Opinion
Supreme Court No. S-10245.
July 7, 2004.
Appeal from the Superior Court of the State of Alaska, First Judicial District, Juneau, Patricia A. Collins, Judge. Superior Court No. 1JU-99-01200 Civil.
Stuart A. Hallam, pro se, Juneau, Appellant/Cross-Appellee.
Sheldon E. Winters, Lessmeier Winters, Juneau, for Appellee/Cross-Appellant.
Before: Bryner, Chief Justice, Matthews, Eastaugh, and Fabe, Justices. [Carpeneti, Justice, not participating.]
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
This appeal arises out of Stuart Hallam's seasonal employment as a bus driver for Alaska Travel Adventures (ATA). Hallam brought various employment claims against ATA, including a claim for calculation of overtime by using the "pyramiding" method; claims for unpaid on-call time and daily wages; and claims for untimely payment of final paychecks and bonuses. Hallam appeals the superior court's pre-trial rulings denying class certification and granting summary judgment in favor of ATA on the pyramiding overtime claim. Because the superior court properly dismissed Hallam's class action due to lack of counsel and correctly analyzed the law on the pyramiding of overtime claims, we affirm.
II. FACTS AND PROCEEDINGS
A. Factual History
Alaska Travel Adventures employed Stuart Hallam as a part-time bus driver for the 1997 tourist season. Hallam's final day of work for the 1997 season was September 20, while his final paycheck was received on October 2. Sometime after the 1997 season, Hallam called his supervisor, Tracy LaBarge, to inquire into the receipt of a bonus. Hallam and ATA disagree as to the characterization of the check that ATA issued to Hallam after the phone call. According to Hallam, the payment was the bonus to which he was entitled. According to LaBarge, the payment was an incentive check for Hallam to return to work for ATA in 1998.
ATA again employed Hallam as a bus driver for the 1998 tourist season. During this employment season, Hallam claimed that he worked four days in August of 1998 for which he was not paid in a timely manner. ATA paid Hallam for three days in September of 1998 that Hallam did not work. According to Hallam this was to compensate for the August days, but one day of payment was missing. Hallam's final day of work in 1998 was September 11 and his final paycheck was issued on September 21. Hallam's bonus was paid on October 23, 1998.
B. Procedural History
Hallam filed suit against ATA alleging seven claims for relief. Each was presented as both a class and an individual claim. On September 29, 1999, the superior court conditionally dismissed the class claims due to Hallam's lack of counsel, specifying that Hallam had thirty days to retain counsel before the class claims would be dismissed. Hallam did not retain counsel, and thus the superior court dismissed the class action on November 11, 1999.
(1) Failing to pay minimum wage; (2) failing to pay employees for every hour worked; (3) failing to pay overtime not only for hours worked over forty in a week, but also for hours worked over eight in a day; (4) failing to pay employees within three days of termination; (5) procuring employees through false representations and promises; (6) failing to pay incentive bonuses; (7) maintaining an unsafe working environment.
On November 9, 1999, ATA submitted an offer of judgment to Hallam to settle his claims for $3,000. Hallam did not accept the offer.
On August 28, 2000, the superior court granted summary judgment in ATA's favor on Hallam's overtime claim, concluding that the overtime statute does not permit pyramiding. After granting summary judgment, the superior court also granted ATA's protective order to prevent Hallam from deposing two Alaska Department of Labor employees unless Hallam could show that the testimony was relevant to the remaining claims.
At the pre-trial conference, the superior court dismissed all remaining claims that did not apply to Hallam personally and were solely class claims. After ATA was granted summary judgment on the overtime claim and the class claims were dismissed, two claims remained: failure to pay Hallam for hours worked and failure to pay Hallam within three days of his termination. Also at the conference, the parties agreed that Superior Court Judge Patricia A. Collins would act as fact-finder.
The two remaining claims for unpaid hours and untimely payment were tried on December 7, 2000 before Judge Collins. The court made oral findings at the conclusion of the trial and later entered written findings of fact and conclusions of law, ruling against Hallam on his claims, with the exception of an award of $381.78 in statutory penalties for late payment.
The superior court awarded partial attorney's fees to ATA under Alaska Civil Rule 68 and AS 23.10.110(f), excluding recovery for fees related to the overtime claim. Hallam appeals.
III. DISCUSSION
A. The Superior Court Did Not Err When It Dismissed Hallam's Class Action Claims.1. Standard of review
We review the decision to deny class certification under the abuse of discretion standard. However, if a legal premise of the superior court's decision is challenged, the issue is reviewed de novo. 2. Denial of class certification
Shook v. Alyeska Pipeline Serv. Co., 51 P.3d 935, 937 (Alaska 2002); State, Dep't of Revenue v. Andrade, 23 P.3d 58, 65 (Alaska 2001).
Shook, 51 P.3d at 937.
Hallam argues that the superior court erred in denying conditional class certification and dismissing the class claims. He contends that conditional certification permits an employee to bring a claim under the Alaska Wage and Hour Act (AWHA) without the expense of obtaining counsel before the class is certified.
AS 23.10.110(b).
ATA sought dismissal of the class claims due to lack of class counsel. On September 29, 1999, the superior court conditionally granted ATA's motion to dismiss Hallam's class claims. The superior court gave Hallam thirty days to retain class counsel before dismissing the class claims. On October 6 Hallam moved for reconsideration arguing that before the class is certified, there is no obligation to obtain counsel. On November 12 the superior court dismissed the class claims due to lack of counsel but noted that the order was "without prejudice to any subsequent motion to intervene by an appropriate class." On January 31, 2000, Hallam moved for conditional class certification. On February 18 the superior court denied Hallam's motion for conditional class certification because no counsel appeared, and the class claims were thereafter finally dismissed.
In Hertz v. Cleary, we concluded that "a pro se plaintiff . . . may not properly represent a class" because "[a] basic requirement of all class actions is that the named plaintiff can fairly and adequately represent the class." Qualified and expert counsel is necessary because a class action may close off other avenues of redress. We have previously rejected the claim that the AWHA authorizes a pro se class action. Our recognition in Hallam v. Holland America that the trial court may consider a pro se litigant's request for conditional class certification does not mean that the trial court must grant conditional certification when there is no evidence that an attorney is willing or available to represent the class.
835 P.2d 438, 442 n. 3 (Alaska 1992) (quotation marks omitted).
Hallam v. Holland America Line, Inc., 27 P.3d 751, 754 (Alaska 2001).
Id. at 754.
Id.
Judge Collins did consider Hallam's motion for certification. Judge Collins stated in her order denying conditional certification that the class claims were previously dismissed due to lack of counsel. Judge Collins determined that class certification, conditional or otherwise, was inappropriate without counsel. Given the lack of evidence that any counsel was available to represent the class in this case, the superior court's decision to dismiss the class action was justified.
B. The Superior Court Did Not Err by Granting ATA's Motion for Summary Judgment on the Claim for Pyramiding of Overtime.1. Standard of review
We review a superior court's grant of a motion for summary judgment under the independent judgment standard. We determine whether any genuine issue of material fact exists and whether the movant "is entitled to judgment on the law applicable to the established facts." We view the facts in the light most favorable to the non-movant, drawing all factual inferences in favor of the non-movant. 2. Pyramid claim
Martinez v. Ha, 12 P.3d 1159, 1161 (Alaska 2000).
Id. (quotation marks omitted); Geolar, Inc. v. Gilbert/Commonwealth Inc. of Michigan, 874 P.2d 937, 941 n. 8 (Alaska 1994).
Martinez, 12 P.3d at 1161-62.
In his third claim against ATA, Hallam alleges that ATA violated AS 23.10.060 in its calculation of overtime. Hallam argues that the Alaska overtime statute requires that employers pay overtime for hours worked over eight in a day and forty in a week. Before June 1999, AS 23.10.060 provided:
(a) An employer who employs employees engaged in commerce or other business, or in the production of goods or materials in the state may not employ an employee for a work week longer than 40 hours or for more than eight hours a day.
(b) If an employer finds it necessary to employ an employee in excess of 40 hours a week or eight hours a day, compensation for the overtime at the rate of one and one-half times the regular rate of pay shall be paid.
The "double-payment" of hours — both in excess of eight hours a day and forty hours a week — was referred to as "pyramiding" by the superior court. The superior court granted ATA's motion for summary judgment finding that the interpretation of AS 23.10.060 that is "most consistent with precedent, reason and policy" does not permit pyramiding.
Hallam argues that the proper interpretation of the statute imposes two separate bases for violations: one for working more than eight hours a day, the other for working more than forty hours a week. Under the pyramiding approach he proposes, employees would receive overtime pay both for hours that exceed eight hours a day and forty hours a week — even if those are thesame hours. Hallam maintains that his interpretation of the statute best promotes the Act's purpose of protecting employees.
AS 23.10.050 provides:
It is the public policy of the state to:
(1) establish minimum wage and overtime compensation standards for workers at levels consistent with their health, efficiency, and general well-being, and
(2) safeguard existing minimum wage and overtime compensation standards that are adequate to maintain the health, efficiency, and general well-being of workers against the unfair competition of wage and hour standards that do not provide adequate standards of living.
When the Labor and Commerce Committee of the Alaska House of Representatives set out to clarify how to calculate overtime under AS 23.10.060(b), it used the following example as an illustration of pyramiding:
Day Hours Non-pyr Non-pyr Pyr Pyr Regular OT Regular OT
Monday 11 8 3 8 3 Tuesday 8 8 0 8 0 Wednesday 8 8 0 8 0 Thursday 8 8 0 8 0 Friday 8 8 0 5 3 TOTAL 43 40 3 37 6
The Committee explained the example:
As to Monday, everyone agrees that Employee is entitled to 3 hours of overtime. The issue is as to Friday. Under the Department's interpretation and the interpretation of employers, no overtime would be due as to Friday since Employee worked 43 hours during the week and has already been paid for 3 hours overtime. Under [pyramiding], Employee would receive overtime for 3 hours on Friday because in computing the 40 hours under the statute, one must include the 3 overtime hours worked on Monday. Consequently, Employee received 6 hours of overtime pay for the week even though he/she only worked 43 hours.
Alaska Legislature House Labor and Commerce Committee, Sponsor Statement, HB 201.
Judge Collins reasoned that the statutory language standing alone could be read either way: to permit or prohibit pyramiding. Judge Collins considered the interpretation of the Alaska Department of Labor, the 1999 legislative direction concerning AS 23.10.060(b), and the inconsistent consequences of pyramiding.
Ch. 43, SLA 1999.
In Alyeska Pipeline Service Co. v. DeShong, we noted that interpretation of a statute involves consideration of its language, purpose, and its legislative history. "[W]e will adopt the most persuasive rule of law in light of precedent, reason, and policy." While agency interpretations are not binding on our interpretation of a statute, they can provide guidance. a. Precedent
77 P.3d 1227, 1234 (Alaska 2003).
Piquiniq Mgmt. Corp. v. Reeves, 965 P.2d 732, 734 n. 5 (Alaska 1998) (quotation marks omitted).
See Grimm v. Wagoner, 77 P.3d 423, 433 (Alaska 2003) (considering agency regulations as "useful guidance").
While we have not explicitly addressed this issue, our calculation in Piquiniq Management Corp. v. Reeves is informative. In Piquiniq, we applied AS 23.10.060(b) to a salaried employee's receipt of overtime compensation. When performing the calculation, we considered how many regular hours the employee worked per week and how many overtime hours the employee worked per week. We did not calculate the days that the employee exceeded eight hours in addition to the instances when the employee exceeded forty hours in a week and thus did not apply the pyramiding method.
965 P.2d 732 (Alaska 1998).
Id. at 733 n. 1.
b. Legislative history
The statute was originally enacted in 1955 without any original legislative history to aid in its interpretation. However, in 1999, in response to a trial court ruling in Hallam v. Holland America that the statute required pyramiding, the legislature made legislative findings about AS 23.10.060(b). The 1999 legislature found that the intent of AS 23.10.060(b) was that employers need not pay overtime wages until the employee has worked in excess of forty hours at a regular rate of pay. The legislature then amended the statute to eliminate any further confusion. We recognize that while subsequent statements by later legislatures as to the intent of a statute are not controlling, they are given the weight of a learned commentator: We "examine the reasoning offered in support of the opinion and either reject or accept it based on the merit of the reasons given." c. Agency interpretation
Ch. 185, SLA 1955.
See AS 23.10.060(b).
Hillman v. Nationwide Mut. Fire, 758 P.2d 1248, 1252-53 (Alaska 1988).
It is undisputed that the Alaska Department of Labor's longstanding interpretation of the statute has precluded pyramiding. While we exercise independent judgment on issues of statutory construction, an agency's interpretation "is entitled to `some weight.'" d. Inconsistent and irrational consequences of pyramiding
Peninsula Marketing Ass'n v. State, Bd. of Fisheries, 817 P.2d 917, 922 (Alaska 1991) (quoting State, Dep't of Revenue v. Alaska Pulp America, Inc., 674 P.2d 268, 274 (Alaska 1983)).
Judge Collins found that pyramiding results in an employee being paid for more hours at overtime rates than the total number of overtime hours actually worked. With pyramiding, employees may also be paid differently for the same number of hours simply because they worked different days in the same statutory workweek, and would have the effect of compensating similarly situated employees differently. 3. Conclusion
The following chart demonstrates how two similarly situated employees would be treated differently under pyramiding:
Emp. A Mon Tues Wed Thurs Fri Sat TOTAL
Regular 8 8 8 8 8 40 OT 10 10
Emp B Mon Tues Wed Thurs Fri Sat TOTAL
Regular 8 8 8 8 6 38 OT 2 2 8 12
The precedent, legislative direction, agency interpretation, and policy considerations relied on by the trial court persuade us that the superior court did not err when it granted ATA summary judgment on the pyramiding claim. Because there is no factual dispute and because the trial court adopted the more compelling rule of law by rejecting pyramiding, we affirm the superior court's ruling on summary judgment.
C. The Superior Court Did Not Err in Its Discovery Rulings on Unproduced Records and Its Granting of a Protective Order.1. Standard of review
Rulings on discovery and on discovery sanctions are reviewed for abuse of discretion. "We will find an abuse of discretion when we are left with a definite and firm conviction after reviewing the whole record that the trial court erred in its ruling." 2. Unproduced records
Fletcher v. South Peninsula Hosp., 71 P.3d 833, 844 (Alaska 2003); Christensen v. NCH Corp., 956 P.2d 468, 473 (Alaska 1998).
Christensen, 956 P.2d at 473.
Hallam contends that the superior court ignored ATA's violation of statutory recordkeeping requirements and that it erred in failing to compel ATA to produce documents. Specifically, Hallam challenges ATA's failure to maintain records of the daily and weekly hours worked by each employee in violation of AS 23.05.080 and records of the rate of pay and amount paid each pay period to each employee in violation of AS 23.10.100. Hallam argues that ATA's failure to produce these records was detrimental to the success of his claims for unpaid wages.
AS 23.05.080 states:
An employer shall keep an accurate record of the name, address, and occupation of each person employed, of the daily and weekly hours worked by each person, and of the wages paid each pay period to each person. The record shall be kept on file for at least three years.
AS 23.10.100 states:
An employer shall keep for a period of at least three years at the place where an employee is employed a record of the name, address, and occupation of each employee, the rate of pay and the amount paid each pay period to each employee, the hours worked each day and each workweek by each employee, and other payroll information that the commissioner may require.
As a preliminary matter, there is no indication that Hallam raised the issue of unproduced records at trial, so that the issue on appeal is waived. But even if it were preserved, there was no error on the part of the trial court. Trial Exhibits F and G contain the 1997 and 1998 time and pay records respectively. The exhibits include monthly time sheets containing a daily and weekly log of the hours worked by Hallam. The exhibits also contain payroll lists that contain Hallam's rate of pay and wages paid. Hallam's signature is on the 1997 monthly time sheets. Hallam contends that the 1998 monthly time sheets do not satisfy AS 23.05.080 or AS 23.10.100 because they were not filled out or signed by Hallam. But there is no claim by Hallam that the time sheets are inaccurate. ATA explained the procedure under which drivers would fill out a daily log that would then be incorporated into the time sheet, which was not signed by the employee.
See Quality Asphalt Paving, Inc. v. State, Dep't of Transp. Pub. Facilities, 71 P.3d 865, 882 (Alaska 2003).
There is no evidence that ATA did not make these records available to Hallam.
Hallam also takes issue with ATA's failure to produce the "Driver's Daily Logs" for each of the days that he worked in 1998 and the anticipated weekly schedule. ATA produced many daily logs, including those logs for each of the days that was in dispute (August 23, September 1, and the three missing August days). The trial court used these logs signed by Hallam to determine Hallam's claim for unpaid wages. Neither statute requires ATA to maintain its anticipated weekly schedules because they do not necessarily reflect the actual hours worked.
Because ATA produced the records required by AS 23.05.080 and AS 23.10.100 and because the court properly relied on the records that ATA produced, we conclude that the superior court did not err in its discovery decisions.
3. Protective order
Hallam claims that the superior court improperly issued a protective order preventing him from deposing two Department of Labor employees. ATA moved for summary judgment on the pyramiding claim on March 28, 2000 with the affidavits of two Department of Labor employees attached. After granting ATA's motion for summary judgment on the pyramiding claim on August 28, 2000, the superior court granted ATA's motion for a protective order to preclude the depositions of the Department of Labor employees who had provided affidavits stating that Department of Labor policy did not permit pyramiding. The protective order allowed the depositions to go forward only if Hallam "clearly state[d] what relevant testimony is sought by these depositions." The order permitted reconsideration through submission of an outline of the testimony sought and its relevance to the remaining claims.
Hallam claims that the protective order is not justified by Civil Rule 26(c) and argues that Civil Rule 56(f) entitled him to depose the Department of Labor employees. But Civil Rule 26(c) permits protective orders "which justice requires to protect a . . . person from annoyance, . . . or undue burden." Civil Rule 56(f) permits an extension of the time to oppose a motion for summary judgment to allow the opposing party to obtain affidavits that were previously unavailable. Because the pyramiding claim had been dismissed and the Department of Labor employees' testimony related only to that claim, the superior court did not abuse its discretion by issuing the protective order. 4. Miscellaneous claims
Hallam makes a claim that the trial court did not "adhere to its own order." The basis for this claim is unclear. Hallam suggests that he was waiting for the court to rule on his "long-outstanding motion" before beginning discovery. Hallam provides no citation for the proposition that the superior court knew that Hallam was waiting for the ruling before taking depositions. Thus, there is no evidence that the superior court abused its discretion.
Hallam also challenges the trial court's failure to compel answers to interrogatories and the trial court's order that Hallam produce bank records. Hallam does not discuss either of these issues in any detail or clarify how the superior court abused its discretion. We consider these points waived because "where a point is given only a cursory statement in the argument portion of a brief, the point will not be considered on appeal."
Adamson v. University of Alaska, 819 P.2d 886, 889 n. 3 (Alaska 1991); see also State, Dep't of Revenue, Child Support Enforcement Div. ex rel. P.M. v. Mitchell, 930 P.2d 1284, 1288 n. 8 (Alaska 1997); Petersen v. Mut. Life Ins. Co. of New York, 803 P.2d 406, 410 (Alaska 1990).
D. The Superior Court's Factual Findings at Trial Were Not Clearly Erroneous.1. Standard of review
We review a trial court's factual findings under the clearly erroneous standard. In a bench trial, the judge determines the credibility of witnesses and decides how to weigh the evidence. It is rarely clearly erroneous when the trial court makes a finding based on conflicting evidence. 2. Unpaid day claim
Wasserman v. Bartholomew, 38 P.3d 1162, 1166 (Alaska 2002).
Id.
Id.
Hallam claims that he was owed four days of pay for August 1998 but was only paid for three of those days. He recalls an agreement with his supervisor that his September pay would reflect the missing days. But the superior court found that Hallam could not remember the actual date in August that he had worked, what he was doing on that workday, or how many hours he may have worked. Additionally, the superior court found that the signed time sheets and pay sheets did not support Hallam's claim that he worked on a day for which he was not paid. Judge Collins also questioned why Hallam had not brought the claim earlier. As a result, Judge Collins found that Hallam failed to produce credible evidence of his claim and that his testimony was not credible. In an argument that overlaps with Hallam's claims of abuse of discovery, Hallam argues that Judge Collins improperly relied on "altered" monthly time sheets and missing daily logs in reaching her decision. Because there is evidence in the record to support Judge Collins's findings of fact, her findings are not clearly erroneous.
The trial transcript actually reflects that Hallam thought it was for a ten and a half hour day.
3. 1997 delayed paycheck claim
Alaska Statute 23.05.140 addressed the issue of payment upon termination. Before 2000 it stated in pertinent part:
(b) If the employment is terminated, regardless of the cause of termination, all wages, salaries, or other compensation for labor or services become due immediately and shall be paid within three working days after the termination at the place where the employee is usually paid or at a location agreed upon by the employer and employee.
. . . .
(d) If an employer violates (b) of this section by failing to pay within three working days of termination, the employer may be required to pay the employee a penalty in the amount of the employee's regular wage, salary, or other compensation from the time of demand to the time of payment. . . .
Hallam claims that he received his final 1997 paycheck late, in violation of AS 23.05.140. Hallam's last day of work for the 1997 tourist season was September 20 and his final paycheck was issued on October 2, 1997. He argues that because he did not receive his paycheck within three working days of September 20, the check was late. ATA defended at trial on the basis that Hallam agreed to be available until the end of the season, September 30, and that Hallam did not give notice that he was terminating employment earlier.
The trial court found that Hallam's supervisor, Tracy LaBarge, credibly testified that Hallam told her that he would be available until the end of the season. LaBarge testified that if Hallam had told her that he was unable to work for the entire season, it may have affected his employment. The trial court found that there was no credible testimony that Hallam provided oral or written notice of his early termination. Hallam testified that he would have been available to work if LaBarge called him after the 20th and the trial court concluded that neither Hallam nor ATA was certain that Hallam would not be called to work past the 20th. Because Hallam's final paycheck was received within three days of the end of the season, the trial court found that there was no violation. The superior court also stated that even if it found that September 20 was Hallam's last day, a penalty would be inappropriate because there was no way for ATA to know that Hallam intended for the 20th to be his last day. Because there is evidence in the record to support the trial court's findings, they were not clearly erroneous.
4. 1997 bonus or incentive check
Hallam claims that ATA failed to timely provide him his incentive bonus pursuant to AS 23.05.140. ATA claims that as a part-time employee, Hallam did not qualify for a bonus in 1997 and that the December "incentive bonus" was only paid to encourage Hallam to work for ATA for the 1998 season.
The trial court found that there was no written employment agreement between Hallam and ATA for the 1997 season. Hallam testified that he never asked to see ATA's written contract. He claims that his supervisor, LaBarge, told Hallam when she hired him that he would be eligible for a bonus. LaBarge testified that only full-time employees qualified for bonuses and that she did not tell Hallam that he qualified for a bonus. The trial court found LaBarge's testimony to be credible. LaBarge also testified that when Hallam later called LaBarge and asked whether he would receive a bonus, Hallam suggested that he would be available to work for the 1998 season if he received a bonus. LaBarge testified that she then asked her supervisors to approve the incentive bonus despite Hallam's part-time status. The trial court found LaBarge's testimony to be more credible than Hallam's. Accordingly, it found that Hallam was not entitled to a bonus by contract or otherwise so that there was no basis for Hallam's claim that the bonus was late pursuant to AS 23.05.140. Because there is evidence in the record to support the trial court's finding, it is not clearly erroneous.
Hallam argues at length that he had a contractual entitlement to the bonus. However, he admits that he never signed a contract with ATA. He contends that there was an "understanding" as to what Hallam's conditions for employment were. This is the issue that the court considered at trial.
E. The Superior Court Did Not Err in Its Calculations of Penalties Under AS 23.05.140(b).1. 1998 delayed paycheck
Hallam contends that ATA violated AS 23.05.140(b) by paying him more than three days after the termination of employment. The superior court found that ATA knew or should have known that September 11, 1998 was Hallam's final day of employment but did not pay him until September 24, 1998. The trial court calculated Hallam's 1998 average daily wage as $31.54, penalized ATA for a nine-day delay (from September 16-24), and calculated the penalty to be $283.86.
Hallam argues that the trial court miscalculated his average daily wage by failing to include his bonus and by dividing his earnings by the total number of days in the season, rather than just by the number of days that he worked. ATA contends that Hallam's proposed method of calculation would overcompensate Hallam.
The Alaska Administrative Code defines "regular wage, salary or other compensation" as used in AS 23.05.140 as
that level of compensation paid to an employee for services that was usual and regular for a daily, weekly, or monthly period of work, as the case may be; this "regular" level is to be determined based on the employee's actual working situation and is not limited to a level of compensation based on a "standard" eight-hour workday or 40-hour workweek where the employee's regular and usual course of employment actually involved more or less hours of work for the relevant period. . . .
A plain reading of the statute and the regulation suggests that the "actual working situation" is significant in this calculation. Hallam worked forty-six out of 122 days, averaging 2.6 days per week, and grossing $3,847.50 in regular pay. Hallam's method assumes that he would have worked every day of the delay between termination and paycheck. Applying it would result in a penalty amounting to almost one-fifth of Hallam's gross seasonal wages and does not reflect Hallam's "actual working situation." Because the superior court's calculations were not clearly erroneous, we affirm.
2. 1998 delayed bonus
Hallam also contends that ATA violated AS 23.05.140(b) by paying Hallam his bonus more than three days after the termination of employment. The superior court found that the thirty-nine-day delay in payment of Hallam's bonus, from September 16 to October 23, should be calculated separately. The superior court divided the total bonus of $346.28 by the entire summer work season to calculate that it averaged $2.84 per day. The penalty for thirty-nine days was then $97.92. Hallam claims that until he was paid "all wages" ATA was still in violation of the statute, so that there should not be two separate calculations for his regular pay and his bonus. Hallam claims that the penalty should be at a minimum $5,008.59 — more than he made in the entire summer.
Hallam's argument for a single calculation is unpersuasive. While AS 23.05.140(b) states that both wages and "other compensation" are due within three days, it does not necessarily follow that separate violations cannot be found for wages and a bonus. Rather, the superior court's approach of considering the specific amount of pay or bonus that was delayed when calculating the penalty calculations was not error.
A dispute exists as to where Hallam instructed ATA to deposit the final paycheck which relates to how late the paycheck was. Because Hallam did not raise the issue of whether the trial court calculated the penalties using the wrong dates until his reply brief, this issue was waived. Petersen, 803 P.2d at 411.
F. The Court Did Not Abuse Its Discretion in Its Award of Partial Attorney's Fees to ATA.1. Standard of review
Because the trial court has broad latitude in determining attorney's fees, we will only reverse an award if the trial court has abused its discretion. "An abuse of discretion exists only if the fee award is arbitrary, capricious, manifestly unreasonable, or based upon an improper motive." In cases involving mixed causes of action, some governed by Rule 82's attorney's fees provisions and some by the Alaska Wage and Hour Act, determination of prevailing party status remains a matter for "sound trial court discretion." 2. Partial grant of attorney's fees
Bliss v. Bobich, 971 P.2d 141, 147 n. 5 (Alaska 1998).
Id.
Id. at 148.
On November 9, 1999, ATA tendered to Hallam a $3,000 Rule 68 offer of judgment. Hallam did not accept the offer. At trial, Hallam was awarded $381.78 in statutory penalties.
The superior court evaluated attorney's fees under the Wage and Hour Act's fee provision, AS 23.10.110(f), which awards attorney's fees to a prevailing defendant who has made an offer of judgment, and under Rule 82, which awards attorney's fees to the prevailing party. Concluding that Hallam's claim for unpaid overtime was brought in good faith and had a reasonable basis and considering the "remedial nature" of the Wage and Hour Act, the superior court refused to award fees to ATA on the overtime claim. But the court found that Hallam's two-hour on-call claim was not brought in good faith. Hallam also lost on his 1997 breach of bonus contract claim and his 1997 claim for nonpayment of wages under AS 23.05.140, which the superior court found were subject to Civil Rule 68. Thus, the court determined that fees should be awarded on these claims. The superior court concluded that because Hallam did not prevail on most significant issues raised in the case, ATA was the prevailing party. The superior court directed ATA to submit a breakdown of fees spent, except those spent on the overtime claim.
AS 23.10.110(f) states:
If the defendant prevails in an action for unpaid overtime compensation under (a) of this section and had previously made an offer of judgment to the plaintiff, the court shall award attorney fees to the defendant unless the plaintiff proves to the satisfaction of the court that the action was both brought and prosecuted in good faith and that the plaintiff had reasonable grounds for believing that the act or omission was in violation of AS 23.10.060. If the court awards attorney fees to the defendant, the award shall be made in accordance with court rule.
Hallam also argues that the $3,000 offer was insufficient to cover his costs. But Hallam only claims "well over $1,000" in costs at the time of the offer. Adding this to his recovery of $381.78 still does not exceed the $3,000 offer. Hallam finally argues that the pending class action nullified the offer. The class action had been dismissed by this point and Hallam's expressed concern that settlement would have required court approval is unfounded since, again, no class existed. Because the fee award was not error and fell within the superior court's discretion, we affirm.
3. Consideration of Hallam's settlement letter
Hallam argues that the settlement letter that he submitted to ATA was improperly considered by the superior court in its award of fees and costs. Hallam claims that when ATA submitted the letter with its motions for costs and fees, ATA violated Evidence Rule 408.
ATA counters that Rule 408 provides that offers of compromise are "not admissible to prove liability for or invalidity of the claim or its amount" and that the letter was submitted after trial and not to prove liability or invalidity of the claim. ATA points out that the superior court considered the letter "solely in the context of Hallam's apparent argument that he could not accept the Rule 68 offer of judgment because of his desire to protect the class he wished to represent. The letter indicates that Mr. Hallam was willing to give up his right to pursue class certification in exchange for class settlement." Finally, ATA notes that there was no harm since the letter had no impact on the fee award. The superior court did not award ATA fees for the class action claim. Thus, there was no harm and no abuse of discretion.
4. The actual award
Although ATA estimated that only eighteen percent of its fees were attributable to the pyramiding overtime claim, the superior court determined that sixty-five percent of ATA's fees were attributable to that claim. Of the remaining thirty-five percent of its actual fees, the superior court awarded ATA seventy-five percent under the Rule 68 provisions. Thus, out of ATA's $64,779 in actual attorney's fees, which the superior court found to be reasonable, the court awarded only $16,997 to ATA. Because there is no evidence that the superior court abused its broad discretion, we affirm the award of attorney's fees.
G. Judge Collins Did Not Err in Failing To Recuse Herself.
1. Standard of review
"Alaska Statute 22.20.020 provides the rule for disqualification of a judicial officer for cause. We have interpreted AS 22.20.020(a)(9) to require a judge to consider not only a showing of actual bias, but also the appearance of partiality. When only the appearance of partiality is involved, a greater showing is required for reversal." 2. Alleged bias and code violations
Wasserman v. Bartholomew, 38 P.3d 1162, 1170 (Alaska 2002) (citations omitted).
Hallam now argues, after agreeing to have Judge Collins sit as the fact-finder, that Judge Collins had significant bias against him and violated the Code of Judicial Conduct. The only example of bias Hallam claims is a statement that the trial judge made about Hallam's failure to prove his claim when rendering her verdict. Hallam maintains that the trial judge's statement is "particularly disturbing" because he has prevailed in two prior wage and hour cases and because the trial judge ignored ATA's failure to produce the daily driver's logs. Hallam's complaints do not meet the "strong showing of partiality" requirement. We emphasize that "[d]isqualification was never intended to enable a discontented litigant to oust a judge because of adverse rulings made." Accordingly we determine that the trial judge did not err in failing to recuse herself.
Hallam also complains that the trial judge interfered with his access to the electronic record in this case. He cites to a court administrative office memo indicating that Hallam was instructed to request copies of tapes from the Juneau court's tape duplication department rather than the court system's administrative office and that Judge Collins asked the administrative office in Anchorage to stop the copying process. All of the dates listed in the cryptic memo regarding Judge Collins's directive to the court's administrative office are at least eight months after trial and the notes also suggest that technical difficulties existed with the recording. In any event, Hallam does not state a basis for recusal.
The trial judge stated, on the record:
It could be said that Mr. Hallam appears to be a litigant in search of a cause of action and depends on discovery and litigation to provide him with an argument that the defendant has failed to disprove a claim. The burden of proof, however, is not on [ATA] to disprove Mr. Hallam's claims. [ATA] has come forward with evidence that directly contradicts Mr. Hallam's claims, specifically not one daily log or time sheet or pay stub, or other document, supports the, at best, vague claims made by Mr. Hallam.
Wasserman, 38 P.3d at 1171 (quotation marks omitted).
IV. CONCLUSION
Because the superior court properly dismissed Hallam's class action due to lack of counsel, we AFFIRM. Because the superior court did not abuse its discretion in its discovery rulings or its award of partial attorney's fees to ATA and because the superior court's trial findings were not clearly erroneous, we AFFIRM. Because the superior court correctly analyzed the law on the pyramiding of overtime claims, we AFFIRM the summary judgment. Because there was insufficient evidence to require judicial recusal, we find that it was not error for the superior court judge to not recuse herself and AFFIRM.