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Methvin v. Bartholomew (12/4/98), 971 P 2d 151
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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, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
DARYL METHVIN, )
) Supreme Court No. S-8094
Appellant, )
) Superior Court No.
v. ) 3AN-91-9855 CI
)
ROBERT BARTHOLOMEW, KENNETH ) O P I N I O N
LANGEL, JAMES JOHNSEN, )
JOHN DOES I through V, ) [No. 5051 - December 4, 1998]
individually and in their )
official capacities )
representing the State of )
Alaska, and STATE OF ALASKA, )
)
Appellees. )
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
John Reese, Judge.
Appearances: Marshall K. Coryell, Coryell &
Associates, Anchorage, for Appellant. Douglas S. Parker and
Michael A. Grisham, Bogle & Gates, P.L.L.C., Anchorage, for
Appellees.
Before: Matthews, Chief Justice, Eastaugh,
Fabe, and Bryner, Justices. [Compton, Justice, not participating.]
FABE, Justice.
I. INTRODUCTION
In this appeal we consider Daryl Methvin's claim that the
State fired him for sending letters that were critical of his
supervisors to the Governor and Lieutenant Governor. The superior
court granted summary judgment against Methvin, notwithstanding
Methvin's contention that the letters constituted protected,
"whistle-blowing"activity. Because we conclude that Methvin's
letters of complaint primarily addressed his personal conflicts
with his supervisors and did not discuss issues of public concern,
we affirm the superior court's order.
II. FACTS AND PROCEEDINGS
For almost ten years, Daryl Methvin worked for the State
Department of Transportation and Public Facilities (DOTPF) in the
Statewide Equipment Fleet (SEF), a division that procures and
maintains vehicles and road maintenance equipment used in DOTPF's
work. Methvin started as an Equipment Operations Analyst,
preparing bid documents and reviewing bids, and he moved up through
the ranks to become the statewide manager of SEF. But because he
disagreed with a decision to reorganize SEF, he resigned his
managerial position in 1988 and resumed his work as an Equipment
Operations Analyst for SEF in Anchorage.
In 1989 DOTPF appointed Kenneth Langel as the new SEF
manager; Langel reported to Bob Bartholomew. Formerly Methvin's
subordinates, Langel and Bartholomew now served as his supervisors.
From the outset, tension existed in their working relationships
with Methvin. Methvin considered himself more experienced than
Langel in the field of public procurement and public fleet
management, while Langel viewed Methvin as having "a combative
attitude." When Methvin began to air his complaints about new SEF
policies to the vendor community, Langel warned him that although
he had "no problem"with Methvin expressing his views within SEF,
Langel would not permit him to share his objections to SEF policy
with its customers and vendors.
Although the friction between Langel and Methvin was
apparent as early as February 1989, when Methvin received an
"Unacceptable"rating in "Interpersonal Relationships"on his
annual evaluation, the problems escalated. By the end of 1989,
some vendors began to comment on Methvin's "personal war against
SEF [headquarters]." When Langel attempted to critique various
aspects of Methvin's technical writing, Methvin complained that the
criticism consisted of "derogatory comments and slurs." Although
Langel also complimented Methvin on the extra effort Methvin had
put forth in completing bid reviews on a short deadline, Methvin's
frustration with his supervisors grew.
In the spring of 1991, Langel became concerned about a
breach of confidentiality that allegedly occurred during Methvin's
review of bid documents. Langel accused Methvin of telling one
bidding vendor that another bidder had failed to sign its bid
documents. Methvin responded to this accusation by encouraging
vendors to write letters to SEF management expressing their
confidence that these charges were "untrue"and "absurd."
Langel reprimanded Methvin in a "letter of warning"that
cautioned him against engaging in "inappropriate communication with
vendors or any others outside SEF Headquarters staff relative to
bid information during the review process." Methvin countered by
writing to Lieutenant Governor Jack Coghill on May 3, 1991. In his
letter, Methvin complained about his supervisors' actions and
threatened "litigation for damages against the Agency, and
individuals involved,"if the warning letters were not removed from
his personnel file. Cautioning that such a lawsuit could cost the
State "millions of dollars,"he closed his letter by questioning
why Langel and Bartholomew were still employed by the State.
Methvin also responded directly to Langel in a
memorandum, accusing Langel of procurement violations and of a
desire to cover up procurement problems to hide them from the
public. In this memo, Methvin blamed Langel for lowering SEF to
its "worst condition"in years due to a "lack of management."
Methvin then accused Langel of exhibiting "bizarre behavior,"and
being a "political appointee"who lacked fleet management and
procurement experience.
Langel responded by sending Methvin a second letter of
warning. He characterized Methvin's memo as an "improper
communication"and demanded that Methvin document his allegations
of procurement violations and cover-up, admonishing him that
"[a]bsent documentation, these allegations appear to constitute no
more than an unacceptable response to supervisory direction and a
poor attitude and disloyalty toward your employer."
The day after receiving this letter, Methvin took his
dispute with Langel to Governor Walter J. Hickel, complaining in a
letter of "continued program mis-management,"objecting to his
supervisor's decision to move SEF headquarters from Juneau to
Anchorage, and exhorting the Governor to "appoint new management."
A few days later, Methvin responded to Langel in a sarcastic
manner: "If you, and your team wish to have some type of mis-guided
loyalty I suggest each of you buy a dog." Methvin also suggested
that Langel write himself a warning letter.
Shortly after receiving this memo from Methvin, Langel
was advised that Methvin had been encouraging members of the vendor
community to write to the Governor to request that SEF be moved and
that Langel and Bartholomew be fired and replaced. Methvin denied
doing this and presented to the court an affidavit of a vendor who
took responsibility for the letter writing campaign.
Langel then appointed James Johnsen, a DOTPF labor
relations analyst, to investigate allegations of Methvin's
insubordination in his continued communication with vendors. After
reviewing the results of that investigation, Langel terminated
Methvin. In the termination letter, he gave Methvin three reasons
for the discharge: gross insubordination by engaging in improper
contacts with vendors; dishonesty during the investigation in
denying these contacts; and an unacceptable attitude. Langel
charged Methvin with damaging SEF's relationship with the vendor
community: "At worst, it would appear that you engaged in outright
sabotage; at best, your actions reflect fundamental disloyalty to
your employer which makes you incapable of performing your assigned
duties."
After filing and partially pursuing a grievance through
his collective bargaining representative, Methvin filed suit
against Langel, Bartholomew, Johnsen, and the State, alleging
violations of Alaska's Whistleblower Act, wrongful termination,
breach of the implied covenant of good faith and fair dealing, and
constitutional violations of his right to free speech. The
superior court granted the defendants' motion for summary judgment,
finding first that "absent a pretextual motive for Plaintiff's
termination, the requirements for a 'just cause' termination . . .
have been satisfied." The court then reasoned "that the
differences existing between Plaintiff and the Defendants were
personal in nature and that Plaintiff's termination was not for any
pretextual reasons." Methvin appeals.
III. STANDARD OF REVIEW
We review a decision to grant summary judgment de novo,
[Fn. 1] deciding "whether any genuine issue of material fact exists
and whether on the established facts the moving party is entitled
to judgment as a matter of law."[Fn. 2] The moving party "has
the entire burden of proving that his opponent's case has no
merit."[Fn. 3] When determining whether a genuine issue of
material fact exists, we draw all reasonable inferences in favor of
the non-moving party. [Fn. 4]
IV. DISCUSSION
Methvin has characterized the "fundamental issue"
presented to this court as whether he "presented reasonable
evidence that he was dismissed for 'Whistleblower' activity,
including writing a letter to the Governor of Alaska alleging
mismanagement and misconduct by [his] superiors." To resolve
whether Methvin proffered sufficient evidence to prevent summary
judgment on his claim that he was fired for constitutionally
protected speech, we apply the three-pronged analysis described in
Bishop v. Municipality of Anchorage. [Fn. 5] Under this analysis,
[t]he 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.[ [Fn. 6]]
In its decision on summary judgment, the superior court
was apparently persuaded by the State's argument on the third
Bishop factor, concluding that Methvin's "insubordinate conduct
suggests to this court that Plaintiff was going to be terminated."
But we need not reach this question unless Methvin's speech was
both protected and a substantial factor in his firing. Although
Methvin has certainly raised a genuine factual issue as to whether
his letters were a motivating factor in his termination --
particularly since investigator Johnsen later admitted under oath
that the letters to the Governor's office were one of the reasons
Methvin was terminated -- Methvin must first demonstrate that, in
writing the letters, he engaged in protected activity. We conclude
that he did not.
Methvin argues that he was fired for writing letters of
complaint to the Governor and Lieutenant Governor, speech that he
claims is protected by the First Amendment [Fn. 7] and the
Whistleblower Act. [Fn. 8] Methvin is correct in his assertion
that the State may not fire a public employee for exercising the
right to free speech protected by the First Amendment to the United
States Constitution. [Fn. 9] This is because "implicit in [a]
contract of employment [is] the State's promise not to terminate
[the employee] for an unconstitutional reason."[Fn. 10]
We held in Wickwire v. State [Fn. 11] that in determining
whether speech by a public employee is protected by the First
Amendment, we must first address the question of "whether the
speech addresses an issue of legitimate public concern."[Fn. 12]
This "factor is a threshold requirement"; [Fn. 13] thus, "[i]f an
employee's speech does not relate to a 'matter of political, social
or other concern to the community,' the court need not scrutinize
the reason for the discharge."[Fn. 14] Where the subject of an
employee's speech involves "matters of personal concern"that are
"mere extensions"of a dispute with a supervisor, such speech is
not of public importance. [Fn. 15]
This case is similar in many respects to Wickwire, in
which an assistant attorney general wrote to the Attorney General
complaining that the Fairbanks office was poorly run and detailing
the problems he was having with his office supervisor. [Fn. 16]
Wickwire was fired as a result of statements made and the attitude
expressed in this letter. He sued the State, claiming that his
firing violated his constitutional rights to free speech and to
petition the government. [Fn. 17] We rejected Wickwire's
contention that his letter addressed a matter of public concern,
"conclud[ing] that Wickwire's expression of concern about problems
in the Fairbanks office caused by [his supervisor] reflected merely
a personal, internal office dispute which did not raise a matter of
legitimate public interest."[Fn. 18] We noted that although
Wickwire's letter referred in general terms to "problems"caused by
his supervisor, it did not "specify details or seek to bring to
light actual or potential wrongdoing or breach of public trust on
[the supervisor's] part."[Fn. 19]
Like Wickwire, Methvin made only general allegations in
his May 30, 1991 letter to Governor Hickel, complaining of "program
mis-management,"and charging that the SEF headquarters was being
moved to Anchorage "because its [sic] been totally mis-managed."
The letter contained no specific details of wrongdoing or any
breach of the public trust by Langel or Bartholomew. Instead,
Methvin once again requested that the Governor replace his
supervisors: "Suggest you appoint new management, or cancel the
relocation." Just a few days after writing this letter to the
Governor, Methvin again wrote to Langel, suggesting "[i]f you, and
your team wish to have some type of mis-guided loyalty I suggest
each of you buy a dog." He continued, "I am employeed [sic] by the
State of Alaska. You, and your team employ no one."
The State contends that "the hostility toward his
supervisors apparent in Methvin's speech, the vagueness of his
allegations and the fact that his speech was made in the context of
a campaign to have his superiors dismissed all indicate that the
issues Methvin raised [in the letter to Governor Hickel] were
matters of personal, rather than public, concern." We agree. The
tone, content, timing, and context of Methvin's letter to Governor
Hickel lead to the conclusion that it was intended to address his
escalating dispute with his supervisors and his ongoing campaign to
have his supervisors fired. As in Wickwire, the concerns expressed
by Methvin involved an internal office dispute regarding the
exercise of supervisory authority and did not raise an issue of
legitimate public concern implicating Methvin's right to free
speech. Because the defendants did not violate Methvin's First
Amendment rights, we affirm the superior court's decision to grant
summary judgment in favor of the State on this ground.
V. CONCLUSION
Because we conclude that Methvin's letters to the
Governor and Lieutenant Governor did not raise issues of public
concern, and thus did not implicate First Amendment protections, we
AFFIRM the superior court's decision to grant summary judgment
against Methvin.
FOOTNOTES
Footnote 1:
See Howell v. Ketchikan Pulp Co., 943 P.2d 1205, 1207 (Alaska
1997).
Footnote 2:
Nielson v. Benton, 903 P.2d 1049, 1051-52 (Alaska 1995).
Footnote 3:
Williams v. Municipality of Anchorage, 633 P.2d 248, 250
(Alaska 1981) (quoting Nizinski v. Golden Valley Electric Ass'n,
Inc., 509 P.2d 280, 283 (Alaska 1973)).
Footnote 4:
See Bishop v. Municipality of Anchorage, 899 P.2d 149, 153
(Alaska 1995).
Footnote 5:
899 P.2d 149 (Alaska 1995).
Footnote 6:
Id. at 154.
Footnote 7:
Article I, section 5 of the Alaska Constitution provides:
Freedom of Speech. Every person may freely
speak, write, and publish on all subjects, being responsible for
the abuse of that right.
Footnote 8:
AS 39.90.100-.150.
Footnote 9:
See State v. Haley, 687 P.2d 305, 318 (Alaska 1984).
Footnote 10:
Id.
Footnote 11:
725 P.2d 695 (Alaska 1986).
Footnote 12:
Id. at 700. We review de novo the question of whether an
employee's speech raises a matter of public concern. See id. at
n.5.
Footnote 13:
Wickwire, 725 P.2d at 700 (citing Connick v. Myers, 461 U.S.
138, 146 (1983)).
Footnote 14:
Id. (quoting Connick, 461 U.S. at 146).
Footnote 15:
Id. at 701 (quoting Connick, 461 U.S. at 148).
Footnote 16:
See id. at 696.
Footnote 17:
See id. at 699.
Footnote 18:
Id. at 703.
Footnote 19:
Id. at 702.
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