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French v. Chilkoot Charlie's (2/9/96), 911 P 2d 20
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, telephone (907) 264-0607, fax (907) 276-
THE SUPREME COURT OF THE STATE OF ALASKA
SHELLY FRENCH, )
) Supreme Court No. S-5688
) Superior Court No.
v. ) 3AN-91-4345 CI
JADON, INC., d/b/a CHILKOOT ) O P I N I O N
CHARLIE'S, and TOMMY )
McCULLOCK, ) [No. 4321 - February 9, 1996]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
J. Justin Ripley, Judge.
Appearances: Stan Hafferman, Anchorage for
Appellant. Paul L. Davis and John P. Sloan,
Paul L. Davis and Associates, Anchorage for
Before: Moore, Chief Justice, Rabinowitz,
Matthews, Compton and Eastaugh, Justices.
Chilkoot Charlie's (Chilkoot's) employed Shelly French
as a cocktail waitress. After Chilkoot's fired her, French sued
Chilkoot's, Jadon, Inc. (owner of Chilkoot's), and a Chilkoot's
manager (Tommy McCullock). French claimed Chilkoot's wrongfully
terminated her employment by violating the implied covenant of
good faith and fair dealing. She also claimed employees at
Chilkoot's sexually harassed her, defamed her, failed to timely
tender her final pay, and miscalculated her vacation pay.
Chilkoot's claimed it fired her because tardiness and absenteeism
made her an unreliable employee. The superior court granted
summary judgment to Chilkoot's on all counts. French appeals to
We reverse the summary judgment on the defamation claim
and vacate the award of attorney's fees. We affirm on the
II. STATEMENT OF FACTS
Chilkoot's hired French as a cocktail waitress in May
1988. It fired her after she called in sick on February 16,
The day after her termination, French wrote Chilkoot's
a letter. In it she admitted she had been late on some occasions
but claimed to have improved. She explained why she had missed
work on a recent occasion. Her letter asserted that she had been
unjustly terminated and threatened legal action unless Chilkoot's
agreed to give her good employment references and deem her
termination a voluntary resignation. French also stated that she
was entitled to a "few weeks" of severance pay and to at least
three and one-half weeks of vacation pay.
Mike Gordon, the owner of Jadon, Inc., met with French
three days later to discuss her concerns regarding her vacation
pay. Chilkoot's offered French a check reflecting one week's
vacation pay and her wages due; French declined to accept the
Soon after French was terminated, a Chilkoot's manager,
McCullock, allegedly made defamatory comments about her to her
boyfriend, Shawn Norton. Norton also worked at Chilkoot's.
French sued Chilkoot's, Jadon, and McCullock. She
claimed in her complaint that Chilkoot's fired her because she
refused to date her supervisor's brother or engage in "unethical
and illegal activities," and that her firing amounted to wrongful
termination and sex discrimination. French accused McCullock of
making "untrue racial and sexual references" about French's
chastity after she had been terminated, and claimed that his
comments were slanderous. French also complained that, in
violation of AS 23.05.140(b), Chilkoot's did not promptly tender
all pay due her.
Chilkoot's moved for summary judgment, claiming that
French lacked sufficient evidence to support her claims.
Chilkoot's supported its motion with two affidavits of Doran
Powell (Chilkoot's general manager), French's discovery
responses, and portions of her deposition transcript.
French opposed the motion. She cited depositions taken
previously but did not support her opposition with any
affidavits. At the conclusion of oral argument on the motion,
the superior court granted summary judgment to Chilkoot's on all
counts, dismissing French's complaint. The superior court denied
French's motion for reconsideration and ordered French to pay
Chilkoot's $10,000 in attorney's fees after ordering entry of
final judgment for Chilkoot's. This appeal followed.
A. Standard of Review
We will affirm the superior court's grant of summary
judgment if the evidence in the record presents no genuine issue
of material fact and the moving party is entitled to judgment as
a matter of law. Alaska R. Civ. P. 56(c); Broderick v. King's
Way Assembly of God Church, 808 P.2d 1211, 1215 (Alaska 1991).
The moving party has the burden of proving an absence of issues
of material fact. Wassink v. Hawkins, 763 P.2d 971, 973 (Alaska
1988). If the movant makes a prima facie showing that he or she
is entitled to judgment on the established facts as a matter of
law, the opposing party must demonstrate that a genuine issue of
fact exists to be litigated by showing that it can produce
admissible evidence reasonably tending to dispute the movant's
evidence. Id. at 973; Gregor v. City of Fairbanks, 599 P.2d
743, 746 (Alaska 1979).
In deciding whether the non-moving party has met this
burden, the court will "consider the affidavits, depositions,
admissions, answers to interrogatories and similar material to
determine . . . whether any of the [evidentiary] material
suggests the existence of any . . . triable genuine issues of
material fact." Broderick, 808 P.2d at 1215 (quoting Walker v.
White, 618 P.2d 561, 563 (Alaska 1980)). If the parties choose
to submit affidavits, they must be based upon personal knowledge,
set forth facts that would be admissible evidence at trial and
affirmatively show that the affiant is competent to testify to
the matters stated. Alaska R. Civ. P. 56(e). Specifically,
hearsay statements that would be inadmissible at trial are
inadmissible in a motion for summary judgment. Williford v. L.J.
Carr Investments, Inc., 783 P.2d 235, 238 n.8 (Alaska 1989). But
see Adkins v. Nabors Alaska Drilling, Inc., 609 P.2d 15, 22
(Alaska 1980) (providing that court may consider hearsay
affidavit to which no objection is made).
B. Wrongful Termination Claim
French argues that the superior court erred in granting
summary judgment on her wrongful termination claim. Her
unverified complaint alleged that Chilkoot's breached the implied
covenant of good faith and fair dealing and wrongfully terminated
her after she refused to date her supervisor's brother and
refused to engage in "unethical and illegal activities in order
to continue her employment relationship with [Chilkoot's]." She
argues that genuine fact disputes precluded summary judgment.
Chilkoot's, however, claims it terminated French
because habitual tardiness and a propensity to call in sick made
her a poor employee, and asserts that her termination did not
breach the covenant of good faith and fair dealing and was not
wrongful. Two affidavits of Powell, Chilkoot's general manager,
supported Chilkoot's summary judgment motion. Powell affied that
French was often late to work. Powell stated that "French was
terminated on the basis that she was not a reliable employee."1
The covenant of good faith and fair dealing is implicit
in at-will employment contracts. Reed v. Municipality of
Anchorage, 782 P.2d 1155, 1158 (Alaska 1989) (citing Mitford v.
de Lasala, 666 P.2d 1000, 1006 (Alaska 1983)). Chilkoot's did
not hire French for any specific term, therefore she was an "at-
will employee."2 As such, French could only be fired by
Chilkoot's for a reason which did not violate the implied
covenant of good faith and fair dealing. Luedtke v. Nabors
Alaska Drilling, Inc., 768 P.2d 1123, 1131 (Alaska 1989). "This
covenant does not lend itself to precise definition, but it
requires at a minimum that an employer not impair the right of an
employee to receive the benefits of the employment agreement."
Jones v. Central Peninsula Gen. Hosp., 779 P.2d 783, 789 (Alaska
1983) (citing Mitford, 666 P.2d at 1006-07).
To prove her claim, French needed to demonstrate that
Chilkoot's impaired her right to receive the benefit of the
employment agreement and acted in bad faith. Initially,
Chilkoot's, as the party moving for summary judgment, had the
burden of showing that French's wrongful termination claim and
breach of the implied covenant claim presented no material issue
of fact and that the law required judgment in its favor. Alaska
R. Civ. P. 56; Bauman v. State, Div. of Family & Youth Services,
768 P.2d 1097, 1099 (Alaska 1989). To discharge this burden,
Chilkoot's was required to submit admissible evidence. Wickwire
v. McFadden, 576 P.2d 986, 987 (Alaska 1978). Manager Powell
satisfied Chilkoot's initial obligation under Civil Rule 56 when
he affied that Chilkoot's terminated French because she was an
unreliable employee. French could have then avoided summary
judgment on this claim by producing competent evidence showing
that there were issues of material fact to be tried. Bauman, 768
P.2d at 1099 (citing State, Dep't of Highways v. Green, 586 P.2d
595, 606 n.32 (Alaska 1978) ("[T]he non-movant is required, in
order to prevent summary judgment, to set forth specific facts
showing that he could produce evidence reasonably tending to
dispute or contradict the movant's evidence and thus demonstrate
that a material issue of fact exists.")).
French, however, failed to provide any evidence to
demonstrate that Chilkoot's did not terminate her for tardiness
and absenteeism. French failed to deny or rebut Powell's sworn
statements that she was terminated for her unreliability. See
Alaska-Canadian Corp. v. Ancow Corp., 434 P.2d 534, 536-38
(Alaska 1967) (considering the fact that non-movant affiant
failed to deny statements made by movant-affiant in concluding
that summary judgment in favor of movant was proper). In fact,
French admitted in her post-termination letter to Chilkoot's that
her supervisor, Terry May, had discussed her tardiness with her
some days before her termination, and that "I agreed to being
late some of the time."
French also failed to produce evidence supporting her
claim she was terminated because she declined to date May's
brother. Her deposition testimony established that her own
opinion was based on unsupported assumptions and speculation.
French had dated May's brother once, apparently voluntarily.
French could not recall at her deposition whether May had ever
said anything to her about continuing to date May's brother.
French simply surmised at her deposition that "I think she would
have very much liked it" if French had continued to date May's
brother. French also surmised that May's attitude toward French
changed after she stopped dating May's brother, and thought that
was "why I might have been fired." When asked what factual basis
she had for stating that Chilkoot's fired her because she refused
to date May's brother, French testified that she was "assuming"
that was the reason for her termination.3
French also failed to offer admissible evidence of a
causal link supporting her claim she was terminated because she
refused to participate in sex and drug parties. Her deposition
testimony established that this potential reason for her
termination was also ultimately based on her unsupported and
speculative assumption that she had been fired because she had
not participated in sex and drug parties, and on her belief that
Chilkoot's waitresses were expected to participate in such
activities. French testified, "[t]hese are assumptions that you
asked me what could have led to my termination. I told you it's
a possibility of either my not dating Terry's brother or my not
doing whatever people talk about. I'm guessing. I don't know
specifically." (Emphasis added.) In response to Interrogatory
No. 10, which sought detailed and specific information about her
claim that Chilkoot's required her to engage in "unethical and
illegal activities," she asserted under oath:
At the time plaintiff was employed by
Chilkoot's, a known factor in longevity of
employment at Chilkoot's was the use of drugs
and sex with management. No one person made
any demands, it was just understood. See,
also, copies of "[Pournography]" previously
supplied and written by general manager Doran
Her interrogatory response did not establish any
factual foundation for that answer.4 The issue of
"Pournography," Chilkoot's internal employee newsletter authored
by Doran Powell, to which she referred was not evidence of
"unethical and illegal activities."
Chilkoot's argued in the trial court that French had
failed to provide any information in her discovery responses or
her deposition supporting her wrongful termination claim
sufficient to withstand Chilkoot's summary judgment motion. In
opposing Chilkoot's motion, French argued in part that Powell's
affidavit was not based on first-hand information, but she
offered no further evidence, such as an affidavit from herself,
to bolster her claim.
"Mere assertions of fact in pleadings and memoranda are
insufficient for denial of a motion for summary judgment."
Green, 586 P.2d at 607 n.32 (citing Brock v. Rogers & Babler,
Inc., 536 P.2d 778, 782-83 (Alaska 1975) and Braund, Inc. v.
White, 486 P.2d 50, 53-54 (Alaska 1971)). French's own
deposition testimony established that her wrongful termination
claim was based only on her unsupported suppositions. See
Yurioff v. American Honda Motor Co., 803 P.2d 386, 389 (Alaska
1990) (concluding that summary judgment was proper because
opponent's rebuttal consisted of only his own equivocal
deposition testimony).5 Therefore, the superior court correctly
entered summary judgment against French on her wrongful
C. Gender Discrimination Claim
French's complaint stated that her termination amounted
to sex discrimination. She argues on appeal that Chilkoot's
violated AS 18.80.220(a)(1) & (4), Alaska's anti-discrimination
statute, by engaging in quid pro quo harassment and hostile work
environment harassment. She argues that the trial court erred in
granting summary judgment to Chilkoot's on her gender
discrimination claim because Chilkoot's failed to prove that her
termination was not pretextual and because there was a question
of fact whether French found Chilkoot's actions offensive.
1. Quid pro quo harassment
Quid pro quo gender harassment occurs when an employer
conditions employment benefits on sexual favors. Ellison v.
Brady, 924 F.2d 872, 875 (9th Cir. 1991). It arises when an
employer relies upon his or her authority "to extort sexual
consideration from an employee." Canada v. Boyd Group, Inc., 809
F. Supp. 771, 777 (D. Nev. 1992) (citing Miller v. Bank of
America, 600 F.2d 211, 213 (9th Cir. 1979)). To support an
allegation of quid pro quo harassment, a plaintiff must offer
evidence of a defendant's statements or actions which indicate
that plaintiff's continued employment, or receipt of other
employment benefits, was contingent on plaintiff granting sexual
favors. Canada, 809 F. Supp. at 777.
By asserting that Chilkoot's terminated her employment
because she refused to date her supervisor's brother, French
pleads quid pro quo gender discrimination. Because Powell's
affidavits described legitimate reasons for her termination,
French was obliged to demonstrate the existence of a genuine,
material fact dispute to avoid summary judgment on this claim.
Martech Constr. Co., Inc. v. Ogden Envtl., 852 P.2d 1146, 1149,
1150 n.7 (Alaska 1993). French, however, failed to do so. She
produced no evidence of any statement or action reasonably
permitting an inference that her employment was in fact
conditioned on dating her supervisor's brother. As discussed
above, French offered only her inadmissible personal guesses,
assumptions, and opinion that "I think [the supervisor] would
have very much liked it." Once an employer has provided
admissible evidence that an employee was terminated for
legitimate reasons, speculation of the sort offered by French is
insufficient to raise a genuine fact dispute about whether the
employee has suffered quid pro quo gender discrimination.6 The
superior court did not err in granting summary judgment to
Chilkoot's on this claim.
2. Hostile work environment harassment
French argues on appeal that it was error to grant
summary judgment to Chilkoot's on her hostile work environment
claim because material fact disputes existed. French alleged in
her complaint that the conduct of Chilkoot's in "requiring" her
to "engage in unethical and illegal activities" constituted sex
discrimination. French did not cite AS 18.80.220(a) in her
complaint, but later implicitly alleged a violation of that
statute. That statute provides:
Unlawful employment practices. (a) It is
(1) an employer to refuse employment to a
person, or to bar a person from employment,
or to discriminate against a person in
compensation or in a term, condition, or
privilege of employment because of the
person's race, religion, color or national
origin, or because of the person's age,
physical or mental disability, sex, marital
status, changes in marital status, pregnancy
or parenthood when the reasonable demands of
the position do not require distinction on
the basis of age, physical or mental
disability, sex, marital status, changes in
marital status, pregnancy or parenthood;
. . . .
(4) an employer, labor organization, or
employment agency to discharge, expel, or
otherwise discriminate against a person
because the person has opposed any practice
forbidden under AS 18.80.200 - 18.80.280 or
because the person has filed a complaint,
testified, or assisted in a proceeding under
this chapter. . . .
We have not previously decided whether AS 18.80.220
encompasses a claim of hostile or abusive work environment
harassment, nor have we discussed what constitutes that type of
harassment. We do so now.
Preliminarily, we note that gender-based discrimination
which affects the terms and conditions of the work place appears
to violate the plain language of AS 18.80.220.
That reading of Alaska's anti-discrimination statute is
confirmed by authority interpreting its federal counterpart.7 In
deciding whether our statute encompasses such a claim and what
the elements of that claim may be, we consider federal precedent
In hostile work environment cases, "employees work in
offensive or abusive environments."9 Ellison, 924 F.2d at 875
(citing A. Larson, Employment Discrimination ' 41.61 at 8-151
(1989)). "Conduct which unreasonably interferes with work
performance can alter a condition of employment and create an
abusive working environment." Ellison, 924 F.2d at 877. In
Meritor Savings Bank v. Vinson, 477 U.S. 57, 66-67 (1986), the
U.S. Supreme Court held that Title VII prohibits sexual
harassment that takes the form of a hostile work environment
because such an atmosphere alters the "terms" and "conditions" of
the employment. We conclude from the plain language of
AS 18.80.220 and from the federal precedent interpreting Title
VII that discriminatory behavior sufficiently severe or pervasive
to alter the conditions of the victim's employment and to create
a discriminatory hostile work environment violates AS 18.80.220.
We must now decide whether French sufficiently
supported her hostile work environment claim after Chilkoot's
moved for summary judgment and supported its motion with the
The Supreme Court recently elaborated on the Meritor
hostile work environment standard in Harris v. Forklift Systems,
Inc., 114 S. Ct. 367 (1993). The Court noted in Harris that it
was taking a "middle path" in deciding what conduct was
actionable. Id. at 370. The Court stated that the challenged
conduct must be severe or pervasive enough "to create an
objectively hostile or abusive work environment--an environment
that a reasonable person would find hostile or abusive."10 Id.
The Harris Court also stated that there is no violation "if the
victim does not subjectively perceive the environment to be
abusive" because the conduct "has not actually altered the
conditions of the victim's employment . . . ." Id.
Applying that standard here, we conclude that the
superior court did not err in granting summary judgment to
Chilkoot's on French's hostile work environment claim.
French's complaint alleged that by requiring her to
"engage in unethical and illegal activities" to continue her
employment, Chilkoot's conduct constituted sex discrimination.11
Chilkoot's argued in the superior court that it was
entitled to summary judgment on this claim because French, when
responding to Chilkoot's attempt to discover the factual basis
for this claim, failed to substantiate the allegations in her
complaint. It also offered the first Powell affidavit, in which
Powell gave a facially legitimate reason, her unreliability, for
In opposition, French's memorandum relied exclusively
on the November 20, 1988 issue of "Pournography" to exemplify a
hostile environment. Although French did not call it to the
superior court's attention, the only other evidence potentially
supporting this claim was contained in her sworn interrogatory
answers and deposition testimony.
Chilkoot's argued in reply that French had not
demonstrated the existence of any genuine fact disputes to rebut
Powell's sworn explanation for the termination. It noted that
Count I of her complaint (claiming hostile work environment) only
alleged Chilkoot's did three things wrong: the supervisor tried
to get French to date her brother; French was required to engage
in unethical and illegal activities; and Chilkoot's published the
newsletter. As to the first, Chilkoot's argued that French's
"guess" that she was terminated for reasons other than those
explained by Powell was insufficient to create a genuine fact
dispute. As to the second, Chilkoot's argued that in her
deposition French denied engaging in any such activities, and had
been unable to describe what was unethical or illegal about her
employer's requests. As to the third, Chilkoot's argued that the
newsletter was published more than a year before her termination.
Chilkoot's also argued that French never complained that she felt
the newsletter was derogatory, and at her deposition did not
mention the newsletter as support for Count I of her complaint.
Chilkoot's argued that she had not provided any evidence that she
was in any way affected by the conduct. Chilkoot's also offered
the second Powell affidavit, in which Powell affied in reference
to the November 20, 1988 issue of "Pournography" that French
"made it plain she was not offended and found it humorous."
After oral argument, the court granted summary judgment
to Chilkoot's.12 French moved for reconsideration and argued that
the November 20, 1988 newsletter issue contained a veiled "put
out or get out" message, made fun of her after she complained of
a "sexual assault" (a bite on her buttocks) by a customer, and
made other sexually-oriented comments; that the reasons for her
discharge were pretextual; and that she did not join in the games
"played by others" or in sex and drug parties and understood that
another waitress had to "do" the general manager to get the shift
she wanted. French filed copies of two other issues of
"Pournography" not previously submitted to the court. The court
denied the motion for reconsideration.
On appeal, French seems to argue that three particular
circumstances supported her hostile work environment claim: (1)
the "Pournography" newsletter; (2) her supervisor's alleged wish
that French date her brother; and (3) Chilkoot's alleged "sex and
The Newsletter. The November 20, 1988 issue of
"Pournography", Chilkoot's internal employee newsletter authored
by Powell, commented on an episode involving French:
Shelly's buns were cause to 86 a good
customer last week. Seems she was bending
over the bar and he just couldn't help butt
take a bite. I said throw him out for the
night butt Shelly wanted more. Hell, I felt
sorry for the guy. I've been tempted myself.
The same issue stated: "Overheard in the employee office: 'It's
been awhile since any waitresses have been fired, Tom [McCullock,
manager] must be celibate."13
French claims the newsletter imparted a veiled "put out
or get out" message, made fun of female employees through sexual
innuendo, and made fun of her after she complained about the
customer's assaultive bite.
Manager Powell stated in an affidavit that the
newsletter was "poking fun [at] barroom situations." Powell
explained that the newsletter is designed to update employees on
upcoming events, spotlight employees who have done well in their
job, and be humorous. He also stated that "French's incident was
noted in the Pournography because it was unusual. In a business
of Chilkoot Charlie's nature, odd things tend to happen and it
further has been my experience that employees are not necessarily
shocked at things."
The comments in the "Pournography" newsletter may be
genuinely offensive to many, especially to persons uninterested
in patronizing, to use Powell's words, "a business of Chilkoot
Charlie's nature." "Egregious examples" of harassment of the
sort claimed in Harris, 114 S. Ct. at 369 (male company president
often insulted female manager because of her gender and often
made her the target of unwanted sexual innuendos), and Meritor,
477 U.S. at 66 (male supervisor repeatedly demanded sexual favors
of female employee, fondled her, exposed himself, and forcibly
raped her on several occasions), "do not mark the boundary of
what is actionable." Harris, 114 S. Ct. at 371.
[W]hether an environment is "hostile" or
"abusive" can be determined only by looking
at all the circumstances. These may include
the frequency of the discriminatory conduct;
its severity; whether it is physically
threatening or humiliating, or a mere
offensive utterance; and whether it
unreasonably interferes with an employee's
It is not enough that the evidence may permit an
inference of an objectively hostile or abusive work environment.
"[I]f the victim does not subjectively perceive the environment
to be abusive, the conduct has not actually altered the
conditions of the victim's employment . . . ." Harris, 114 S.
Ct. at 370. For example, some persons might find particular work
conditions acceptable that most people would consider
excruciatingly abusive. There is no violation of AS 18.80.220(a)
if the victim does not subjectively consider the environment to
It is not necessary to decide whether the comments in
the newsletter satisfy the objective standard for a hostile and
abusive work environment, because French failed to demonstrate
that there was a genuine dispute about her subjective
Powell stated in his affidavit that French never
advised any management personnel, including himself, that she was
offended by the newsletter and that French "made it plain she was
not offended [by the biting article] and found it humorous."
French never disputed Powell's statement that she found the
newsletter humorous; she never asserted she found its contents
hostile or abusive. She offered no affidavit. Her deposition
testimony did not imply that she subjectively considered the
newsletter hostile or abusive.15 Her interrogatory answers did
not state that she considered the newsletter to have created a
hostile or abusive environment.16
Attitude of French's Supervisor. French surmised that
the alleged attitude of her immediate supervisor affected
French's employment. As seen above, a claim of hostile work
environment requires conduct which creates "an objectively
hostile or abusive work environment--an environment that a
reasonable person would find hostile or abusive." Harris, 114 S.
Ct. at 370. French's inadmissible speculation that her
supervisor wanted French to date her brother and that French's
failure to do so led to her termination was insufficient to rebut
Powell's sworn explanations for her termination. Assuming the
record supports a conclusion that French was subjectively
offended by her supervisor's asserted desire, French nonetheless
failed to produce facts reasonably permitting an inference that
her supervisor created a hostile work environment.
Sex and Drug Scene. An interrogatory asked French to
explain "in detail" the assertion in her complaint that
Chilkoot's had required her to engage in "unethical and illegal
activities," and also asked her to describe the specific nature
and dates of each activity, the name of the person requiring her
to engage in the activity, and her response to Chilkoot's
conduct. French answered that when she was employed there, "a
known factor in longevity of employment at Chilkoot's was the use
of drugs and sex with management. No one person made any
demands, it was just understood." She also referred to the
issues of "Pournography," written by Powell.
Another interrogatory asked French to describe in
detail any manner in which Chilkoot's sexually discriminated
against her. She responded that her "failure to participate in
Chilkoot's 'sex and drug scene' resulted in a hostile work
environment . . . ." She stated that there was quid pro quo sex
discrimination because she failed to date her supervisor's
brother. She also stated that the bar manager called her
unspecified names and referred to her in a "derogatory manner"
because she refused to "play games."
French failed to provide admissible evidence to support
her claim that there was a sex and drug scene which created an
abusive work environment. The nonspecific and factually
unsupported assertions that there was such a "scene" at
Chilkoot's were insufficient to survive summary judgment. By
offering an affidavit containing a facially valid explanation for
her termination, Chilkoot's obliged French to produce facts
permitting an inference that the work environment really was
hostile, and had adversely affected her employment. French
failed to make that showing or seek a continuance, under Civil
Rule 56(f), in which to gather facts to defeat Chilkoot's summary
In short, although we conclude that AS 18.80.220
encompasses a claim for a discriminatorily hostile work
environment, we also conclude that French's claim was factually
deficient. To avoid summary judgment after Chilkoot's factually
disputed the reasons for her termination and her subjective
perceptions of the environment, French was obliged to offer
admissible evidence satisfying both the objective and subjective
standards for such a claim. The superior court did not err in
granting summary judgment to Chilkoot's when French failed to do
C. Defamation Claim
After Chilkoot's terminated French, Chilkoot's manager
McCullock spoke with French's boyfriend, Shawn Norton. Norton
testified at his deposition that McCullock referred to French
with degrading words; he also testified that McCullock told
Norton that French had engaged in sexual relations with a former
Chilkoot's employee and had traded the same employee sex for
drugs. McCullock denied making the statements, and asserted that
Norton had initiated a discussion with McCullock on the subject
of French's alleged infidelity to Norton.
The superior court granted summary judgment to
Chilkoot's on French's defamation claim.
To prevail on a defamation claim, a plaintiff has to
establish (1) a false and defamatory statement; (2) an
unprivileged publication to a third party; (3) fault amounting at
least to negligence on the part of the publisher; and (4) the
existence of either "per se" actionability or special harm. See
McAdoo v. Diaz, 884 P.2d 1384, 1390 (Alaska 1994); Restatement
(Second) of Torts ' 558 (1977). "A communication is defamatory
if it tends to harm the reputation of another so as to lower him
[or her] in the estimation of the community or to deter third
persons from associating or dealing with him [or her]." Green v.
Northern Publishing Co., Inc., 655 P.2d 736, 739 (Alaska 1982),
cert. denied, 463 U.S. 1208 (1983) (citing Restatement (Second)
of Torts ' 559 (1977)).
Chilkoot's argues that summary judgment was appropriate
because French suffered no special harm. We agree French offered
no evidence reasonably permitting an inference that she suffered
special harm, but the absence of such evidence is not fatal to
her claim if McCullock's statements were defamatory per se.
Alaska Statebank v. Fairco, 674 P.2d 288, 295 (Alaska 1983).
For a publication to be defamatory per se, "the words
used must be so unambiguous as to be reasonably susceptible of
only one interpretation -- that is, one which has a natural
tendency to injure another's reputation." Fairbanks Publishing
Co. v. Pitka, 376 P.2d 190, 194 (Alaska 1962) (libel per se).
McCullock allegedly stated that French had traded sex
for drugs. Such a statement alleges serious sexual misconduct
and criminal activity. See AS 11.66.100 ("A person commits the
crime of prostitution if the person engages in or agrees or
offers to engage in sexual conduct in return for a fee."). Such
a statement is defamatory per se. "One who publishes a slander
that imputes serious sexual misconduct to another is subject to
liability to the other without proof of special harm."
Restatement (Second) of Torts ' 574 (1977). See Hollman v.
Brady, 233 F.2d 877, 878, (9th Cir. 1956) (affirming the District
Court for the Territory of Alaska in holding the statement,
"[y]our wife is an ex-whore from Butte, Montana," to be
slanderous per se).
Likewise, where the words impute a serious crime to the
plaintiff, recovery is permitted without proof of special
damages. See Alaska Statebank, 674 P.2d at 295 (providing that
"where 'the words spoken by the defendant were such as to . . .
impute a crime to the plaintiff . . .' recovery is permitted
without proof of special damages," and citing Cinquanta v.
Burdett, 388 P.2d 779, 780 (Colo. 1963) (en banc)). See also
Restatement (Second) of Torts ' 571 (1977) ("One who publishes a
slander that imputes to another conduct constituting a criminal
offense is subject to liability to the other without proof of
special harm if the offense imputed is of a type which, . . .
would be (a) punishable by imprisonment . . . or (b) regarded by
public opinion as involving moral turpitude.).
Consequently, French did not need to prove injury
resulting from the comments and her asserted failure to
demonstrate special harm could not be a basis for affirming the
summary judgment on the defamation claim.
Chilkoot's argues that McCullock's alleged comments are
not actionable because they were conditionally privileged.17 A
statement is conditionally privileged if its maker reasonably
believes that the statement affects a sufficiently important
interest of the recipient and the recipient is "a person to whom
its publication is otherwise within the generally accepted
standards of decent conduct." Restatement (Second) of Torts '
595 (1977); see Jones v. Central Peninsula Gen. Hosp., 779 P.2d
783, 790 (Alaska 1989) (quoting Restatement (Second) of Torts '
595 (1977) and recognizing a conditional privilege if the
circumstances induce a correct or reasonable belief that there is
information that affects a sufficiently important interest of the
recipient or a third person). In deciding if a publication is
within "generally accepted standards of decent conduct," an
important factor is whether the statement is made in response to
a request for such information or is volunteered. Restatement
(Second) of Torts ' 595 (1977).
To obtain summary judgment on a privilege theory,
Chilkoot's had to establish that a recognized public or private
interest justified the utterance of McCullock's words. Schneider
v. Pay'N Save Corp., 723 P.2d 619, 623 (Alaska 1986) (citing
William Prosser, The Law of Torts ' 115, at 796 (4th ed. 1971)).
"Whether the occasion gives rise to a privilege is a question of
law for the court." Schneider, 723 P.2d at 623 (citing
Restatement (Second) of Torts ' 619 (1977)). "If the facts are
in dispute, the jury determines whether a conditional privilege
has been abused." Id. (citing Prosser ' 115, at 796).
McCullock and Norton differ on whether Norton
approached McCullock and asked him about French's sexual activity
with another man. McCullock swore in an interrogatory answer
that Norton approached him for advice on that subject. Norton,
however, testified in deposition that McCullock made the
disparaging remarks when Norton and McCullock worked in proximity
as their jobs required, not because Norton sought McCullock's
advice. There was consequently a genuine fact dispute about
whether McCullock's alleged statements were privileged.
That dispute can only be resolved by the trier of fact.
The superior court erred in granting summary judgment on the
D. Attorney's Fees
After summary judgment was entered in its favor,
Chilkoot's sought an attorney's fee award of $16,789.50. The
superior court awarded Chilkoot's $10,000. French claims the
award was excessive. Chilkoot's claims the award was reasonable
and appropriate under Civil Rule 82.
It is not necessary to consider the merits of the
attorney's fees issue. Given the reversal of the summary
judgment on the defamation claim, the attorney's fees award must
be vacated. IV. CONCLUSION
For these reasons, we REVERSE the superior court's
grant of summary judgment on the defamation claim, and REMAND to
the superior court for proceedings consistent with this opinion.
We AFFIRM the superior court's grant of summary judgment on all
other issues.18 We VACATE the award of attorney's fees.
1 He affied that throughout her employment, management
had spoken to French "regarding her absenteeism, frequent
tardiness and general apathy toward her job and duties"; that
French did not respond to requests that she improve her
attendance and tardiness; that French was informed that she would
be fired if the problems did not stop; that French had recently
asked for a night off because a friend was getting married and,
although she had been denied the night off and had been told she
was needed at work, she had called in sick after attending the
wedding; and that she also called in sick the evening she was
2 A general discussion of the at-will employment doctrine
in Alaska is found in Penny L. Crook, Employment at Will: The
"American Rule" and Its Application in Alaska, 2 Alaska L. Rev.
3 After French was deposed but before Chilkoot's moved
for summary judgment, Chilkoot's directed Interrogatory No. 8 to
French asking her to state "all facts . . . including . . .
contents of conversations, dates of conversations" upon which she
based the allegations in her complaint that Terry May attempted
to persuade French to date May's brother and that her
relationship with May deteriorated after French declined to do
so. The full text of French's answer provides:
Shortly after refusing to date Ms. May's
brother, plaintiff heard that she was going
to be fired from co-workers, even though
there was no change in her job performance,
Ms. May became extremely antagonist [sic]
towards plaintiff, and finally plaintiff was
fired for no legitimate, apparent reason.
Chilkoot's moved to compel discovery of specific facts about what
French had allegedly heard, and argued to the trial court that
her failure to provide the requested information demonstrated
that she "cannot supply any factual basis for her claims." So
far as we can see from the record, French did not supplement her
response to Interrogatory No. 8 and the trial court did not rule
on Chilkoot's motion to compel.
The interrogatory answer was insufficient to establish
the existence of a genuine fact dispute material to the
termination claim. In part it recited inadmissible hearsay and
legal conclusions. It alleged admissible facts (plaintiff
refused to date the brother of Ms. May, who became extremely
antagonistic), but her sworn deposition testimony made it clear
that she was simply surmising that her supervisor wanted French
to date her brother and that French's refusal was the reason "why
I might have been fired." In the face of the Powell affidavits,
her unsupported surmise was too speculative to create a genuine
fact dispute about the reason she was terminated.
We also note that French did not argue below or in this
court that her interrogatory answers create a fact dispute or
rebut the Powell affidavits.
4 Interrogatory No. 10 asked French to explain in detail
all "unethical and illegal activities" Chilkoot's required of
her, "giving specific dates of each activity, the nature of each
activity, the name of the person who required you to engage in
such activity and your response or action thereto." By letter,
Chilkoot's attorney informed French's attorney her response was
deficient, asked her to "fully document" her response, and
asserted that the interrogatory required specific details. By
letter, her attorney answered that she "has responded to the best
of her recollection." Chilkoot's then moved to compel a response
to the interrogatory and argued that French "cannot supply any
factual basis for her claims." So far as the appellate record
reveals, French never elaborated on her interrogatory answer, and
the court did not rule on the motion to compel.
5 French's sworn interrogatory answers did not create
genuine fact disputes, nor did French argue below or on appeal
that they did. They are, in any event, deficient for the reasons
6 French argues that Powell's sworn explanations of why
she was terminated were inadmissible. Powell was Chilkoot's
general manager. His two affidavits were sufficient to establish
that he had personal knowledge of the reasons why French was
terminated. His conversations with May were admissible because
they demonstrated the states of mind of Powell and May, Powell's
understanding of why French was terminated, and Powell's
agreement with her termination. Alaska R. Evid. 803(3); Van Huff
v. Sohio Alaska Petroleum Co., 835 P.2d 1181, 1186 (Alaska 1992).
Powell's affidavits required French to produce
admissible evidence reasonably permitting an inference Powell's
explanation was pretextual. The assertions made in her
deposition were insufficient, but assuming she did not have
personal knowledge adequate to execute an affidavit containing
admissible evidence, she had the ability to conduct discovery to
obtain information rebutting Powell's affidavits. Alaska R.
Civil P. 56(f). She could have deposed Powell to rebut the
foundation for his statements or to demonstrate that he was in
error or not credible. She also could have deposed Terry May and
other employees or former employees, assuming they would not
voluntarily provide rebutting affidavits.
7 Title VII of the Civil Rights Act of 1964 makes it "an
unlawful employment practice for an employer . . . to
discriminate against any individual with respect to his [or her]
compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or
national origin." 42 U.S.C. ' 2000e-2(a)(1).
8 We have examined federal Title VII decisions for
guidance in considering the Alaska anti-discrimination statutes.
Alaska State Comm'n for Human Rights v. Yellow Cab, 611 P.2d 487,
490 (Alaska 1980).
9 See also Equal Employment Opportunity Commission
guidelines which describe hostile environment harassment as
"conduct [which] has the purpose or effect of unreasonably
interfering with an individual's work performance or creating an
intimidating, hostile, or offensive working environment." 29
C.F.R. ' 1604.11(a)(3).
10 We do not decide today whether to adopt the perspective
of a "reasonable person," a "reasonable woman," or a "reasonable
victim" to determine whether an "objectively hostile or abusive
environment" exists for purposes of sexual harassment claims
under AS 18.80.220. Compare Harris, 114 S. Ct. at 370 (arguably
adopting a reasonable person standard) with Ellison, 924 F.2d at
879; Yates v. Avco Corp., 819 F.2d 630, 637 (6th Cir. 1987) (all
adopting a reasonable woman standard where victim is a woman);
and Burns v. McGregor Elec. Indus., 989 F.2d 959, 965 (8th Cir.
1993); Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d
Cir. 1990); EEOC: Policy Guidance on Sexual Harassment, 8 Lab.
Rel. Rep. (BNA) 405:6681, 6690 (Mar. 19, 1990) (adopting a
reasonable victim standard). See also Caroline Forell, Sexual
and Racial Harassment, 29 Trial 70 (1993) (discussing reasonable
person, reasonable woman, and reasonable victim standards); Jane
L. Dolkart, Hostile Environment Harassment: Equality,
Objectivity, and the Shaping of Legal Standards, 43 Emory L.J.
151 (1994) (generally arguing for an individualized standard
which focuses on the conduct of the alleged harasser and its
effect on the actual plaintiff's work environment, considering
the factors that inform the plaintiff's experience of
harassment); Note, Employment Discrimination - Sexual Harassment
- New Jersey Supreme Court Adopts a Gender-Specific
Reasonableness Standard - Lehmann v. Toys 'R' Us, Inc., 626 A.2d
445 (N.J. 1993), 107 Harvard L. Rev. 955 (1994) (approving a
gender-specific standard). But see Paul B. Johnson, The
Reasonable Woman in Sexual Harassment Law: Progress or
Illusion?, 28 Wake Forest L. Rev. 619 (1993) (arguing a
reasonable woman standard is seriously flawed). We emphasize
that federal Title VII law does not bind our interpretation of AS
18.80.220 and is followed only where it has persuasive force.
11 French did not clearly articulate her hostile work
environment claim. French's superior court and appellate
arguments have not been particularly helpful to our understanding
of the legal issues and alleged fact disputes presented by this
12 At oral argument in the trial court, French's attorney
asserted the existence of other fact circumstances that were
potentially relevant to her claims, but offered no admissible
evidence supporting those propositions. Such unsupported
assertions do not satisfy Civil Rule 56, and could not have been
considered by the trial court.
13 When French moved for reconsideration, she submitted
two more issues of the newsletter. One, published more than a
year after French was terminated, stated "[t]he girl just plain
humps" in recognizing a waitress who received a financial bonus
for her work effort. The other explained the dress code for a
company party and stated "wear a dress if you have titties."
14 Cf. DeAngelis v. El Paso Mun. Police Officers' Ass'n,
51 F.3d 591 (5th Cir. 1995) (holding that disparaging comments
regarding female police sergeant in police association newsletter
did not meet federal standard of objective offensiveness under
15 As an employee, French presumably had no duty to object
to management if she felt she was the victim of a discriminatory
and abusive working environment. See Meritor, 477 U.S. at 73
(rejecting contention that employee should have reported her
grievance of sexual harassment to her employer who was the
perpetrator, where petitioner's grievance procedure was
inadequate to encourage harassment victims to come forward);
Henson v. City of Dundee, 682 F.2d 897, 913-14 (11th Cir. 1982)
(Clark, J., concurring and dissenting) ("Clearly a supervisor by
virtue of his position is enhanced in his ability to create an
offensive environment when compared to the janitor, for example.
When a supervisor creates such an environment, women employees
are not apt to complain for fear of retaliation."). To object in
an abusive situation may invite retaliation.
As a litigant, however, French had a duty to rebut the
Powell affidavit to avoid summary judgment on the harassment
claim. Bauman, 768 P.2d at 1099. Even though she had no duty to
complain to her employer, if she considered the newsletter
hostile or abusive, she should have so informed the court in
order to answer Powell's affirmative assertion to the contrary.
16 One interrogatory asked French to explain in detail all
"unethical and illegal activities" Chilkoot's allegedly required
of French. Her answer implied employees were to engage in sex
and use drugs with management, but gave no specifics of the sort
expressly sought by the interrogatory (dates, nature of activity,
names, and her response). Her answer also cited copies of the
newsletter. Chilkoot's argued that the response was inadequate,
but the record does not reveal that French supplemented her
answer. See footnote 4, supra. When Chilkoot's later moved for
summary judgment, argued that French was not subjectively
offended, and supported its motion with an affidavit in which
Powell affied that French found the biting article "humorous,"
French did not claim in the trial court that this interrogatory
answer was evidence that would create a genuine fact dispute
about her subjective perceptions. More importantly, French does
not argue on appeal that we should consider this indirect and
ambiguous interrogatory answer to be evidence that created a
genuine fact dispute about whether French was subjectively
offended. We consequently decline to do so sua sponte.
17 One who publishes defamatory matter
concerning another is not liable for the
a) the matter is published upon an
occasion that makes it conditionally
b) the privilege is not abused.
Schneider v. Pay'N Save Corp., 723 P.2d 619, 623 (Alaska 1986)
(quoting Restatement (Second) of Torts ' 593 (1977)).
18 French also alleges that Chilkoot's violated AS
23.05.140(b) because it failed to pay her all wages and
compensation within three days of termination and that she was
entitled to more than one week paid vacation per Chilkoot's
Neither claim has merit. Chilkoot's timely tendered
the final paycheck to French within three working days of
termination. Further, the plain language of the employee manual
does not entitle French to additional vacation pay. The Powell
affidavit also explained the written vacation policy and French
produced no evidence supporting her contrary interpretation of
The superior court correctly granted summary judgment
to Chilkoot's on both issues.