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Finch v Greatland Foods, INC (05/04/2001) sp-5403
Finch v Greatland Foods, INC (05/04/2001) sp-5403
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
JACK G. FINCH, )
) Supreme Court No. S-9234/9353
Appellant and )
Cross-Appellee, ) Superior Court No.
) 4FA-98-2641 CI
v. )
)
GREATLAND FOODS, INC., )
BOB'S DISTRIBUTING COMPANY, ) O P I N I O N
INC., d/b/a/ Greatland Foods, )
and STANLEY J. THOMSON, )
) [No. 5403 - May 4, 2001]
Appellees and )
Cross-Appellants. )
)
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Charles R. Pengilly, Judge.
Appearances: Robert B. Groseclose, Cook,
Schuhmann & Groseclose, Inc., Fairbanks, for
Appellant/Cross-Appellee. Timothy R. Byrnes, Hughes Thorsness
Powell Huddleston & Bauman LLC, Anchorage, for Appellees/Cross-
Appellants.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
BRYNER, Justice.
I. INTRODUCTION
Jack Finch appeals the superior court's order granting
summary judgment in favor of Bob's Distributing, his former
employer, on claims of constructive discharge, breach of the
covenant of good faith and fair dealing, and intentional infliction
of emotional distress. Because Finch presented sufficient evidence
to create a genuine fact dispute as to whether Bob's constructively
discharged him and breached the covenant of good faith and fair
dealing, we reverse the superior court on those issues. But
because Finch failed to present a prima facie case of intentional
infliction of emotional distress, we affirm summary judgment on
that issue.
II. FACTS AND PROCEEDINGS
In 1983 Jack Finch began working as a driver in the
Fairbanks branch of Bob's Distributing (Bob's). [Fn. 1] For ten
years, Finch worked many hours of uncompensated overtime and
participated in a pension plan. In 1993, when his concerns about
unpaid overtime and pension plan payments went unaddressed by
Bob's, Finch filed suit in superior court. His amended complaint
alleged that Bob's violated the Alaska Wage and Hour Act (AWHA),
[Fn. 2] breached the covenant of good faith and fair dealing,
mishandled his accounting/pension plans, and violated the Fair
Labor Standards Act (FLSA). [Fn. 3] The parties settled all state
law claims in a court-supervised settlement on April 22, 1994. In
exchange for Finch releasing his claims and agreeing to receive
authorization before working future overtime, Bob's paid Finch
$120,000. Superior Court Judge Ralph Beistline confirmed the
settlement on January 26, 1995.
According to Finch, after the April 24, 1994, settlement,
Bob's subsequently engaged in a pattern of harassment and
retaliation designed to force his resignation; this campaign made
his working conditions intolerable, caused his health to
deteriorate, and led him to resign in July 1995.
In October 1998 Finch sued Bob's in superior court
alleging breach of the covenant of good faith and fair dealing,
retaliation and constructive discharge, and intentional infliction
of emotional harm (IIED). Bob's moved for summary judgment.
Superior Court Judge Charles R. Pengilly granted Bob's motion,
concluding, as to Finch's claims for constructive discharge and
breach of the covenant of good faith and fair dealing, that
nothing in the record indicates the existence
of any "sustained campaign"by Bob's to do anything but maximize
its profits. Its position in the ongoing dispute about overtime
reflected nothing more than an effort, which was only partially
successful, to enforce its rights under the 1994 settlement
agreement. . . . Bob's is therefore entitled to summary judgment
. . . .
The court further determined that Finch failed to establish a
triable IIED claim, because the conduct alleged in support of this
claim was neither outrageous nor extreme. Finch moved for
reconsideration; the court denied Finch's motion. Finch appeals.
III. DISCUSSION
A. Standard of Review
We review a grant of summary judgment de novo and affirm
only if there are no genuine issues of material fact and the non-
moving party is entitled to judgment as a matter of law. [Fn. 4]
We draw all reasonable inferences in favor of the non-moving party.
[Fn. 5]
B. Genuine Issues of Material Fact Exist in Determining
Whether Bob's Constructively Discharged Finch and Breached the
Covenant of Good Faith and Fair Dealing.
The superior court granted Bob's motion for summary
judgment on Finch's claims of constructive discharge and breach of
the covenant of good faith and fair dealing on two separate
grounds: (1) Finch presented insufficient evidence to support
these claims, and (2) Bob's established that it was only attempting
to enforce the rights it secured under the settlement agreement by
reducing Finch's overtime. On appeal, Finch maintains that summary
judgment was improper as to these claims, because he presented
genuine issues of material fact as to whether Bob's engaged in a
pattern of conduct amounting to a constructive discharge and
whether Bob's actions were authorized under the settlement
agreement.
1. Finch presented sufficient evidence of constructive
discharge to overcome summary judgment.
Finch complained that Bob's forced him to resign by
creating intolerable working conditions and making Finch the target
of a "sustained campaign of harassment and discrimination . . .
[that] included threats to fire [Finch], ridicule of [Finch],"and
route assignments that set unattainable and impossible standards.
Finch argued that the "net effect of the changes undertaken by
Bob's Distributing after the bringing of my superior court
complaint in this matter was a demotion of me through route
reassignments and changes in my compensation format."
Bob's responded to these instances of alleged harassment
by asserting that the changes it made were for legitimate business
purposes, mainly to decrease overtime liability, and were not part
of a "sustained campaign to harass, penalize, and embarrass
[Finch]. They were normal types of business decisions." In
addition, Bob's maintained that these actions are not so
intolerable as to cause a reasonable person to quit.
We defined constructive discharge in the related cases of
Beard v. Baum (Beard I) [Fn. 6] and Cameron v. Beard (Beard II).
[Fn. 7] Beard was a State Department of Transportation (DOT)
employee who claimed that his supervisors "engaged in a pattern of
harassment tactics to force him to resign"after he made public
allegations of corruption at the DOT. [Fn. 8] After Beard reported
that various DOT employees were misusing state time and property
and falsifying their time sheets, he claimed that several of the
accused supervisors retaliated against him. They allegedly
organized a campaign to vote him out as building representative of
the Alaska Public Employees Association, unfairly evaluated his
work as "low acceptable,"gave him busy-work assignments,
scrutinized details of his performance, and falsely accused him of
stealing a typewriter. [Fn. 9] Beard suffered neck and back pain
due to this work-related stress; on the advice of his doctor, as
well as a friendly supervisor, Beard resigned. [Fn. 10]
The superior court struck Beard's claim for constructive
discharge. We reversed, holding that Beard had a legally viable
claim for constructive discharge: "where an employer makes working
conditions so intolerable that the employee is forced into an
involuntary resignation, the employer is as liable for any illegal
conduct involved therein as if it had formally discharged the
employee."[Fn. 11] After this ruling, the case was tried to a
jury that granted a verdict in favor of Beard. The state and four
of Beard's supervisors appealed.
We considered this appeal in Beard II. In upholding the
jury verdict, we elaborated on the elements required to establish
a claim of constructive discharge. We observed that "[c]ourts have
generally held that criticism of job performance or other
management decisions do not, standing alone, create intolerable
working conditions. However, a number of courts have upheld
constructive discharge judgments where an employer pursues a
sustained campaign against an employee."[Fn. 12] We elected to
define a viable constructive discharge claim, by reference to an
objective standard: "an employee has the burden of showing that a
reasonable person in the employee's position would have felt
compelled to resign. However[,] the employee need not prove that
the employer acted with the specific intent of causing the employee
to resign."[Fn. 13] Applying this standard, we concluded that,
even though some of Beard's allegations were pure speculation, the
record contained sufficient evidence to support the jury verdict.
[Fn. 14]
Under the Beard II standard, Finch was required to offer
evidence that might lead a reasonable person to find the working
conditions created at Bob's so intolerable as to cause a reasonable
person to resign. Viewing the summary judgment record in the light
most favorable to Finch, we conclude that he met this requirement.
In response to Bob's motion for summary judgment, Finch
specified four incidents to support his assertion that Bob's had
engaged in a sustained harassment campaign. First, Finch presented
evidence indicating that in November 1994, he requested emergency
leave to attend to his dying father in Texas. After waiting a week
and receiving no response, Finch took two weeks of leave. After
Finch returned, his sales manager, Randy Main, sent him a letter
asserting that this was the third year in a row that Finch had a
"'family emergency' arise around the Thanksgiving holiday season."
Main demanded that Finch provide him with a complete explanation of
the circumstances surrounding his leave.
Second, Finch claimed that in January 1995 Bob's gave his
lucrative distribution route to a junior employee, Roel Revermann,
forcing Finch to take Revermann's less profitable route and to
perform other "menial chores"under Revermann's supervision. Finch
stated that he had worked hard to develop his customer base in
Fairbanks for more than ten years and had continually enjoyed a
good rapport with his customers. From Finch's point of view, the
route switch with a junior driver was a humiliating demotion.
Third, Finch asserted that, shortly after imposing the
route switch, Bob's implemented a commission-based pay system,
reducing his monthly income by forty percent -- more than $1,000
per month. Although Bob's claimed that it implemented this
commission-based pay system on a company-wide basis, Finch
contended that Bob's delayed implementing the system in Fairbanks
until it had forced him to accept Revermann's lower-volume
accounts. Finch also pointed out that he was the only Bob's
employee statewide to receive a pay decrease as a result of the
commission-based pay system.
Fourth, Finch alleged that after placing him on a
commission-pay basis, Bob's failed to support his customer service
efforts. As an example of this failure, Finch testified that Bob's
had erroneously advised him that a certain customer-requested
special-order bread was no longer available from a supplier, when
it was in fact available. According to Finch, he contacted the
supplier and discovered that the specialty bread had always been
available.
To be sure, Bob's offered strong evidence controverting
Finch's version of each of these events. But for purposes of
determining whether Finch raised material fact disputes that could
withstand summary judgment, we must consider the evidence in the
light most favorable to Finch, not Bob's. [Fn. 15] And although
any one of these events alone would not support a claim for
constructive discharge, when viewed in totality and in the light
most favorable to Finch, we conclude that they could lead a
reasonable person in Finch's position to conclude that Bob's had
pursued a sustained campaign of harassment that ultimately
compelled him to resign. Therefore, Finch presented sufficient
evidence of constructive discharge to withstand summary judgment
under the Beard II standard.
2. Finch presented sufficient evidence to overcome
summary judgment on his claim for breach of the covenant of good
faith and fair dealing.
Given our decision that Finch raised a genuine fact
dispute on his constructive discharge claim, it follows that he
presented sufficient evidence to overcome summary judgment on his
breach of covenant claim. For if Bob's wrongfully discharged
Finch, it may have also breached the implied covenant of good faith
and fair dealing.
The covenant of good faith and fair dealing "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."[Fn. 16] In Ramsey v. City
of Sand Point, we explained that the implied covenant consists of
both subjective and objective factors. [Fn. 17] We determined that
"[a]n employer engages in subjective bad faith when it discharges
an employee for the purpose of depriving him or her of one of the
benefits of the contract."[Fn. 18] The employer breaches the
objective prong if its actions stem from improper motives and it
fails to "act in a manner which a reasonable person would regard as
fair."[Fn. 19]
Finch claimed that Bob's
knew the impact [the route change and
commission-based pay system] would have on [him] because the switch
of routes came after Bob's Distributing had announced on October
18, 1994, that a switch to commission compensation was to take
effect in the spring of 1995. Adding insult to injury was Bob's
Distributing's refusal to later supply the necessary product to new
customers, making it impossible for [him] to acquire and service
new customers to increase [his] income.
Finch believed that this demotion, pay cut, and resistance to his
customer service efforts were motivated by Bob's desire to
retaliate for his successful overtime claim. Bob's denied these
claims, asserting that it never intended to retaliate against
Finch; it merely sought to curb Finch's overtime hours and decrease
its employment costs.
But just as Finch's evidence would permit an inference
that Bob's engaged in a pattern of conduct amounting to a
constructive discharge, it also would permit an inference that
Bob's actions were motivated by a desire to retaliate against Finch
for his successful overtime suit. Bob's action would thus have
breached the subjective prong of the covenant. Further, if Bob's
actions were found to be objectively unfair, they would have
breached the objective prong of the covenant. Accordingly, a
genuine factual dispute exists on Finch's breach-of-covenant claim.
3. Material issues of fact exist as to whether Bob's
actions against Finch were authorized under the settlement
agreement.
In granting summary judgment, the superior court also
relied on the alternative basis that Bob's actions against Finch
were appropriate because the record demonstrated that Bob's had
merely attempted to enforce the overtime conditions of its
settlement agreement with Finch. As part of the April 1994
settlement, Finch agreed not to work any further overtime without
advance approval from Bob's; under the terms of the agreement, if
Finch failed to comply with this provision, Bob's was entitled to
terminate his employment.
In moving for summary judgment, Bob's produced evidence
that, after entering into this agreement in April 1994, Finch
continued to work unauthorized overtime through November 1994.
Finch did not controvert or dispute this evidence. But he did
offer proof of a potentially valid explanation for failing to
comply with the agreement's authorization requirement.
It appears undisputed in the record that Bob's did not
attempt to enforce the settlement's overtime authorization
requirement from April 1994 -- the date the parties agreed to the
settlement -- through October 1994. Bob's deferred implementing
the authorization requirement during this period because the
settlement agreement was still awaiting confirmation by the
superior court in Finch's original overtime action, where the
parties were disputing the agreement's enforceabilty. Thus, any
unauthorized overtime worked by Finch from April through October
would not have entitled Bob's to take action against him for
breaching the agreement. Indeed, Bob's summary judgment motion did
not assert any breach occurring before November 1994.
But on October 18, 1994, Stanley Thomson, Bob's
president, wrote Finch a letter stating that Bob's intended to
enforce the overtime provisions of the settlement agreement
beginning November 1, 1994. Bob's summary judgment motion asserted
that Finch breached the agreement after receiving Thomson's letter,
by working unauthorized overtime on November 2, 4, 7, 9, and 11; in
addition, Bob's asserted that Finch exceeded the amount of overtime
that Bob's had authorized him to work on November 14. Finch did
not deny these assertions. But he filed an affidavit explaining
that he had not obtained authorization to work overtime in early
November because Bob's had failed to make its preauthorization
procedures clear:
The 10/18/94 [Stanley Thomson letter]
instructions on overtime authorization were extremely confusing to
me, so I called Mr. Main and asked for clarification. My attorney,
Rene Broker, also requested clarification. I then received Mr.
Main's memo dated November 11, 1994. . . . At the time I received
the November 11, 1994, memo, I had been kept waiting 3 weeks for
clarification. Once I received the November 11, 1994 memo, I began
calling for permission to work overtime, as it instructed. Had the
apparent draft clarification been timely provided in October, Mr.
Main's later memorandum of 11/17/94 would have been unnecessary.
That memorandum criticizes me for not seeking pre-authorization
during a time when I was awaiting clarification of the course I was
to follow.[ [Fn. 20]]
This explanation finds support in a letter that Randy
Main wrote to Finch on November 11; Main's letter stated, in
relevant part: "[Bob's has] received no requests for overtime this
week and assume[s] you understand the correct procedures from our
earlier letter. One thought came to my mind, however, as to just
how the fax approvals are to be obtained." Main's letter then
detailed how to obtain faxed authorizations and how to submit them
with Finch's time sheet. Viewed in the light most favorable to
Finch, Main's letter could reasonably be read to imply Main's
acknowledgment that Bob's overtime policies had caused some
confusion and that they required clarification.
Bob's only assertion below regarding the period after
November 11 was that Finch exceeded the amount of overtime that
Bob's had authorized on November 14. The record does not establish
when Finch received Main's November 11 letter or whether he was
aware of the procedures described in the letter when he worked
unauthorized overtime on November 11 and 14. It is certainly not
clear from the record that Finch had received the letter by then.
Thus, a reasonable person might conclude that he did not work any
unauthorized overtime after receiving Main's letter of
clarification.
When viewed in the light most favorable to Finch, then,
the foregoing evidence might allow a reasonable person to find that
Finch had reasonable explanations for failing to obtain
authorization to work overtime through November 14. Accordingly,
we find that Finch raised a genuine fact dispute as to the superior
court's alternative basis for granting summary judgment -- that
Bob's was entitled to take adverse action against Finch for his
breach of the settlement agreement.
C. Finch Failed to Make Out a Viable IIED Claim.
To state a viable claim of intentional infliction of
emotional distress (IIED), Finch was required to allege facts
tending to show that Bob's conduct (1) was extreme and outrageous,
(2) was intentional or reckless, and (3) caused Finch severe
emotional distress. [Fn. 21]
In Richardson v. Fairbanks North Star Borough, we held
that the first and third elements of this tort -- outrageous
conduct and serious injury -- must be addressed by the trial court
in the first instance:
[T]he trial judge should make a threshold
determination whether the severity of the emotional distress and
the conduct of the offending party warrant a claim of intentional
infliction of emotional distress. . . . The judge's threshold
determination on these issues will not be overturned absent an
abuse of discretion.[ [Fn. 22]]
Here, although the totality of the evidence in the
summary judgment record could reasonably support Finch's
constructive discharge and breach of good faith covenant claims,
the evidence fails to meet the applicable definition of extreme and
outrageous conduct:
It has not been enough that the defendant has
acted with an intent which is tortious or even criminal, or that he
has intended to inflict emotional distress, or even that his
conduct has been characterized by "malice,"or a degree of
aggravation which would entitle the plaintiff to punitive damages
for another tort. Liability has been found only where the conduct
has been so outrageous in character, and so extreme in degree, as
to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.
The liability clearly does not extend to
mere insults, indignities, threats, annoyances, petty oppressions,
or other trivialities.[ [Fn. 23]]
Since the record in this case reveals no more than "insults,
indignities, threats, annoyances, [and] petty oppressions,"[Fn.
24] we affirm the trial court's order granting summary judgment in
favor of Bob's on the IIED claim.
D. The Modified Settlement Agreement Does Not Mandate
Dismissal of Finch's Claims.
Bob's separately argues that, even if the superior court
erred on the merits, we should affirm its decision, because the
court could have granted summary judgment based on the release
clause contained in the settlement agreement. This clause released
Bob's from "all claims set forth in [Finch's] complaint and amended
complaint arising from his employment relationship with [Bob's] to
date."[Fn. 25] Bob's asserts that this language applies to
Finch's current claims, because the superior court did not formally
confirm the parties' April 1994 settlement agreement until
January 1995 -- after Bob's alleged pattern of retaliatory
harassment had already begun.
We find no merit to this argument. Initially, we note
that Finch's complaint in this case does not assert any "claims set
forth"in his earlier "complaint and amended complaint." Moreover,
under Section Nine of the settlement agreement, "[Bob's] agree[d]
not to take any job action because of [Finch's] filing of the
above-referenced [overtime] claims." Assuming -- as we must for
summary judgment purposes -- that Finch's current allegations of
retaliatory motivation are true, then Bob's conduct plainly
violated the settlement agreement. Bob's fails to explain why it
should be entitled to invoke one provision of the settlement
agreement to bar an action arising from its own alleged breach of
another provision. And finally, because the settlement agreement
is a form of contract, the parties' intent at the time they entered
the agreement controls the meaning of its terms. [Fn. 26] The
agreement's release of all claims "to date"is therefore best
understood as a reference to the date when the parties executed the
agreement (April 1994), not to the date when the superior court
confirmed it (January 1995). It is inconsequential, then, that
Finch's current claims partly arose before confirmation. For all
these reasons, Finch's claims are not barred by the release clause
of the settlement agreement.
E. Res Judicata Does Not Bar Finch's Claims.
Bob's lastly argues that even if the settlement does not
bar Finch's claims, res judicata does.
Under the doctrine of res judicata, a final
judgment bars a subsequent suit, between the same parties or their
privies, upon the same claim or demand. A final judgment
extinguishes all claims "with respect to all or any part of the
transaction, or series of connected transactions"out of which the
previous action arose.[ [Fn. 27]]
Bob's posits that this doctrine applies here because
Finch's current claims arise out of the same employment
relationship as his earlier claims, and conceivably could have been
asserted in his earlier action. Bob's analogizes this case to
Plumber v. University of Alaska Anchorage. [Fn. 28] There we
applied res judicata to bar an employee from proceeding with her
wrongful discharge claim. Plumber sued the university and three
administrators in federal district court on August 4, 1993,
alleging racial and sexual discrimination. [Fn. 29] Plumber added
a retaliation claim in her amended complaint after receiving a poor
work evaluation on August 23. [Fn. 30] On October 18 Plumber
released her racial and sexual discrimination claims against the
university and administrators in exchange for a lump sum payment.
[Fn. 31] The court entered an amended final judgment on November
8. [Fn. 32]
When Plumber failed to receive a cost-of-living increase
on January 2, 1994, she sent a grievance to the university
governance office. [Fn. 33] The university maintained that, since
Plumber received a less than satisfactory rating on her August
evaluation, she was ineligible for the increase. [Fn. 34]
We determined that Plumber's claim was barred by res
judicata because the university regulations were in place
throughout the period in question, and Plumber had received an
opportunity to litigate her poor evaluation in the first suit. [Fn.
35]
But in contrast to Plumber's case, Finch's second suit
was based on wrongs that were allegedly committed after his first
suit had settled, and that, for this reason, could not have been
asserted in the earlier action. Accordingly, we hold that Finch's
claim is not barred by res judicata.
IV. CONCLUSION
We conclude that Finch presented evidence sufficient to
avoid summary judgment on his wrongful discharge and breach of the
implied covenant of good faith and fair dealing claims. Thus, we
REVERSE the order granting summary judgment. [Fn. 36] But because
Finch did not make out a claim for intentional infliction of
emotional distress, we AFFIRM the order granting summary judgment
on that claim to Bob's.
FOOTNOTES
Footnote 1:
Greatland Foods, Inc. acquired the assets of Bob's
Distributing in 1996. Since Finch worked for the company until
1995, we will refer to the appellee as "Bob's."
Footnote 2:
AS 23.10.050 - .150. Specifically, Finch complained of
violations of AS 23.10.060 and AS 23.10.100.
Footnote 3:
29 U.S.C. sec.sec. 201 - 19.
Footnote 4:
See Holland v. Union Oil Co. of California, 993 P.2d 1026,
1029 (Alaska 1999).
Footnote 5:
See id.
Footnote 6:
796 P.2d 1344 (Alaska 1990).
Footnote 7:
864 P.2d 538 (Alaska 1993).
Footnote 8:
Beard I, 796 P.2d at 1347.
Footnote 9:
See id.
Footnote 10:
See id. at 1348.
Footnote 11:
Id. at 1350. Alaska's constructive discharge cause of action
is consistent with federal policy. Federal courts unanimously
recognize a constructive discharge claim that prevents employers
from creating intolerable work environments designed to force
employees to resign. See id. at 1349-50 n.5 (citing Sure-Tan, Inc.
v. N.L.R.B., 467 U.S. 883, 894 (1984); Young v. Southwestern Sav.
& Loan Ass'n, 509 F.2d 140, 144 (5th Cir. 1975); N.L.R.B. v. Holly
Bra of California, 405 F.2d 870, 872 (9th Cir. 1969)); see also Watson
v. Nationwide Ins. Co., 823 F.2d 360 (9th Cir. 1987)
(reversing grant of summary judgment to defendant in constructive
discharge case stemming from Title VII discrimination claim); Nolan
v. Cleland, 686 F.2d 806 (9th Cir. 1982) (same).
Footnote 12:
Beard II, 864 P.2d at 547 (internal citations omitted).
Footnote 13:
Id. (citations omitted).
Footnote 14:
See id. at 548.
Footnote 15:
See Ramsey v. City of Sand Point, 936 P.2d 126, 129 (Alaska
1997).
Footnote 16:
Jones v. Central Peninsula Gen. Hosp., 779 P.2d 783, 789
(Alaska 1989).
Footnote 17:
936 P.2d at 133.
Footnote 18:
Id.
Footnote 19:
Id. (citing Luedtke v. Nabors Alaska Drilling, Inc., 834 P.2d
1220, 1224 (Alaska 1992)). Similarly, an employer may breach the
covenant by firing an employee in violation of public policy. See
Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123, 1130
(Alaska 1989).
Footnote 20:
Finch stated in a deposition presented with Bob's memorandum
in support of its motion for summary judgment that he responded to
Thomson's letter by requesting clarification from Main concerning
overtime procedures and was waiting for such clarification at that
time.
Footnote 21:
See Teamsters Local 959 v. Wells, 749 P.2d 349, 357 (Alaska
1988); see also Richardson v. Fairbanks N. Star Borough, 705 P.2d
454, 456 (Alaska 1985) (adopting the Restatement (Second) of Torts
sec. 46(1) (1965) in defining a claim for IIED). The Restatement
defines the tort of IIED: "One who by extreme and outrageous
conduct intentionally or recklessly causes severe emotional
distress to another is subject to liability for such emotional
distress, and if bodily harm to the other results from it, for such
bodily harm."
Footnote 22:
705 P.2d at 456 (footnotes omitted); see also Nome Commercial
Co. v. National Bank of Alaska, 948 P.2d 443, 453 (Alaska 1997).
Footnote 23:
Restatement (Second) of Torts sec. 46(1) cmt. d; see also
Teamsters Local 959, 749 P.2d at 357 n.13.
Footnote 24:
See Restatement (Second) of Torts sec. 46(1) cmt. d.
Footnote 25:
The release language in the settlement provides, in relevant
part:
6. General Release. As a material
inducement to Defendant to enter into this Agreement, Plaintiff
hereby irrevocably and unconditionally releases and discharges
Defendant and each of its officers and employees for any and all
claims set forth in plaintiffs [sic] complaint and amended
complaint arising from his employment relationship with the
Defendant to date, including, without limitation each and every
claim referred to in Section 2 above with the sole exception of the
[ERISA] payment claims in Section 2(D).
. . . .
8. Allocation of Payments. The above
payments totaling $120,000 represent payment for all of Plaintiff's
alleged claims and causes of action (except for the [ERISA] payment
claims referenced in Section 2(D) above).
Footnote 26:
See Larsen v. Municipality of Anchorage, 993 P.2d 428, 431,
433 (Alaska 1999).
Footnote 27:
Tolstrup v. Miller, 726 P.2d 1304, 1306 (Alaska 1986) (quoting
Restatement (Second) of Judgments sec. 24 (1982)) (citations
omitted).
Footnote 28:
936 P.2d 163 (Alaska 1997).
Footnote 29:
See id. at 165.
Footnote 30:
See id.
Footnote 31:
See id.
Footnote 32:
See id.
Footnote 33:
See id.
Footnote 34:
See id.
Footnote 35:
See id. at 167-68.
Footnote 36:
Bob's cross-appealed on the superior court's denial of its
request for attorney's fees and costs stemming from the preceding
federal litigation. Our disposition of this case renders the
attorney's fees and costs issue moot.
