Arlington v. Miller S Trucking ( 2017 )

05/02/2017
DA 16-0719
Case Number: DA 16-0719
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 102N
OLIVER W. ARLINGTON,
Petitioner and Appellant,
v.
MILLER’S TRUCKING, INC., a Montana Corporation,
Respondent and Appellee.
APPEAL FROM: District Court of the Third Judicial District,
In and For the County of Granite, Cause No. DV-11-11
Honorable Ray Dayton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Oliver W. Arlington, self-represented, Philipsburg, Montana
For Appellee:
Brian J. Smith, Tessa A. Keller, Garlington, Lohn & Robinson, PLLP,
Missoula, Montana
Submitted on Briefs: April 19, 2017
Decided: May 2, 2017
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Appellant, Oliver W. Arlington, appeals from the District Court’s order affirming
the “2015 Remand: Final Agency Decision” entered by the Department of Labor and
Industry Hearing Officer regarding Arlington’s wage claims, following this Court’s
remand.
¶3 This is the third appeal brought to the Court in this matter. To summarize, Arlington
filed a claim for $25,568.32 in wages and $46,101.81 in overtime wages against Appellee
Miller’s Trucking, Inc. These wages were allegedly earned during his employment,
between September 2008 and August 2009, as a log truck driver and loader operator. These
wages claims were based upon an asserted oral agreement that he would earn between
$60,000 and $70,000 per year. After a contested case hearing, the Hearing Officer found
that Arlington’s claims were not supported by substantial evidence and dismissed them.
This decision was upheld by the District Court upon judicial review. On appeal, this Court
determined that Arlington should be permitted to secure additional discovery and that he
was not an exempt employee under the Fair Labor Standards Act. We reversed and
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remanded for further proceedings. Arlington v. Miller’s Trucking, 2012 MT 89, ¶ 46, 364
Mont. 534, 277 P.3d 1198.
¶4 On remand, Arlington introduced additional evidence but the Hearing Officer
determined his wage claim, between $60,000 and $70,000 per year, and his overtime claim
were still not supported by substantial evidence. Again the Hearing Officer’s decision was
affirmed by the District Court upon judicial review. On the second appeal, this Court
affirmed the Hearing Officer’s determination, regarding the asserted oral agreement, but
held a heavier burden of proof than permitted by law, for establishing the number of hours
worked, had been applied to Arlington. We also held the finding that Arlington had never
worked more than 40 hours per week was clearly erroneous. The Court partially reversed
and remanded for further proceedings regarding Arlington’s claim for overtime pay.
Arlington v. Miller’s Trucking, 2015 MT 68, ¶ 37, 378 Mont. 324, 343 P.3d 1222(hereinafter Arlington II).
¶5 In the “2015 Remand: Final Agency Decision,” the Hearing Officer accepted
Arlington’s position about the hours he claimed to have worked. The Hearing Officer
performed lengthy calculations to determine a baseline hourly wage based upon
Arlington’s 25% load rate, which this Court affirmed in Arlington II, pursuant to the
analogous “pieceworker” method of wage calculation. Admin. R. M. 24.16.2512(2)(b).
The Hearing Officer ensured Arlington would be paid at least the minimum wage for each
hour he worked, correcting the weeks in which the number of hours and the gross wage
resulted in wages less than minimum wage. The Hearing Officer determined that Arlington
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was owed $7,417.39 in earned and unpaid overtime and minimum wage amounts, as well
as a penalty of 110% of wages owed. In the event Miller’s Trucking paid the wages owing
to Arlington within 30 days, the Hearing Officer determined that a reduced penalty of 55%
would instead be applicable. Arlington requested judicial review of the “2015 Remand
Order: Final Agency Decision.” The District Court affirmed.
¶6 On appeal, Arlington disputes the Hearing Officer’s calculation of wages due,
particularly the interpretation and use of the “pieceworker” method of wage calculation,
which he argues violates the Court’s remand instructions in Arlington II, and the Hearing
Officer’s determination that a reduced penalty of 55% of the wages due was permissible.
He asks for wages in the amount of $37,255.05, a 110% penalty, costs, and attorney fees.
¶7 “The same standards used by the district court are applied when reviewing a district
court order affirming or reversing an agency decision.” Arlington II, ¶ 10 (citing Ostergren
v. Dep’t of Revenue, 2004 MT 30, ¶ 11, 319 Mont. 405, 85 P.3d 122). We determine
whether the agency’s findings of fact are supported by substantial evidence and whether
the agency determined the law correctly. Arlington II, ¶ 10. “A reviewing body’s standard
on review ‘is not whether there is evidence to support findings different from those made
by the trier of fact, but whether substantial credible evidence supports the trier’s findings.’”
Blaine County v. Stricker, 2017 MT 80, ¶ 26, ___ Mont. ___, ___ P.3d ___ (quoting
Schmidt v. Cook, 2005 MT 53, ¶ 31, 326 Mont. 202, 108 P.3d 511). “‘Substantial evidence
is evidence that a reasonable mind might accept as adequate to support a conclusion. It
consists of more [than] a mere scintilla of evidence but may be less than a preponderance.’”
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Blaine County, ¶ 26 (quoting State Pers. Div. v. Child Support Investigators, 2002 MT 46,
¶ 19, 308 Mont. 365, 43 P.3d 305).
¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review. The District Court did not err in affirming the Hearing
Officer’s findings of fact, as supported by substantial evidence, or by affirming the Hearing
Officer’s interpretation and application of the law regarding the wage calculation and the
applicable penalty. Miller’s Trucking requests attorney fees on appeal, citing § 39-3-214,
MCA. However, the judgment entered by the District Court did not include an award of
attorney fees, and this issue was not cross-appealed.
¶9 Affirmed.
/S/ JIM RICE
We concur:
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ DIRK M. SANDEFUR
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