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Valda Chijide, M.D., v. Maniilaq Association of Kotzebue (1/22/99), 972 P 2d 167
<![CDATA[
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
VALDA CHIJIDE, M.D., )
) Supreme Court Nos. S-7901/7931
Appellant and )
Cross-Appellee, ) Superior Court No.
) 2KB-93-135 CI
v. )
) O P I N I O N
MANIILAQ ASSOCIATION OF )
KOTZEBUE, ALASKA, ) [No. 5070 - January 22, 1999]
)
Appellee and )
Cross-Appellant. )
______________________________)
Appeal from the Superior Court of the State of
Alaska, Second Judicial District, Kotzebue,
Richard H. Erlich, Judge.
Appearances: Hugh W. Fleischer, Law Offices of
Hugh W. Fleischer, Anchorage, for Appellant and Cross-Appellee.
Douglas Pope, Pope & Katcher, Anchorage, for Appellee and Cross-
Appellant.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
FABE, Justice.
BRYNER, Justice, dissenting.
I. INTRODUCTION
Dr. Valda Chijide, a former physician at a medical center
run by Maniilaq Association, sued Maniilaq on claims arising out of
its decision to end her employment. The superior court granted
Maniilaq's motion for summary judgment on Chijide's request for
injunctive relief and on her claims that Maniilaq's actions
violated her due process rights and the covenant of good faith and
fair dealing. The court decided, however, that Maniilaq had failed
as a matter of law to give Chijide timely notice of its intent not
to renew her contract. Both parties appeal. We affirm the
superior court's summary judgment rulings in Maniilaq's favor and
reverse its ruling for Chijide.
II. FACTS AND PROCEEDINGS
Maniilaq, a private nonprofit corporation, operates a
medical center in Kotzebue. In September 1990 Chijide signed a
one-year employment contract with Maniilaq to work as a staff
physician at the medical center. The parties renewed the contract
in September 1991 and again in September 1992. The final contract
provided that Chijide's employment would "terminate"on September
30, 1993.
A. Relevant Provisions of the Employment Contract
The contract between the parties contained several
provisions that are important to this appeal. First, it
specifically addressed the renewal process. Paragraph 15 indicated
that Maniilaq had the right not to renew Chijide's employment for
any reason, as long as it provided her with sixty days' notice.
In paragraphs 14A and B, the contract allowed Maniilaq to
terminate Chijide's employment with or without cause. If Maniilaq
dismissed Chijide without cause, the contract required it to
provide her with ninety days' written notice and to pay her any
compensation still owed. In contrast, Maniilaq could terminate
Chijide for good cause without written notice and "with pay only to
the date of such termination."
The contract also stated that Maniilaq's personnel policy
would apply to the terms of Chijide's employment "except where
superseded by specific contract provisions." Maniilaq's Personnel
Policies and Procedures Manual provided grievance and appeal
procedures for any employee aggrieved by working conditions or
relations.
B. Chijide's Employment at Maniilaq
When Chijide began working for Maniilaq, Dr. Janette
Shackles was also a staff physician at the medical center. Soon
thereafter, however, Shackles became the clinical director of the
medical center, a position in which she supervised Chijide.
Chijide began to experience difficulties working with Shackles.
In February 1992 Chijide sent a memorandum to Shackles
entitled "Benign Neglect and Failure to Communicate." She
complained that "[f]or the past several months,"Shackles had
repeatedly kept her "uninformed about the dates and times of
certain vital meetings involving medical staff"and listed meetings
that she had missed as a result of Shackles's "benign neglect."
Shackles responded to Chijide's memorandum, explaining the
circumstances surrounding the missed meetings and noting that "[w]e
have a serious communication problem and you are very much a part
of it. . . . I would like to meet with you and resolve this problem
as soon as possible. Please let me know when you['re] ready to
talk." Chijide did not respond to Shackles's invitation to discuss
their communication problems.
Through a memorandum to Maniilaq's president, Chijide
filed a grievance against Shackles in May 1992, charging that she
had "repeatedly received discriminatory and unfair treatment from
[her]." Chijide alleged that Shackles had failed to inform her of
important meetings, had unfairly denied her leave, and had
purposely assigned her an unreasonable work schedule. In June, Jan
Harris, Maniilaq's interim president, replied to Chijide's
grievance. She found no conscious intent on Shackles's part to
exclude Chijide from meetings and no apparent scheduling bias
against her. She also found that Chijide was not being denied
leave in a discriminatory manner. To address Chijide's concerns,
however, Harris decided that staff would receive more formal notice
of meetings and that physician coverage would be evaluated. Harris
concluded by informing Chijide that if she accepted her resolution
of the grievance by signing the reply, it would be considered
closed. Chijide neither signed Harris's reply to indicate that she
accepted the grievance resolution nor appealed Harris's decision.
Chijide filed a second grievance against Shackles in
November 1992. She claimed that her previous grievance "was
ineptly handled and doomed from the start,"and that since the
earlier grievance her relationship with Shackles "ha[d] gone from
bad to worse." She also described several examples of Shackles's
alleged discriminatory treatment. Frank A. Kramer, the hospital
administrator, replied to this grievance in December. He did not
find anything inappropriate in Shackles's conduct as described by
Chijide and found "no conscious effort"by Shackles to exclude
Chijide from meetings or assignments. Observing that the grievance
appeared to stem from miscommunication between Shackles and
Chijide, he recommended first, that the medical staff discuss how
to best disseminate information in the hospital, and second, that
Chijide and Shackles "establish an open line of communication."
In a letter to Suzy Erlich, president of Maniilaq,
Chijide appealed Kramer's grievance resolution, charging that it
"was totally unacceptable and thus, accomplished nothing." Chijide
received no response to the letter for several months. In March
1993 Kramer gave Chijide the paperwork with which to pursue her
grievance further, but she declined to do so. Chijide later
explained in a deposition why she decided not to pursue the
grievance: "it was apparent to me . . . that the process did not
work and it appeared to me it was a corrupt process, if they did
not like you that they were not going to process your grievance
appropriately."
In March 1993 Shackles gave Chijide a "written reprimand
for willfully disobeying a directive." This memorandum was based
on Shackles's charge that Chijide had inappropriately refused to
make a scheduled clinical visit to the village of Kiana, claiming
that it was too cold for travel when, in fact, the weather was
suitable for travel. Chijide wrote to Kramer on March 23,
asserting that the reprimand was unjustified and requesting that it
be removed from her file. Kramer treated Chijide's letter to him
as a grievance, which he resolved by finding that the reprimand was
proper. Chijide did not pursue this grievance further.
On July 6, 1993, Chijide notified Maniilaq that she
wished to renew her contract. On July 9 Shackles wrote a letter to
Maniilaq's director of personnel, Carolyn Smith, in which she
discussed the "persistent hardships"experienced in working with
Chijide and requested that Maniilaq not renew Chijide's contract.
In a letter dated July 30, Maniilaq notified Chijide that it would
not be renewing her contract. Chijide received this letter on
August 2. She left Maniilaq when her contract ended, on September
30, 1993.
C. Court Proceedings
On September 27, 1993, Chijide filed a complaint in the
superior court against Maniilaq. In her first count, she requested
an injunction requiring Maniilaq to retain her in her present
position and sought damages for back pay and pain and suffering.
Her second count included four claims: (i) that Maniilaq failed to
give notice of nonrenewal at least sixty days prior to the
contract's expiration; (ii) that Shackles, as Maniilaq's agent,
intentionally inflicted emotional distress upon Chijide; (iii) that
Maniilaq violated her due process rights; and (iv) that Maniilaq
breached the covenant of good faith and fair dealing.
Maniilaq moved for summary judgment on all of Chijide's
claims. In April 1996 the court granted its motion with respect to
Chijide's request for injunctive relief and her claim for
intentional infliction of emotional distress. [Fn. 1] The court
denied summary judgment to Maniilaq on the notice of renewal claim;
it found that Maniilaq failed to give timely notice as required by
the contract and ruled that it would treat Chijide's dismissal as
a termination without cause under paragraph 14A of the contract.
In May 1996 the court granted summary judgment to
Maniilaq on Chijide's remaining claims. It concluded that
Chijide's due process rights were limited to the ninety days'
notice requirement because the contract expressly provided that
Maniilaq could terminate her employment without cause. Similarly,
in discussing the covenant of good faith and fair dealing claim,
the court ruled that an employer does not violate the covenant by
terminating an employee without cause where the employment contract
specifically permits no-cause termination.
III. DISCUSSION
A. Standard of Review
This court reviews a grant of summary judgment de novo.
See Ramsey v. City of Sand Point, 936 P.2d 126, 129 (Alaska 1997).
We will affirm the grant if, construing all reasonable inferences
in favor of the nonmoving party, there are no genuine issues of
material fact, and the moving party is entitled to judgment as a
matter of law. See id.
B. Direct Appeal
1. Did the court err in granting summary judgment to
Maniilaq on Chijide's due process claim?
Chijide raises several due process arguments on appeal.
Arguing that Maniilaq is a public entity under the rationale of
Storrs v. Lutheran Hospitals & Homes Society of America, Inc., 609
P.2d 24, 28 (Alaska 1980), Chijide first claims that she had a
property interest in her job and that Maniilaq therefore violated
her due process rights by ending her employment without notice and
a hearing. Assuming arguendo that Maniilaq is a public entity, we
nevertheless disagree with Chijide's contention that she was denied
due process.
Chijide initially suggests that the rule established in
Storrs required Maniilaq to give her notice and a hearing prior to
ending her employment. In that case, we ruled that a quasi-public
hospital had to comply with due process before terminating a
doctor's hospital privileges. See Storrs, 609 P.2d at 28.
Implicit in the reasoning of that decision was our view that when
a quasi-public hospital that is the only hospital in a given
location deprives a doctor of staff privileges and thus effectively
prevents him or her from practicing medicine, the hospital is
depriving the doctor of a valuable property interest. See id. at
28 (citing Anton v. San Antonio Community Hosp., 567 P.2d 1162,
1174 (Cal. 1977) (stating that "the essential nature of a qualified
physician's right to use the facilities of a hospital is a property
interest which directly relates to the pursuit of his
livelihood")).
It is unclear from Chijide's briefing why she believes
Storrs would require a hearing in this case. To the extent she
argues that Storrs stands for the proposition that all doctors who
work for quasi-public hospitals have a property interest in their
job, she is incorrect. The Storrs opinion made no such assertion.
Neither does Storrs stand for the view that all quasi-public
hospitals are required to provide doctors with a hearing before
terminating their employment, even when the doctors involved have
no property interests in their jobs. Because we reject Chijide's
suggestion that Storrs itself required Maniilaq to provide her with
notice and a hearing in this case, we proceed to analyze our other
decisions discussing employees' due process rights.
Both the federal and state constitutions provide that the
state cannot deprive citizens of life, liberty, or property without
due process of law. [Fn. 2] However, the protections of due
process apply only when an individual has a life, liberty, or
property interest to protect. See, e.g., Board of Regents of State
Colleges v. Roth, 408 U.S. 564, 569 (1972) (stating that "[t]he
requirements of procedural due process apply only to the
deprivation of interests encompassed by the Fourteenth Amendment's
protection of liberty and property"); Szejner v. University of
Alaska, 944 P.2d 481, 486 (Alaska 1997) (stating "[f]or due process
to be implicated, there must be a liberty or property interest
sufficient to warrant constitutional protection"). Under both
federal and Alaska constitutional law, an employee has a property
interest in his or her job only when he or she has a legitimate
expectation of continued employment. See, e.g., Roth, 408 U.S. at
577-79; Ramsey v. City of Sand Point, 936 P.2d 126, 131-32 (Alaska
1997). As a result, both our courts and federal courts have held
that employees who have tenure or who can be fired only for cause
have property interests in their jobs. See, e.g., Odum v.
University of Alaska, Anchorage, 845 P.2d 432, 433 (Alaska 1993)
(stating that tenured professor was entitled to due process);
Storrs v. Municipality of Anchorage, 721 P.2d 1146, 1148 (Alaska
1986) (employee could be dismissed only for just cause); Cleveland
Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39 (1985) (employee
could be dismissed only for just cause); Perry v. Sindermann, 408
U.S. 593, 601-02 (1972) (stating that tenure would provide employee
with property interest in his or her job).
Chijide did not have a property interest in her job per
se because she had no legitimate expectation that her employment
would continue indefinitely. First, her contract provided that
Chijide could be fired at any time without cause. Second, unlike
a tenured employee, Chijide worked under a year-to-year contract
that Maniilaq could choose to renew or not renew for any reason.
See Roth, 408 U.S. at 578 (stating that employee whose contract
ended at a fixed date and did not provide for renewal absent
sufficient cause had no protected property interest in employment).
The fact that Maniilaq had renewed the contract in past years is
not enough to convert Chijide's concern that she be rehired into a
legitimate expectation that she would be retained. See Martin v.
Unified School Dist. No. 434, 728 F.2d 453, 455 (10th Cir. 1984);
see also Roth, 408 U.S. at 577 (stating that for a benefit to be
considered a property interest under the constitution an individual
must have a "legitimate claim of entitlement to it").
But, although Chijide did not have a property interest in
her job per se, she did have a property interest in continued
employment for the sixty and ninety days' notice periods
incorporated into her contract. See Breeden v. City of Nome, 628
P.2d 924, 926 (Alaska 1981). Because we conclude below that
Maniilaq complied with the notice requirements as a matter of law,
we hold that it did not violate Chijide's rights by ending her
employment.
Chijide argues next that Maniilaq violated her due
process rights by failing to follow its own procedures in resolving
her grievances against Shackles. She appears to contend that the
failure to resolve the difficulties between herself and Shackles
resulted in her being terminated for cause upon Shackles's
recommendation. Because Maniilaq did not provide her with a
hearing prior to the termination, thus giving her the opportunity
to contest Shackles's evaluation of her performance, Chijide claims
that she was not afforded due process. We reject Chijide's
argument because we disagree with her premise that Maniilaq fired
her for cause.
Chijide points to Shackles's July 9, 1993 letter to
Carolyn Smith as evidence that her termination was "for cause."
The fact that Shackles provided a reason for her recommendation
that the hospital decline to renew Chijide's contract does not
convert the nonrenewal into a dismissal for cause. Shackles's
letter was addressed to Maniilaq, not Chijide. The notification
Maniilaq sent to Chijide was unambiguously a notice of non-renewal
that gave no cause for ending Chijide's employment. We therefore
affirm the superior court's grant of summary judgment on Chijide's
due process claims.
2. Did the court err in granting summary judgment to
Maniilaq on Chijide's covenant of good faith and fair dealing
claim?
Chijide also raises several challenges to the superior
court's rejection of her covenant of good faith and fair dealing
claim. She first asserts that Maniilaq violated the covenant when
it ended her employment because her dismissal was "part and parcel"
of the mistreatment that she received during her years working at
the hospital under Shackles's supervision. We disagree.
Like all contracts, Chijide's contract with Maniilaq
included an implied covenant of good faith and fair dealing. SeeRamsey v. City of Sand Point, 936 P.2d 126, 133 (Alaska 1997).
This covenant has both subjective and objective elements. See id.
The subjective aspect prohibits an employer from terminating an
employee for the purpose of depriving the employee of a contract
benefit, and the objective aspect requires an employer to act in a
manner that a reasonable person would regard as fair. See id.
Chijide has not alleged on appeal that Maniilaq ended her
employment in order to deprive her of the benefits of her
employment contract. Thus, the only question before this court is
whether Maniilaq's actions violated the objective aspect of the
covenant.
We held in Ramsey that an employer who acts in accordance
with the express terms of a contract satisfies the covenant's
objective component. See 936 P.2d at 133. The facts of Ramsey
provide a helpful analogy to Chijide's situation. After the city
of Sand Point terminated Ramsey without investigating his alleged
misconduct on the job, he filed suit, arguing in part that the city
had violated the covenant of good faith and fair dealing because it
treated him unfairly. See id. at 129. Ramsey's contract provided
that he could be terminated without cause, as long as he received
thirty days' notice and six months' severance pay. See id. at 128.
We held that the covenant's objective element could not be
"interpreted to prohibit what [was] expressly permitted by Ramsey's
contract with the City": termination without cause. Id. at 133.
As a result, we concluded that the city had not violated the
covenant. See id.
Similarly, Chijide's contract with Maniilaq permitted
Maniilaq to refuse to renew her contract for any reason or for no
reason at all as long as it provided her with sixty days' notice of
its intent not to renew. As a result, Maniilaq did not violate the
implied covenant of good faith and fair dealing by failing to renew
Chijide's contract. [Fn. 3]
Relying on the letter Shackles sent to Maniilaq's
personnel director, Chijide argues next that she was dismissed for
cause, and therefore Maniilaq's personnel policies entitled her to
notice of the charges against her and a right to appeal; she
appears to allege that the fact that she did not receive these
remedies violates the implied covenant. Because Chijide did not
make this argument to the trial court, she has waived it on appeal.
See Revelle v. Marston, 898 P.2d 917, 927 (Alaska 1995). We would
reject this argument even if Chijide had preserved it, however,
because, as we explained above, we disagree with her premise that
Maniilaq dismissed her for cause.
C. Cross-Appeal
The superior court found, as a matter of law, that
Maniilaq's notice of nonrenewal did not satisfy the contract's
sixty-day notice requirement and therefore granted summary judgment
to Chijide on this issue. Apparently, the court accepted Chijide's
argument that language in the contract providing for "at least
sixty (60) days"notice meant sixty 24-hour days. Maniilaq argues
that this interpretation of the notice provision is contrary to
case and statutory law regarding the calculation of time. We
agree.
Paragraph 15 of the employment agreement between Maniilaq
and Chijide provided that "at least sixty (60) days [before] the
date for renewal of this employment contract, Employer shall give
Employee notice if Employer intends not to renew said employment
contract[.]" Because the contract provided that it terminated on
September 30, 1993, the parties agree that the "date for renewal"
was October 1, 1993. Chijide asserted that she received notice of
nonrenewal at "approximately 5:10 p.m. on August 2, 1993."
In her memorandum to the superior court, Chijide noted
that the sixtieth day in advance of October 1 was August 2 but
argued that "[b]ecause fractions of a day are not counted,"her
contract required sixty 24-hour days of notice. She therefore
claimed that Maniilaq would have satisfied the contract's notice
requirement only if she had received notice "no later than August
1." In making this argument, Chijide relied on cases holding that
the law does not consider fractions of a day in calculating time.
Maniilaq contends in turn that the rule of ignoring fractional days
means that parts of a day count as a full day, and therefore "it is
of no importance whether the notice was given at 12:01 a.m. or 5:10
p.m."on August 2.
Having reviewed the case law, we conclude that this
doctrine should be interpreted as Maniilaq contends: fractions of
a day count as a full day. One of the cases cited by Maniilaq,
Maciborski v. Chase Service Corp. of Arizona, 779 P.2d 1296 (Ariz.
App. 1989), is particularly instructive.
In Maciborski, a purchaser had neglected to make payments
on an installment contract. See id. at 1297. On May 28, 1987,
Chase, the servicing agent, sent him a notice requiring that he pay
by 5:00 p.m. on June 17, 1987. See id. The issue before the court
was whether the notice satisfied an Arizona statute requiring that
notice be served "at least twenty days prior to the effective date
of the forfeiture." Id. The trial court, interpreting the statute
as requiring twenty 24-hour days, had ruled that the notice was
ineffective. See id. at 1299. The appellate court first
established that because the statute referred to a time period
preceding an event, the twenty-day period should be computed by
counting backward from the date of forfeiture, rather than forward
from the day of mailing notice. See id. at 1300. Counting
backward from June 17, the date of forfeiture, the twentieth day
was May 28, the day of mailing notice. The court then addressed
Maciborski's argument that the statute required twenty 24-hour days
of notice. It concluded, contrary to Maciborski's assertions, that
cases holding that "a partial day may be considered a 'day,'"stand
for the rule that "the law takes no notice of fractions of a day
and deems any fraction of a day to be a 'day.'" Id. at 1301
(citations omitted).
We analyze the contract at issue in the same manner as
the Maciborski court analyzed the statute at issue in that case.
Like the statute, the contract between Chijide and Maniilaq
referred to a time period preceding an event, the renewal date of
October 1, 1993. Thus, the sixty days should be calculated by
counting backwards from October 1, making the sixtieth day August
2. Because the law treats fractional days as full days, Chijide's
receipt of the notice at 5:10 p.m. on August 2 satisfied the sixty
days' notice requirement. [Fn. 4]
IV. CONCLUSION
We AFFIRM the superior court's grant of summary judgment
to Maniilaq on Chijide's points on appeal and REVERSE its denial of
summary judgment to Maniilaq on the timely notice of renewal issue.
[Fn. 5]
BRYNER, Justice, dissenting.
I disagree with the court's summary rejection of
Chijide's implied covenant claim.
Chijide's employment contract provided that "Maniilaq
Association Personnel Policy shall apply to this contract except
where superseded by specific contract provisions." Maniilaq's
personnel policies are spelled out in a Personnel Policies and
Procedures Manual whose opening paragraph declares that "[t]hese
policies establish a means whereby fair treatment is extended to
all employees in a uniform and equitable manner." Because
Chijide's employment contract incorporated the personnel manual's
provisions by reference, those provisions became an integral part
of her contract except insofar as they conflicted with specific
contract provisions. [Fn. 1]
Maniilaq's personnel manual strongly encourages open
communication among its employees: "Maniilaq Association believes
a clear and open channel for the expression of suggestions and
complaints is a fundamental principle of sound employee relations."
Under the manual, "[a]ll personnel at all levels of Maniilaq are
obligated to respect one another's basic human rights and human
dignity, and further, must share information in performing
Maniilaq's service."[Fn. 2] The manual also sets forth a detailed
grievance process that broadly applies to "[a]ny employee who is
aggrieved by an action which relates to working conditions,
discrimination, work relations, or personnel policies and
procedures[.]" It emphasizes that "[a]ny serious employee
complaint, verbal or written, in any form, should be treated with
serious consideration as a grievance."
Since no terms of Chijide's employment contract conflict
with or supersede the personnel manual's provisions that require
all Maniilaq employees to share information, that ensure all
employees respect and human dignity, and that grant them the right
to "serious consideration"of work-related complaints within the
established grievance process, the provisions must be treated as an
integral part of the contract. [Fn. 3] Maniilaq was "bound by the
representations contained in th[e] provisions,"[Fn. 4] and Chijide
was entitled to rely on them in forming reasonable expectations as
to her rights and obligations as a Maniilaq employee.
As the court acknowledges in the present case, [Fn. 5] a
covenant of good faith and fair dealing is implied into all
contracts. [Fn. 6] The objective component of the covenant
requires an employer to treat an employee -- even an at-will
employee -- in an objectively reasonable manner. [Fn. 7] Of
course, the implied covenant "cannot be interpreted to prohibit
what is expressly permitted by [Chijide's] contract[.]"[Fn. 8]
Since her contract specified that she was subject to dismissal
without cause after ninety days' notice, Chijide could not
reasonably expect the implied covenant of good faith and fair
dealing to prevent Maniilaq from terminating her without good
cause. [Fn. 9]
But while the contract expressly allowed Maniilaq to
dismiss Chijide without good cause, or for no cause in particular,
it by no means guaranteed Maniilaq the right to fire her for
reasons that would be impermissible under the law, as a matter of
public policy, or by her contract terms. [Fn. 10] To the contrary,
because the implied covenant "effectuate[s] the reasonable
expectations of the parties,"[Fn. 11] and because provisions in
the personnel manual, by incorporation into Chijide's contract,
fell within the boundaries of her reasonable expectations as an
employee, the covenant necessarily protected her from a dimissal
specifically based on her performance of duties that the manual
expressly required or on her assertion of rights that it expressly
guaranteed.
I am persuaded that the record, interpreted in the light
most favorable to Chijide, [Fn. 12] raises a genuine issue of
material fact as to whether Maniilaq fired Chijide for demanding an
"open channel"of communication with her supervisor and asserting
her right to have her complaints "treated with serious
consideration" within the established grievance process. In my
view, firing Chijide for this reason would amount to a breach of
the implied covenant.
On February 24, 1992, Chijide sent a memo to her
supervisor, Janette Shackles, complaining that Shackles was
neglecting to communicate with her and was treating her unfairly.
Chijide evidently viewed the memo as an informal complaint, since
she advised that she would "initiate disciplinary action,"if
Shackles failed to take corrective action. [Fn. 13] Shackles
responded to Chijide by memo on March 2, denying Chijide's
allegations but confirming that "[w]e have a serious communication
problem and you are very much a part of it."
Shackles stated in her memo that she "would like to meet
with [Chijide] and resolve this problem as soon as possible." But
she left it up to Chijide to take the initiative: "Please let me
know when you are ready to talk." Although the personnel manual
imposed on Shackles the duty, as Chijide's supervisor, to "make a
special effort to resolve the complaint on an informal basis,"
there is no indication that she took any other affirmative steps to
address Chijide's complaint.
In the year that followed, Chijide filed three formal
grievances against Shackles; while each grievance dealt with new
occurrences, their recurring theme was the ongoing lack of
communication between Chijide and Shackles. On May 6, Chijide
addressed her first formal grievance to Maniilaq president Marie
Greene, alleging "repeated[] . . . discriminatory and unfair
treatment from Dr. Janette Shackles,"and complaining that "the
department needs cohesiveness, good, honest and open communication
and fairness to all members of the medical staff."[Fn. 14]
Under the manual's grievance procedures, Greene was
obligated to conduct a joint conference with Chijide and Shackles
within ten working days after receipt of the grievance and to
"render a Grievance Reply"to Chijide within ten working days after
the conference. [Fn. 15] Although Greene evidently met with
Chijide and Shackles on May 21, she left office as Maniilaq's
president shortly thereafter without replying to the grievance.
On June 5, interim president Jan Harris wrote a memo to
Chijide in response to her grievance. Harris apologized, informing
her "that recent administrative changes have prevented conclusion
of review of [Chijide's] grievance by Marie Greene." Although
Harris had not met with Chijide, she informed Chijide that, based
on a review of "all documentation and notes"(evidently referring
to Greene's notes of the May 21 meeting), she found "no conscious
intent on the part of Dr. Shackles to exclude [Chijide] from
meetings,""no apparent scheduling bias against [her],"and no
apparent discrimination in denying her leave.
To resolve the grievance, Harris proposed that Chijide
wait until the arrival of the new hospital administrator, who,
Harris hoped, would be able to address such "systems problems"as
Chijide's. Chijide did not appeal to the Board of Directors.
Communication problems continued to plague Chijide and
Shackles during the ensuing summer. On November 11, 1992, Chijide
filed her second formal grievance, this time directing it to the
newly appointed hospital administrator, Frank Kramer. Asserting
that her prior grievance against Shackles was "ineptly handled and
doomed from the start and attributed to the administrative changes
occurring at the time,"Chijide complained that "the professional
relationship between both [Shackles and her] ha[d] gone from bad to
worse." She cited five recent incidents to support her claim.
On November 24, Shackles responded to Chijide's memo,
basically disputing Chijide's version of the five recent incidents
and laying blame on Chijide. Under personnel procedures, Kramer
should have convened a conference with Chijide and Shackles by
December 4. He failed to do so. Instead, on December 7, he met
with Chijide and handed her a memo dated December 4, in which he
purported to dispose of her grievance. The memo apologized to
Chijide for the time it had taken Kramer to complete his review of
her grievance. It also addressed Chijide's specific complaints,
finding them unwarranted.
As to Chijide's ongoing complaint regarding the lack of
communication and favoritism, Kramer's memo responded:
Though the situation continues to the present,
I get the feeling that you are both partially to blame. . . . I do
not think that one or the other bears the greater responsibility
for this breakdown, but because of the manner in which it continues
to be handled, the problem will not resolve itself without a very
concerted effort on the part of both of you.
Indeed, Kramer remarked that "the entire grievance [was]
based on a lack of communication between [Chijide] and Dr.
Shackles,"and that "until this practice [was] alleviated there
[would] be no resolution[.]" To resolve the problem, Kramer
recommended a sit-down meeting with the entire medical staff to
establish "an enhanced procedural system"to disseminate
information and a face-to-face meeting between Chijide and Shackles
to "establish a[n] open line of communication."
Because Kramer had held no prior conference on her
grievance and Shackles was absent from the December 7 meeting,
Chijide asked why Shackles was not there. Chijide's insistence on
Shackles's presence caused Kramer to summon Shackles, who arrived
about an hour later. Kramer conferred briefly with Chijide and
Shackles, but they reached an impasse on the ongoing communication
problem. [Fn. 16]
On December 9, 1992, Chijide appealed Kramer's decision
to the new hospital president, Suzy Erlich. Chijide received a
note acknowledging receipt on December 11 of the appeal. Under the
personnel manual, the president was required to reply to the
grievance within ten working days. But Chijide heard nothing for
three months. During the week of March 13, 1993, she received a
call from Erlich, who said she had forgotten about Chijide's
grievance and would ask the personnel office to start the process
again. On March 19, Kramer brought Chijide additional paperwork,
telling her that she should "fill it out to get [her] grievance
processed." Nowhere does the personnel manual call for such
additional paperwork, and according to Chijide, no such paperwork
had previously been required.
By then, the events that led to Chijide's third, and
final, formal grievance were already underway. On March 9, 1993,
Shackles had placed a written reprimand in Chijide's personnel file
alleging that Chijide had, without good cause, refused to fly to
Kiana for a scheduled field clinic. On March 23 Chijide responded
by filing a grievance with Kramer, denying any inappropriate
conduct and requesting that Shackles's letter be removed from her
personnel file. According to the personnel manual, Kramer should
have convened a conference with Chijide and Shackles within ten
working days and issued a decision within ten working days after
the meeting. But by April 21 -- almost a month after she filed her
grievance -- Chijide still had received no response. She wrote
another memo to Kramer, reminding him of her March 23 complaint,
suggesting that he had "chosen to ignore it,"and asking him to
"let [her] know as to [his] next course of action."
Kramer met with Chijide the next day, April 22, and
presented her with a written grievance response, which he had dated
April 8 -- two weeks earlier. Although Kramer had not conferred
with Chijide and Shackles jointly and he had not met with Chijide
at all, he upheld Shackles's letter of reprimand. After he
discussed the memo with Chijide and she expressed dissatisfaction,
he advised her of her right to appeal to the president. But
Kramer's mishandling of her two grievances and Erlich's mishandling
of her prior appeal had convinced Chijide that Maniilaq's grievance
process was corrupt. She thus declined to press on with the
months-old appeal on her second grievance and did not file an
appeal on her third grievance.
On July 9, 1993, three days after Chijide notified
Shackles that she wished to renew her contract with Maniilaq for
another year, Shackles wrote Maniilaq's personnel director to
oppose the renewal. Shackles complained that "on several occasions
she had found Chijide's attitude and/or behavior disagreeable and
inappropriate." She claimed that her efforts to correct the
problems had met with failure. Stating that Chijide's attitude had
lowered staff morale and had even had an effect on Shackles's
ability to recruit new personnel, Shackles pointed out that "[w]e
are currently short-staffed . . . . I must insist [Chijide] be
given the required 60-day notification that her contract for the
coming year will not be renewed." Though Shackles's memo appears
to fall within the category of personnel documents that the
personnel manual required Chijide be notified of immediately,
Shackles failed to send Chijide a copy of it. On July 30, Maniilaq
notified Chijide that her contract would not be renewed.
Viewing the foregoing evidence and related inferences in
the light most favorable to Chijide, a reasonable person could
easily conclude that Maniilaq had not "treated with serious
consideration"Chijide's requests for an open channel of
communication between her and Shackles; nor had Maniilaq honored
Chijide's procedural rights as set out in its personnel manual;
indeed, Maniilaq had significantly mishandled all of Chijide's
grievances. And, from the progressively perfunctory manner in
which Maniilaq disposed of Chijide's complaints, a reasonable
person might also readily infer that Maniilaq came to view
Chijide's grievances as a nuisance and fired her for voicing her
expectations and asserting rights that Maniilaq had expressly
granted her in its manual.
There is, to be sure, an alternative, seemingly more
plausible explanation for Chijide's dismissal -- an explanation far
more favorable to Maniilaq and less charitable to Chijide. But the
relative implausibility of Chijide's version is irrelevant at the
summary judgment stage of proceedings. Because the record gives
rise to a genuine factual dispute as to the reason for Chijide's
firing and supports an inference that one potential reason was that
she had made herself unwelcome by too vigorously exercising the
rights that the personnel manual granted her and encouraged her to
use, the plausibility of her version is not an issue of law for the
court but an issue of fact for trial. I would hold that Chijide
has made a prima facie showing that Maniilaq violated the implied
covenant of good faith and fair dealing by firing her for reasons
that are objectively unfair.
Accordingly, I dissent.
FOOTNOTES
Footnote 1:
Chijide has abandoned the emotional distress claim on appeal
by failing to brief it. See Legge v. Greig, 880 P.2d 606, 609
(Alaska 1994).
Footnote 2:
The United States Constitution provides that no state "shall
. . . deprive any person of life, liberty, or property, without due
process of law." U.S. Const. amend. XIV, sec. 1. The Alaska
Constitution provides that "[n]o person shall be deprived of life,
liberty, or property, without due process of law." Alaska Const.
art. I, sec. 7.
Footnote 3:
The dissent suggests that the hospital may have violated the
implied covenant of good faith and fair dealing if it decided not
to renew Chijide's contract due to her vigorous exercise of the
grievance rights outlined in the personnel manual. But this is not
the argument made by Chijide on the issue of good faith and fair
dealing. Instead, she maintains that Dr. Shackles "was rude toward
her"and was "consistently negative and destructive." She
complains that although "[f]riendship and companionship should be
an integral part of the relationship between co-working
physicians[,] . . . this responsible and long standing practice was
not only not followed but was violated repeatedly and blatantly."
Chijide concludes that Dr. Shackles's "wholly unfounded and
terribly harmful conduct toward her led to and included her
dismissal and thus was a violation of the . . . implied covenant."
These allegations and the evidence supporting them do not create a
genuine issue of material fact on Chijide's claim of a violation of
the implied covenant of good faith and fair dealing.
Footnote 4:
Courts analyzing time provisions in a range of other scenarios
have reached conclusions that support this interpretation. SeePeople v. Harvey, 238 Cal. Rptr. 516, 518 (Cal. App. 1987)
(concluding that a motion to continue a hearing set for Monday was
properly filed at least two court days before the hearing when the
motion was filed on the previous Thursday, and observing that "[i]n
computing days, fractions are not counted but are deemed entire
days"); Husebye v. Jaeger, 534 N.W.2d 811, 815-16 (N.D. 1995)
(concluding that a referendum petition regarding a senate bill was
properly delivered within 90 days after the bill's filing, even
though the bill was filed at 4:48 p.m. and the petition was
submitted 90 days later after 4:48 p.m.; holding that "it is almost
universally accepted that, unless concerned with priority between
two events occurring on the same day, a day is considered an
indivisible unit of time, and fractions of a day are disregarded in
computing time"); Cleveland Wrecking Co. v. Indus. Comm'n of Ohio,
520 N.E.2d 228, 230 (Ohio 1988) (holding that a workers'
compensation claim filed at 2:12 p.m. on June 11, 1982 was timely,
even though the accident occurred on June 11, 1980 before 2:12
p.m.; noting that to compute time based on fractional days "would
create a system whereby an accurate record of the exact hour,
minute, and second of an occurrence would be necessary to validate
claims"); Olson v. Civil Serv. Comm'n, 719 P.2d 1343, 1344 (Wash.
App. 1986) (affirming "the principle that fractional portions of a
day should be disregarded in computing the passage of time").
Footnote 5:
In her brief, Chijide also contends that the superior court
erred in granting summary judgment to Maniilaq on her claim for
injunctive relief. Her argument is based on the premise that she
was wrongfully discharged. Because we conclude in part III of this
opinion that Maniilaq's decision to end Chijide's employment
constituted a valid nonrenewal of her contract, we also conclude
that Chijide was not wrongfully discharged. We therefore need not
consider her claim that specific performance, rather than damages,
would have been an appropriate remedy to redress her alleged
injury.
FOOTNOTES (Dissent)
Footnote 1:
See Jones v. Central Peninsula Gen. Hosp., 779 P.2d 783, 787 (Alaska 1989).
Footnote 2:
This provision is echoed by an express term of Chijide's employment contract, which
required her to communicate to Maniilaq "all suggestions and recommendations that will be
of mutual benefit to Employer and Employee."
Footnote 3:
See Jones, 779 P.2d at 787.
Footnote 4:
Parker v. Mat-Su Council on Prevention of Alcoholism & Drug Abuse, 813 P.2d 665,
666 (Alaska 1991).
Footnote 5:
See Op. at 13.
Footnote 6:
See Ramsey v. City of Sand Point, 936 P.2d 126, 133 (Alaska 1997).
Footnote 7:
Id.
Footnote 8:
Id.
Footnote 9:
See id.
Footnote 10:
See Luedtke v. Nabors Alaska Drilling, Inc. (Luedtke II), 834 P.2d 1220, 1224 (Alaska
1992).
Footnote 11:
Ramsey, 936 P.2d at 133.
Footnote 12:
See id. at 129.
Footnote 13:
Under Maniilaq's personnel manual, the grievance process requires an initial attempt
to resolve a problem informally through discussion or an informal written complaint. From
there, the process goes through four steps: at steps one and two the employee submits a
formal grievance to the employee's immediate supervisor or the division administrator; step
three is an appeal to Maniilaq's president; and step 4 is a final appeal to the Board of
Directors, with a right to a hearing before its Personnel Committee.
Footnote 14:
At the time, the position of hospital administrator was vacant; Chijide was thus entitled
to file her grievance directly with Maniilaq's president as a step 3 grievance.
Footnote 15:
A step 2 grievance to the administrator requires the administrator, within ten days, to
meet jointly with the complaining party and the subject of the complaint and to follow up with
a written response in ten days. The step 3 grievance procedure to the president does not
provide for a meeting, only that the president respond with a Grievance Reply, ordinarily based
on a review of the administrator's post-meeting findings at step 2. But when the step 3
grievance is based on the absence of an available administrator to receive a step 2 grievance,
the grieving party is left with no opportunity for a meeting on the grievance, and the president
is left with no report to review. This procedural gap may account for why Greene conducted
a meeting with Chijide and Shackles on May 21, even though the step 3 procedure does not
expressly mention one.
Footnote 16:
On December 8, Kramer wrote a second grievance decision. His December 8 decision
made no mention of his earlier memo dated December 4. Instead, it simply summarized the
December 7 meeting and concluded that "the final problem of communications between
[Chijide] and Dr. Shackles remains unresolved."
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