Blake v. Classic Alaska Trading/Big Ray's Alaska, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
SUZANNE BLAKE and CATHERINE
SCALF,
Plaintiffs,
v.
CLASSIC ALASKA TRADING/BIG
RAY’S ALASKA, INC.,
Defendant.
Case No. 4:16-cv-00005-SLG
Case No. 4:16-cv-00014-SLG
(consolidated)
ORDER RE PENDING MOTIONS
Before the Court are Defendant Classic Alaska Trading/Big Ray’s Alaska, Inc.’s
(“Classic”) Motion for Summary Judgment at Docket 83, Plaintiff Catherine Scalf’s Motion
for Partial Summary Judgment at Docket 97, and Plaintiff Suzanne Blake’s Motion for
Partial Summary Judgment Regarding Liability at Docket 100. 	The motions are fully
briefed.1 Oral argument on the summary judgment motions was held on March 14, 2018.2
Also before the Court is Classic’s Motion to Certify at Docket 137.3
1 Docket 92 (Classic’s Mem. in Support); Docket 111-1 (Classic’s Corrected Mem. in Support);
Docket 98 (Ms. Scalf’s Mem. in Support); Docket 101 (Ms. Blake’s Mem. in Support); Docket
112 (Classic’s Opp. to Plaintiffs’ Mots.); Docket 113 (Plaintiffs’ Opp. to Classic’s Mot.); Docket
114 (Ms. Blake’s Mem. in Support of Opp. to Classic’s Mot.); Docket 120-1 (Ms. Blake’s
Corrected Mem. in Support of Opp. to Classic’s Mot.); Docket 125 (Classic’s Reply); Docket 127
(Ms. Scalf’s Reply); Docket 132 (Ms. Blake’s Reply).
2 Docket 136 (Minute Entry re Oral Argument); Docket 138 (Oral Argument Transcript).
3 No opposition to the motion to certify was filed.
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BACKGROUND
On cross-motions for summary judgment, the Court must consider each motion
separately to determine whether that party has met its burden with the facts construed in
the light most favorable to the other side.4 	Because the Court will grant summary
judgment to Classic as to Ms. Blake for the reasons set forth herein, the facts as to Ms.
Blake are presented in the light most favorable to her. As to Catherine Scalf, the Court
denies both motions, and thus the facts are presented from each side’s perspective.
A. Suzanne Blake
Plaintiff Suzanne Blake was hired by Classic on August 27, 2013 as an outside
retail sales manager (“ORSM”) at the Fairbanks Market downtown Big Ray’s store.5 Ms.
Blake agreed to a salary of $62,000 per year.6 	Ms. Blake states that as ORSM, “[her]
primary duties consisted of fielding internet and phone orders from customers and
processing them, and manually updating the website. 	After receiving an internet order,
[she] processed it through about a 90 step manual procedure. 	After receiving a phone
order, [she] also processed it through a 97 step manual procedure.”7 Approximately three
weeks after being hired, Ms. Blake was informed by Monty Rostad, her supervisor and a
co-owner of the company, that she would also be taking on the duties of the Fairbanks
4 See Fed. R. Civ. P. 56; see also Fair Hous. Council v. Riverside Two, 249 F.3d 1132, 1136 (9th
Cir. 2001).
5 Docket 101-1 (Dec. 1, 2017 Affidavit of Suzanne Blake) at 1–2, ¶ 2.
6 Docket 96-2 (Suzanne Blake Deposition Part I) at 48; Docket 93-4 (Exhibit D – Summary of
Employment Terms).
7 Docket 101-1 at 2, ¶ 4.
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Market Manager (“MM”).8 	As MM, she was assigned to report to Jesse Glamann, who
was located in Kodiak, Alaska, with whom she communicated by phone and email; Mr.
Rostad also oversaw her activities as MM.9 	Ms. Blake states that as MM, her primary
duties consisted of learning how to ring up cash register sales, assisting customers,
cleaning the premises, making sales signs, straightening and folding clothes on display
tables and racks, stocking apparel and clothes, mowing the lawn, shoveling snow,
opening and closing computer files, opening and closing the store, alarming the security
system, and other similar duties.10 	Ms. Blake maintains that overall her primary duties
were those of an ORSM and the daily non-exempt tasks she performed in that role. She
estimates those duties made up about 90 percent of her time at Big Ray’s.11 Ms. Blake
states that approximately “ten percent of [her] actual duties while working at Big Ray’s
consisted of performing as market manager.”12
8 Docket 101-1 at 2, ¶ 7. Ms. Blake acknowledged in her deposition that being Fairbanks MM
meant managing the two Fairbanks stores. Docket 96-2 at 11 (Q: “So there are two Fairbanks
stores, right?” Ms. Blake: “Yes, the[re] are.” Q: “And so being the Fairbanks market manager
means you’re the manager of those two stores.” Ms. Blake: “That’s correct.”).
9 Docket 101-1 at 2, ¶ 3.
10 Docket 101-1 at 3, ¶ 9. Classic disputes Ms. Blake’s characterization of her work and
provides evidence that her primary role was that of a manager responsible for supervision of
employees. See, e.g., Docket (Dec. 1, 2017 Affidavit of Monty Rostad) at 14, ¶ 24.
11 Docket 101-1 at 2, ¶ 6.
12 Docket 114-1 (January 12, 2018 Affidavit of Suzanne Blake) at 8, ¶ 20.
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As part of her job duties, Ms. Blake supervised employees.13 	On at least one
occasion, Ms. Blake gave an employee a raise.14 On at least one occasion, Ms. Blake
promoted an employee.15 	Ms. Blake had the authority to grant employee time-off
13 See Docket 96-2 at 18 (Q: “And so, as a manager, you were, in fact, Ryan Combelick’s
supervisor, were you not?” Ms. Blake: “Well, it says I’m a supervisor [on the termination
report].” Q: “It says you’re Ryan Combelick’s supervisor, who is also a supervisor, correct?” Ms.
Blake: “Yes, it does.” . . . Q: “My question was, as Ryan Combelick’s supervisor, are signing the
termination report for the termination of his employment, right?” Ms. Blake: “Yes, I am.”); Docket
96-3 at 7 (Q: “Kind of like when you were working alongside Samantha, and you were still
Samantha’s boss.” Ms. Blake: “That was my job title.”). In Ms. Blake’s affidavit in response to
Classic’s summary judgment motion, Ms. Blake disputes the specifics of Cindy Benford’s
statements regarding the number of employees Ms. Blake supervised while employed by
Classic. Docket 114-1 at 10, ¶ 24. Ms. Blake states as follows:
In her affidavit in support of summary judgment, Ms. Benford states that from
February 2014 to March 2014, as market manager, I regularly supervised more
than 15 full-time employees. In fact, Cynthia L, Lauren C, Samantha R, were part-
time employees. Troy P. worked part-time for 3 to 4 weeks. Ms. Benford further
states in this affidavit that I supervised a total of twenty-two full-time employees as
market manager, from October 2013 to November 2013. In fact, Ashley F. [q]uit;
Ann M. was a retail sales employee, and ORS employee; Austin B. was a part-time
employee; Cynthia L. was a part-time retail sales and ORS employee; Heather V.
was an intermittent retail sales and ORS employee; Samantha R. was a part-time
on leave during this period; Trish P. was a part-time retail sales employee; and,
Troy P. was a part-time retail sales employee.
Docket 114-1 at 10, ¶ 24 (citing Docket 85 (Affidavit of Cindy Benford) at 6, ¶ 6). Therefore, Ms.
Blake does not dispute that she was the supervisor of at least 11 full-time employees from
February 2014 to March 2014 and 14 full-time employees from October 2013 to November
2013. Furthermore, in an email to Jesse Glamann dated February 26, 2014, Ms. Blake appears
to reference having 15 full-time and two-part time employees under her supervision. Docket
134-8 (Email) at 1 (Ms. Blake stating “I have 15 FT, two PT that work 24 hours each.”).
14 Docket 96-2 at 16 (Q: “So what you’re telling Mr. Glamann [in an email] was that you
increased [an employee’s] pay?” Ms. Blake: “Yes.”); see Docket 96-2 at 32 (Q: “You’re the
supervisor of Samantha Roy; you’re the supervisor of Renate Yates; you’re the supervisor of
Anastasia Martinez, right?” Ms. Blake: “That’s correct.” Q: “Okay. And so you signed these
forms to raise their pay rate, right?” Ms. Blake: “That’s correct.”).
15 Docket 96-2 at 30 (Q: “But Renate came to you to ask to be promoted, right?” Ms. Blake:
“Yes.” Q: “And you promoted her.” Ms. Blake: “I did.”). On another occasion, Ms. Blake’s input
led to an employee’s promotion. Docket 96-2 at 27.
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requests.16 	Ms. Blake also hired employees.17 	And Ms. Blake had and exercised the
authority to fire employees.18 	However, Ms. Blake has stated that a “[v]ery little part of
[her] job was hiring and firing employees.”19 Ms. Blake stated that she answered only to
the three owners of the company, as well as to Jesse Glamann and Cindy Benford.20
Ms. Blake turned in her resignation from Big Ray’s on September 27, 2014
because she felt she was not being paid for the overtime she was working.21 On January
16 Docket 96-2 at 28–29 (Ms. Blake acknowledging during her deposition that as a manager she
approved employee time-off requests); see Docket 94-2 (Exhibit AB – Employee Time-Off
Requests).
17 Docket 96-2 at 10 (Ms. Blake stating “I would guesstimate [I hired] approximately 10
[employees] in the 14 months”); Docket 93-7 (Exhibit G – Email) (Ms. Blake referring to people
she has hired in email to Jesse Glamann).
18 In her affidavit, Ms. Blake neither acknowledges nor disputes that she hired and fired
employees, stating that “[r]esponsibilities for hiring, firing and disciplining of employees at Big
Ray’s w[ere] distributed amongst the floor supervisors, the MM, and HR.” Docket 101-1 at 3, ¶
10. Ms. Blake filled out and signed several termination reports. See Docket 93-8 (Exhibit H –
Trisha P Termination Report); Docket 93-9 (Exhibit I – Mary F Termination Report); Docket 93-
10 (Exhibit J – Bret B Termination Report); Docket 93-11 (Exhibit K – Yamil M Termination
Report); Docket 93-12 (Exhibit L – Heather V Termination Report); Docket 93-13 (Exhibit M –
Ryan C Termination Report); Docket 93-14 (Exhibit N – Jessica R Termination Report); Docket
93-16 (Exhibit P – Teresa N Termination Report); Docket 93-17 (Exhibit Q – Laurie W
Termination Report); Docket 93-18 (Exhibit R – Donna T Termination Report); Docket 93-19
(Exhibit S – Roary H Termination Report); Docket 93-20 (Exhibit T – Alesha D Termination
Report); Docket 93-21 (Exhibit U – Vanessa Termination Report); Docket 93-22 (Exhibit V –
Dawn H Termination Report).
19 Docket 96-2 at 15. Ms. Blake also asserts, “[w]hen I was hired, I was informed by text that I
had to “House Clean” the staff [at the] retail store. In other words, I was told to terminate a
number of employees. The termination of these employees was not my decision.” Docket 114-
1 (January 12, 2018 Affidavit of Suzanne Blake) at 11, ¶ 28 (citing Docket 114-9 (Text Exchange
with Jesse Glamann)). However, the text message from Jesse Glamann states only that “it
would be a good opportunity to clean house.” In any event, Ms. Blake terminated employees
throughout her tenure at Big Ray’s.
20 Docket 96-2 at 25.
21 Docket 101-1 at 3, ¶ 15. Ms. Blake maintains that she gave two weeks’ notice on September
27, 2014; however, Classic terminated Ms. Blake on September 30, 2014. Docket 120-1 at 13.
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20, 2016, Ms. Blake initiated this action against Classic, alleging that she was not paid
for all of the time she worked, including the overtime hours for which she claims she was
entitled to a rate equal to one-and-a-half times her usual rate.22 Ms. Blake alleges that
Classic’s actions violated the Fair Labor Standards Act, 29 U.S.C. § 201, et seq.
(“FLSA”).23 Ms. Blake also alleges violations of Alaska Law, AS 23.5.140–260, and the
Alaska Wage and Hour Act, AS 23.10.50–150 (“AWHA”), and a violation the implied
covenant of good faith and fair dealing.24 	Ms. Blake’s Complaint also alleges that she
“was not paid her final two days wages after separation nor was she paid her appropriate
overtime in accordance with Alaska law.”25 In July 2016, after the Complaint was filed,
Classic paid Ms. Blake her wages for these two days.26 	However, Ms. Blake seeks a
statutory penalty for the delay.27
//
//
//
22 Docket 1 at 3, ¶¶ 8–12, 36.
23 Docket 1 at 5–6.
24 Docket 1 at 6–7.
25 Docket 1 at 6, ¶¶ 35–36 (citing AS 23.05.140–260 and AS 23.10.50–150). On October 28,
2014, Ms. Blake submitted a claim with the Alaska Department of Labor, demanding that she be
paid for her last two days of work, as well as for her overtime hours. Docket 134-13 (Wage
Claim) at 1–3. A copy of this claim was sent to Mr. Rostad on November 14, 2014, with an
explanatory letter. Docket 134-14 (Letter) at 1.
26 Classic provides evidence that on July 18, 2016, it paid Ms. Blake the remaining $476.93
owed to her. Docket 112-2 (Exhibit B – Letter and Check). Ms. Blake appears to acknowledge
having been paid for her final two days. Docket 101-1 at 4, ¶ 16.
27 Docket 114 at 8.
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B. Catherine Scalf
The following facts are undisputed:
Plaintiff Catherine Scalf worked at Big Ray’s from early 2006 until the summer of
2015.28 During her final three years working there, her title was Corporate Sales Manager
(“CSM”).29 Ms. Scalf’s average annual compensation, including salary and benefits, from
2012 to 2015 was $52,910.30
On April 6, 2016, Ms. Scalf filed a Complaint in this Court, alleging that Classic’s
actions violated the FLSA, 29 U.S.C. § 201, et seq. 31 Ms. Scalf also alleges violations of
Alaska Law, AS 23.5.140–260, and the AWHA, AS 23.10.50–150, and a violation of the
implied covenant of good faith and fair dealing. 32 On December 5, 2016, Ms. Scalf’s case
was consolidated into Ms. Blake’s similar case against Classic.33
The parties dispute a number of facts relating to the character of Ms. Scalf’s job
duties. According to Classic, the facts are as follows:
Despite Ms. Scalf’s claims to the contrary, Ms. Scalf did in fact have the authority
to hire and fire employees.34 Ms. Scalf supervised employees in her department, as she
28 Docket 96-5 (Catherine Scalf Deposition) at 4–5; Docket 103 at 2, ¶ 2. Ms. Scalf stated in her
affidavit that her final date was June 2, 2015. Docket 103 at 2, ¶ 2. However, Ms. Scalf’s
Complaint alleges that her last day at Big Ray’s was August 2, 2015. 	See 4:16-cv-00014-SLG,
Docket 1 at 2, ¶ 6. Monty Rostad also stated that August 2, 2015 was Ms. Scalf’s final date.
Docket 90 at 9, ¶ 15.
29 Docket 103 (Dec. 4, 2017 Affidavit of Catherine Scalf) at 1, ¶ 2.
30 Docket 85 at 2.
31 See 4:16-cv-00014-SLG, Docket 1 at 5–6, ¶¶ 22–32.
32 See 4:16-cv-00014-SLG, Docket 1 at 6–7, ¶¶ 33–39.
33 Docket 51 (Order Granting Motion to Consolidate).
34 Docket 90 (Affidavit of Monty Rostad) at 9–10, ¶ 16. In her deposition, Ms. Scalf
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acknowledged in her deposition.35 Ms. Scalf also signed contracts on behalf of Classic
and went on sales calls in an effort to establish new customer accounts.36 	Ms. Scalf
made bids on behalf of Classic.37 Ms. Scalf also had input into the budget.38
Ms. Scalf’s view of these facts is as follows:
Ms. Scalf was “nominally in charge of the corporate sales department and
embroidery department of the Fairbanks downtown store.”39 	Nevertheless, Ms. Scalf
maintains that “approximately ninety percent of [her] time was spent taking, invoicing and
filling purchase orders from corporate customers and their employees.”40 	Ms. Scalf
described her duties as follows during her deposition:
acknowledges that one of her management responsibilities was terminating employees. Docket
96-5 at 6.
35 Docket 96-5 at 8.
36 Docket 96-5 at 5, 9, 11–12.
37 Docket 94-23 (Exhibit AW – Email); Docket 96-5 at 13; Docket 113-1 at 3, ¶ 9.
38 Docket 9-5 at 9 (Q: “[P]art of your job in the budgeting process was to make
recommendations as to how the budget might be changed.” Ms. Scalf: “That’s right.”).
39 Docket 103 at 1–2, ¶ 2. Ms. Scalf stated during her deposition that she began working at Big
Ray’s in 2006 as a mail order supervisor, a non-exempt position for which she was paid hourly,
including overtime. Docket 96-5 at 22. Ms. Scalf also stated that she was promoted to a
salaried position in 2008. Docket 96-5 at 16. However, the statute of limitations under the FLSA
limits Ms. Scalf’s claims to conduct during no more than the last three years of her employment
and Ms. Scalf does not attempt to state a claim for overtime wages outside this time period.
See 29 U.S.C. § 255. “Pursuant to § 255(a), the two-year statute of limitations for actions under
the FLSA may be extended to three years if an employer’s violation is deemed ‘willful.’” Flores
v. City of San Gabriel, 824 F.3d 890, 906 (9th Cir. 2016). Ms. Scalf’s Complaint alleges that
Classic’s failure to comply with the overtime requirements of the FLSA was willful. See 4:16-cv-
00014-SLG, Docket 1 (Scalf Compl.) at 3–4, ¶ 13–21.
40 Docket 103 at 2, ¶ 2. In her affidavit, Ms. Scalf makes a number of statements that appear
either conclusory or inconsistent with her deposition testimony. See Docket 103 at 2, ¶ 4 (“I had
no role . . . in handling employee complaints and grievances, disciplining employees, controlling
the flow and distribution of materials or merchandise and supplies, providing for safety and
security of employees or property, or in monitoring or implementing legal compliance
measures.”); Docket 103 at 3, ¶ 8 (“During my employment at Big Ray’s I did not hire or fire any
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I took phone calls; I fitted the customers, cleaned the department . . .
stocked the FR clothing, invoiced the customers and [gave] them a receipt,
taking the garments over to embroidery so they can be embroidered. . . . [I]f
I was the first one at the store and it snowed, I shoveled the snow.
When we were on the main floor, there was a whole bank of windows that
faces the parking garage. 	I kept those clean because there was always
nasty stuff on the windows, so I always would keep those clean and any
other duties that needed to be done.41
Ms. Scalf stated that during her final two and a half years at Big Ray’s, she supervised
one full-time employee; for a few months during that time, she supervised a second full-
time employee and a part-time employee.42 Ms. Scalf stated that although she made bids
and signed contracts and corporate agreements on behalf of Classic, she did not have
the independent discretion to make these decisions.43
C. Motions for Summary Judgment
On December 1, 2017, the parties all filed dispositive motions. 	Classic’s motion
asserts that Ms. Blake and Ms. Scalf were each undisputedly exempt executive or
administrative employees, or a combination of both, under both the FLSA and the
employees and never had authority to do so. Nor did I have any significant input as to whether
any employees were hired, fired, or promoted.”); Docket 103 at 3, ¶ 3 (“During my employment
with Big Ray’s . . . . I did not carry out major assignments in conducting the operations of the
business or perform work that substantially affected business operations. I did not have
authority to commit Big Ray’s in matters that had a significant financial impact or authority to
negotiate and bind the company on significant matters.”). To the extent these and other such
statements are conclusory or are contradicted by her deposition testimony, the Court does not
consider them. See Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012) (holding district court
can apply sham affidavit rule to “prevent[] a party who has been examined at length on
deposition from raising an issue of fact simply by submitting an affidavit contradicting h[er] own
prior testimony.” (quotations and alterations omitted)).
41 Docket 96-5 at 22.
42 Docket 103 at 3, ¶ 7.
43 Docket 96-5 at 5, 11, 21–22; Docket 113-1 at 2–3, ¶ 7, 9.
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AWHA.44 Classic asserts that the claim of breach of implied covenant of good faith and
fair dealing also fails. 	Ms. Scalf’s Motion for Partial Summary Judgment contends that
because she engaged primarily in non-exempt work, as a matter of law she is entitled to
overtime pay.45 Ms. Blake’s Motion for Partial Summary Judgment likewise asserts that
as a matter of law, she was a non-exempt employee who was unlawfully denied overtime
pay.46
DISCUSSION
I. Jurisdiction and Applicable Law
This Court has jurisdiction pursuant to 28 U.S.C. § 1331 because this is a civil
action with certain claims arising under federal law, 29 U.S.C. § 201, et seq. The Court
has supplemental jurisdiction over Plaintiffs’ related state law claims.47
The Court applies federal procedural law; Alaska substantive law applies to the
state law claims.48
II. Standard for Summary Judgment
Federal Rule of Civil Procedure 56(c) directs a court to grant summary judgment if
the movant “show[s] that there is no genuine issue as to any material fact and that [the
44 Docket 83; Docket 92 at 4; see Docket 111-1.
45 Docket 97; Docket 98.
46 Docket 100; Docket 101. Both Ms. Blake and Ms. Scalf seek summary judgment only as to
liability and propose to leave the issue of their damages for trial.
47 See 28 U.S.C. § 1367(a) (“[I]n any civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are
so related to claims in the action within such original jurisdiction that they form part of the same
case or controversy under Article III of the United States Constitution.”).
48 See Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
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movant] is entitled to a judgment as a matter of law.” 	When considering a motion for
summary judgment, “[t]he evidence of the nonmovant is to be believed, and all justifiable
inferences are to be drawn in his [or her] favor.”49 	When faced with cross-motions for
summary judgment, the court “review[s] each separately, giving the non-movant for each
motion the benefit of all reasonable inferences.”50 To reach the level of a genuine dispute,
the evidence must be such “that a reasonable jury could return a verdict for the non-
moving party.”51 If the evidence provided by the non-moving party is “merely colorable”
or “not significantly probative,” summary judgment is appropriate.52
III. 	Applicable Laws
A. Fair Labor Standards Act
The FLSA requires that employers pay overtime wages to employees who work
more than 40 hours per week.53 However, “[e]mployees who are employed in executive,
administrative, or professional capacities are exempt from that overtime requirement.”54
Regulations define whether an employee is “employed in a bona fide executive,
administrative, or professional capacity” so as to be exempt under 29 U.S.C. § 213(a)(1).
49 Moldex-Metric, Inc. v. McKeon Prods., Inc., 891 F.3d 878, 881 (9th Cir. 2018) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
50 Flores v. City of San Gabriel, 824 F.3d 890, 897 (9th Cir. 2016) (citing Ctr. For Bio-Ethical
Reform, Inc. v. L.A. Cty. Sheriff Dep’t, 533 F.3d 780, 786 (9th Cir. 2008)).
51 Anderson, 477 U.S. at 248.
52 Id. at 249–50.
53 29 U.S.C. § 207(a)(1).
54 Klem v. Cty. of Santa Clara, California, 208 F.3d 1085, 1089 (9th Cir. 2000) (citing 29 U.S.C. §
213(a)(1)).
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According to the regulation in effect during the relevant time,55 the executive exemption
applies to an employee who is:
(1) Compensated on a salary basis at a rate of not less than $455 per week
. . . ;
(2) Whose primary duty is management of the enterprise in which the
employee is employed or of a customarily recognized department or
subdivision thereof;
(3) Who customarily and regularly directs the work of two or more other
employees; and
(4) Who has the authority to hire or fire other employees or whose
suggestions and recommendations as to the hiring, firing, advancement,
promotion or any other change of status of other employees are given
particular weight.56
The applicable regulation defines an administrative employee as one who is:
(1) Compensated on a salary or fee basis at a rate of not less than $455 per
week . . . ;
(2) Whose primary duty is the performance of office or non-manual work
directly related to the management or general business operations of the
employer or the employer's customers; and
(3) Whose primary duty includes the exercise of discretion and independent
judgment with respect to matters of significance.57
An employee can also be exempt under the “combination exemption.” Under that
exemption,
[e]mployees who perform a combination of exempt duties as set forth in the
regulations in this part for executive, administrative, professional, outside
sales and computer employees may qualify for exemption. 	Thus, for
55 Ms. Blake’s claims relate to the period from August 2013 to September 2014. Docket 1 at 2, ¶
4. Ms. Scalf’s claims relate to the period from 2012 to 2015. Docket 103 at 1–2, ¶ 2; see 4:16-
cv-00014-SLG, Docket 1 at 2–3, ¶ 7. Because Ms. Blake and Ms. Scalf’s period of employment
at issue in this case was from 2012 to 2015, the Court applies the version of the Department of
Labor’s regulations implementing the FLSA as amended in 2004. These regulations were
amended again in 2016, but were precluded from taking effect due to a nationwide injunction.
See Nevada v. United States Dep't of Labor, 275 F. Supp. 3d 795, 799 (E.D. Tex. 2017). That
case is currently on appeal to the Fifth Circuit.
56 29 C.F.R. § 541.100(a) (2004).
57 29 C.F.R. § 541.200 (2004).
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example, an employee whose primary duty involves a combination of
exempt 	administrative 	and 	exempt 	executive 	work 	may 	qualify 	for
exemption.58
The applicable regulation defines “primary duty” to mean “the principal, main,
major or most important duty that the employee performs.”59 	In other words, an
employee’s primary duty is what she does that is of “principal value” to her employer.60
Determining an employee’s primary duty may involve consideration of a number of
factors, including: (1) the relative importance of the exempt duties as compared with other
types of duties, (2) the amount of time spent performing the exempt work, (3) the
employee’s relative freedom from direct supervision, and (4) the relationship between the
employee’s salary and the wages paid to other employees for the kind of nonexempt work
performed by the employee.61 Ultimately, “[d]etermination of an employee's primary duty
must be based on all the facts in a particular case, with the major emphasis on the
character of the employee's job as a whole.”62
“FLSA exemptions are to be narrowly construed against employers and are to be
withheld except as to persons plainly and unmistakably within their terms and spirit.”63
58 29 C.F.R. § 541.708 (2004).
59 29 C.F.R. § 541.700(a) (2004).
60 See Baldwin v. Trailer Inns, Inc., 266 F.3d 1104, 1115 (9th Cir. 2001) (citing Dalheim v. KDFW-
TV, 918 F.2d 1220, 1227 (5th Cir. 1990) (“[T]he employee's primary duty will usually be what
she does that is of principal value to the employer, not the collateral tasks that she may also
perform, even if they consume more than half her time.”)). In Baldwin, the Ninth Circuit affirmed
the district court’s grant of summary judgment to the defendants—the plaintiffs’ employer and its
president—finding the plaintiffs were exempt executive employees despite spending
approximately ninety percent of their time on non-exempt tasks. Id. at 1113, 1120.
61 29 C.F.R. § 541.700(a) (2004).
62 29 C.F.R. § 541.700(a) (2004).
63 Klem v. Cty. of Santa Clara, California, 208 F.3d 1085, 1089 (9th Cir. 2000) (quotations and
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“The 	employer 	always 	has 	the 	burden 	of 	showing 	the 	exemption 	applies 	to 	its
employee.”64 	The standard of 	proof for an 	exemption is 	“preponderance of 	the
evidence.”65 “The question of how the Employees spent their working time is a question
of fact . . . . The question whether their particular activities excluded them from the
overtime benefits of the FLSA is a question of law.”66
B. Alaska Wage and Hour Act
The Alaska Wage and Hour Act, like the FLSA, requires employers to pay overtime
wages, equal to one and one-half times the regular rate, to employees who work more
than 40 hours per week.67 Like the FLSA, the AWHA exempts individuals employed “in
a bona fide executive, administrative, or professional capacity” from the overtime
alterations omitted).
64 Christopher v. SmithKline Beecham Corp., 635 F.3d 383, 391 (9th Cir. 2011), aff'd, 567 U.S.
142 (2012).
65 See Resurrection Bay Auto Parts, Inc. v. Alder, 338 P.3d 305, 308 n.14 (Alaska 2014) (noting
that most circuits, including the Ninth Circuit, have adopted a preponderance of the evidence
standard (citing, e.g., Dickenson v. United States, 353 F.2d 389, 392 (9th Cir. 1965))); see also
Duff-Brown v. City & Cty. of San Francisco, 2013 WL 163530, at *4 (N.D. Cal. Jan. 15, 2013)
(“The Court agrees that the burden of proof at trial in this case is the preponderance standard
applicable in federal civil cases generally.” (citing Yi v. Sterling Collision Centers, Inc., 480 F.3d
505, 507 (7th Cir. 2007))).
66 Bratt v. Cty. of Los Angeles, 912 F.2d 1066, 1068 (9th Cir. 1990) (quotations and alterations
omitted).
67 AS 23.10.060. One difference between the FLSA and the AWHA is that under the AWHA, in
order to qualify as an exempt employee, one must be paid on “a salary or fee basis at a rate of
not less than two times the state minimum wage for the first 40 hours of employment each
week.” AS 23.10.055(b). Here, this distinction is not consequential because both Ms. Blake
and Ms. Scalf were paid more than this amount, given that the Alaska minimum wage was $7.75
per hour from 2010 through 2014 before rising to $8.75 per hour in 2015. See Minimum Wage
Standard and Overtime Hours, Alaska Division of Labor Standards and Safety,
http://labor.alaska.gov/lss/whact.htm (last visited Aug. 20, 2018).
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requirement.68 In 2005, the Alaska Legislature amended the AWHA to adopt the federal
definitions of executive, administrative, and professional employees.69 Accordingly, the
Alaska Supreme Court has held that when determining whether an employee is exempt
under the AWHA, “trial courts should . . . apply the ‘primary duty test’ of [DOL
regulations].”70
However, while it is settled law that the standard of proof for an exemption under
the FLSA is the preponderance of the evidence standard, it is not entirely clear what
standard the Alaska Supreme Court would apply at this time. 	In 1993, in Dayhoff v.
Temsco Helicopters, Inc., the Alaska Supreme Court adopted a “beyond a reasonable
doubt” standard to establish an exemption under Alaska law.71 	Dayhoff has not been
expressly overruled. 	However, in Resurrection Bay the Alaska Supreme Court more
recently held:
68 AS 23.10.055(a)(9).
69 AS 23.10.055(c)(2) (“In (a)(9) of this section, ‘bona fide executive, administrative, or
professional capacity’ has the meaning and shall be interpreted in accordance with 29 U.S.C.
201–209 (Fair Labor Standards Act of 1938), as amended, or the regulations adopted under
those sections.”).
70 Moody v. Royal Wolf Lodge, 339 P.3d 636, 641 (Alaska 2014). While Moody involved the
professional exemption, rather than the executive or administrative exemptions, the Alaska
Supreme Court’s recognition that Alaska now “relies on” federal law in determining whether an
exemption applies under the AWHA makes clear that the Court would apply the relevant federal
regulations to claims relating to the executive or administrative exemptions. See id. at 639 &
n.15, 641.
71 848 P.2d 1367, 1372 (Alaska 1993) (“If there is a reasonable doubt as to whether an
employee meets the criteria for exemption, the employee should be ruled non-exempt.”); see
also Fred Meyer of Alaska, Inc. v. Bailey, 100 P.3d 881, 884 (Alaska 2004) (“The burden is on
the employer to prove beyond a reasonable doubt that the employee is exempt.” (citing Dayhoff,
848 P.2d at 1372)). Notably, at the time Dayhoff was decided, many federal courts, including
the Ninth Circuit, were applying a preponderance of the evidence standard. See Dybach v.
State of Fla. Dep't of Corr., 942 F.2d 1562 (11th Cir. 1991); Dickenson v. United States, 353 F.2d
389, 392 (9th Cir. 1965).
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[a] 	federal 	statute, 	the 	Fair 	Labor 	Standards 	Act 	(FLSA), 	applies
concurrently and requires overtime pay under circumstances identical to
those identified in the AWHA. The terms used in the AWHA, if not defined
in Alaska law, carry the definitions used in the FLSA.72
But the Alaska Supreme Court also recognized in Resurrection Bay that a preponderance
of the evidence standard is applied under federal law, contrary to state law.73 	Thus, it
may be that the Alaska Supreme Court, if presented the question, might overrule its earlier
precedent and find that the federal preponderance of the evidence standard now governs
AWHA claims.74 However, it has not yet considered this issue. Therefore, in the absence
of an opinion by the Alaska Supreme Court that overrules Dayhoff, this Court will apply
the beyond a reasonable doubt standard to the AWHA claims.
IV. 	Analysis
A. Suzanne Blake
1. 	Executive Employee
Classic maintains that Ms. Blake was an exempt executive employee. To prevail
on this claim on summary judgment, Classic must demonstrate that when the evidence is
viewed in the light most favorable to Ms. Blake, she meets the four-part test set out in 29
72 338 P.3d at 308 (internal citations omitted); see Moody, 339 P.3d at 639 (noting that “[i]n 2005
. . . the Alaska Legislature amended AWHA to adopt the federal definition[s]” of bona fide
executive, administrative, and professional employees).
73 Resurrection Bay, at 308 n.14 (Alaska 2014) (“We have held [] that employers are required to
prove AWHA exemptions beyond a reasonable doubt. Although the burden-of-proof issue is not
raised on appeal, we note that other than the Fourth, the circuits that have explicitly adopted a
standard of proof for the applicability of FLSA exemptions require proof by a preponderance of
the evidence.” (internal quotation and citations omitted)).
74 As discussed further herein, the Court will certify the question regarding the burden of proof
standard under Alaska law to the Alaska Supreme Court. See infra p. 39.
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C.F.R. § 541.100(a).75
a. 	Compensation of at least $455 per week
It is undisputed that Ms. Blake received a salary of at least $455 per week.76
b. 	Primary duty
The second element requires Classic to show that Ms. Blake’s primary duty was
management. The relevant regulation provides:
Generally, “management” includes, but is not limited to, activities such as
interviewing, selecting, and training of employees; setting and adjusting
their rates of pay and hours of work; directing the work of employees;
maintaining production or sales records for use in supervision or control;
appraising 	employees' 	productivity 	and 	efficiency 	for 	the 	purpose 	of
recommending promotions or other changes in status; handling employee
complaints and grievances; disciplining employees; planning the work;
determining the techniques to be used; apportioning the work among the
employees; 	determining 	the 	type 	of 	materials, 	supplies, 	machinery,
equipment or tools to be used or merchandise to be bought, stocked and
sold; controlling the flow and distribution of materials or merchandise and
supplies; providing for the safety and security of the employees or the
property; 	planning 	and 	controlling 	the 	budget; 	and 	monitoring 	or
implementing legal compliance measures.77
Classic contends that “Ms. Blake’s position with Classic Alaska was akin to the
store manager’s position in Family Dollar,” a case in which the plaintiff-employee was
found to be an executive employee at the summary judgment stage despite her
contention that “99% of her time was devoted to nonexecutive duties.”78 There, the court
75 See supra note 56.
76 See Docket 96-2 at 48; Docket 93-4 (Exhibit D – Summary of Employment Terms). Ms. Blake
would also meet the minimum salary under the Alaska standard, which under current law
amounts to $620 per week. See supra note 67.
77 29 C.F.R. § 541.102 (2004).
78 Docket 125 at 8 (citing In re Family Dollar FLSA Litigation, 637 F.3d 508, 515–16 (4th Cir.
2011)).
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found that “while [the plaintiff] performed nonmanagerial tasks around the store as she
determined necessary, she concurrently performed the managerial duties of running the
store.”79 	Citing 	29 	C.F.R. 	§ 	541.106, 	the 	court 	held 	“[t]his 	multi-tasking—doing
management jobs while doing nonexempt work—is explicitly recognized as a managerial
duty by the Department of Labor’s regulations.”80 That regulation states:
[A]n assistant manager in a retail establishment may perform work such as
serving 	customers, 	cooking 	food, 	stocking 	shelves 	and 	cleaning 	the
establishment, but performance of such nonexempt work does not preclude
the exemption if the assistant manager's primary duty is management. An
assistant manager can supervise employees and serve customers at the
same time without losing the exemption. 	An exempt employee can also
simultaneously direct the work of other employees and stock shelves.81
The court concluded that the employee was an exempt executive and affirmed summary
judgment for the defendant.82 	While not binding on this Court, Family Dollar illustrates
how an employee’s primary duty may be management even when that employee spends
most of her time on non-exempt tasks.83
Determining whether management was 	Ms. 	Blake’s 	“primary duty” 	requires
consideration of several factors.84 First, the Court looks at the “relative importance of the
79 Family Dollar, 637 F.3d at 515–16 (emphasis in original).
80 Family Dollar, 637 F.3d at 516.
81 29 C.F.R. § 541.106(a).
82 Family Dollar, 637 F.3d at 518.
83 By contrast, Ms. Blake offers a different case involving Family Dollar stores to supports her
assertion that Ms. Blake’s primary duty was not management. See Docket 120-1 at 11 (citing
Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1269 (11th Cir. 2008)). However, the
proposition for which Ms. Blake offers this case—that “[i]t was these managers’ actual duties
performed, and not the apparent duties proffered by the employer, that determined their FLSA
status”—is not in dispute here. Docket 120-1 at 11.
84 See supra note 61 and accompanying text.
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exempt duties as compared with other types of duties.” 	This factor “focuses on an
employee's ‘principal value’ to the company.”85 While the Court assumes, for purposes
of the motion, that Ms. Blake spent the vast majority of her time performing non-exempt
tasks, the record indicates that Ms. Blake routinely made important decisions relating to
the daily management and functioning of the company, particularly with respect to
personnel issues.86 Ms. Blake’s decisions relating to the supervision of employees and
management of a retail business would be more valuable to Classic than her non-exempt
activities related to completing mail orders and working in the store. 	The fact that Ms.
Blake 	reported 	only 	to 	upper 	management, 	specifically 	Jesse 	Glamann 	and 	the
company’s owners, further evidences the significance of her role within the company and
the importance of her managerial duties.87 	Ms. Blake’s managerial duties included
evaluating and disciplining employees, as Ms. Blake describes in an email to Jesse
Glamann on July 31, 2014.88 	Ms. Blake also hired and fired employees, directed their
work, and supervised them to ensure their compliance with instructions.89 Ms. Blake also
85 Smalley v. Home Depot U.S.A., Inc., 2013 WL 1402348, at *10 (N.D. Cal. Apr. 5, 2013) (citing
Baldwin, 266 F.3d at 1115).
86 See supra notes 13–19 and accompanying text.
87 See infra note 99; Docket 101-1 at 2, ¶ 7 (identifying Mr. Rostad, one of the company’s
owners, as her direct supervisor).
88 Docket 93-5 (Exhibit E – Email to Jesse Glamann); see Docket 96-2 at 15 (Ms. Blake
acknowledging she wrote the email to Jesse Glamann identified as Exhibit E).
89 See Docket 93-5 at 1 (Ms. Blake stating “I hired a lady yesterday that will probably be let go in
a week. When they are LAZY the first day and complain about how tired they are and have a
headache are not interested in even folding a shirt they aren’t staying employed for me.”
(emphasis added)); id. (“I give [employee] tasks and usually have to follow up several times to
get them finished.”); id. (“I have given [employee] the final warning of smelling of alcohol.”).
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had some level of input into the budget for her department.90 Perhaps most crucially, Ms.
Blake retained her role as manager even while performing non-exempt tasks such as
completing orders, as she acknowledged in her deposition.91
Second, the Court looks at “the amount of time spent performing exempt work.”
Here, Ms. Blake asserts that most of her time was spent performing non-exempt work,
such as processing internet orders, assisting customers, and cleaning the premises. For
purposes of this motion, the Court assumes that such non-exempt tasks made up 85 to
90% of Ms. Blake’s work day. 92 	However, the executive exemption may nonetheless
apply.93
90 In her deposition, Ms. Blake stated that her input into the budget amounted to “data entry” but
acknowledged that, along with Jesse Glamann, she made efforts to secure more funding in the
budget for additional staff. Docket 96-2 at 23–24; but see Docket 101-1 at 3, ¶ 11 (“As MM, I
had no role in developing the company budget, business strategies, or core entrepreneurial
decisions.”).
91 Docket 96-3 at 5; see Baldwin v. Trailer Inns, Inc., 266 F.3d 1104, 1114 (9th Cir. 2001) (noting
that “one can still be managing if one is in charge, even while physically doing something else”
(quoting Donovan v. Burger King Corp., 672 F.2d 221, 226 (1st Cir. 1982))).
92 See Docket 101-1 at 2–3, ¶¶ 4, 9; Docket 101-1 at 3, ¶ 12 (“After being assigned the MM
duties, about ninety-percent of the duties I performed were as ORSM or the daily tasks
performed by non-exempt supervisors.”). Ms. Blake acknowledged that “[d]uring my February
23, 2017, deposition I believe I testified these duties made up about eighty-five percent of my
duties.” Docket 101-1 at 2, ¶ 6. However, in her affidavit she stated, “On reflection, I believe the
ninety percent amount is more accurate.” Docket 101-1 at 2, ¶ 6.
93 See 29 C.F.R. § 541.700(c) (2004) (“[F]or example, assistant managers in a retail
establishment who perform exempt executive work such as supervising and directing the work
of other employees, ordering merchandise, managing the budget and authorizing payment of
bills may have management as their primary duty even if the assistant managers spend more
than 50 percent of the time performing nonexempt work such as running the cash register.”);
Baldwin v. Trailer Inns, Inc., 266 F.3d 1104, 1114 (9th Cir. 2001) (“We do not presume that the
executive exemption fails merely because the proportion of time spent on exempt managerial
tasks is less than fifty percent, where . . . managerial duties are packaged in employment with
nonmanagerial tasks, and the management function cannot readily and economically be
separated from the nonexempt tasks.”); Jones v. Tiller, 72 F.3d 138, 2015 WL 712674, at * 3
(10th Cir. 1995) (“[A]n employee can be classified as an exempt employee even though she
performed, to some extent, the ordinary work performed by subordinate employees, which work
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Third, the Court looks at “the employee’s relative freedom from direct supervision.”
Although Ms. Blake was not completely without supervision, the scope of and character
of her duties indicate that she was accorded a substantial amount of discretion in
discharging her managerial duties. As discussed previously, Ms. Blake fired a number of
employees.94 Ms. Blake also had the authority to hire employees and she testified as to
having hired approximately ten employees.95 	Ms. Blake’s decisions to hire and fire
employees did not require the approval of any other managers or the company’s
owners.96 Ms. Blake acknowledged during her deposition that when she was hired, she
understood that supervising employees would be part of her job, as would hiring and firing
was part of her supervisory duties.” (citing Barner v. City of Novato, 17 F.3d 1256, 1261 (9th Cir.
1994))); see also Branstetter v. Gen. Parts Distribution, LLC, 2013 WL 6780672, at *10–11 (D.
Or. Dec. 19, 2013) (granting summary judgment to defendant employer where plaintiff “spent
only ten percent of his time performing management duties” and performed non-exempt tasks
during the remaining ninety percent); see also In re Family Dollar FLSA Litig., 637 F.3d 508, 512
(4th Cir. 2011) (upholding district court’s application of executive exemption on summary
judgment to defendant employer where plaintiff contended that 99% of her time was spent
performing non-exempt tasks). See supra notes 13–19 (detailing Ms. Blake’s managerial
duties).
94 See Docket 93-6 (Exhibit F – Termination Report); Docket 93-8 (Exhibit H – Termination
Report).
95 Docket 96-2 at 10.
96 See Docket 93-15 (Exhibit O – Email) at 1. In Jesse Glamann’s email to Ms. Blake, he states,
“If you decide to release Jessica, keep in mind, Jason still works for us,” which appears to
indicate that the decision to fire the employee rested with Ms. Blake. In her deposition, Ms.
Blake supported this interpretation: “I signed [Jessica’s] termination paperwork.” Docket 96-2 at
14.
In her deposition, Ms. Blake acknowledged having decision-making authority in hiring. Docket
96-2 at 10 (Q: “So the employees that are interviewed by you, you make the decision to hire
them?” Ms. Blake: “If I thought they were a good fit.”).
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employees.97 	Ms. Blake also acknowledged giving a raise to at least one employee.98
Furthermore, Ms. Blake acknowledged that her only superiors in the company were Jesse
Glamann, 	Cindy 	Benford, 	and 	its 	three 	owners.99 	Therefore, 	Ms. 	Blake 	was
unquestionably a high-ranking manager within the company. 	The facts, even when
viewed in the light most favorable to Ms. Blake, clearly indicate that Ms. Blake enjoyed
relative freedom from supervision.
Fourth, the Court looks at “the relationship between the employee’s salary and the
wages paid to other employees for the kind of nonexempt work performed by the
employee.” 	Ms. Blake was paid $62,000 annually, while Classic provides evidence
indicating that the highest paid employee working under Ms. Blake was paid an annual
compensation of $36,985.100 	This wide disparity between Ms. Blake’s salary and the
wages of her subordinates strongly supports the applicability of the executive exemption
as to Ms. Blake.
Ms. Blake maintains that her “primary duties as MM consisted of a [sic] learning
how to ring up cash register sales; assist customers, clean the premises; make up sales
signs; straighten and fold clothes on display tables and racks; stock apparel and clothes;
97 Docket 96-2 at 8. Ms. Blake also testified that because she was the manager, employees
would come to her and inform her when a fellow employee was performing poorly. Docket 96-2
at 9.
98 Docket 96-2 at 16.
99 Docket 96-2 at 25 (Q: “So as I understand it, in your view, you answered to the following
authority figures, was [sic] the owners of the company: Monty, Mark, and Mike, Jesse, and you
mentioned Cindy as well.” Ms. Blake: “Correct.” Q: “Okay. Anybody else?” Ms. Blake: “Not that I
can recall.”); see also Docket 93-1 (Exhibit A – Org. Chart) at 1 (showing Ms. Blake as a
manager, below only the company’s executive management).
100 Docket 85 at 8, ¶ 19. Ms. Blake does not dispute this contention.
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mow the lawn and shovel snow; opening and closing computer files; opening and closing
the store; alarming the security system; and, other similar types of duties.”101 Ms. Blake
also states that as ORSM, her “primary duties consisted of fielding internet and phone
orders from customers and processing them, and manually updating the web site.”102
However, Ms. Blake’s conclusory statements regarding her primary duties do not create
a triable issue of fact. Rather, applying the four factors outlined in the FLSA and viewing
the evidence in the light most favorable to Ms. Blake, it is clear that Ms. Blake’s most
important duty and her main contribution to the company lay not in the non-exempt tasks
she performed much of the time, but in the performance of her managerial duties.103
Examining the character of Ms. Blake’s position as a whole, including her relative salary,
the 	authority 	she 	exerted 	over 	other 	employees, 	and 	her 	relative 	freedom 	from
supervision, the Court finds that Ms. Blake’s primary duty was management.
c. 	Customarily and regularly directs work of two or more employees
Ms. Blake meets the third element of an exempt executive employee because it is
undisputed that she “customarily and regularly direct[ed] the work of two or more other
employees.”104
d. 	Authority to hire and fire employees
Ms. Blake also meets the fourth and final element because she unquestionably
101 Docket 101-1 at 3, ¶ 9.
102 Docket 101-1 at 2, ¶ 4.
103 See supra notes 59–62.
104 See supra note 13 and accompanying text.
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had the authority to hire and fire employees, as previously described.105
In her motion, Ms. Blake asserts that her “primary duties did not include managing
a department; or directing the work of two or more employees; or, exercising the authority
to hire and fire employees.”106 	However, Ms. Blake does not provide evidence that
supports these assertions. 	To the contrary, the evidence in the record, including Ms.
Blake’s own deposition testimony, undisputedly demonstrates that Ms. Blake did in fact
supervise employees.107 Furthermore, Ms. Blake’s conclusory affidavits do not establish
a genuine issue of fact, to the extent they contradict her previous deposition testimony.108
Based on the foregoing, the Court finds that Classic has demonstrated that Ms.
Blake meets each of the four elements laid out in 29 C.F.R. § 541.100(a).109 When all
justifiable inferences are drawn in Ms. Blake’s favor, the Court finds that no reasonable
105 See supra notes 18–19 and accompanying text.
106 Docket 101 at 6.
107 See supra note 13.
108 See Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991) (“The general rule in
the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting h[er]
prior deposition testimony.”). Although Ms. Blake filed more than one affidavit in this case, her
December 1, 2017 affidavit in particular contains multiple conclusory statements that contradict
her deposition testimony. Compare Docket 101-1 at 3, ¶ 9 (“My primary duties consisted of
learning how to ring up cash register sales . . . mow[ing] the lawn and shovel[ing] snow . . . and
other similar manual and/or mechanical types of duties.”) with supra notes 13–19 (Ms. Blake
acknowledging extensive managerial duties); compare Docket 101-1 at 3, ¶ 10
(“Responsibilities for hiring, firing and disciplining of employees at Big Ray’s w[ere] distributed
amongst floor supervisors, the MM, and HR.”) with supra notes 17–19 (Ms. Blake
acknowledging that she personally hired and fired numerous employees); see supra note 90
(contrasting Ms. Blake’s contradictory statements regarding the budget).
109 Classic also asserts that Ms. Blake qualifies as an exempt administrative employee or, in the
alternative, she falls under the combination exemption. Docket 111-1 at 47–48. However,
because the Court finds that Ms. Blake is an exempt executive employee, it does not address
the application of the administrative or combination exemptions as applied to her.
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jury could find that Ms. Blake was not an exempt executive employee under the FLSA
and AWHA.110
2. 	Penalty
Ms. Blake also maintains that she is entitled to a penalty pursuant to AS 23.05.140
due to Classic’s failure to pay her wages for her final two days of work until after the
deadline provided by that statute.111 	While Classic admits failing to pay Ms. Blake her
outstanding wages until July 18, 2016, it asserts that “the nonpayment was in part the
result of an accounting mistake and in part the result of Blake’s failure to submit a leave
slip to Classic Alaska’s payroll department for her day off on September 29, 2014.”112
It is within the Court’s discretion to levy a penalty under AS 23.05.140.113 Classic
maintains that its “failure to pay Blake’s final two days’ compensation was not intentional
110 Based on the strength of the undisputed evidence discussed above, the Court finds that a
reasonable jury could not find by a preponderance of the evidence that Ms. Blake was not an
executive employee under the FLSA. The Court also finds that even under the more rigorous
beyond a reasonable doubt standard articulated by the Alaska Supreme Court in Dayhoff,
Classic has established that the executive exemption applies to Ms. Blake. See supra pp. 2–6,
16–24.
In a recent filing, Classic states that “[i]n her Complaint, Blake asserted claims for alleged
unpaid overtime only under the FLSA.” Docket 137 at 3. This assertion is without merit. See
Docket 1 at 6 (citing AS 23.10.50–150).
111 Docket 120-1 at 9; see AS 23.05.140(d) (“If an employer violates (b) of this section by failing
to pay within the time required by that subsection, 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, or for 90 working days,
whichever is the lesser amount.”).
112 Docket 112 at 9; see Docket 112-2.
113 See Hallam v. Holland Am. Line, Inc., 27 P.3d 751, 756 (Alaska 2001) (“We note that
penalties under AS 23.05.140 are not mandatory and that refusal to apply a penalty is within the
trial court's discretion.”).
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or in bad faith” and that the Court should thus use its discretion to waive the penalty.114
However, the record demonstrates that the Alaska Department of Labor and Workforce
Development informed Classic on November 14, 2014 about Ms. Blake’s wage claim.115
Therefore, the Court denies summary judgment as to whether a penalty should be
imposed and, if so, the amount of such penalty.
B. Catherine Scalf
1. 	Administrative Employee
Classic contends that Ms. Scalf was an administrative employee who was exempt
from the overtime provisions of the FLSA. Ms. Scalf counters in her motion for summary
judgment by asserting that “[t]he evidence presented shows that there is no genuine issue
as to any material fact and that, as a matter of law, Catherine Scalf was not exempt from
the overtime requirements of the Fair Labor Standards Act and Alaska Wage and Hour
Act.”116 “To qualify for the administrative exemption, an employee's primary duty must be
the performance of work directly related to the management or general business
operations of the employer or the employer's customers.”117 In order to demonstrate that
Ms. Scalf is an exempt administrative employee, Classic must show that Ms. Scalf fulfills
the three elements described in 29 C.F.R. § 541.200(a).118
114 Docket 112 at 9–10.
115 Docket 134-14 at 1–2 (letter from wage and hour investigator to Monty Rostad informing him
that a wage claim was filed by Ms. Blake and stating that a copy of the wage claim was
attached).
116 Docket 98 at 9.
117 29 C.F.R. § 541.201(a) (2004).
118 See supra note 56 and accompanying text.
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a. 	Compensation of at least $455 per week
It is undisputed that the first element was met during Ms. Scalf’s employment.119
b. 	Primary duty is the performance of office or non-manual work
directly 	related 	to 	the 	management 	or 	general 	business
operations
As to the second element, Classic must show that Ms. Scalf’s “primary duty [wa]s
the performance of office or non-manual work directly related to the management or
general business operations of the employer or the employer’s customers.” As stated in
the relevant regulation, “[t]o meet this requirement, an employee must perform work
directly related to assisting with the running or servicing of the business, as distinguished,
for example, from working on a manufacturing production line or selling a product in a
retail or service establishment.”120 “This requirement is met if the employee engages in
‘running the business itself or determining its overall course or policies,’ not just in the
day-to-day carrying out of the business' affairs.”121
In support of its motion, Classic provides the job description of the Corporate
Outfitting Director position that Ms. Scalf held.122 	However, a job description is not
119 See Docket 98 at 7 (“Scalf acknowledges that the first element, a minimum level of
compensation, was met during her employment with Classic Alaska.”). Ms. Scalf does not
dispute that Ms. Scalf’s compensation met the FLSA minimum as well as the higher minimum
amount required under the AWHA.
120 29 C.F.R. § 541.201(a) (2004).
121 Bothell v. Phase Metrics, Inc., 299 F.3d 1120, 1125 (9th Cir. 2002) (quoting Bratt v. Cty. of
Los Angeles, 912 F.2d 1066, 1070 (9th Cir. 1990)).
122 Docket 93-3 (Exhibit C – Job Description) (“The Corporate Outfitting Manager is responsible
for all aspects of retail sales processed through the Orders and Fulfillment system relating to
Corporate Outfitting / Embroidery Departments throughout the Company. The Corporate
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dispositive—the actual work performed by the employee is determinative.123 Classic also
provides a resume prepared by Ms. Scalf, which Ms. Scalf points out in her opposition is
virtually identical to a job description of the Big Ray’s commercial sales manager
position.124 	However, at her deposition, Ms. Scalf adopted much of the job description
in that resume as accurately reflecting her job duties.125 	Ms. Scalf acknowledged
performing a number of tasks through which she contributed to the overall running of the
business, particularly with regard to her role in establishing new customer accounts,
maintaining existing customer relationships,126 providing input into budget decisions,127
and supervising employees.128
Nevertheless, Ms. Scalf asserts that she is entitled to summary judgment and that
Outfitting Director works closely with Ownership, Finance, Merchandising, Advertising and the
Market Managers to execute overall company strategies. This position has ultimate
responsibility for ensuring that Corporate and Embroidery orders are handled consistently and
efficiently and customers are happy with their shopping experience through these channels.”).
123 See Kelley v. SBC, Inc., 1998 WL 928302, at *8 (N.D. Cal. Nov. 13, 1998) (“This showing
must be based on the actual nature of the duties performed by employee, not by the employee's
title or job description.”).
124 Compare Docket 95–20 (Exhibit BT – Resume) at 1–2 with Docket 113-2 (Job Description).
125 Docket 96-5 at 5–10. Ms. Scalf stated during her deposition that she was being honest when
she prepared the resume and provided it to her employer. Docket 96-5 at 5. She also
specifically acknowledged elements of the resume to be accurate descriptions of her duties,
including: establishing new accounts and attracting potential customers; recruiting, terminating,
training, and monitoring employees; enforcing company policies and procedures; attending
weekly management meetings to assure good communication between departments; creating
monthly reports to track sales volume and ensure the commercial budget was accurately
followed; and attending events for outside sales and promotions. Docket 96-5 at 5–10. Ms.
Scalf also stated she signed contracts on behalf of Classic as the manager of the commercial
sales department and made outside sales calls. Docket 96-5 at 5.
126 Docket 96-5 at 5, 9, 11–12.
127 See supra note 38.
128 Docket 96-5 at 8.
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she is non-exempt, and denies that her “primary duty [was] the performance of office or
non-manual work directly related to the management or general business operations of
the 	employer 	or 	the 	employer’s 	customers.”129 	Although 	Ms. 	Scalf’s 	conclusory
assertions cannot create a genuine issue of fact, Ms. Scalf also provides evidence that
supports her contention that she was not an exempt administrative employee. Ms. Scalf
explains that although her title was manager of corporate sales, her actual work was
largely ministerial as she did not have the ability to negotiate contracts with customers.130
Instead, the offers she made to customers were negotiated by other individuals within the
company and included standard discounts.131 Ms. Scalf also explained that the resume
she prepared listing her job skills included skills she had performed prior to her
employment at Classic and were not reflective of her work there.132 Much of Ms. Scalf’s
sales work entailed advising individual customers on items that would suit their needs.133
In short, Ms. Scalf describes her primary role as selling a product in a retail establishment,
which does not qualify for the administrative exemption, according to 29 C.F.R. §
129 29 C.F.R. § 541.200 (2004); Docket 98 at 7.
130 Docket 96-5 at 5 (Q: “So negotiating—but you negotiated and closed the contracts with those
commercial customers also.” Ms. Scalf: “No. No. It was all done through Anchorage. I did not
do—I did not negotiate any contracts.”).
131 Docket 96-5 at 5 (Q: “So there was a standard discount that was offered to commercial
customers, and then part of your job was to go see if you could entice those different companies
to come to Big Ray’s?” Ms. Scalf: “They—a lot of the commercial customers that we had
were—I wouldn’t say a lot. But, over time, the customers, the commercial customers—the
clientele built over time, and it was—like, Alyeska, those prices were negotiated in Anchorage.”).
132 Docket 9-5 at 6.
133 Docket 96-5 at 5.
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541.201(a),134 and was not directly related to the running of the business.135
Viewing the facts in the light most favorable to Ms. Scalf, Classic has not
established that Ms. Scalf’s primary duty undisputedly was office or non-manual work
directly related to Classic’s management or general business operations. 	Viewing the
facts in the light most favorable to Classic, Ms. Scalf cannot establish that no reasonable
jury would find that her primary duty was office or non-manual work directly related to
Classic’s management or general business operations. As such, neither party can meet
the second element at the summary judgment stage.
c. 	Primary 	duty 	includes 	the 	exercise 	of 	discretion 	and
independent judgment with respect to matters of significance
The third element requires that the employee’s “primary duty includes the exercise
of discretion and independent judgment with respect to matters of significance.” Classic
provides a payroll form as evidence that Ms. Scalf had input into the decision to give one
employee a pay raise.136 Classic also provided evidence that Ms. Scalf had the authority
to hire and fire employees.137 In addition, Classic provides evidence that Ms. Scalf had
input into the discounts offered to corporate customers.138 	Ms. Scalf also went on
134 “To qualify for the administrative exemption . . . . an employee must perform work directly
related to assisting with the running or servicing of the business, as distinguished, for example,
from working on a manufacturing production line or selling a product in a retail or service
establishment.” 29 C.F.R. § 541.201(a) (2004).
135 See supra note 41 and accompanying text.
136 Docket 94-15 (Exhibit AO – Payroll Change Form).
137 Docket 90 at 9–10, ¶ 16 (Monty Rostad testifying as to Ms. Scalf’s authority). Classic also
provides a termination report that Ms. Scalf completed concerning an employee that Ms. Scalf
fired. Docket 94-13 (Exhibit AM – Termination Report).
138 See Docket 90 at 12 (Monty Rostad explaining that while ownership had the ultimate say in
“what discount was made available to a particular corporate customer,” Ms. Scalf gave input into
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independent sales calls and signed contracts with customers, albeit after speaking with
her director.139 Ms. Scalf also made bids on behalf of Classic.140 Throughout Ms. Scalf’s
tenure as Corporate Outfitting Director, she supervised at least one full-time employee at
all times, frequently supervised two full-time employees, and briefly supervised three
employees, one of who whom was part-time.141 	Classic contends that this evidence
indicates that Ms. Scalf possessed sufficient independence and discretion to meet the
third element. Viewing the facts in the light most favorable to Classic, Classic has raised
genuine factual issues sufficient to defeat Ms. Scalf’s motion for summary judgment as to
the applicability of the administrative exemption.
Ms. Scalf counters that she lacked the discretion and independent judgment to
qualify 	as 	an 	exempt 	administrative 	employee.142 	In 	Ms. 	Scalf’s 	deposition, 	she
acknowledged that her responsibilities included recruiting, training, supervising, and
monitoring employees.143 However, while Ms. Scalf stated in her deposition that she had
the authority to terminate employees, she asserted that Mr. Rostad or another supervisor
those decisions and had some leeway with regard to discounts given to smaller companies).
139 See Docket 96-5 at 5–6.
140 See supra note 37.
141 Docket 85 at 3. Ms. Scalf acknowledges in her affidavit that she supervised two employees
for a period, stating, “During the last two and one-half years of my employment at Big Ray’s I
supervised one full time employee in the Embroider Department, Melanie Baltrum. For a few
months during that time period I supervised a second full time employee in the Embroidery
Department and occasionally a part-time employee.” Docket 103 at 3, ¶ 7.
142 Docket 98 at 9.
143 Docket 96-5 at 6–7.
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would first have to approve the termination.144 	Furthermore, Ms. Scalf maintained that
she did not negotiate contracts.145 	Taken together, Ms. Scalf’s evidence suggests that
while she had some level of independent authority, the majority of her decisions regarding
matters of significance required approval from more senior managers.146 Ms. Scalf has
shown sufficient factual disputes so as to defat Classic’s motion for summary judgment
on this exemption.
2. 	Executive Employee
Classic also contends that Ms. Scalf qualifies for the executive exemption. 	Ms.
Scalf disputes this, asserting that she was not an exempt executive employee and is
entitled to summary judgment in her favor.147 	In order to demonstrate that Ms. Scalf
144 Docket 96-5 at 6.
145 See Docket 96-5 at 5. Ms. Scalf provides evidence indicating that her discretion in
performing her duties was limited. Ms. Scalf states in her January 12, 2018 affidavit that “[w]hile
[she] did sign Corporate Agreements with the Defendant’s customers, [she] was permitted to do
so only after [her] supervisor had signed the agreement.” Docket 113-1 at 2–3, ¶ 7. Ms. Scalf
acknowledges preparing bids, but she states: “[W]hen new items were requested by corporate
customers, I obtained the bid price from a Buyer. If not a new item, I got its price off the
Company's computer. There was just one price for each item in the computer. Once, when a
Buyer told me to discount a discontinued item, I got into trouble because the price in the
computer had not been reduced by the Buyer when the transaction was reviewed by
accounting. I had no authority to adjust merchandise prices.” Docket 113-1 at 3, ¶ 9.
146 Ms. Scalf appends to her motion excerpts of the depositions of herself and Cindy Benford. In
Ms. Scalf’s deposition, she stated that while she served as a commercial sales manager, she
performed tasks such as taking phone calls, fitting customers, cleaning the department,
restocking clothing, invoicing customers, taking garments to be embroidered, and shoveling
snow. Docket 98-1 (Scalf Depo. Excerpt) at 3. While these activities are akin to the duties of a
non-exempt employee, they were not the sole duties of Ms. Scalf during her time at Big Ray’s.
As described above regarding Ms. Blake, an individual can be found to be an exempt employee
even if most of her day-to-day activities are akin to those of a non-exempt employee. See supra
notes 60, 93. Therefore, Ms. Scalf’s testimony that she regularly performed non-exempt
activities does not definitively establish that she “lacked the discretion and independent
judgment to be an exempt administrative employee,” as she asserts. Docket 98 at 9.
147 Docket 98 at 9.
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qualifies as an executive employee, Classic must demonstrate that Ms. Scalf meets the
aforementioned four-part test.148
a. 	Compensation of at least $455 per week
It is undisputed that Ms. Scalf meets this element.149
b. 	Primary duty is management
The second element requires Classic to show that Ms. Scalf’s primary duty was
management, upon consideration of the four factors of 29 C.F.R. § 541.700(a).150
There is conflicting evidence in the record as to whether Ms. Scalf’s primary duty
was management. With regard to the first factor, Classic points to Ms. Scalf’s supervision
of other employees as evidence that Ms. Scalf’s primary duty was management.151 Ms.
Scalf 	also 	coordinated 	employee 	scheduling,152 	facilitated 	communication 	among
employees, and represented Classic in her interactions with commercial customers.153
As to the second factor, while Ms. Scalf appears to have spent a majority of her time on
non-exempt 	tasks, 	her 	own 	description 	indicates 	that 	she 	performed 	managerial
responsibilities while also performing her other duties.154 Furthermore, the percentage of
148 See supra note 56.
149 See supra note 119.
150 See supra note 61 and accompanying text.
151 Docket 92 at 36; see Docket 96-5 at 7 (Ms. Scalf describing in her deposition that she
monitored employees to ensure “the other employees were doing their job as they’re supposed
to do it and appropriately”).
152 Docket 96-5 at 7.
153 See supra note 126.
154 Docket 96-5 at 7 (Q: “And then monitoring employees, right?” Ms. Scalf: “Yes.” Q: “And
what did monitoring employees entail?” Ms. Scalf: “Meaning that—not to stand around and
chitchat, sit on their phone all day.” Q: “Sure.” Ms. Scalf: “You know, keep their department
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time spent on tasks is not dispositive as to her primary duty.155 As to the third factor, Ms.
Scalf directed employees and met independently with customers during her outside sales
calls.156 As to the fourth factor, Ms. Scalf was compensated at a considerably higher rate
than the non-exempt employees working beneath her.157
Ms. Scalf counters that she was not an exempt executive employee and is entitled
to summary judgment. As to the first and second factors, Ms. Scalf asserts that most of
her responsibilities and duties were those of a non-exempt employee. 	The majority of
her tasks appear to be related to retail sales, including fitting customers, making sales,
and providing invoices and receipts to customers.158 As to the third factor, the Court finds
that although Ms. Scalf had some independent responsibilities, there are genuine factual
disputes as to the degree of freedom from direct supervision she had when it came to
many of her duties.159 Finally, Ms. Scalf’s salary was not so much higher than that of the
clean, help a customer and not be rude. And proper phone etiquette was a big thing for me.”).
Ms. Scalf’s deposition testimony here is consistent with Mr. Rostad’s statements that Ms. Scalf
was concurrently performing non-exempt tasks while serving in a managerial capacity. See
Docket 90 at 14 (stating that “even though Ms. Scalf “may have concurrently performed duties
that could be characterized as both managerial and non-managerial,” Ms. Scalf’s primary role at
Classic was managerial).
155 See supra note 93.
156 Docket 96-5 at 8; id. at 5.
157 Cindy Benson stated in her affidavit that Ms. Scalf’s average annual compensation including
benefits during the period in question was $52,910, while the highest salaried employee working
beneath Ms. Scalf was paid $43,685 annually. Docket 85 at 2, ¶ 4, 8–9, ¶ 19; see Docket 96-5
at 16–17.
158 See supra note 41 and accompanying text.
159 See supra note 145.
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non-exempt employees she supervised so as to clearly indicate that Classic considered
her role to be that of a manager.160
When the evidence is viewed in the light most favorable to the non-moving party,
neither Classic nor Ms. Scalf has shown there is no genuine issue of material fact as to
whether Ms. Scalf qualifies for the executive exemption. 	Because the existence of
genuine issues of material fact preclude summary judgment for either party as to Ms.
Scalf’s primary duty, the Court does not address the remaining two components of the
executive exemption.
3. 	Combination Exemption
Classic also asserts that even if Ms. Scalf does not qualify exclusively as either an
exempt administrative or executive employee, it is entitled to summary judgment on her
claim because when the facts are viewed in the light most favorable to Ms. Scalf, she falls
within the “combination exemption.”161
160 See supra note 157. Furthermore, Ms. Scalf’s salary was substantially lower than that of Ms.
Blake, whose annual compensation including benefits was $69,716.47. Docket 85 at 2, ¶ 3.
161 Docket 111-1 at 47. At oral argument, counsel for Classic asserted that while Ms. Scalf
qualifies for the combination, administrative, and executive exemptions, she fits most squarely
into the combination exemption:
The Court: So which [exemption], if you had to pick, which you don’t, you can argue
them all, but if you had to pick one of those three for Ms. Scalf, which would you
pick?
. . .
Counsel: I would say the combined exemption might be best for Ms. Scalf and then
the administrative exemption and executive after that. 	I frankly think she meets
all, but I would put them in that order.
Docket 138 at 9-10. See supra note 58 and accompanying text (explaining combination
exemption); but see Campanelli v. Hershey Co., 765 F. Supp. 2d 1185, 1197 (N.D. Cal. 2011)
(“Employers, however, cannot ‘tack various nonexempt duties and hope to create
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Although the Court’s previous discussion acknowledges that Ms. Scalf performed
duties that implicate the administrative and executive employees to some extent, this fact
is not enough to warrant summary judgment in favor of Classic.162 	Given the Court’s
conclusion that genuine issues of material fact exist as to whether Ms. Scalf was either
an administrative or executive employee, Classic’s brief discussion of the combination
exemption does not undisputedly demonstrate that that exemption applies under the
FSLA.163 	It necessarily follows that summary judgment is also unwarranted under the
AWHA.164
Ms. Scalf does not specifically address the combination exemption in her motion.
However, Ms. Scalf’s assertions and evidence regarding the executive and administrative
exemption are applicable to the analysis of the combination exemption. 	In light of the
aforementioned discussion of Ms. Scalf’s management responsibilities, including her role
in establishing relationships with outside customers and managing employees within Big
Ray’s, when viewing the evidence in the light most favorable to Classic, Ms. Scalf has not
shown there is no genuine issue of material fact as to whether she qualifies as an exempt
an exemption.’” (quoting Dalheim v. KDFW-TV, 918 F.2d 1220, 1232 (5th Cir. 1990))).
162 See Christopher v. SmithKline Beecham Corp., 635 F.3d 383, 391 (9th Cir. 2011), aff'd, 567
U.S. 142 (2012) (“[An FLSA] exemption can only apply to persons plainly and unmistakably
within its terms and spirit.” (quotation and alterations omitted)). Furthermore, the implementing
guidelines provide less guidance as to how courts should apply the combination exemption,
relative to the other exemptions.
163 See Webster v. Pub. Sch. Employees of Washington, Inc., 247 F.3d 910, 914 (9th Cir. 2001)
(“An employer who claims an exemption from the FLSA has the burden of showing that
the exemption applies.” (quotation omitted)); Campanelli v. Hershey Co., 765 F. Supp. 2d 1185,
1197 (N.D. Cal. 2011) (granting summary judgment to plaintiff where “[d]efendant has not
presented specific evidence that plaintiffs primarily performed any combination of exempt duties
to satisfy the combination exemption.”).
164 See supra pp. 15–16.
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employee under the combination exemption.
C. Implied Covenant of Good Faith and Fair Dealing
“Every employment contract in Alaska is subject to the implied covenant of good
faith and fair dealing.”165 	The Alaska Supreme Court has described the covenant as
follows:
While 	lacking 	a 	precise 	definition, 	the 	covenant 	‘generally 	requires
employers to treat like employees alike and act in a manner that a
reasonable 	person 	would 	regard 	as 	fair.’ 	The 	covenant 	has 	two
components, a subjective component and an objective component. 	If an
employer breaches either component, the employer breaches the implied
covenant.166
Ms. Blake and Ms. Scalf each assert that Classic violated its covenant of good faith
and fair dealing by “failing to pay [each plaintiff] the required overtime, and pay upon
separation, as required by the FLSA and Alaska law.”167 In its summary judgment motion,
Classic states that “Blake and Scalf both left employment with Classic of their own
voluntary accords” and that “neither Blake nor Scalf make a claim in their respective
complaints that Classic took adverse employment action against them or terminated their
employment.”168
1. 	Suzanne Blake
Ms. Blake’s claim for breach of the implied covenant of good faith and fair dealing
165 Crowley v. State, Dep't of Health & Soc. Servs., 253 P.3d 1226, 1230 (Alaska 2011).
166 Crowley, 253 P.3d at 1230 (internal citations omitted).
167 Docket 1 at 7, ¶ 39; 4:16-cv-00014-SLG, Docket 1 at 7, ¶ 38.
168 Docket 111-1 at 49. Both Ms. Blake and Ms. Scalf acknowledge that they resigned
voluntarily from their positions. Docket 101-1 at 3, ¶ 15; Docket 103 at 2, ¶ 2. However, Ms.
Blake also states that she was subsequently fired and payment for her final two days of work
was unlawfully delayed. See supra notes 21, 25, 26.
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primarily depends on a finding that she was improperly denied overtime wages in violation
of the FLSA and AWHA.169 	Therefore, because the Court finds that Classic did not
unlawfully deny overtime wages to Ms. Blake, Ms. Blake’s claim for breach of the implied
covenant of good faith and fair dealing must also fail. 	However, to the extent that Ms.
Blake’s breach of the implied covenant of good faith and fair dealing claim is based on
Ms. Blake’s allegations regarding Classic’s delayed payment for her final two days’ wages
due to her under her employment contract, Classic’s motion for summary judgment is
denied as to that claim.
2. 	Catherine Scalf
The only plausible basis for Ms. Scalf’s claim of breach of the implied covenant of
good faith and fair dealing is her employment contract with Classic.170 	However, Ms.
Scalf offers no evidence that overtime pay was part of her employment contract with
Classic. 	Therefore, the implied covenant of good faith and fair dealing does not entitle
her to overtime pay.171 Rather, because Ms. Scalf claims that the FLSA and AWHA entitle
169 Docket 120-1 at 13 (“If found to be a nonexempt employee, then Ms. Blake obviously has a
legitimate and reasonable expectation that she be paid overtime as required by law. Any
reasonable person would determine it to be unfair for an employer not to pay overtime if
required to do so by law.”).
170 See 4:16-cv-00014-SLG, Docket 1 at 6, ¶ 37 (“The State of Alaska implies a covenant of
good faith and fair dealings within all employment contracts.”). Ms. Scalf does not dispute that
she resigned voluntarily. See supra note 28 and accompanying text. Ms. Scalf’s Complaint
states that Classic “violated its covenant of good faith and fair dealing with the Plaintiff by
intentionally failing to pay her overtime hours as required.” 4:16-cv-00014-SLG, Docket 1 at 7, ¶
39. Ms. Scalf does not allege any facts to support a claim that payment of her wages at
separation was denied or delayed.
171 See Ramsey v. City of Sand Point, 936 P.2d 126, 133 (Alaska 1997) (“The covenant of good
faith and fair dealing is implied in every contract in order to effectuate the reasonable
expectations of the parties to the agreement, not to alter those expectations.”).
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her to overtime, it is these statutes that provide the exclusive remedy to Ms. Scalf for any
failure by Classic to pay overtime.172 Therefore, Classic is entitled to summary judgment
on Ms. Scalf’s claim for breach of the implied covenant of good faith and fair dealing.
D. Motion to Certify
Classic requests that this Court “exercise[] its discretion to certify a question of
Alaska State law to the Alaska Supreme Court under Alaska Appellate Rule 407.”173 In
light of the denial of the cross motions for summary judgment as to Ms. Scalf and the
potential uncertainty regarding the applicable evidentiary standard under the AWHA, the
Court will grant the motion to certify. A separate order shall be issued requesting that the
Alaska Supreme Court answer the following question:
What burden of proof applies to the determination of whether an employee
is exempt from the overtime requirements of the Alaska Wage and Hour Act
as an executive or administrative employee?
CONCLUSION
In light of the foregoing, Classic’s Motion for Summary Judgment at Docket 83 is
GRANTED as to Ms. Blake’s claims pursuant to the FLSA, AWHA, and breach of the
implied covenant of good faith and fair dealing, to the extent the latter claim is based on
Classic’s alleged failure to pay overtime wages. 	Classic’s motion is DENIED as it relates
172 See Nickels v. Napolilli, 29 P.3d 242, 250 (Alaska 2001) (holding “[t]he employer's failure to
provide workers' compensation insurance does not create a separate contract cause of action,
even though the obligation to provide workers' compensation insurance is incorporated into
every employment contract.”). Here, Ms. Scalf’s claims similarly rest on rights incorporated into
employment contracts by statute—although the statutes at issue are the FLSA and AWHA,
rather than the workers’ compensation statute involved in Nickels.
173 Docket 137-1 (Proposed Order) at 1.
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Case No. 4:16-cv-00005-SLG, Blake, et al. v. Classic Alaska Trading/Big Ray’s Alaska, Inc.
Order Re Pending Motions
Page 40 of 40
to the penalty Ms. Blake seeks against Classic for delayed payment for her last days at
work and the related breach of the implied covenant of good faith.
Classic’s motion is DENIED as to Ms. Scalf’s FLSA and AWHA claims.
Ms. Blake’s Motion for Partial Summary Judgment at Docket 100 is DENIED.
Ms. Scalf’s Motion for Partial Summary Judgment at Docket 97 is DENIED.
Classic’s Motion to Certify at Docket 137 is GRANTED. 	A separate order of
certification shall be issued.
DATED this 27th day of August, 2018 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
Case 4:16-cv-00005-SLG Document 140 Filed 08/27/18 Page 40 of 40