chang-Craft claimed she refused to talk with Bowey because she felt she lacked 

assistance from a union representative.  One of Chang-Craft's coworkers called Chang- 

Craft's husband, who came to the parking lot. Bowey and Stanley walked away, and the 

police allowed Chang-Craft to drive her car out of the parking lot. 

                Chang-Craft claimed she was told not to return to work until further notice. 

But    on   December     22   Alaska    Airlines   sent  Chang-Craft      a  letter  stating  that   her 

December 15 statement that she was "never coming back," combined with emptying her 

personal belongings from her locker and failing to respond to telephone calls or requests 

                                                  -4-                                            6550
 

----------------------- Page 5-----------------------

to participate in the investigation, constituted a resignation, which the company accepted. 

After    receiving    the  letter,  Chang-Craft      submitted    a  "Grievance,     Suspension,      and 

Discharge   Appeal"   to   the   Union,   alleging that   Alaska   Airlines   failed   to   conduct   an 

impartial investigation of the incident and wrongfully terminated her. 

                In January 2004 three Union shop stewards represented Chang-Craft at a 
step-one   grievance   hearing   with   Alaska   Airlines.3       Chang-Craft   did   not   attend   the 

meeting because the chief shop steward advised her not to attend.                  At the hearing the 

shop stewards argued that Chang-Craft's December 15 statement was not intended as a 

resignation and was taken out of context.  Alaska Airlines denied the grievance. 

                Jerri Lochner, the Union shop steward who originally filed Chang-Craft's 

grievance, testified that she disagreed with the Union's decision not to have Chang-Craft 

attend the step-one hearing.         Lochner testified that in her opinion "grievant[s] should 

always be [at the step-one hearing] to present their side" and because Chang-Craft was 

not, she was not represented fairly.  But Lochner also testified that in her opinion Alaska 

Airlines had not investigated the incident and its representatives "came in there not really 

wanting to resolve this" but only "to hear what we had to say."                 Lochner testified on 

cross-examination that neither Alaska Airlines nor the Union cooperated as required by 

the CBA. 

                Lochner   helped   compile   and   send  the   grievance   documentation   to   the 
Union's General Chair, Don Welch, for a step-two grievance hearing.4  At the beginning 

        3       Under the CBA grievance resolution procedure, a discharged employee may 

request a hearing. At the step-one hearing, the employee may be represented by the shop 
steward     and/or    the  Union    General     Chair  or   a  designee.     The     employee     or  the 
representative may present oral and written evidence.               The employer must render its 
decision within seven days of the hearing. 

        4       Under the CBA, if a grievance is not satisfactorily settled at step one the 

                                                                                         (continued...) 

                                                   -5-                                               6550 

----------------------- Page 6-----------------------

of February 2004 Welch sent a letter to Alaska Airlines requesting "further handling" of 

Chang-Craft's grievance in accordance with the CBA.        Alaska Airlines responded by 

holding a step-two hearing, but at the end of March 2004 again denied the grievance. 

              Robert Hartnett, the Alaska Airlines labor services manager who denied 

Chang-Craft's grievance after the step-two hearing, testified during Alaska Airlines's 

case that although he was involved from thebeginning, he began handling Chang-Craft's 

grievance on behalf of Alaska Airlines for the second step of the process.        Hartnett 

explained that during a step-two hearing Alaska Airlines becomes aware of all the details 

surrounding a grievance as the Union and the employer debate whether the grievance 

should be granted.    Hartnett testified that Welch was a "worthy opponent" and that he 

and Welch talked about Chang-Craft's grievance "on a number of occasions."  Hartnett 

testified that Welch vigorously argued the case for Chang-Craft at the step-two hearing. 

But on cross-examination Hartnett conceded that no documents in his grievance-hearing 

file supported Alaska Airlines's position that Chang-Craft had resigned, and further 

conceded that the Union had not provided him with any documentation to the contrary. 

Hartnett testified that "background" information was not "pertinent" to his decision 

whether she resigned or was terminated, that he had not been aware of the specifics of 

the incident between Chang-Craft and Cameron, that the Union did not give him any 

documents to review, and that he had no notes of what actually occurred at the step-two 

hearing. 

              In early April 2004 Welch appealed to the System Board of Adjustment for 
an arbitration "hearing and decision" regarding Chang-Craft's grievance.5   But in late 

       4      (...continued) 

Union's General Chair may appeal to the employer and a second hearing will be held. 

       5      Under the CBA, if the step-two hearing does not satisfactorily resolve the 

                                                                             (continued...) 

                                            -6-                                        6550 

----------------------- Page 7-----------------------

August 2004 Welch wrote to Chang-Craft informing her that "[a]fter reviewing the facts 

of your grievance, the contract language and any prior arbitration awards which would 

be   applicable   to   your   case"   the   Union   had   "tentatively   decided   to   withdraw"   her 

grievance from the System Board of Adjustment.  Welch noted that Chang-Craft could 

appeal the Union's tentative decision by submitting a written statement detailing the 

merits of her grievance and reasons why the Union should pursue it or why Chang-Craft 

should be permitted to pursue it on her own. 

                Chang-Craft testified that she had no meaningful communication from the 

Union     during   the   eight  months    between     the  step-one    hearing   and   Welch's     letter 

explaining   the   Union's   tentative decision.      Chang-Craft claimed she telephoned the 

Union's Minnesota and Seattle offices several times to "get an update" on her grievance, 

but the Union consistently told her "[she] just needed to be patient."  When asked about 

her experience with Welch, shop steward Lochner responded that "[i]t was very difficult 

to deal with him, in general."  She testified that Welch often lost paperwork, he "was not 

very good with his follow-through," and timelines "were extended a lot with him." 

Lochner testified that she nicknamed Welch's office "Grievance Land" because when she 

filed a grievance with Welch she "never knew what happened . . . or where it was." 

                Chang-Craft   retained   an   attorney   to   respond   to   the   Union's   tentative 

decision to withdraw her grievance from arbitration, and in mid-September 2004 her 

attorney sent a letter to the Union asking it to "reconsider the decision to withdraw [her] 

grievance" based on the following points:  (1) Chang-Craft had never been "written up 

or disciplined" during her six years of employment and she had never owned or fired a 

gun; (2) Chang-Craft denied making any violent threat and insisted the evidence would 

demonstrate that Cameron's allegations were "inconsistent with [her] personality, history 

        5       (...continued) 

grievance, the Union's General Chair may seek arbitration. 

                                                  -7-                                               6550 

----------------------- Page 8-----------------------

and temperament"; (3) Chang-Craft requested the presence of a union representative at 

the investigatory meeting but was denied the right to union representation; (4) Chang- 

Craft's statement about not returning to the building was misconstrued by her employer 

as a resignation; and (5) Chang-Craft claimed she had been subjected to Cameron's 

inappropriate behavior before, postulating that Cameron's allegations were retaliatory 

because he knew she wanted to file a grievance against him.  The Union responded that 

it would reopen the matter. 

                Fifteen months later, in mid-December 2005, the Union's new General 

Chair informed both Alaska Airlines and Chang-Craft that the Union would not proceed 
with Chang-Craft's grievance before the System Board of Adjustment.6  The Union never 

responded to the substance of Chang-Craft's attorney's letter and never provided Chang- 

Craft an explanation for its refusal to proceed with her grievance. 

                At the beginning of December 2005 Chang-Craft filed a defamation claim 

against   Cameron,   alleging   his   statement   "that   she   was   going   to   shoot   her   fellow 

employees" caused her to be wrongfully terminated from Alaska Airlines.  Chang-Craft 

amended her complaint to include a wrongful termination and separate defamation claim 

against Alaska Airlines after the Union withdrew her grievance from arbitration.                  The 

case went to trial in October 2008. 

                Jacquelyn Briskey, a certified public accountant testifying as an expert 

witness, estimated Chang-Craft was entitled to approximately $518,000 in past and future 

damages. She determined Chang-Craft would have worked approximately 5 more years 

and, based on her life expectancy, Chang-Craft's retirement would last approximately 27 

years.   Lost travel benefits were a large portion of Chang-Craft's damages; based on her 

travel history and future travel plans, Briskey calculated Chang-Craft's future travel 

        6       In 2004 Welch lost an election to continue as General Chair and a new 

General Chair took over sometime in 2005.  Welch died before trial. 

                                                  -8-                                              6550 

----------------------- Page 9-----------------------

benefits to include approximately 25 round-trip flights per year.               Briskey valued each 

flight at $625, which represented the cost of buying enough Alaska Airlines frequent flier 

miles for a round-trip airplane ticket. Briskey also testified that her damages estimate did 

not separate out Chang-Craft's personal travel benefits from her family's and that Chang- 

Craft would have received transferable travel vouchers while retired. 

                Towards the end of Briskey's testimony, Alaska Airlines moved to strike 

a portion of her testimony as contrary to a pretrial ruling that Chang-Craft could not 

recover damages for lost travel benefits for non-dependent family members. Chang-Craft 

argued that the pretrial order precluded recovery only for third-party travel benefits, but 

not travel benefits that would have been given directly to her for transfer to family 

members, such as "buddy passes." When Alaska Airlines argued that Briskey's damages 

calculations did not make such a distinction, the trial court concluded that the dispute was 

a question of fact for the jury and that it would give an appropriatejury instruction.               The 

court denied the motion to strike the portion of Briskey's testimony. 

                At the close of Chang-Craft's case-in-chief and again at the close of all of 

the evidence, Alaska Airlines moved for a directed verdict on Chang-Craft's wrongful 

termination claim, arguing Chang-Craft failed to establish the Union had breached its 

duty of fair representation.       The trial court denied the first motion because reasonable 

inferences from Chang-Craft's testimony about the Union's lack of response to (1) her 

inquiries regarding her grievance and (2) her attorney's letter appealing the Union's 

tentative decision to withdraw her grievance provided "enough evidence to raise an issue 

of material fact" even though there was "not a lot of evidence" demonstrating the Union 

had breached its duty of fair representation.          The trial court denied the second motion 

"[f]or the reasons already stated." 

                The jury returned a special verdict, finding in relevant part that: (1) Alaska 

Airlines   wrongfully   terminated   Chang-Craft;   (2)   the   Union   violated   its   duty   of   fair 

                                                   -9-                                             6550
 

----------------------- Page 10-----------------------

representation; and (3) Chang-Craft was entitled to compensation totaling $479,111 for 
the wrongful termination.7         Alaska Airlines moved for JNOV, claiming Chang-Craft 

failed to prove the Union had breached its duty of fair representation.               Alaska Airlines 

alternatively moved for a new trial or remittitur, claiming Chang-Craft failed to establish 

an accurate estimate of her lost travel benefits because Briskey improperly included 

travel benefits for Chang-Craft's family and friends. 

                The trial court denied both motions. Addressing the JNOV motion, the trial 

court found "sufficient evidence to support the jury's verdict." The trial court first noted 

evidence indicating the Union "failed to adequately pursue the grievance after [step one] 

of the procedure," citing the lack of evidence demonstrating the Union had actually 

considered Chang-Craft's appeal during the one-year delay between the Union's tentative 

decision and its final decision to withdraw her grievance from arbitration. The trial court 

found that a reasonable jury could infer from both the delay and the Union's lack of 

response to Chang-Craft's attorney's letter that the Union failed to consider her grievance 

properly.   The trial court also concluded the jury could have reasonably found the Union 

failed to "exercise special care" when handling Chang-Craft's grievance for wrongful 

termination, "the most extreme sanction an employer can impose against an employee." 

                Addressing the motion for a new trial or remittitur, the court found the 

jury's damage award rational given the evidence presented.                  The court observed that 

Chang-Craft's   expert   witness   determined   the value   of   future   lost   travel   benefits   by 

multiplying the number of flights per year by "the monetary value of airline miles."  The 

court also noted that Jury Instruction 27 "was very clear" that Chang-Craft could not 

recover   for   her   family's   travel   benefits,   but   that   she   could   seek   compensation   for 

transferable travel benefits "she herself would have received through employment and 

        7       The jury also found that Cameron and Alaska Airlines separately defamed 

Chang-Craft and awarded her $5,000 on each claim. 

                                                  -10-                                               6550 

----------------------- Page 11-----------------------

retirement."8    The court therefore denied the motion for a new trial or remittitur. 

                Alaska Airlines appeals the trial court's decisions denying the motions for 
directed verdict, JNOV, and a new trial or remittitur.9 

III.	   DISCUSSION 

        A.	     Motions For Directed Verdict And JNOV 

                1.	     Legal   standards   for   the   motions;   standard   of   review   for   the 
                        rulings 

                Motions for directed verdict and JNOV are provided for in Alaska Rule of 

Civil Procedure 50.   Rule 50(a) acknowledges that a motion for directed verdict may be 

made after the close of the opponent's evidence and provides that in the event the motion 

        8       The relevant jury instruction, entitled "Travel Benefits," prohibited Chang- 

Craft   from   "enforc[ing]   the   rights   of   her   parents   and   children   to   their   own   travel 
benefits," but allowed her to "seek compensation for travel benefits that she herself 
would have received . . . and could transfer to others."  Alaska Airlines did not object to 
this instruction. 

        9       Both Alaska Airlines and Cameron filed this appeal, with a number of the 

stated points on appeal relating to the trial court's denial of summary judgment motions 
on Chang-Craft's wrongful termination and defamation claims and to evidentiary rulings 
at   trial   regarding   testimony   about   Cameron's   harassment   of   Chang-Craft   and   other 
Alaska   Airlines   employees.       In   their   opening   brief,   Alaska   Airlines   and   Cameron 
expressly waived their challenges to the jury's verdict on Chang-Craft's defamation 
claims.   Alaska Airlines and Cameron did not brief any of the other appeal points, and 
they are therefore waived. Partridge v. Partridge, 239 P.3d 680, 687 n.25 (Alaska 2010) 
("A party's failure to brief an issue constitutes abandonment of that issue." (quoting 
Booth v. State, 903 P.2d 1079, 1090 (Alaska App. 1995))). 

                Chang-Craft filed a cross-appeal, raising as a sole point on appeal that the 
trial court erred by permitting the jury to allocate fault between Alaska Airlines and the 
Union and then reducing the judgment against Alaska Airlines accordingly. Chang-Craft 
later dismissed her cross-appeal. 

                                                  -11-	                                           6550
 

----------------------- Page 12-----------------------

is denied, the moving party may then present its evidence.10  Rule 50(b) recognizes that 

a motion for directed verdict may be made at the close of all the evidence but before the 

case is submitted to the jury, and provides that in the event the motion is denied or 

otherwise not granted, the case is submitted to the jury subject to a later determination 
of the legal questions raised in the motion.11       Rule 50(b) further provides that a party who 

unsuccessfully moved for directed verdict may move to set aside an adverse verdict and 

judgment   and   have   judgment   entered   in   its   favor   in   accordance   with   its   motion   for 
directed verdict,12 which is referred to as a motion for judgment notwithstanding the 

verdict.13 

                At the close of Chang-Craft's evidence Alaska Airlines moved for directed 

verdict on her wrongful termination claim, arguing that Chang-Craft had not presented 

sufficient     evidence     to  establish    that  the   Union    had    breached     its  duty   of  fair 

representation.   That motion was denied, and Alaska Airlines presented its evidence. At 

the close of all the evidence Alaska Airlines renewed its motion for directed verdict on 

the same ground.  The renewed motion was denied.  Alaska Airlines then timely moved 

for JNOV on the same ground.   That motion also was denied. 

        10      "A party who moves for a directed verdict at the close of the evidence 

offered by an opponent may offer evidence in the event that the motion is not granted . . . 
as if the motion had not been made."  Alaska R. Civ. P. 50(a). 

        11      "Whenever   a   motion   for   directed   verdict   made   at   the   close   of   all   the 

evidence is denied or for any reason is not granted, the court is deemed to have submitted 
the action to the jury subject to a later determination of the legal questions raised by the 
motion."  Alaska R. Civ. P. 50(b). 

        12      "[A] party who has moved for a directed verdict may move to have the 

verdict and any judgment entered thereon set aside and to have judgment entered in 
accordance with the party's motion for directed verdict[.]"  Alaska R. Civ. P. 50(b). 

        13      See Alaska R. Civ. P. 50(c) (referring to Rule 50(b) motion as "motion for 

judgment notwithstanding the verdict"). 

                                                  -12-                                             6550
 

----------------------- Page 13-----------------------

                Alaska   Airlines   appeals   all   three  rulings.   This   causes   us   to   consider 

whether the record for review is different for the different motions.  We first note that a 

party cannot appeal the denial of a JNOV motion if the party did not move for a directed 

verdict at the close of the evidence, although failure to bring a JNOV motion does not 

preclude review of the denial of a motion for a directed verdict made at the close of all 
the evidence.14    But because both motions focus on the state of the record at the close of 

all the evidence, there should be no material difference in the motions, how they are 
decided, or how they are reviewed on appeal.15            We next note that a mid-trial directed 

verdict motion is essentially a summary judgment motion made after the close of an 
opponent's case.16     We have held that the denial of a summary judgment motion due to 

        14      Sherbahn v. Kerkove, 987 P.2d 195, 198 n.5 (Alaska 1999). 

        15      See Hagen Ins., Inc. v. Roller, 139 P.3d 1216, 1219 (Alaska 2006) (quoting 

Bobich v. Stewart, 843 P.2d 1232, 1235 (Alaska 1992)) (indicating congruence between 
standard for reviewing denial of JNOV and directed verdict motions). 

        16      Compare Burnett v. Covell, 191 P.3d 985, 990 (Alaska 2008) (summary 

judgment is not granted when "reasonable jurors could disagree on the resolution of a 
factual issue"), with Murray E. Gildersleeve Logging Co. v. N. Timber Corp., 670 P.2d 
372, 377 (Alaska 1983) (directed verdict is granted when "reasonable jurors could not 
differ in their resolution of a disputed issue of fact").  The United States Supreme Court 
has held that the two standards are the same.  See Reeves v. Sanderson Plumbing Prods., 
Inc., 530 U.S. 133, 150 (2000) ("[T]he standard for granting summary judgment 'mirrors' 
the standard for judgment as a matter of law, such that 'the inquiry under each is the 
same.' " (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986))); Bill 
Johnson's Rests., Inc. v. NLRB, 461 U.S. 731, 745 n.11 (1983) ("The primary difference 
between the two motions is procedural; summary judgment motions are usually made 
before trial and decided on documentary evidence, while directed verdict motions are 
made at trial and decided on the evidence that has been admitted.").                See generally 9 
JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE   50.06[5][b] (3d ed. 2010) 
("The standard applicable to pretrial motions for summary judgment under Rule 56 is 
identical to the standard for motions for judgment as a matter of law during or after trial 
                                                                                       (continued...) 

                                                 -13-                                              6550 

----------------------- Page 14-----------------------

a factual dispute may not be appealed after trial.17           The denial of a mid-trial directed 

verdict due to a factual dispute likely should be treated in similar fashion, but because 

Alaska Airlines again moved for a directed verdict at the close of the evidence, we 

review the denial of the directed verdict motions, along with the denial of the JNOV 
motion, on the full record presented to the jury.18 

                 We next consider the standard for directed verdict and JNOV motions. The 
substantive legal question19 is "whether the evidence, and all reasonable inferences which 

may be drawn from the evidence, viewed in the light most favorable to the non-moving 
party,   permits   room   for   diversity   of   opinion   among   reasonable   jurors."20     Because 

        16      (...continued) 

under Rule 50."). 

        17      Larson v. Benediktsson, 152 P.3d 1159, 1169 (Alaska 2007) ("[P]olicy, 

reason, and precedent militate in favor of a rule that precludes post-trial review of orders 
denying motions for summary judgment - at least when the 'motions are denied on the 
basis that there are genuine issues of material fact.' " (quoting Ondrusek v. Murphy, 120 
P.3d 1053, 1056 n.2 (Alaska 2005))). 

        18      See Bohna v. Hughes, Thorsness, Gantz, Powell, & Brundin, 828 P.2d 745, 

761 n.41-42 (Alaska 1992) (considering testimony occurring after denial of mid-trial 
directed verdict motion when reviewing appeal of denial of motions for directed verdict 
and JNOV), superseded by statute on other grounds as recognized in Petrolane Inc. v. 
Robles, 154 P.3d 1014, 1019-20 (Alaska 2007). 

        19      Taylor v. Interior Enters., Inc., 471 P.2d 405, 407 (Alaska 1970) (regarding 

common   law   motions   for   directed   verdict,   whether   there   is   factual   question   to   be 
presented to jury is question of law); 9B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, 
FEDERAL PRACTICE &PROCEDURE  2524 (3d ed. 2008) (stating it "no longer is subject 
to doubt that whether the evidence presented at trial is sufficient to create an issue of 
fact for the jury or will permit the court to enter judgment as a matter of law is solely 
a question of law"). 

        20      City of Delta Junction v. Mack Trucks, Inc., 670 P.2d 1128, 1130 (Alaska 

                                                                                        (continued...) 

                                                  -14-                                              6550 

----------------------- Page 15-----------------------

conflicting evidence is not to be weighed and witness credibility is not to be judged on 
appeal,21 generally the only evidence that should be considered is the evidence favorable 

to the non-moving party - if that evidence is insufficient to allow a reasonable juror to 

find for the non-moving party, the trial court should grant a directed verdict or JNOV 

motion. But such motions "should be scrutinized under a principle of minimum intrusion 

into the right to jury trial guaranteed under the Alaska Constitution. . . . If there is any 
doubt, questions of fact should be submitted to the jury."22 

              Finally, we note that because the sufficiency of the evidence to support 
a jury verdict is a question of law, our review is de novo.23 

              2.      Legal standards for the Union's duty of fair representation 

              Because Chang-Craft's employment with Alaska Airlines was governed by 
the CBA and her wrongful termination claim is predicated on a breach of the CBA,24 

       20      (...continued) 

1983)   (citing City of Whittier v. Whittier Fuel & Marine Corp., 577 P.2d 216, 220 
(Alaska 1978) (directed verdict)); accord Ayuluk v. Red Oaks Assisted Living, Inc., 201 
P.3d 1183, 1196 & n.27 (Alaska 2009) (directed verdict);        L.D.G., Inc. v. Brown, 211 
P.3d 1110, 1117-18 (Alaska 2009) (JNOV). 

       21      City of Whittier, 577 P.2d at 220, disapproved on other grounds, Native 

Alaskan Reclamation & Pest Control, Inc. v. United Bank Alaska, 685 P.2d 1211, 1220 
(Alaska 1984); accord Turner v. Municipality of Anchorage, 171 P.3d 180, 185 (Alaska 
2007) (citing Wal-Mart, Inc. v. Stewart, 990 P.2d 626, 631-32 (Alaska 1999)). 

       22      City of Delta Junction, 670 P.2d at 1130 n.2 (regarding directed verdict 

motions); accord Cummins, Inc. v. Nelson, 115 P.3d 536, 544 (Alaska 2005). 

       23     L.D.G., 211 P.3d at 1117 ("We review de novo the grant of a directed 

verdict and the grant of a judgment notwithstanding the verdict . . . ."). 

       24     A wrongful termination claim requires proof not only that an employee was 

discharged, but also that "the employer breached a contract . . . in connection with the 
employee's termination." Miller v. Safeway, Inc., 170 P.3d 655, 658 n.11 (Alaska 2007) 
                                                                               (continued...) 

                                            -15-                                         6550 

----------------------- Page 16-----------------------

section 301 of the Labor Management Relations Act applies.25  Federal substantive law 

therefore governs Chang-Craft's wrongful termination claim.26 

               Under relevant federal law "an employee must attempt to exhaust exclusive 

grievance and arbitration procedures established by a [CBA]" and may bring a direct 

action against a private employer for wrongful termination if "the union wrongfully 
refuses to process the grievance"27 and the employee establishes "the union . . . breached 

its duty of fair representation in its handling of the employee's grievance."28  This is not 

an easy standard to meet, and an employee faces a "formidable challenge" to establish 
a union's breach of its duty of fair representation.29     A union breaches its duty of fair 

representation "only when [the union's] conduct toward a member of the collective 
bargaining unit is arbitrary, discriminatory, or in bad faith."30 

       24      (...continued) 

(quoting Charles v. Interior Reg'l Hous. Auth., 55 P.3d 57, 59 (Alaska 2002)). 

       25      See Schaub v. K & L Distribs., Inc., 115 P.3d 555, 560 (Alaska 2005) ("For 

cases involving private employers, claims that are founded directly on rights created by 
[CBAs] and claims 'substantially dependent upon analysis of a [CBA]' are governed by 
 301 of the Labor Management Relations Act." (quoting           Caterpillar Inc. v. Williams, 
482 U.S. 386, 394 (1987))); see also Labor Management Relations Act of 1947  301, 
29 U.S.C.  185(a) (2006). 

       26      Schaub, 115 P.3d at 560 n.9 ("Actions arising under  301 are controlled 

by federal substantive law even though brought in state court." (citing among othersAvco 
Corp. v. Aero Lodge No. 735, Int'l Ass'n of Machinists & Aerospace Workers, 390 U.S. 
557, 559-60 (1968))). 

       27      Id. at 560-61 (citing  Vaca, 386 U.S. at 184-85). 

       28      Id. at 561 (quoting  Vaca, 386 U.S. at 186). 

       29      Id. at 562. 

       30      Id. (quoting  Vaca, 386 U.S. at 190). 

                                             -16-                                         6550
 

----------------------- Page 17-----------------------

                  The United States Supreme Court has recognized that "under the arbitrary 

prong,   a   union's   actions   breach   the   duty   of   fair   representation   only   if   [the   union's 

conduct] can be fairly characterized as so far outside a wide range of reasonableness that 
it is wholly irrational or arbitrary."31  The Court has acknowledged that granting a "wide 

range of reasonableness" allows unions necessary discretionary decision-making powers, 
"even if those judgments are ultimately wrong."32              The Court has further explained that 

"[a] union's conduct can be classified as arbitrary only when it is irrational, . . . without 
a rational basis or explanation,"33 and that mere negligence by a union does not breach 

the duty of fair representation.34 

                 In Schaub v. K & L Distributors, Inc., we provided further guidance for 
evaluating   whether   a   union's   handling   of   a   grievance   was   arbitrary.35         We   cited 

approvingly   a   Ninth   Circuit   case,     Tenorio   v.   NLRB,   observing   that   a   union   must 

investigate grievances brought to it, and that "the sufficiency of the union's actions will 
vary with each case."36  We acknowledged that although unions have a "reasonable range 

of discretion" in handling grievances, that discretion is not limitless; a union may not 

        31       Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 45 (1998) (quotingAir 

Line   Pilots   Ass'n,   Int'l   v.   O'Neill,   499   U.S.   65,   78   (1991))  (alteration   in   original) 
(internal quotation marks omitted). 

        32       Id. at 45-46. 

        33       Id. at 46 (citing Air Line Pilots, 499 U.S. at 78-81). 

        34       United Steelworkers of Am., AFL-CIO-CLC v. Rawson, 495 U.S. 362, 372- 

73 (1990). 

        35       115 P.3d at 562-63. 

        36       Id. (citing Tenorio v. NLRB, 680 F.2d 598, 601-02 (9th Cir. 1982)). 

                                                    -17-                                              6550
 

----------------------- Page 18-----------------------

"egregious[ly] disregard" union members' rights.37  And we adopted the Ninth Circuit's 

approach that in grievances concerning employee termination a union has additional 

responsibility "to exercise special care in handling [the] grievance because [it] concern[s] 
. . . the most serious sanction an employer can impose."38 

                3.	     The trial court did not err by denying Alaska Airlines's motions 
                        for directed verdict and JNOV. 

                Alaska Airlines argues the Union did not "egregious[ly] disregard" Chang- 

Craft's rights, but rather met the special handling requirement for employee termination 

grievances.      Alaska   Airlines   asserts   that   by   itself,   the   delay   between   Chang-Craft's 

appeal from the Union's tentative decision to the Union's final decision withdrawing her 

grievance does not constitute a breach of the Union's duty of fair representation.  Alaska 

Airlines asserts that because Chang-Craft's appeal from the Union's tentative decision 

failed   to   present   new   facts,   the   Union   was   not   required   to   perform   an   additional 

investigation before issuing a final decision. Alaska Airlines further asserts that without 

evidence demonstrating Chang-Craft's grievance was prejudiced, the Union's failure to 

communicate with Chang-Craft was negligent at most and "falls far short" of breaching 

the duty of fair representation. 

                The flaw in Alaska Airlines's argument is its narrow focus only on the 15- 

month delay in the Union's response to Chang-Craft's appeal of the Union's tentative 

decision to withdraw her grievance from arbitration.  We instead focus on that decision 

and   the   circumstances   surrounding   that   decision.      We   agree   that   notwithstanding   a 

lengthy but non-prejudicial delay, when a union offers a reasoned explanation for its 

decision a court usually should not question the reasoning because "[t]o do so would 

        37      Id. (quoting Tenorio, 680 F.2d at 601). 

        38      Id. (quoting Tenorio, 680 F.2d at 602). 

                                                  -18-                                               6550 

----------------------- Page 19-----------------------

penalize the union for mere negligent decision making."39  But absent some explanation 

of a union's decision, a court cannot "determine whether the union deliberated the issue 
in the first place."40    As the Ninth Circuit has concluded, "it makes little sense to allow 

a union to hide behind the mantle of 'judgment' and 'discretion' when the evidence 
suggests that it actually exercised neither."41         "In short, a union's unexplained failure to 

consider a meritorious substantive argument in favor of an employee signals that the 
process has broken down . . . ."42      We recognize that reviewing a fair representation claim 

requires   some   evaluation   of   the   strength   of   the   employee's   grievance,   for   "[i]f   the 

employee's position is fundamentally weak, the union can hardly be faulted for failing 
to brood over it."43    But if the employee's argument has merit, then it cannot be presumed 

that the union exercised its judgment "when the evidence suggests otherwise."44 

                 Here, although the Union's tentative decision to withdraw the grievance 

noted that the Union had reviewed the facts, the CBA, and relevant arbitration awards, 

the Union did not explain how or why those factors supported the tentative decision to 

withdraw Chang-Craft's grievance from arbitration.  The record gives no indication that 

before   issuing   its   final   decision   the   Union   actually   considered   any   of   the   evidence 

Chang-Craft set forth in her appeal of the Union's tentative decision.  The Union's final 

decision to withdraw Chang-Craft's grievance failed to provide an explanation; it simply 

stated that the Union "has determined not to process the . . . grievance further; therefore, 

        39      Peters v. Burlington N. R.R. Co., 931 F.2d 534, 540 (9th Cir. 1990).
 

        40      Id.
 

        41      Id.
 

        42      Id.
 

        43      Id.
 

        44      Id. (emphasis added). 

                                                   -19-                                              6550
 

----------------------- Page 20-----------------------

we are withdrawing it from the System Board of Adjustment and closing our files." 

When viewed in the light most favorable to Chang-Craft, this unexplained withdrawal 

of a meritorious grievance, especially after the 15-month delay, suggests the Union 

simply   disregarded   Chang-Craft's   appeal   or   at   best   "processed   [her]   grievance   in   a 
perfunctory manner."45         This can be viewed as conduct without a rational basis,46 or 

egregiously unfair47 - in other words, arbitrary conduct. 

                 Also viewed in the light most favorable to Chang-Craft, evidence of the 

Union's performance during the grievance process provides additional support for the 

jury's finding that the Union breached its duty of fair representation. Lochner, the Union 

steward   who   filed   Chang-Craft's   original   grievance   and   who   attended   the   step-one 

grievance hearing, testified that in her opinion the Union did not fairly represent Chang- 
Craft     at  the   step-one     grievance    hearing.48      Lochner      transmitted     Chang-Craft's 

         45      Vaca, 386 U.S. at 193. 

         46      See Robesky v. Qantas Empire Airways Ltd., 573 F.2d 1082, 1088-89 (9th 

Cir. 1978) (holding intentional conduct without rational basis is arbitrary breach of duty 
of fair representation). 

         47      Id. at 1088, 1089-91 (holding unintentional conduct that is egregious, or 

recklessly disregards employee's rights and severely prejudices employee, is arbitrary 
breach of duty of fair representation). 

         48      Alaska Airlines asserts that admittance of and reliance on Lochner's opinion 

testimony   about   the   step-one   hearing   violated   Alaska   Evidence   Rule   701.          Alaska 
Airlines   implies   that   Lochner   lacked personal   knowledge   about   the   Union   advising 
Chang-Craft not to attend the hearing and also that Lochner's testimony "merely [told] 
the   jury   what   result   to   reach."  Rule   701   allows   a   lay   witness   to   provide   opinion 
testimony if it is "(a) rationally based on the perception of the witness and (b) helpful to 
a clear understanding of the witness's testimony or the determination of a fact in issue." 
Here   Lochner's   testimony   about   the   step-one   hearing   was   rationally   based   on   her 
personal knowledge - Lochner filed Chang-Craft's grievance, was one of three shop 
stewards representing Chang-Craft at the step-one hearing, and informed Chang-Craft 
                                                                                           (continued...) 

                                                    -20-                                                6550 

----------------------- Page 21-----------------------

grievance file to Welch for the step-two grievance process.             The jury could reasonably 

infer that Lochner communicated her concerns about the step-one grievance hearing to 

Welch and could consider that in evaluating the care Welch should have given to the 

step-two grievance hearing.          From the testimony of Hartnett, Alaska Airlines's labor 

services manager, the jury could reasonably determine that Welch failed to provide 

Hartnett with witness statements, information about previous harassment complaints 

against    Cameron,     Chang-Craft's      version   of   the  December      14  incident,   or  details 
regarding Chang-Craft's December 15 exit from work.49  The jury could then reasonably 

        48      (...continued) 

of the recommendation that Chang-Craft not attend the hearing.  Lochner also testified 
that she was "involved in numerous grievances" and was "trained by the union on the 
duties of shop stewards and the union toward their members."                Lochner also stated the 
basis for her opinion - she thought a grievant should always be present at a step-one 
hearing, in part because the grievant could provide more information than what the Union 
had collected.      Because this information could be helpful in determining whether the 
Union   ultimately   acted   arbitrarily   when   withdrawing   Chang-Craft's   grievance   from 
arbitration, admitting the testimony was not an abuse of discretion. See Schofield v. City 
of St. Paul, 238 P.3d 603, 606 (Alaska 2010) ("We review a trial court's admission or 
exclusion of evidence for abuse of discretion." (citing Getchell v. Lodge, 65 P.3d 50, 53 
(Alaska 2003))). 

        49      Alaska Airlines argues that Lochner's testimony about "Welch's habits" 

was hearsay and that she lacked personal knowledge about how the Union handled the 
grievance after the step-one hearing.        Alaska Airlines also argues Lochner's testimony 
about "Welch's grievance handling practices" was "improper character evidence under 
[Alaska] Evidence Rule 404."  But Hartnett's testimony alone provided sufficient basis 
for   a   jury   to   conclude   that   Welch   mishandled  the   step-two   grievance   process,   and 
therefore     Alaska    Airlines's    argument     that  the   trial  court   improperly     relied   on 
inadmissible hearsay and character testimony about Welch from Lochner to deny its 
motions is misplaced.  We further note that the trial court cloaked Lochner's testimony 
with a limiting instruction that it was not admitted for the truth of the matter asserted. 
It seems unlikely the trial court ignored its own limiting instruction when considering the 
evidence in the record supporting the jury's verdict, but, given Hartnett's testimony, any 
                                                                                        (continued...) 

                                                  -21-                                              6550 

----------------------- Page 22-----------------------

infer   that   when   the   Union   made   its   tentative   decision   to   withdraw   Chang-Craft's 

grievance from arbitration, it was aware of its representatives' handling of the step-one 

and   step-two   grievance   hearings,   and   the   jury   could   take   that   into   account   when 

evaluating the care the Union should have given to both its tentative decision and its 

rejection of Chang-Craft's appeal of that decision.           All of this supports the conclusion 

that the jury could reasonably find the Union failed to take special care of Chang-Craft's 

grievance   when   it   withdrew   it   from   arbitration   without   explanation,   and   the   Union 

handled the grievance in an arbitrary and egregious manner. 

        B.	     Motion For Remittitur Or New Trial On Damages 

                1.	     Legal standards regarding damages and the motion; standard 
                        of review for the ruling 

                In breach of contract actions a "plaintiff must present to the jury evidence 
sufficient to calculate the amount of the loss caused by the breach."50  The evidence does 

not need to prove with "exact detail" the amount of damages; the evidence needs only 
to "be sufficient to provide a reasonable basis for the jury's determination."51              In other 

words "the law does not require absolute precision, it requires only a reasonable basis for 
the award."52    Although a purely speculative award of damages is impermissible:53 

        49      (...continued) 

such error would be harmless. 

        50      City of Palmer v. Anderson, 603 P.2d 495, 500 (Alaska 1979). 

        51      Id. 

        52      Id. 

        53      We have recognized that: 

                "[a]n award cannot stand . . . if the amount is the result of 
                speculation . . . ." City of Whittier v. Whittier Fuel & Marine 
                                                                                        (continued...) 

                                                  -22-	                                             6550 

----------------------- Page 23-----------------------

                Once actual damages are shown and there is a reasonable 
                basis for computing an award, a defendant's opportunity for 
                pre-trial discovery of the evidentiary basis for the amount 
                claimed, the right to cross-examine witnesses and to present 
                evidence, as well as the judge's duty to instruct the jury on 
                the   issue   of   certainty   provide   adequate   protection   against 
                speculative verdicts.[54] 

                A trial court may grant remittitur "when a jury returns an otherwise proper 
verdict awarding an amount of damages that the evidence cannot reasonably support."55 

"Remittitur is appropriate when a jury 'without acting under the type of passion or 

prejudice     that  would    warrant    a  new    trial,  nonetheless    awards    an  amount     that  is 
unreasonable given the evidence.' "56          We review a trial court's denial of remittitur for 

abuse of discretion, reversing "only when left with a firm conviction on the whole record 

that   the   trial   judge   made   a   mistake   in   refusing   to   order   a remittitur   .   .   .   and   where 

        53	     (...continued) 

                Corp., 577 P.2d 216, 222 (Alaska 1978);Ben Lomond, Inc. v. 
                Schwartz, 915 P.2d 632, 636 (Alaska 1996) (citing City of 
                Palmer v. Anderson, 603 P.2d 495, 500 (Alaska 1979)).  See 
                also     48   AM.JUR.2D,       Proof     of   Facts        18    (2001) 
                ("Furthermore, damages for future losses must be reasonably 
                certain of calculation and cannot be based upon speculation 
                or conjecture."). 

Cent. Bering Sea Fishermen's Ass'n v. Anderson, 54 P.3d 271, 279 n.20 (Alaska 2002). 

        54      City of Whittier, 577 P.2d at 224 (footnote omitted), disapproved on other 

grounds, Native Alaskan Reclamation, 685 P.2d at 1220. 

        55      Reeves   v.   Alyeska   Pipeline   Serv.   Co.,   56   P.3d   660,   668   (Alaska   2002) 

(citing Exxon Corp. v. Alvey, 690 P.2d 733, 741-42 (Alaska 1984)). 

        56      N. Slope Borough v. Brower, 215 P.3d 308, 315 (Alaska 2009) (quoting 

City of Fairbanks v. Rice, 20 P.3d 1097, 1107 (Alaska 2000)). 

                                                  -23-	                                            6550
 

----------------------- Page 24-----------------------

intervention on our part is necessary to prevent a miscarriage of justice."57 

                A trial court may grant a new trial "on all or part of the issues" tried to a 
jury "if required in the  interest of justice."58     When considering a motion for new trial 

based on a claim that the jury's verdict is against the weight of the evidence, "the court 

must use its discretion and independently weigh the evidence" and may set aside the 
verdict "even when 'there is substantial evidence to support it.' "59   But on review: 

                Because [t]he question . . . whether to grant or refuse a new 
                trial rests in the sound discretion of the trial court . . . we view 
                the evidence in the light most favorable to the non-moving 
                party.   We will affirm a trial court's decision to deny a new 
                trial if there is an evidentiary basis for the jury's decision, and 
                will only reverse a decision to deny a new trial if the evidence 
                supporting the verdict was so completely lacking or slight and 
                unconvincing as to make the verdict plainly unreasonable and 
                unjust.[60] 

                2.	     The trial court did not abuse its discretion by denying Alaska 
                        Airlines's motion for remittitur or a new trial on damages. 

                Alaska Airlines argues the evidence does not support the jury's damages 

award because Chang-Craft's travel benefits, which represented the majority of Chang- 

Craft's future damages, were improperly calculated. Alaska Airlines asserts that Briskey, 

        57	     Id. (internal quotation marks omitted). 

        58      Alaska R. Civ. P. 59(a);Domke v. Alyeska Pipeline Serv. Co., 137 P.3d 295, 

298 (Alaska 2006) ("A dissatisfied litigant may move for a new trial 'in the interests of 
justice' under Alaska Civil Rule 59(a)."). 

        59      Hogg v. Raven Contractors, Inc., 134 P.3d 349, 352 (Alaska 2006) (quoting 

Kava v. Am. Honda Motor Co., 48 P.3d 1170, 1176 (Alaska 2002) (quoting 11 CHARLES 
ALAN  WRIGHT, ARTHUR  R. MILLER  & MARY  KAY  KANE, FEDERAL  PRACTICE   AND 
PROCEDURE  2806 at 65 (2d ed. 1995))). 

        60      Id. (citations and internal quotation marks omitted). 

                                                 -24-	                                          6550
 

----------------------- Page 25-----------------------

Chang-Craft's damages expert, produced a fundamentally flawed damages estimate that 

"cannot constitute an evidentiary basis for the jury's verdict" because it failed to separate 

Chang-Craft's personal travel benefits from her family's travel benefits. Alaska Airlines 

further labels Briskey's estimate as speculative, claiming she relied solely on Chang- 

Craft's statements about future travel and not on "actual facts." 

                 Prior   to   trial   but   after   Briskey's   initial  report  of   lost  travel  benefits 

calculations for Chang-Craft and her family members, Alaska Airlines moved for partial 

summary judgment to preclude Chang-Craft from recovering lost travel benefits for non- 

dependent   family   members.         Alaska  Airlines   acknowledged   that   it   provided   travel 

benefits for employees and their spouses, as well as employees' parents and dependent 

children.     But Alaska Airlines argued that assuming damages for travel benefits were 

recoverable in this case, Chang-Craft had no standing to recover damages for her non- 

dependent family members' lost travel benefits.               The court granted Alaska Airlines's 

motion as to Chang-Craft's children and parents, but noted that Chang-Craft could "still 

seek    damages      related   to  transferable    travel   benefits   that she    herself   would     have 

received." 

                 At trial Briskey estimated Chang-Craft would have worked approximately 

5 years before retiring and estimated her retirement would last approximately 27 years. 

Based on Chang-Craft's stated future travel plans and a summary of the number of flights 

Chang-Craft and her family members had previously taken, Briskey estimated that future 

travel would include approximately 25 round-trip flights per year.  Briskey testified she 

calculated   the   travel   benefits   using   $625   as   the   round-trip   flight   value   because   that 

represented the cost to buy enough frequent flier miles for a round-trip ticket.                  But she 

also testified that by the time of trial the cost of buying miles for a round-trip ticket had 

risen to $687.50. 

                 As noted earlier, Alaska Airlines asserted during its cross-examination of 

                                                   -25-                                              6550
 

----------------------- Page 26-----------------------

Briskey that her damages calculation for lost future travel benefits still included Chang- 

Craft's children's and parents' travel benefits, and moved to strike Briskey's testimony. 

Chang-Craft argued that Briskey's testimony about family travel related to transferable 

"buddy   passes"   that   would   have   been   given   directly   to   Chang-Craft.       The   court 

concluded the dispute was a question of fact for the jury and that it would give an 

appropriate jury instruction. 

                Alaska Airlines's own expert economist, Michael Reaume, later testified 

about the court's pretrial order limiting travel benefits damages and his understanding 

that Chang-Craft's claim for travel benefits was limited to benefits for Chang-Craft, her 

husband,   and   her   allowable   guests,   but   not  for   Chang-Craft's   children   or   parents. 

Because of the vagaries of air fares and restrictions on employee travel, Reaume was not 

willing to estimate the value of Chang-Craft's travel benefits.               But   he   testified   that 

Alaska Airlines's own estimate of the annual travel benefits was "pretty much the same" 
as Briskey's original estimate61 and that the fundamental difference between "the defense 

and the plaintiff" was how those annual travel benefits were distributed among "Chang- 

Craft,   her   spouse,   her   parents,   her   children   and   guests." When   Reaume   actually 

quantified that difference based on his allocation of the travel benefits among Chang- 

Craft's family members, it was around $7,000. 

                There is no question that Chang-Craft suffered actual damages in the form 

of lost travel benefits.    Alaska Airlines had the opportunity for pretrial discovery into 

        61      In   her   initial   December   2006   report,   Briskey   calculated   annual   travel 

benefits of $12,739 based on (1) the Chang-Craft family's travel history and (2) the cost 
of purchasing 20,000 Alaska Airline miles for a round-trip ticket, which at that time was 
approximately $500.  Reaume testified that Alaska Airlines's estimate of Chang-Craft's 
annual family travel benefits was approximately $12,500.               As noted above, Briskey's 
calculations were based on an updated round-trip ticket cost of $625 and she testified that 
at the time of trial the cost had increased to $687.50.  We note that Chang-Craft's future 
annual travel benefit loss was required to be reduced to present value for a jury award. 

                                                 -26-                                              6550 

----------------------- Page 27-----------------------

those damages and to make motions to limit those damages.            Alaska Airlines had the 

opportunity to cross-examine Chang-Craft about her stated retirement travel plans and 

about the extent of the travel benefits available to retired employees. Alaska Airlines had 

the   opportunity   to   cross-examine   Briskey   about   her   damages   calculations. Alaska 

Airlines had the opportunity to present its own evidence on the extent of travel benefits 

available to retired employees and how to value airline flights for calculating lost travel 

benefits.   As it turned out, Reaume did not disagree with Briskey's methodology for 

calculating annual travel benefits, nor did he contest Briskey's updated cost estimates for 

travel.   Reaume's sole argument for a reduction from Briskey's initial estimate was that 

Briskey improperly included some travel benefits for Chang-Craft's parents and children. 

               We agree with the trial court that Jury Instruction 27 on travel benefits 

made it clear that Chang-Craft could not recover for her non-dependent family members' 

travel benefits.  We also agree with the trial court that the jury had sufficient evidence 

to rationally determine how many annual trips Chang-Craft and her husband would take 

during her retirement, how many transferable "buddy passes" Chang-Craft would receive 

during her retirement to use with her trips, and how to value those trips.          As Alaska 

Airlines acknowledged: (1) approximately 70% of Chang-Craft's total damages and 95% 

of Chang-Craft's future damages were for lost travel benefits, and (2) the jury did not 

award the full damages Briskey estimated; this reflects that Alaska Airlines's cross- 

examinations of Chang-Craft and Briskey, along with its own expert testimony and 

arguments, were persuasive and that the jury followed Jury Instruction 27. 

               On this record, we are not firmly convinced that the trial court erred "in 

refusing to order a remittitur . . . [such that] intervention on our part is necessary to 
prevent a miscarriage of justice."62  Nor can we conclude that the evidence at trial, taken 

       62      Brower, 215 P.3d at 315. 

                                              -27-                                          6550 

----------------------- Page 28-----------------------

in the light most favorable to Chang-Craft, "was so completely lacking or slight and 
unconvincing as to make the verdict plainly unreasonable and unjust";63 therefore we 

conclude   that   the   trial   court   did   not   abuse   its   discretion   by   denying   a   new   trial   on 
damages.64 

IV.     CONCLUSION 

                For the foregoing reasons, we AFFIRM the trial court's decisions. 

        63      Hogg, 134 P.3d at 352. 

        64      Alaska Airlines's alternative arguments that:            (1) the transferable travel 

passes have no pecuniary value to Chang-Craft and therefore should be excluded from 
the   damage   award,   and   (2)   Chang-Craft   should   not   have   been   allowed   to   recover 
damages   for   her   husband's   lost   travel   benefits,   are   not   properly   before   us. First, 
consistent with the trial court's pretrial ruling, Jury Instruction 27 clearly detailed that 
Chang-Craft "may seek compensation for travel benefits that she herself would have 
received through employment and retirement,  and could transfer to others."                     Alaska 
Airlines made no objection to this instruction nor did it argue to the trial court that the 
transferable travel benefits should be excluded because they lacked pecuniary value to 
Chang-Craft until its motion for a new trial.          Second, Alaska Airlines never sought to 
preclude Chang-Craft from recovering damages for her husband's lost travel benefits, 
and Alaska Airlines's own expert estimated Chang-Craft's damages by incorporating her 
husband's lost travel benefits.  Therefore these issues are not properly before us and we 
decline to address them.       See Vivian P. v. State, Dep't of Health & Soc. Servs., Div. of 
Family & Youth Servs., 78 P.3d 703, 709 (Alaska 2003) ("We will not address an issue 
on appeal that was not raised at trial.") (citing Brandon v. Corr. Corp. of Am., 28 P.3d 
269, 280 (Alaska 2001)); Walden v. Dept. of Transp., 27 P.3d 297, 304 (Alaska 2001) 
("[A] party must object to evidence at the time it is offered in order to preserve the issue 
on appeal."). 

                                                  -28-                                              6550 
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