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Bishop v. MOA & Anchorage Telephone Utility (7/28/95), 899 P 2d 149
<![CDATA[
Notice: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501; telephone (907) 264-0607, fax (907) 276-
5808.
THE SUPREME COURT OF THE STATE OF ALASKA
STANLEY A. BISHOP, )
) Supreme Court No. S-5988
Appellant, )
) Superior Court No.
) 3AN-91-2652 Civil
v. )
) O P I N I O N
MUNICIPALITY OF ANCHORAGE and )
ANCHORAGE TELEPHONE UTILITY, )
) [No. 4233 - July 28, 1995]
)
Appellees. )
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
J. Justin Ripley, Judge.
Appearances: Edgar Paul Boyko, Edgar
Paul Boyko and Associates, Anchorage, for
Appellant. Donald C. Ellis, Kemppel, Huffman
and Ginder, P.C., Anchorage, for Appellees.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
Justices.
MOORE, Chief Justice.
COMPTON, Justice, with whom RABINOWITZ,
Justice, joins, dissenting in part.
I. INTRODUCTION
In this wrongful discharge case, Stanley Bishop appeals
the superior court's grant of summary judgment in favor of his
employer on all counts of the complaint. We affirm.
II. FACTS AND PROCEEDINGS
Stanley Bishop worked for fourteen years at the
Anchorage Telephone Utility (ATU), which is owned by the
Municipality of Anchorage. Bishop was known as a "good employee"
with an employment record free of disciplinary problems. On July
30, 1990, however, he was terminated for gross insubordination.
He filed suit asserting tort, contract, and constitutional claims
against ATU.1
Bishop claims that the first events relevant to his
termination occurred approximately ten months before his
dismissal. In late September 1989 Bishop wrote letters to the
editors of the Anchorage Daily News and the Anchorage Times. The
letters, which were published in early October, contained strong
criticisms of the management of ATU and advocated the public sale
of the utility.
After the publication of the letters, Bishop was
summoned to a conference in the office of Dale Merrell, ATU's
general manager. With top management personnel and a union
steward in attendance, Merrell angrily questioned Bishop
regarding the contents of the letter. Merrell was most upset
about a passage which appeared to accuse him of misappropriation
of ATU resources. Bishop was unapologetic about the views he
expressed in the letter, but he did explain that the passage
Merrell was most angry about was actually a criticism of past
general managers. This seemed to satisfy Merrell somewhat,
although he would later comment that he "could have fired"Bishop
over the letter. Bishop claims that his work environment
thereafter "became quite hostile,"and that this hostility was
the motivating cause behind his termination.
The events immediately preceding Bishop's termination
involved a dispute over conditions at Bishop's work station. In
September 1989 Bishop assumed new duties at ATU and began working
in the repair service center as a testboard technician. Bishop
was placed at a four-desk "pod"of computer terminals. In March
of 1990, he began to complain that sunlight coming through a
nearby window was causing a glare on his screen, resulting in eye
irritation, headaches, and an inability to work efficiently.
Bishop claims that he asked his foreman for permission
to acquire and install, at his own expense, a light-filtering
screen for the window. The foreman, David Delaney, testified
that he submitted a work order requesting glare reduction.
Nothing transpired for several months, however, and in late July
Delaney told Bishop that ATU maintenance had decided not to
install any tinting.
Management personnel proposed several alternatives to
window tinting, but none of these resolved the problem to
Bishop's satisfaction. Drawing the shades was rejected by Bishop
because it did not sufficiently halt the glare, and because it
was unacceptable to some of his fellow employees. Bishop also
deemed the placement of a filter over the computer screen to be
ineffective.
Ultimately, management's solution to the problem was
for Bishop to change work stations with a co-worker in the same
pod. A worker named Larry Taylor purportedly volunteered to
switch positions with Bishop, although Bishop claims that Taylor
privately expressed his opposition to the switch. Bishop
disapproved of the move, stating that it would not solve the
problem, but merely shift the nuisance to another employee.
On Thursday, July 26, foreman Delaney told Bishop that
Delaney "had been told to move"Bishop into Taylor's position.
Bishop remained at his station, and complained to the acting shop
steward about the problem.
On Friday morning, July 27, Bishop was called from his
work station to a meeting attended by Delaney; Riley Blair,
Delaney's supervisor; Mel Ackerman, the head of the personnel
department; and Carla Rehm, an acting shop steward. Blair asked
Bishop why he had refused an order to move. Bishop stated that
he had been given no formal order to move, and that he would not
transfer the glare problem to a co-worker by moving. Blair told
Bishop that his job was in jeopardy if he did not move. Delaney
and Rehm counselled Bishop to change positions, and Rehm advised
Bishop to move and grieve the incident through union procedures.
Bishop restated his refusal to move, and the meeting adjourned.
At this point Bishop was unsure of what action management would
take, but he believed he might be terminated.
Bishop then met with Jay Holten and Marilyn Callahan,
who worked in ATU's personnel department. Holten and Callahan
informed Bishop that management indeed intended to terminate
Bishop for insubordination. They attempted to persuade Bishop
that his refusal to move was unreasonable, and suggested that he
seek counselling. Bishop insisted that his only desire was to
fix the glare problem and proceed with his work; he denied that
he was being unreasonable, and rejected the idea of counselling.
The personnel staffers then suggested that Bishop take a week of
leave as a "cooling off period." Bishop agreed to this, general
manager Dale Merrell signed the appropriate leave forms, and
Bishop left the building. On that same day, discharge papers
were prepared and signed by Bishop's supervisor, the department
head, and Merrell, but they were not presented to Bishop.
After leaving work, Bishop contacted Larry Johnson, a
friend in a separate unit of ATU who had two years of experience
as a union steward. Johnson set up a Monday meeting with general
manager Merrell and spoke with acting shop steward Rehm. Rehm
said that the personnel office had told her that Bishop was
experiencing "personal problems,"that he had taken a week off
work to undergo counselling, and that his employment status would
be settled when those personal problems were resolved. Johnson
told Bishop of this conversation, and Bishop reacted with anger,
interpreting the comments as an attempt by ATU to disseminate
rumors and smear his character.
Bishop immediately called the personnel office and
informed Marilyn Callahan and Jay Holten that rather than allow
ATU to spread rumors about his mental health, he would return to
work on Monday, and the parties could "finish what they started."
A discussion of the subject with Holten on Sunday did not change
Bishop's decision. On Monday Bishop went to Holten's office. An
acting shop steward was summoned to the room, and Mel Ackerman,
the personnel director, presented Bishop with a disciplinary
action report (DAR). The DAR, which had been signed the previous
Friday, stated that Bishop was terminated for gross
insubordination -- his failure to change work stations. Bishop
was asked to sign the DAR, but refused, writing only a comment
which stated that he believed termination to be an excessive
punishment for a refusal to move, and denying that (as the DAR
stated) he had said in the Friday meeting, "I won't move and
you'll have to fire me." Bishop then cleaned out his desk, and
left the building.
On Monday, July 30, Larry Johnson met with general
manager Merrell about Bishop's termination. Johnson argued that
Bishop was a fourteen-year employee with an unblemished record,
and that he should not be fired over the work station dispute.
Merrell said that Bishop's supervisor, Riley Blair, had made the
termination decision, and that Merrell refused to intervene.
Merrell explained that he had nothing against Bishop, but that he
was simply going to "back his supervisor"in the dispute. He
then stated that if he had wanted Bishop fired, he could have
fired him over the letter-writing incident.
On Friday, August 3, Bishop's wife Terry, who also
worked at ATU, met with Merrell. She asked him whether anyone
was "out to get"her husband. Merrell assured her that this was
not the case, and then raised the subject of Bishop's letters to
the local newspapers. Merrell explained how angry he had been
about the letters and how much trouble Bishop had caused him by
writing them. Merrell then commented, "and then there was this,"
referring to the dispute over Bishop's work station. Merrell
stated that lower management personnel had asked him to sign
discharge papers for Bishop on Friday the 27th, but that he had
refused. Merrell said that instead of signing discharge papers,
he had given Bishop a week of leave to reconsider his position.
Bishop filed a grievance through the union. In
meetings between union officials and ATU managers, however, the
parties could come to no agreement. The grievance then went to a
union committee vote to decide whether to take the matter to
arbitration. A committee of stewards voted unanimously to
arbitrate the grievance, but then a second committee convened,
and decided not to pursue the matter.
Bishop claims that his termination was the final step
in a campaign of management harassment which began when he wrote
the letters to the editor. Bishop filed suit in April of 1991.
He stated seven claims in his complaint: (1) breach of contract;
(2) breach of the covenant of good faith and fair dealing; (3)
wrongful discharge; (4) retaliatory discharge; (5) denial of free
speech rights; (6) denial of due process; and (7) intentional
infliction of emotional distress.
In April 1993 the superior court dismissed Bishop's
wrongful discharge claim as repetitious of his contract claims,
and granted ATU summary judgment as to the emotional distress
claim. In July 1993 the court granted ATU summary judgment as to
Bishop's remaining claims. The court later awarded $51,599.47 in
attorney's fees and costs to ATU. This appeal followed.
III. DISCUSSION
We consider Bishop's claims in light of the standard of
review recently reiterated in Newton v. Magill, 872 P.2d 1213
(Alaska 1994). This court
will uphold summary judgment only if the
record presents no genuine issues of material
fact and "the moving party was entitled to
judgment on the law applicable to the
established facts." When the court makes
this determination, "[a]ll reasonable
inferences must be drawn . . . in favor of
the non-moving party."
Id. at 1215 (citations omitted).
A. Bishop's Actions Constituted "Just Cause"for Dismissal
Bishop admitted in his deposition that he disobeyed
direct orders to change his work station and move out of the
glare. He contends, however, that ATU's order was unreasonable,
and that his refusal to move concerned a trivial matter. From
this premise Bishop argues that even if his refusal to change
work stations were the true and only reason for his termination,
his behavior did not constitute just cause for termination. He
therefore asserts that his breach of contract claim should be
reinstated.
As Bishop recognizes, it is the general rule in Alaska
that "when an order given is reasonable and consistent with the
contract, the failure to obey it is always a material breach as a
matter of law." Central Alaskan Broadcasting v. Bracale, 637
P.2d 711, 713 (Alaska 1981). The employment contract between
Bishop and ATU was the collective bargaining agreement that was
then in place between the ATU and Bishop's union. That contract
stated that ATU could "direct its employees in an efficient
manner" and could "take reasonable disciplinary action for just
cause."
There can be no dispute that ATU's order that Bishop
change places is consistent with its contractual power to "direct
its employees in an efficient manner." The only remaining ground
for argument under Bracale concerns the "reasonableness"of the
order. Bishop argues that because the simplest solution to the
problem was to let him tint the window at his own expense, ATU's
approach to the situation was unreasonable, and that his refusal
to obey the order did not justify discharge. To support this
contention, Bishop has attempted to portray ATU as an irrational
bureaucracy beset by turf battles, a place where the maintenance
staff refuse to let individual employees solve simple problems,
and where managers would rather uproot a four-desk work station
than accept the free installation of a sheet of tinted plastic.
This argument, however, rests on a misinterpretation of
Alaska law. The wisdom of ATU's approach to problem-solving is
not a question for this court. Instead, we must rule on whether
ATU's specific order to Bishop was reasonable. ATU's behavior in
regard to the dispute over the glare may well be characterized as
aggravatingly bureaucratic, but in light of the employer's
contractual rights to "direct employees in an efficient manner,"
the decision to order Bishop to change seats cannot be termed an
unreasonable solution to his complaints about glare.2 See, e.g.
Bracale, 637 P.2d at 714 (where board of directors had authority
over personnel matters, their directive that the general manager
should terminate an employee was reasonable as a matter of law,
and general manager's failure to do so was cause for his own
termination).
As a corollary to his main argument, Bishop contends
that when a directive from an employer concerns trivial rather
than substantial matters, disobedience does not justify
discharge. Alaska law, however, does not support this
proposition. Bracale, 637 P.2d at 713 n.6 ("[Insubordination]
'though relating to a trivial matter and though causing no
damage, will always justify immediate discharge.'") (quoting 9 H.
Jaeger, Williston on Contracts 1013B, at 49 (3d ed. 1967)).
Of course, if Bishop's insubordination were merely a
pretextual reason for his termination, and Bishop was actually
fired for some other, illegitimate reason, then his contract
claim would have merit. As described below, however, based on
the record, we cannot reasonably infer that this is the case.
B. The Record Does Not Contain Genuine Issues of
Material Fact Tending to Show that Insubordination Was
Merely a Pretextual Reason for the Termination
Bishop pursues a First Amendment claim, alleging that
ATU management did not terminate him because of insubordination,
but rather because of his letter writing. He also pursues a
retaliatory discharge claim, alleging that he was fired because
of his complaints to management and the union about the glare.
ATU insists Bishop was terminated because, and only because, he
repeatedly failed to obey an order to change work stations.
We first consider whether the record contains
circumstantial evidence which might conceivably convince a trier
of fact that Bishop's letters to the editor led to his
termination. A three-part test applies in cases where the
plaintiff makes an employment law claim that his or her First
Amendment rights have been violated. The plaintiff must show
that (1) (s)he engaged in protected activity, and (2) the
activity was a "substantial"or "motivating factor" in the
termination. This prima facie case can be rebutted, however, if
(3) the employer demonstrates that the plaintiff would have been
discharged even if the protected activity had not occurred.
Wickwire v. State, 725 P.2d 695, 700 (Alaska 1986).
ATU has conceded that Bishop's letters to the editor
fall into the category of "protected speech,"but argues that
Bishop cannot show that the letter-writing incident was a
substantial or motivating factor in his termination.
Viewing the record in the light most favorable to the
non-moving party, the facts most helpful to Bishop can be
summarized as follows: (1) Bishop was a fourteen-year employee
with an unmarred work record; (2) it had not been ATU's practice
to terminate workers for insubordination; employees who were
considered insubordinate were given lesser punishments; (3)
general manager Merrell raised the letter-writing issue in post-
termination meetings with Terry Bishop and Larry Johnson, and
exhibited a defensiveness about his behavior in the firing which
could be interpreted as the sign of a guilty conscience; and
(4) Bishop's termination papers were signed after the Friday
morning meeting prior to the "cooling off period,"although they
were not activated or delivered to him at that time.
We find no evidence in the record that would allow a
jury to conclude that Merrell's role in Bishop's termination was
anything other than a supervisor approving a decision made by
lower management. The letter-writing incident that Bishop claims
is at the root of his firing took place ten months prior to the
termination. Bishop has produced no evidence that management was
"out to get" him, and the reasons given by ATU management for
Bishop's termination have never been contradictory. Cf. Parker
v. Mat-Su Council, 813 P.2d 665, 667-68 (Alaska 1991) (summary
judgment in favor of employer inappropriate when supervisor's
explanation of employee's discharge differed from reasons given
in termination letter).
Indeed, Merrell's approval of the "cooling off"period
indicates that ATU was willing to retain Bishop even after his
termination papers were drawn up. Had Bishop complied with the
"cooling off period,"and changed work stations, there is no
indication that he would have been fired. In sum, we cannot
infer from the record in this case that Bishop was fired for any
reason other than that offered by ATU. We therefore affirm the
order of summary judgment on the First Amendment claim.
A review of the numerous depositions in the record
reveals that there is nothing to suggest that Bishop's
termination was a punishment for complaining about work
conditions or for bringing a union representative into the
dispute. Bishop's brief often cites to the record in support of
the retaliatory discharge claim, but these record passages
actually concern only the letter-writing issue.
Additionally, assuming for the sake of argument that
Bishop's letter played a role in his termination, it is our view
that reasonable jurors could only find that Bishop would have
been fired even if the letter had not been written.
To reiterate, Bishop was given a reasonable order by
his employer. He refused to follow it. He was told that he
would be fired if he did not follow the order. He again refused
to obey. Bishop was then given a week of leave as a cooling-off
period. He declined to accept this leave, and again refused to
follow the order.
No employer could be expected to continue to employ a
worker in the face of such deliberate and repeated
insubordination. Bishop was given clear notice of what was
required of him and clear notice that he would be fired if he did
not do what he was ordered to do. Nonetheless he declined. By
this action, Bishop effectively fired himself. We thus conclude
that the Municipality has demonstrated that Bishop would have
been discharged even if the letter had not been written. On this
ground as well, the superior court's summary judgment order as to
the retaliatory discharge claim must be affirmed.
C. The Record Does Not Support a Claim of Intentional
Infliction of Emotional Distress
This court evaluates summary judgment on an intentional
infliction of emotional distress ("IIED") claim under the
standard set out in Richardson v. Fairbanks North Star Borough,
705 P.2d 454, 456 (Alaska 1985):
[T]he trial judge should make a threshold
determination whether the severity of the
emotional distress and the conduct of the
offending party warrant a claim of intentional
infliction of emotional distress. . . . The
judge's threshold determination on these issues
will not be overturned absent an abuse of
discretion.
Under Alaska law, there are three elements of an IIED
claim: (1) the defendant's conduct is extreme and outrageous;
(2) the conduct is intentional or reckless; (3) the conduct
causes severe emotional distress. King v. Brooks, 788 P.2d 707,
711 (Alaska 1990).
Because none of Bishop's other tort or contract claims
can survive summary judgment, Bishop has not shown ATU's conduct
to be extreme and outrageous; he therefore cannot meet the first
prong of the King v. Brooks test. Our analysis need go no
further to affirm the superior court's summary judgment on the
IIED claim.
D. Attorney's Fees Were Improperly Calculated Under
the Old Form of Rule 82
The new version of Alaska Civil Rule 82 became
effective on July 15, 1993. It "govern[s] all civil actions and
proceedings thereafter commenced and so far as just and
practicable all proceedings then pending." Alaska R. Civ. P. 98
(1994). Summary judgment was entered for the defendants in this
case on July 16, 1993, and ATU filed its motion for attorney's
fees on July 29, 1993. Using the old Rule 82, the court awarded
ATU fifty percent of its legal fees, for a total of $51,599.47 in
fees and costs.
Bishop makes three arguments against the award of fees
and costs to ATU: (1) he argues that the new version of Rule 82
should be used to determine the proportion of fees to be awarded;
(2) he contends that the portion of fees resulting from delays in
the trial date should not be awarded, because the delays were not
the fault of the plaintiff; (3) he views the hours spent by ATU's
attorneys to be excessive in several areas.
The issue of excessive hours may be summarily dispensed
with, as the trial court did not abuse its discretion in refusing
to reduce the award. Integrated Resources Equity Corp. v.
Fairbanks North Star Borough, 799 P.2d 295, 304 (Alaska 1990).
With regard to the second issue, the trial date delays
in this case occurred through the fault of neither party, but
rather resulted from an overcrowded court docket. The lower
court decided that "[trial continuances] and the need to
reasonably refresh trial preparations, are part of the risk that
a plaintiff must accept when he brings suit." We agree with the
analysis of the trial court. As ATU points out, if fees
resulting from delays were granted special status, "the door is
opened for attorneys to challenge every added expense that could
be attributed to the court and not to the parties." The better
view is to treat the fees that resulted from no-fault delays as a
"cost of doing business."
The final fees issue is whether to apply the old or the
new version of Civil Rule 82. We have addressed this issue
before in the context of Civil Rule 23:
Alaska's Civil Rule 23 was not revised
to conform to the 1966 federal revisions
until November 15, 1976. While this suit was
filed at a time when former Civil Rule 23 was
in effect, the new rule was properly applied
to it by the trial court inasmuch as no
questions of class action procedure were
presented to the court until after November
15, 1976, and, under Civil Rule 98, newly
promulgated rules govern "so far as just and
practicable all proceedings then pending."
Nolan v. Sea Airmotive, Inc. 627 P.2d 1035, 1041 n.3 (Alaska
1981). See also Fermogle v. State, 638 P.2d 1320, 1322 (Alaska
App. 1982) (applying new rule of criminal procedure to pending
case, under criminal equivalent of Civil Rule 98).
Since the instant case was in process when the new Rule
82 went into effect, Rule 98 dictates that the new Rule should
govern here, so long as its application would be just and
practicable. The lower court declined to apply the new Rule,
concluding that it "work[s] a major modification of the parties'
rights and expectations," and "[u]nder traditional fairness
notions . . . should enjoy prospective application only." We
disagree. Under both the old and the new Rule, the fee awarded
is ultimately determined at the discretion of the trial judge.3
The change worked by the new version of the Rule is merely to
provide a set of guidelines to aid the court in making its
decision, and to require that variations from the baseline award
-- here twenty percent -- be explained in writing. Applying the
new Rule here would in no way be unjust or impinge on
"traditional fairness notions." We therefore remand the fees
issue to the superior court with the instruction to apply the new
version of the Rule.
IV. CONCLUSION
We AFFIRM the superior court's orders granting ATU
summary judgment on all counts of Bishop's complaint.4 We REMAND
the issue of attorney's fees to the trial court for a
determination of fees under the new Rule 82.
COMPTON, Justice, with whom RABINOWITZ, Justice, joins,
dissenting in part.
In my view the record discloses the existence of
genuine issues of material fact surrounding Anchorage Telephone
Utility's (ATU) purported reason for terminating Stanley Bishop.
These issues suggest that the professed reason for Bishop's
termination was merely a pretext for punishing Bishop for having
engaged in constitutionally protected activity. For this reason
the superior court erred in granting ATU summary judgment. The
judgment of the superior court should be reversed and the case
remanded to resolve the factual issues.
The court correctly notes that as this is an appeal
from a grant of summary judgment, we must apply the standard of
review recently reiterated in Newton v. Magill, 872 P.2d 1213
(Alaska 1994).
[We] will uphold summary judgment only
if the record presents no genuine issues of
material fact and 'the moving party is
entitled to judgment on the law applicable to
the established facts.' When the court makes
this determination, '[a]ll reasonable
inferences of fact from proffered materials
must be drawn against the moving party . . .
and in favor of the non-moving party.'
Id. at 1215. (citations omitted.) See also United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962) ("on summary judgment the
inferences to be drawn from the underlying facts . . . must be
viewed in the light most favorable to . . . the party opposing
the motion"). Under this standard, we must reverse and remand
the case for trial if Bishop can establish facts from which it
reasonably might be inferred that his termination was in
retaliation for exercising rights guaranteed him by the First
Amendment to the United States Constitution.5
Bishop argues that the superior court overlooked
evidence which supports his claim that he was terminated for
writing letters to the editors of the Anchorage Daily News and
The Anchorage Times. When the letters were written in September
1989, there was rancorous and substantial public debate over
whether the Municipality of Anchorage (MOA), which owned ATU,
should sell ATU to Pacific Telecommunications, Inc. (PTI). In
the letters, Bishop criticized MOA Mayor Tom Fink and ATU
management.
ATU argues that Bishop was terminated because of, and
only because of, his insubordination, i.e. his refusal to obey an
order to change work stations.6
The court would be correct in concluding that had
Bishop repeatedly refused7 to obey a direct order, such refusal
could amount to insubordination which might constitute just cause
for his termination, if there was no question that the refusal
was the only reason for Bishop's dismissal. See Opinion Section
III, A. However, the existence of issues of fact which support
both Bishop's and ATU's allegations make the disposition of this
case on summary judgment inappropriate.
There are several elements to a wrongful discharge
claim in which it is alleged that an employee's termination
violated the First Amendment. To make out a prima facie case the
employee must show that (1) he or she engaged in a protected
activity, and (2) the activity was a substantial or motivating
factor in the decision to terminate the employee. The employer
can rebut the prima facie case by demonstrating that the employee
would have been terminated, even if the protected activity had
not occurred. Wickwire v. State, 725 P.2d 695 (Alaska 1986).
ATU does not dispute that Bishop engaged in protected
activity. Indeed, ATU concedes that Bishop's letters to the
editors qualify as protected speech. However, there are genuine
issues of material fact as to the second element of Bishop's
proof and ATU's rebuttal. There is support in the record for
Bishop's allegation that because of the letter writing incident,
ATU General Manager Dale Merrell either wanted him fired, or at
least unreasonably refused to intervene in his termination.
Bishop's letters provoked an extraordinary response
from ATU's management. Their publication prompted a meeting in
General Manager Merrell's office, apparently called on his order.
The meeting was attended not only by Bishop, but also by Riley
Blair, Frank Biondi, Mel Ackerman, and Mike Bowman, Bishop's shop
steward. Bishop was informed that Merrell had gotten numerous
calls about the letters, some from "the Hill Building," or
"downtown,"which apparently was a reference to a call from Mayor
Fink himself. Bishop was asked, or told, to explain himself and
the letters, and was told by Merrell to show Merrell any future
letters before they were sent to newspapers. Various
participants in this meeting testified that Merrell had felt that
the letters were directed at him and were indictments of him
personally.
Although Bishop's letters had been published almost ten
months prior to his termination, Merrell demonstrated a concern
over the letters even after Bishop's termination. Following the
termination, Merrell allegedly made unsolicited references to the
letters in meetings with Terry Bishop, Bishop's wife, and Larry
Johnson, a friend and fellow employee of Bishop's who had been a
shop steward.8 As this court paraphrases the record, Merrell
stated to Johnson that "if he [Merrell] had wanted Bishop fired,
he could have fired him over the letter-writing incident,"9 and
explained to Terry Bishop "how angry he [Merrell] had been about
the letter, how much trouble Bishop had caused him by writing it,
then commented, `and then there was this,' referring to the
dispute over Bishop's work station."
In addition to Merrell's comments about the letters,
Merrell allegedly told Terry Bishop that he had refused to sign
discharge papers the previous Friday, July 27, when asked by his
subordinates to do so. This statement is patently false.
Merrell in fact did sign discharge papers that day, allegedly at
the request of Blair and other subordinates. Nevertheless, he
told Terry Bishop that instead of signing discharge papers, he
had given Bishop a week to reconsider his position. Indeed
Merrell had approved a week's leave, but only after he had signed
discharge papers.10
Merrell's preoccupation with the letters and his less
than truthful statements to Terry Bishop constitute evidence from
which it reasonably might be inferred that Bishop's letters to
the editors were a substantial or motivating factor in Merrell's
decisions regarding Bishop's termination. Even Blair, the person
who initiated and signed Bishop's termination papers, seems to
have questioned the whole situation. Terry Bishop alleges that
when she asked Blair whether there was a conspiracy which led to
Bishop's termination, he replied that he "was wondering the same
thing."
There are also issues of material fact regarding ATU's
required rebuttle of Bishop's prima facie case. The record
contains evidence from which it reasonably might be inferred that
Bishop would not have been fired but for the letters. Keeping in
mind that the facts must be viewed in light of all of the
circumstances surrounding Bishop's termination, which necessarily
include circumstances surrounding publication of the letters and
the meeting that occurred in the immediate aftermath of that
protected activity. The circumstances surrounding Bishop's
termination look something like the following: Bishop had been
employed by ATU for fourteen years, during which time he had
presented no disciplinary problems. ATU did not terminate
employees for insubordination, but instead meted out lesser
sanctions. ATU General Manager Merrell had been angered over
Bishop's "letter[s] to the Editor"which had been published in
two Anchorage newspapers, and had called an extraordinary meeting
with Bishop and Bishop's superiors in the aftermath of the
letters. After Bishop had been terminated, Merrell apparently
had no reservations about telling falsehoods to or misleading
Terry Bishop about his own role in Bishop's termination. Merrell
had continuing and unresolved anger over Bishop's letters, as
well as a lasting conviction that Bishop could have been
terminated for writing the letters. One of his own subordinates
questioned whether there was a conspiracy to terminate Bishop.
Merrell, as ATU General Manager, was in a position of authority
over all the other players. Last, and perhaps most importantly,
Merrell had the final authority over whether Bishop was to be
disciplined, and what that punishment was to be.
All of this reasonably might give rise to the inference
that Bishop was terminated for writing the letters. A trier of
fact reasonably might conclude that but for the protected
activity, Bishop would not have been terminated, or would have
received a sanction other than termination. As Newton requires
that we draw all reasonable inferences in favor of the non-moving
party, Bishop, we must infer that Bishop's termination over the
work station change order was pretextual, and that Bishop's
protected activity was a motivating or substantial factor in his
termination. See Newton, 872 P.2d at 1215.11
Underlying this court's decision is a weighing and
balancing of evidence, and reasonable inferences which might be
drawn from that evidence. Some of this evidence points to
Bishop's exercise of constitutionally protected activity as a
substantial or motivating factor in his termination. Other of
this evidence weighs in favor of ATU's assertion that it was not,
or even if it was, that Bishop would have been terminated over
the work station change order anyway. Arguably the court may
reasonably conclude that the weight of the evidence and
inferences favors ATU. However, that weighing is an exercise
that goes beyond the court's standard of review of a grant of
summary judgment.
_______________________________
1 Bishop also sued his union, the International
Brotherhood of Electrical Workers, for failing to take his
discharge to arbitration. The claim against the union, however,
was eventually voluntarily dismissed.
2 An order to change positions with one's co-worker would
certainly be unreasonable if the problem complained-of involved a
threat to worker safety. See, e.g., Wheeler v. Caterpillar
Tractor Co., 485 N.E.2d 372 (Ill. 1985), cert. denied, 475 U.S.
1122 (1986) (employee wrongfully terminated after refusing to
operate a unit containing live radioactive cobalt in violation of
federal regulations). In the case of glare, however, this
concern does not seem to be present. Bishop has offered no
medical evidence that the glare put him at risk of injury.
3 The old version of the Rule directed that "[s]hould no
recovery be had, attorney's fees may be fixed by the court in its
discretion in a reasonable amount." Alaska R. Civ. P. 82 (1992).
The new version of the Rule provides that a prevailing party who
recovers no money judgment in a case without trial shall be
awarded twenty percent of its fees, but that this amount may vary
"if, based on the factors listed [in 82 (b)(3)], the court
determines a variation is warranted." Alaska R. Civ.P. 82 (b)(3)
(1994).
4 The superior court granted ATU's motion to dismiss the
wrongful discharge claim, agreeing with the defendants that this
claim was repetitive of the First Amendment and retaliatory
discharge claims discussed above. In his brief, Bishop nowhere
addresses the issue of repetition. Accordingly, this issue is
waived. Wirum & Cash Architects v. Cash, 837 P.2d 692, 713-14
(Alaska 1992).
Bishop's complaint also claimed a breach of a covenant
of good faith and fair dealing. Bishop does not discuss the
covenant in his "Statement of Issues,"and his brief contains a
single, conclusory sentence on the topic, with no cited
authority. He has therefore waived this issue. Id. The
remainder of Bishop's "Issues on Appeal"either state no legal
claim or are not briefed.
5 Freedom of religion, of speech, of
the press. Congress shall make no
law respecting an establishment of
religion, or prohibiting the free
exercise thereof; or abridging the
freedom of speech, or of the press;
or the right of the people
peaceably to assemble, and to
petition the government for redress
of grievances.
U.S. CONST. amend. I.
6 Bishop's termination directly followed a dispute with
ATU related to glare on his computer work screen. Bishop asked
David Delaney, his foreman, to contact Building Services, also
referred to as Building Maintenance or Facility Maintenance, and
request that they correct the problem. Delaney claims to have
called the "Building Maintenance people"and requested that they
attend to the problem. After several months of silence, Bishop
again complained. In early June Delaney submitted a work order
to Building Maintenance specifically requesting the they
"[i]nstall sunscreen on windows to reduce glare on CRTs." Under
"Priority" Delaney checked "7 to 14 days." Bishop also
complained to ATU Safety Coordinator Herbert E. Everett, who
verified the glare: "And what it was, was the light was shining
through the edge of the window onto the screen itself. . . Well,
I thought that, yes, there was definitely sunlight coming through
-- around the edge of the shades, . . ." Everett thought "[i]t
was a problem that needed to be addressed. . . ." He turned the
matter over to Bud Murphy, Building Maintenance Supervisor, "to
look into it and see what they could do about it. . . they ought
to . . . eliminate the sunlight shining through the window on Mr.
Bishop's screen." When Everett learned from Bishop that nothing
had been done, there was a meeting at Bishop's work station at
which "they [Building Maintenance] agreed that yes, there was
sunlight coming in . . . and that we needed to do something about
it." Building Maintenance inexplicably refused to do anything
about the glare.
Bishop offered to place visqueen over the window at his
own expense. Supervisors over Bishop (Delaney, Riley Blair,
Repair Service Supervisor, and Frank Biondi, Director of Utility
Services) countered Bishop's proposed solution with several of
their own. (Building Maintenance, apparently not under the
jurisdiction of Bishop's immediate supervisors, was no longer a
player.) One suggested solution was that Bishop change work
stations with a fellow employee. According to Blair, this
suggestion and the order to implement it came from Biondi, who
was responsible directly to ATU General Manager Dale Merrell.
Word was passed down to Delaney to move Bishop. As the following
footnote documents, just what happened after that is a matter of
dispute.
However, there is no dispute that there was glare on
Bishop's work screen. There is no dispute that the glare was a
problem for Bishop. There is no dispute that Delaney and Everett
separately requested Building Maintenance to remove the glare
from Bishop's work screen, and that Building Maintenance refused
to do so. Since Bishop was willing to buy the visqueen and
install it himself, ATU does not argue, nor could it, that the
cost to ATU was too great. ATU does not argue that Bishop's
proposed solution would not have cured the problem. ATU does not
argue that Bishop's reasons for rejecting alternative solutions
were not reasonable. However, ATU does argue that Bishop's
refusal to change work stations constituted "gross
insubordination."
7 The court's statement that Bishop was repeatedly
insubordinate is not indisputably established by the record. The
accounts of what transpired around the time of Bishop's
termination vary dramatically and give rise to a variety of
inferences. For example, Bishop and Delaney disagree on whether
and when Delaney explicitly ordered Bishop to move. On Thursday,
July 26, Delaney discussed with Bishop changing work stations.
According to Bishop, Delaney only relayed to Bishop that he had
been ordered to move Bishop: "He did not tell me ever directly,
Stan, I want you effectively now, tomorrow, the day after or any
other time to switch positions with Larry Taylor." This was not
said at Bishop's work station, or even in the office, but rather
when the two were returning from a personal errand. Delaney
admits that he may have mentioned the move when he and Bishop
were walking across the ATU parking lot returning from the
errand. However, Delaney does claim that the next morning,
Friday, July 27, he told Bishop to change work stations, and that
Bishop refused. Bishop concedes that "I guess at this point I
was refusing to move. I had not moved. I honestly expected
someone to come in Friday morning [July 27] and tell me, Stan,
take a seat over here. And it never really happened."
There are at least four different accounts of what
happened that Friday morning, July 27. According to Bishop, when
Delaney came in that morning and saw Bishop at his usual work
station, Delaney may have said something about Bishop moving work
stations. However, Bishop does not recall that Riley Blair,
Delaney's supervisor, was present, nor does he remember saying he
would not move and that they would have to fire him first.
Delaney testified when asked what happened that he "[t]old him
that he was suppose to change work stations with Larry. I told
him to go ahead and move that first thing in the morning. . . .
He said he wasn't going to do it."Delaney says he then called
Blair to tell him that Bishop had not moved. Although this
testimony is in response to a question about what happened that
Friday morning, it actually sounds like it is describing what
happened the afternoon before. In a third account Larry Taylor,
a fellow employee who worked next to Bishop, claims that on
Friday morning Bishop was told to move during a confrontation
with both Delaney and Blair, which took place in the Repair
Service Bureau. He alleges that Bishop said "he wasn't going to
move" with both Delaney and Blair standing there. Conversely,
Blair does not recall discussing the move with Bishop until later
that morning in a meeting at which Larry Taylor was not present.
At a hastily called meeting later that Friday morning,
Bishop told Mel Ackerman that Delaney had never ordered him to
move. Ackerman, described variously by the players as "our labor
relations person," "the personnel director or whatever," the
person "in charge of Human Resources,"and "the head of Labor
Relations," responded: "well, it doesn't make any difference
because we're telling you right now to move." Bishop refused to
move. Then, according to Carla Rehm, acting shop steward, "Mel
Ackerman then spoke up and he just went over the whole scenario
again, making sure that everybody was clear on what happened."
Management, and Rehm, wanted to be certain that Bishop knew what
he was doing, and that what he was doing might put his job in
jeopardy. Bishop acknowledged that he understood.
Viewing the various versions of this episode, in a
light most favorable to Bishop, the most that can be said is that
Bishop simply stood by his initial refusal to move. Whether
Bishop's behavior constitutes a "repeated"refusal to obey an
order lies in the eye of the beholder, usually called a fact
finder. What is clear is that no one ever admits to having told
Bishop to move or be fired.
8 The court's treatment of the time lapse between
Bishop's letters and Merrell's complicity in Bishop's termination
highlights the problem of disposing of this case on summary
judgment. In an affidavit, Merrell remarks that "[a]fter the
meeting with Stan [regarding the newspaper articles], I put the
matter behind me. I am not the type to carry a grudge, and
cannot recall that we ever discussed the letter again." Yet
Terry Bishop and Larry Johnson both stated that Merrell
voluntarily alluded to the newspaper articles when they discussed
Bishop's termination with him, ten months after the letters had
been published. Merrell does not recall mentioning the letters
to Terry Bishop. However, he does not deny that he did, and in
fact claims to think "very highly"of Terry Bishop. He does not
believe she would lie. He does not dispute Johnson's statement.
Although the court acknowledges Merrell's defensiveness
concerning the letters, the court emphasizes the time lapse in
"find[ing] no evidence in the record that would allow a jury to
conclude that Merrell's role in Bishop's termination was anything
but a supervisor approving a decision made by lower management."
However, regardless of the time lapse, the record contains
evidence which give rise to issues of material fact. The record
reveals that Merrell was defensive about the letters and
associated the letters with Bishop's plight. A reasonable trier
of fact might have difficulty reconciling Merrell's forgive and
forget self-characterization with his self-generated
defensiveness over the articles, and his tying together the
articles and the dispute over the work stations, i.e. "then there
was this."
9 Merrell's statement that he could have fired Bishop over
the letter writing incident is patently incorrect. ATU concedes
that Bishop was engaged constitutionally protected activity when
he wrote the letters. However, ten months later the letters are
still on Merrell's mind, and he was still in denial regarding
Bishop's right to voice his opinion through the letters.
10 The record demonstrates that two members of the
personnel staff, Jay Holtan and Marilyn Callahan, then an
employee relations representative, intervened on Bishop's behalf.
According to Callahan, "Jay and I happen to like [Bishop]." They
suggested to Bishop that he take a week's leave of absence as a
"cooling off period,"a recommendation to which Bishop agreed.
They then took the suggestion to Merrell, who apparently agreed
also, as he signed appropriate leave papers that day. However at
the time he signed the leave papers he had already signed
Bishop's termination papers.
The court claims that had Bishop complied with the
"cooling off"period, he would never have been terminated. This
is not supported by the record. The discharge papers necessary
for terminating Bishop had been completed, including Merrell's
signature, before Merrell signed the leave papers. It is unclear
what was motivating Merrell to give Bishop the leave of absence.
Merrell claims that he signed the termination papers because he
wanted to support his subordinate's decision to terminate Bishop.
Yet this same subordinate, Riley Blair, testified that he was
angered by Merrell's decision to sign the leave papers because he
felt like management had "left [him] out on a limb." A
reasonable trier of fact might find it difficult to harmonize
Merrell's assertion that he was just supporting his subordinate's
decision to terminate Bishop with going over that subordinates
head and declining to terminate Bishop, unless one or both of
Merrell's assertions are false.
However, the record does establish that after Bishop
left the building, starting his "cooling off period," Larry
Johnson talked with Bishop a second time. Johnson relayed to
Bishop information he had received from Carla Rehm, who told him
that word was going around that Bishop was being given time off
because he was going through a mid-life crisis, had personal
problems, or words conveying that notion. The record suggests
that this word emanated from Frank Biondi's office. It must be
remembered that Biondi had been present at the post-publication
meeting in General Manager Merrell's office. Biondi, according
to Blair, gave the order that Bishop change work stations.
Biondi did not ever delve into the merits of Bishop's complaint
or his proposed solution. Biondi was directly responsible to
Merrell.
Bishop was very upset that his credibility was being
undermined by such statements from management, and abandoned the
"cooling off period." There is evidence that Bishop felt that he
was being set up to be terminated. The record could give rise to
this inference, considering that it contains a discrepancy as to
whether Bishop had been fired, was suspended, or was on a leave
of absence.
A trier of fact could conclude, as does the court, that
Bishop had not been terminated and would not have been had he
complied with the leave of absence. However, a trier of fact
could also conclude that Bishop effectively was terminated
before the leave papers were signed and that the leave was merely
for appearance sake.
11 ATU incorrectly argues that summary judgment is
appropriate even though there is a question as to whether
Bishop's letters to the editor were a motivating factor in his
termination. ATU contends that summary judgment is appropriate
because it established that Bishop would have been discharged
notwithstanding the protected activity. This argument is merely
the other side of the inquiry into whether Bishop's protected
activity was a motivating factor in his dismissal. If Bishop's
proffered evidence is sufficient to survive summary judgment with
regard to the "motivating factor"criteria, that evidence must
also suffice to prevent ATU from rebutting Bishop's prima facie
case in the context of a motion for summary judgment.
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