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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kinzel v. Discovery Drilling, Inc. (06/25/2004) sp-5820
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
JEFFREY KINZEL and )
CHERYL KINZEL, ) Supreme Court No. S-10190
)
Appellants, )
) Superior Court No.
v. ) 3AN-99-10959 CI
)
DISCOVERY DRILLING, INC., ) O P I N I O N
and HART CROWSER, INC., )
)
Appellees. ) [No. 5820 - June 25,
2004]
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Marion C. Kelly, Bernard P.
Kelly, Wade, Kelly & Sullivan, Anchorage, for
Appellants. Paul S. Wilcox, Lisa C. Hamby,
Hughes Thorsness Powell Huddleston & Bauman
LLC, Anchorage, for Appellee Discovery
Drilling, Inc. Mary L. Pate, Eide, Miller &
Pate, P.C., Anchorage, for Appellee Hart
Crowser, Inc.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
MATTHEWS, Justice.
INTRODUCTION
Jeffrey Kinzel filed an occupational safety and hazard
complaint against Hart Crowser, the company with which his
employer, Discovery Drilling, had subcontracted. He was
subsequently reassigned to a different worksite, where he injured
his back. He filed for workers compensation and took medical
leave, but was soon fired. He sued Hart Crowser for defamation,
negligence, and intentional interference with contract, and his
employer for defamation and wrongful termination. After some
claims were dismissed on summary judgment, a jury rendered a
verdict for both defendants on all remaining claims. This appeal
involves a number of challenges to the superior courts pre-trial
and trial rulings.
FACTS
In the summer of 1998, Kinzel was a laborer on an
environmental cleanup site at Fort Wainwright. As a general
laborer Kinzel was open to any kind of work, but the majority of
his time was spent digging trenches in a small, closed-cab
backhoe. This was considered less demanding work than some of
the other job possibilities at the site.
Kinzels employer, Discovery Drilling, Inc., provided
subcontracting work for Hart Crowser, Inc., an environmental
engineering company. The two companies had a long relationship.
For the Fort Wainwright site, Hart Crowser subcontracted with
Discovery for both drilling and remediation services.
Specifically, Discoverys role in the project was in part soil and
ground water remediation, a process of digging trenches with a
backhoe and then assembling a grid of wells, pumps, and pipes
known as a remediation system intended to remove environmental
contaminants from groundwater and soil. This was a two-man job
for Discovery, employing only Kinzel and his colleague Gary
Erickson. Though Erickson had more seniority, Kinzel served in a
de facto supervisory capacity for the pair, as he was more
familiar with the Fort Wainwright location and the Hart Crowser
employees who worked there from his previous summer at the site.
In particular, Kinzel had more open lines of communication with
Craig Martin, Hart Crowser project manager and the ranking
supervisor at the site. Kinzels supervision applied only to
Erickson, and he was subject to the supervision and control of
both his employer and Hart Crowser.
Beginning in May of that year and continuing until the
Fourth of July weekend, the weather was hot and windy. As a
result, Kinzel and Erickson had problems with dust. In early
June, because of a severe sinus infection, Erickson was forced to
visit a doctor. He immediately suspected that his sickness was
connected to the worksite dust, and filed an anonymous complaint
with the Alaska Department of Labor, Division of Occupational
Safety and Health (OSH). It appears that this complaint was
never investigated.
Kinzel also sought medical attention for a respiratory
infection. This resulted in his having to take several days
leave. Kinzel testified that after his sickness he was more
vocal about potential safety issues involving dust, but
eventually found it pointless to keep on complaining because Hart
Crowsers project manager, Martin, didnt want to hear about it.
The dust became a bone of contention because Martin
thought the Discovery employees were wasting too much time and
were going over his head to solve a problem that he felt was
minor or nonexistent. Martin found Kinzels efforts especially
problematic because Hart Crowser and Discovery employees often
worked on joint projects, and he believed Hart Crowser could get
little or nothing done if Discovery employees were spending time
trying to avoid or control dust. Martin told Kinzel and Erickson
to quit . . . whining and if [they] have a problem with the dust
[they] can just leave.
During the Fourth of July weekend, Discoverys president
Kyle Brown and Kinzel met to discuss the growing difficulties
between Discovery and Hart Crowser employees at the Fort
Wainwright site. Brown seemed to be particularly concerned with
the tension between Kinzel and Martin. He and Kinzel spoke of
communication problems and apparently came to a mutual agreement
about getting a fresh start at the site.
After the weekend, dust became less of a problem as the
work changed to a new area. However this new worksite emitted a
pungent, gasoline or pesticide odor which many feared was unsafe.
Hart Crowser tested the ground water but found no significant
contamination. Around the same time, fearing that nothing was
being done in response to Ericksons complaint, Kinzel filed an
OSH complaint, eventually prompting an investigation.
Around the time of the OSH inspectors arrival at the
site, Hart Crowser cordoned off an exclusion zone encircling a
suspected area of contamination. No one was permitted into this
zone without a respirator. Kinzel expressed some resistence to
wearing a mask just to enter the zone, because this would require
him to shave off his beard.
On July 25 a Hart Crowser employee, Bryan Johnson,
reported to Martin that he had seen Kinzel in the exclusion zone
without a respirator for the second time. At Hart Crowsers
request Kinzel was asked to leave the Fort Wainwright worksite,
and he reported back to Discoverys Anchorage headquarters.
After Kinzel returned to Anchorage, Discovery
reassigned him to a more arduous job in Glennallen, under the
supervision of a foreman whom Kinzel believed to be hard on his
men. After several days of long shifts and heavy lifting, Kinzel
suffered serious back pain. He asked to be relieved from the
project, and on August 2 returned to Anchorage, visiting a doctor
the following day. His doctor, Dr. Derek Hagen, gave him a note
releasing him to light duty work only.
Kinzel returned to the Discovery office and had a
conversation with Brown, the substance of which was disputed at
trial. Discovery claims that Brown had light duty work available
for Kinzel, but that Kinzel told Brown he was supposed to take
two to three days off, never revealing the light duty doctors
note. Kinzel claims that he attempted to give the note to Brown,
but that Brown refused to look at it. According to Kinzel, Brown
then said, if you cant work in the field, then you might as well
go home. Discovery counters that Kinzel did not return to work
after the 2-3 days he said the doctor told him to be off.
On August 12 Kinzel filed a workers compensation
injury report. Brown signed the report on the same day, stating
that there was no injury the employee does not like the work and
has been reassigned. On August 12 Kinzel took a new note from
Dr. Hagen to Brown; the note stated that Kinzel should not work
until the end of August.
Brown claims that he understood Kinzel was to be off
work only until the end of August. But on August 31 Brown signed
a form containing Dr. Hagens handwritten statement that indicated
that Kinzel was to be off work until October 8 pending orthopedic
evaluation. Brown claims he never saw this statement and
instead only signed the form where asked. The doctors statement
is a few lines above the section Brown filled out. Brown wrote
ALLEGED under the forms reference to illness or injury.
In early September Brown terminated Kinzels employment
at Discovery. Brown eventually sent a letter to Kinzel
explaining his reasons for the termination.1 The letter states
that the reasons
pertinent to your discharge are your directly
lying to me about the results of your doctors
visit on August 3rd, 1998, including failure
to give me the doctors note from that visit,
and failure to return to work, to come by the
office in person, or to call the office on
September 1st, 1998 as was specified in a
later doctors note that we did receive
clearing you to return to work on that date.
We received no further correspondence from
you or notes from any doctors on your behalf.
You clearly had no interest in maintaining
your job or showing even common courtesy to
your employer.
PROCEEDINGS
Kinzel and his wife Cheryl filed the present suit
against Discovery and Hart Crowser in October 1999, alleging
retaliatory and constructive discharge claims against Discovery,
multiple defamation claims against both defendants, an
intentional interference with contract claim against Hart
Crowser, and a negligence and a cancer phobia2 claim against Hart
Crowser. Because of summary judgment rulings, by the time of
trial only one of Kinzels defamation claims remained against each
defendant, along with a fear of cancer claim against Hart Crowser
and a wrongful termination claim against Discovery.
The jury rendered a verdict for both defendants on
these claims.
Kinzel appeals.
DISCUSSION
Issues on Appeal
Kinzel raises numerous issues on appeal. The issues
discussed in this opinion are set out below along with a summary
of our resolution of each. Other issues
are resolved summarily. They are listed in the margin along with
a summary reason for our decision concerning each.3
1. Did the trial court err in failing to give a mixed-
motive instruction on the retaliatory discharge claim? Yes,
because the evidence was sufficiently strong that Kinzel was
discharged for reasons that included a prohibited motive.
2. Did the trial court err in limiting Kinzel to two weeks
severance pay for his retaliatory discharge claim? Yes, because
a retaliatory discharge in violation of an explicit public policy
gives rise to a tort as well as a contract claim.
3. Did the trial court err in granting summary judgment to
Hart Crowser on Kinzels first defamation claim? Yes, the
challenged statement could reasonably be interpreted as an
assessment based upon factual underpinnings.
4. Did the trial court err in connection with instructing
the jury regarding Kinzels defamation claim against Discovery?
There is no reversible error on this point. The error that was
made was harmless and Kinzels argument regarding an instruction
that should have been given is considered abandoned because of
inadequate briefing.
5. Did the trial court err in excluding medical testimony
regarding Kinzels back injury? No, the trial courts exclusionary
rulings were correct when made and the court properly allowed
such evidence when its relevance to Kinzels defamation claim was
argued.
6. Did the trial court err in granting Hart Crowser
summary judgment on Kinzels intentional interference with
contract claim? Yes, there are genuine issues of material fact
as to cause and privilege.
We proceed to a discussion of the above issues.
1. Mixed-Motive Instruction
Kinzel complained that Discovery wrongfully terminated
him for his role in filing OSH complaints against Hart Crowser or
for filing for workers compensation benefits. At trial, the
superior court gave the following jury instruction regarding
this claim:
In considering Discovery Drillings
reasons for terminating Jeffrey Kinzel, if
you conclude that Discovery Drilling made its
decision to terminate Jeffrey Kinzel in the
good-faith belief that Jeffrey Kinzel had
misrepresented the nature of the doctors
releases hed obtained and a good-faith belief
that Jeffrey Kinzel failed to return to work
at the end of the period for which his doctor
had released him, you may find that Discovery
Drilling acted in good faith even if it [was]
later discovered that the reasons for
terminating Jeffrey Kinzel were mistaken.[4]
The special verdict form was worded:
(16) Did Jeffrey Kinzels filing of a
workers compensation claim have a
determinative effect in Discovery Drillings
decision-making process in terminating his
employment?
. . . .
(17) Did Jeffrey Kinzels filing of a
complaint with AKOSH have a determinative
effect in Discovery Drillings decision-making
process in terminating his employment?
The jury answered no to both of these questions.
In Veco, Inc. v. Rosebrock we laid out the framework
for retaliatory discharge claims.5 To establish a prima facie
case of retaliation, a plaintiff must show:
(1) that [the employee] was engaged in a
protected activity;
(2) that an adverse employment decision was
made; and
(3) that there was a causal connection
between the two.[6]
Quoting from Miller v. Fairchild Industries, Inc.,7 we stated
that [c]ausation sufficient to establish a prima facie case of
unlawful retaliation may be inferred from the proximity in time
between the protected action and the allegedly retaliatory
discharge . . . .8 Once a prima facie case is established, the
burden of production shifts to the employer to articulate a
legitimate nonretaliatory explanation for the discharge. To
satisfy this burden, the employer need only produce admissible
evidence which would allow the trier of fact rationally to
conclude that the employment decision had not been motivated by
discriminatory animus. 9 If the employer meets its burden of
production by articulating a legitimate reason for terminating
the employee, then the burden shifts once again to the plaintiff
to show that the defendants proffered explanation is merely a
pretext for discrimination.10
In this case Kinzel made a prima facie case of
retaliation. He engaged in protected activities when he filed
his OSH complaint and workers compensation claim, and he was
fired. The close proximity in time between these events gave
rise to an inference of causation. Discovery articulated
legitimate, nondiscriminatory reasons for firing Kinzel. Thus
the burden shifted back to Kinzel to prove that these reasons
were pretextual. The focus at trial was the motive for firing
Kinzel. Were the reasons offered by Discovery genuine or
pretextual?
Kinzel was not satisfied with the instructions that the
court eventually gave and requested a mixed-motive instruction
similar to the mixed-motive instruction in Veco.11
In Era Aviation, Inc. v. Lindfors12 we explained the
nature and function of a mixed-motive instruction:
In cases where there is direct evidence
of discrimination, we instead apply a
mixed-motive analysis, which recognizes that
discriminatory employment decisions may not
be motivated solely by a prohibited
characteristic such as race or sex, but may
be based on a mixture of legitimate and
illegitimate considerations. Under the
mixed-motive framework, once the plaintiff
has cleared the initial hurdle of presenting
direct evidence of discriminatory intent, the
plaintiffs ultimate burden of proof is
somewhat relaxed: the jury is instructed
that the plaintiff can prevail in a claim of
discrimination by showing that gender was
simply a motivating factor, as opposed to the
determinative factor, in the adverse
employment decision. Still, gender must be a
determinative cause, but the burden shifts to
the employer on this point. The employer
must show that it would have made the same
decision even absent considerations of
gender. Although the plaintiff may pursue
mixed-motive and pretext claims
simultaneously, if the jury finds no direct
evidence of discrimination, it must find the
defendant liable, if at all, under a pretext
framework.[13]
As the above language makes clear, there must be direct
evidence that the employers conduct was motivated, at least in
part, by a prohibited reason in Era gender discrimination, in
the present case retaliation because the employee filed an OSH
claim or a workers compensation claim. Kinzel argues that he met
this requirement and Discovery argues that he did not.
The term direct evidence in the context of the mixed-
motive methodology comes from the decision of the United States
Supreme Court in Price Waterhouse v. Hopkins.14 Courts subsequent
to Price Waterhouse have struggled with the meaning of the term
direct. The Second Circuit has observed that direct should not
be understood
in its sense as antonym of circumstantial,
for that type of direct evidence as to a
mental state is usually impossible to obtain:
Direct evidence, it
seems, is an unfortunate
choice of terminology for
the sort of proof needed
to establish a mixed-
motives case. Direct and
indirect describe not the
quality of the evidence
presented, but the manner
in which the plaintiff
proves his case. Strictly
speaking, the only direct
evidence that a decision
was made because of an
impermissible factor
would be an admission by
the decisionmaker such as
I fired him because he
was too old. Even a
highly-probative
statement like You're
fired, old man still
requires the factfinder
to draw the inference
that the plaintiffs age
had a causal relationship
to the decision. But
juries have always been
allowed to draw such
inferences.[15]
The Second Circuit takes the position that a plaintiff may prove
that a forbidden animus was a motivating factor through either
direct or circumstantial evidence so long as the circumstantial
evidence is sufficiently strong. Mere statistical evidence would
not warrant a mixed-motive charge, nor would stray remarks in the
workplace by persons who are not involved in the pertinent
decisionmaking process.16
The Second Circuit court in Ostrowski summarized its
approach to mixed-motive cases as follows:
In sum, if the plaintiff presents
evidence of conduct or statements by persons
involved in the decisionmaking process that
may be viewed as directly reflecting the
alleged discriminatory attitude, and that
evidence is sufficient to permit the
factfinder to infer that that attitude was
more likely than not a motivating factor in
the employers decision, the jury should be
instructed that if it does draw that
inference the plaintiff is entitled to
recover unless the employer has established
by a preponderance of the evidence that the
employer would have taken the same action
without consideration of the impermissible
factor. The jury should also be instructed,
in substance, that the employer may not meet
its burden in [a mixed-motives] case by
merely showing that at the time of the
decision it was motivated only in part by a
legitimate reason. . . . The employer
instead must show that its legitimate reason,
standing alone, would have induced it to make
the same decision.[17]
We agree with the Second Circuits approach to the
quantum of proof required in order to justify a mixed-motive
instruction. We align ourselves with these views in recognition
of the difficulty of proving that an unlawful motive impelled any
particular employment decision and the desirability of
implementing the statutory policy against retaliatory discharges.18
We discussed the sufficiency of the evidence for a
mixed-motive instruction in Era. In Era we considered whether a
plaintiff, who complained of gender discrimination, had presented
enough evidence to warrant a mixed-motive instruction.19 The
evidence presented in that case involved two harsh statements
directed toward the plaintiff in which she was told she had no .
. . business being a captain and that she would never be a
captain.20 We noted that these statements could not be construed
to be direct evidence that sex was a factor in Eras failure to
promote the plaintiff.21 While the statements were certainly
clear that the Era decisionmaker had a strong view that the
employee did not deserve a promotion, they were silent as to the
reasons for this view. Both statements are ambiguous they can
be interpreted in a discriminatory or benign way and do not
reflect directly on Eras discriminatory animus.22
Here, Kinzel argues that unlike the situation in Era,
the evidence presented at trial revealed an animus based on his
protected activity. At trial, Kinzel presented two e-mails
written and sent by Brown to Craig Martin. The first e-mail was
dated July 25, 1998. Brown wrote Martin:
I understand that you have told Dave to have
Jeff Kinzel removed from the site. I
understand. Please confirm that request to
me in writing. It can be by e-mail or fax.
If you would include an official reason, that
would be helpful. I do apologize for the
recent events, however I was stuck in the
middle between you and Jeff. I assume we
might take up all that at a later time when
the wound is not so fresh.
At trial, Brown was asked to explain what wound he was referring
to in his message. Brown replied,
Well, obviously, an OSHA investigation is an
unpleasant arrangement in any regard. The
things that they were looking into, Craig was
clearly not happy about it. In a general
sense, I dont know that anybody was happy
about having to discontinue what they were
doing and respond to the investigators
requirements.
In an e-mail dated August 13, 1998, to Martin, Brown
wrote:
Craig, I am sure that neither of us are happy
about the way this project ended. It was a
no win situation for absolutely everyone
involved. . . . I just wanted to touch base
after the initial pain had subsided a bit and
say that I clearly tried too long to give
Jeff [Kinzel] a chance to get over the
details and see the big picture. . . . I
will be paying for a long time for giving him
a chance.
When Brown was asked at trial about his use of the words initial
pain, he acknowledged that he again was referring to the OSH
investigation. He further testified that he was upset more about
Kinzels report to OSH than he was about the quality of his work.
Browns e-mails and corresponding testimony reveal an
animus based on Kinzels OSH report. Brown characterized the
actions of Kinzel as creating a wound and a pain in the relations
between Discovery and Hart Crowser, and Browns explanation at
trial revealed he was upset with Kinzel for these actions: So I
guess what I was upset about was not the work. These facts
distinguish this case from Era. In Era, the plaintiff failed to
provide evidence of animus based on forbidden motives. Here,
however, the evidence shows an animus triggered by Kinzels safety
complaints.
Although the e-mail statements by Brown as explained by
his testimony directly reflect an animus against Kinzel based on
Kinzels protected conduct, was the evidence sufficient to permit
a jury to infer that that attitude was more likely than not a
motivating factor in the employers decision?23 We believe that it
was sufficient. The e-mail evidence plainly suggests that at
least one adverse employment decision was made by Brown because
of Kinzels OSH report: Kinzels reassignment from the Fort
Wainwright job to the more physically demanding job at
Glennallen. Although this adverse employment action was not the
one that was under review by the jury, Kinzel was fired a little
more than a month after he was reassigned. If an improper motive
played a role in the reassignment, there is little reason to
think that it would have been dispelled at the time of Kinzels
firing.24
We conclude therefore that a mixed-motive instruction
should have been given. But Discovery argues that the failure to
give such an instruction was harmless error as the jury found
Kinzels filing of a workers compensation claim and an AKOSH
complaint did not have a determinative effect in Discovery
Drillings decisionmaking process in terminating his employment.
Discovery misses the point of a mixed-motive instruction. If the
jury had been given a mixed-motive instruction, Kinzel would only
have had to show that Discoverys prohibited motive was a
motivating factor, though not necessarily a determinative one, in
the decision to fire Kinzel. If the jury so found the burden
would have shifted to Discovery to show that it would have fired
Kinzel even if he had not initiated safety-related complaints on
the Fort Wainwright job. By contrast, under the instructions as
given, the burden was on Kinzel to show that his filing had a
determinative effect.25 Since the jurys finding was not guided by
an appropriate instruction, it does not show that the failure to
give such an instruction was harmless.26
2. Limiting Lost Wages to Two Weeks
The superior court ruled that since Kinzel was an at-
will employee subject to termination upon two weeks notice
without cause, Kinzel was entitled to lost wages for no more than
two weeks pay. Kinzel claims that this limitation was erroneous
because his retaliatory discharge action should be considered an
action in tort rather than contract. He argues that it follows
from the tort nature of his claim that his lost wages claim
should not be limited to the two-week notice period and further
that emotional distress damages, loss of consortium damages, and
punitive damages were eliminated by the courts ruling that his
retaliation claim could only be recognized in contract.
Discovery responds that this argument is not a basis
for reversal since it relates only to the measure of damages and
the jury found for Discovery on the liability issues relating to
the wrongful termination claim. Discovery also argues that
breaches of the covenant of good faith and fair dealing have
consistently been held to be contract actions in Alaska, that the
proper measure of damages in a wrongful termination contract case
is the employees reasonable expectations, and that Kinzels
reasonable expectations did not extend beyond the two-week notice
of termination period to which he was entitled as an at-will
employee.
In reply, Kinzel argues that if at-will employees were
limited to two weeks severance pay on claims for retaliatory
discharge this would actually encourage employers to fire at-will
employees who reported to OSH; the consequences to the employer
would be slight and the incentive to be rid of a gadfly would be
great. Kinzel also contends that in virtually every state that
has considered the issue, employer retaliation for filing a
safety-related complaint is considered a tort, that the measure
of damages for the tortious discharge of an at-will employee is
based on the employees expectation of continued employment, and
relevant to this is the employees past history with the company.
He notes that he had worked for Discovery for nearly six years
and thus his expectation of continued employment could not fairly
be limited to two weeks.
Discovery is correct that this issue is not grounds for
reversal. It relates to damages only, and the jury returned a no-
liability verdict. But since the verdict must be reversed on
other grounds, we believe that it is advisable to address the
issue briefly for guidance upon retrial.
In Reed v. Municipality of Anchorage an employee
alleged that he had been fired in retaliation for filing a job
safety complaint.27 We held that the whistleblower statute, AS
18.60.089, does not confer a private cause of action, but that
the employee had a common law remedy for his retaliatory
discharge claim.28 He alleged that his termination for
whistleblowing was a violation of the covenant of good faith and
fair dealing that is implied in employment contracts.29 We
agreed. In so ruling we did not imply that the employees claim
was not also a tort claim. The employee apparently only sought
recognition of his claim as one sounding in contract. In
reaching our conclusion that AS 18.60.089 did not preclude a suit
for retaliatory discharge we noted that our conclusion was
similar to the conclusion reached by the New Jersey Supreme Court
in Cerracchio v. Alden Leeds, Inc.,30 which permitted a tort
action to recover damages based upon [the employees] discharge in
violation of the public policy of this state . . . .31
In ARCO Alaska, Inc. v. Akers the issue was whether
this state will permit tort recovery when the implied covenant of
good faith and fair dealing is breached in an employment contract
and the breach violates no explicit public policy.32 We answered
this question in the negative. But we specifically stated that
we were not deciding whether a tort claim could be maintained
where a discharge violated an explicit public policy.33
In Central Bering Sea Fishermen's Association v.
Anderson an employee with a one-year contract brought a claim
for, among other theories, constructive retaliatory discharge.34
We did not indicate whether we considered this claim to sound in
tort or contract. We held that damages should be limited to the
unexpired term of the contract, citing the normal rule that a
wrongfully discharged employee is entitled to the total amount of
the agreed upon salary for the unexpired term of his employment.35
We recognized that cases may exist where the specific term of an
employment contract should not limit lost earnings damages.36 But
we held that the employees claim in Anderson was not such a case
because the employee was to occupy a new position in a new
company created by a new government program, allocating shares in
a volatile industry.37
In the present case violations of explicit public
policies protection of whistleblowers who file safety complaints
or workers who file workers compensation claims are alleged.38
In these circumstances we believe that it is appropriate to allow
a tort remedy to more effectively deter prohibited conduct. We
thus join the numerous authorities that have so ruled.39 The
parties have only touched on what the appropriate measure of
damages for lost wages would be for the tortious discharge of a
whistleblower. We decline to attempt a definitive ruling on this
subject based on the briefing before us. Instead, this is a
subject that should be addressed on remand.
3. First Defamation Claim Against Hart Crowser
Kinzel brought defamation claims against Hart Crowser
based on two different statements made by Craig Martin. One of
the claims was dismissed on summary judgment, while the other
claim was tried and the jury found in favor of Hart Crowser. We
discuss here the summary judgment decision as to the first claim.
We review grants of summary judgment de novo and in the
light most favorable to the non-moving party.40 Summary judgment
is upheld if the evidence presents no genuine issue of material
fact and the moving party is entitled to judgment as a matter of
law.41 The party opposing summary judgment need not establish
that it will ultimately prevail at trial, but only that there
exists a genuine issue of fact to be litigated.42
Kinzel claims as error the superior courts grant of
summary judgment for Hart Crowser on Kinzels first defamation
claim. Kinzel asserts that Hart Crowsers Martin made defamatory
statements about Kinzel in an e-mail to Kyle Brown. The e-mail
read:
In light of the issues that we have had to
deal with during the 8 Car Header
installation, I think that it would be better
if you didnt have Jeff up here. The air
sparge line issue (not installing the black
iron pipe) was apparently done during the
last few days that he was here and I wonder
if it was deliberate. Like to hear your
thoughts on the subject. (Emphasis added.)
In ruling, the superior court did not give reasons for
granting Hart Crowsers motion for summary judgment. Kinzel
speculates that the basis of the ruling was that the statement
was protected opinion speech, and argues that a fact-opinion
dichotomy is misguided. Hart Crowser argues that there are two
legitimate bases upon which the court could have ruled: (1) the
statement was incapable of being proven false, or (2) the
statement was privileged.
Kinzel argues that a statement is defamatory if it
implies underlying factual knowledge, even if it is allegedly
expressed as an opinion. Kinzel thus anticipates Hart Crowsers
defense that expressions of opinion are always protected speech.
In dealing with the fact/opinion distinction, we are guided by
the United States Supreme Court in Milkovich v. Lorain Journal
Co.43 and our own opinion in Sands v. Living Word Fellowship.44
In Milkovich, the United States Supreme Court was
concerned with a common misinterpretation of dicta in one of its
earlier cases, Gertz v. Robert Welch, Inc.45 Some courts asserted
that Gertz stood for the proposition that opinion could never
qualify as defamation.46 But as Milkovich explained:
we do not think this passage from Gertz was
intended to create a wholesale defamation
exemption for anything that might be labeled
opinion. Not only would such an
interpretation be contrary to the tenor and
context of the passage, but it would also
ignore the fact that expressions of opinion
may often imply an assertion of objective
fact.[47]
In Sands we acknowledged Milkovich and Gertz and
determined that the real distinction is not between opinions and
facts, but between statements represented as expressions of ideas
and statements purporting to represent facts:
The First Amendment bars actions for
defamation where the allegedly defamatory
statements are expressions of ideas and
cannot reasonably be interpreted as stating
actual facts about an individual. Milkovich,
497 U.S. at 20; see Gertz, 418 U.S. at 339.
If the context demonstrates to the audience
that the speaker is not purporting to state
or imply actual, known facts, then the speech
is protected by the First Amendment.[48]
This interpretation is supported by the Restatement of Torts49 and
Keeton.50
The Seventh Circuit has stated, if it is plain that the
speaker is expressing a subjective view, an interpretation, a
theory, conjecture, or surmise, rather than claiming to be in
possession of objectively verifiable facts, the statement is not
actionable.51 The First Circuit has further explained that some
statements are protected opinion speech not because [they are]
vague or judgmental but because [they are] speculative:
The test, admittedly a very crude one, is
whether the statement is properly understood
as purely speculation or, alternatively,
implies that the speaker or writer has
concrete facts that confirm or underpin the
truth of the speculation. Levin v. McPhee,
119 F.3d 189, 197 (2d Cir. 1997); Restatement
(Second) of Torts 566, comment (c) at 173.
The former is protected as opinion; the
latter is taken as an indirect assertion of
truth.[52]
In Lyons v. Globe Newspaper Co. the Supreme Judicial
Court of Massachusetts considered whether a newspaper report on
picketing outside a political convention defamed the picketers
union when it recounted a suspicion that the picketers were
attempting to disrupt the convention in order to subvert rules
which threatened the candidacy of a politician they supported.53
The court detailed its process in distinguishing between fact and
opinion:
The court must examine the statement in its
totality in the context in which it was
uttered or published. The court must
consider all the words used, not merely a
particular phrase or sentence. In addition,
the court must give weight to cautionary
terms used by the person publishing the
statement. Finally, the court must consider
all of the circumstances surrounding the
statement, including the medium by which the
statement is disseminated and the audience to
which it is published.[54]
The court concluded that the article was not defamatory.55 It
found that the word suspicion . . . plainly cautioned the reader
that the article referred to a theory rather than to facts.56 It
also noted that the suspicion was but one of three alternative
explanations for the picketers motives, thereby confirming that
the writer was engaging in speculation.57
Here, Martins language could be interpreted as
signaling that he was simply theorizing when he said I wonder.
He also revealed that he did not consider his theory anything
more than a suspicion when he queried Brown for his own thoughts
on the subject. In its totality, Martins e-mail can reasonably
be construed as nothing more than conjecture. Under this
interpretation, Martins language would not be read as a statement
of fact and did not imply that Martin had actual facts that form
the basis for the conjecture. For these reasons the statement
could reasonably be determined as not defamatory.
On the other hand, in reviewing a summary judgment
ruling we view the record in its entirety, and draw all
reasonable inferences in favor of the non-moving party.58 An
alternative and also reasonable interpretation would be to view
Martins June 24 e-mail as insinuating that Kinzel was responsible
for sabotaging the worksite. Given Martins supervisory position,
he was in a better position than Brown to know the factual
details of the Car Header installation and air sparge line issue.
For this reason, Martins wonder could reasonably be understood as
having a factual underpinning and thus make the e-mail
susceptible to a defamation claim.
Since one might reasonably interpret the facts here in
favor of Kinzels defamation claim, we must conclude that the
superior court erred in dismissing Kinzels claim on summary
judgment and remand the case for further proceedings on this
issue.
4. Defamation Claim Against Discovery
Kinzel sued Discovery for defamation arising out of an
e-mail Kyle Brown wrote to Craig Martin on December 16, 1998:
Just for your information, Jeff [Kinzel]
filed a bogus work comp claim (alleged back
injury on a different site) a few days after
he left Fbx and has not worked a minute
since.
At trial, the jury found in favor of Discovery on this claim.
The jury could not agree whether the bogus statement was true or
false,59 but decided that Brown did not know, nor should he have
reasonably known, that the statement was false. Kinzel appeals
claiming that his expert witnesses were improperly excluded and
the jury was erroneously instructed.
We conclude that no error was committed concerning the
exclusion of expert witnesses because Kinzel was allowed to
present expert testimony that his claim was genuine rather than
bogus. This reason is examined in more detail in the next
section. In this section we deal with Kinzels claim concerning
the jury instructions.
Kinzel leads off by claiming that the jury should not
have been instructed at all as to whether his claim was bogus.
Instead, he claims that he was entitled to a directed verdict
that his claim was not bogus.
Discovery does not counter this argument other than to
say that it is too cursory and therefore has been abandoned.
Kinzels argument on this point is cursory. But he makes the
essential point in his opening brief that Discovery did not
contradict the validity of his claim, and this appears to be
true.
Although Kinzel may have been entitled to a directed
verdict instructing the jury that Browns statement that his claim
was bogus was false, the error was harmless. The jurys finding
that Brown did not act negligently in making the statement
renders the error concerning failing to direct a verdict as to
the falsity of the statement irrelevant. Fault amounting at
least to negligence is an essential element of a defamation
claim.60 Since it was found not to exist, the claim necessarily
fails.
Kinzel also claims that an instruction on duty to
investigate was requested but refused. He claims that without
such investigation Brown could not be said to have acted
reasonably. Since a person who makes an unprivileged defamatory
statement that is false is liable unless he reasonably believes
it to be true, an instruction explaining that such a person has
an obligation to use due care to ascertain the truth or falsity
of his statement might have been appropriate. But Kinzels
briefing on this point is inadequate. He has not demonstrated
that the instruction he offered is a correct statement of the law
or that the instructions given by the court were erroneous or
incomplete.61
5. Exclusion of Medical Testimony Regarding the Nature of
Kinzels Back Injuries
Kinzel argues that the court erred by excluding
evidence as to the nature of his work-related back injury. He
claims that this evidence was relevant to show the falsity of
Browns defamatory statement that his workers compensation claim
was bogus. Further he contends that the evidence should have
been admitted to rebut evidence that his injury was feigned in
order to develop claims against Discovery and Hart Crowser.
But the sequence of events at the trial convinces us
that the court did not err. The court initially excluded
detailed evidence of Kinzels back injury based on the courts view
that he could not recover in the present case for the injury
because of the exclusive remedy clause of the workers
compensation act. The evidence was offered initially by Kinzel
only on the question of damages, and the court did not err in
excluding it on relevancy grounds based on this offer. Later in
the trial Kinzel argued that the evidence was important to his
defamation claim to show that the falsity of Browns statement
that his workers compensation claim was bogus. After much
argument the trial court correctly ruled that the testimony of
Dr. Howard as to the nature of Kinzels injuries would be
admitted. Dr. Howard testified that in his opinion Kinzel had a
valid workers compensation claim. Dr. Howard also testified that
if Brown had consulted with a physician as to whether Kinzels
claim was valid or bogus, a reasonable physician would have said
that it was a valid claim. Kinzel did not seek to introduce
additional evidence as to his injury after this testimony.
Subsequent to Dr. Howards testimony, evidence that
Kinzel had been planning a lawsuit was presented by the
defendants. Once the evidence was presented Kinzel could have
moved to introduce evidence of the nature and seriousness of his
back injury in order to rebut the defense position that his was a
trumped-up claim. But he appears not to have done this. Under
the circumstances, we can identify no ruling by the trial court
that was erroneous.
6. Interference with Contract Claim Against Hart Crowser
Discovery removed Kinzel from the Fort Wainwright site
at the specific request of Hart Crowsers Martin. Discovery then
reassigned Kinzel an arduous job, which he claims was meant to
be punitive and was an effort to force him to resign. Soon
thereafter he injured his back and left work. In early
September, Kinzel was fired by Discovery.
In his complaint, Kinzel alleged that Martin made
false, defamatory, and otherwise harmful statements to Brown,
thereby inveigl[ing], encourag[ing] and extort[ing] plaintiffs
employer to get rid of and discharge plaintiff. This, Kinzel
asserted, amounted to an improper interference with his Discovery
employment contract by Hart Crowser.
Hart Crowser moved for summary judgment on this issue,
arguing that Kinzel had been terminated by his employer Discovery
for reasons wholly unrelated to the Hart Crowser project at Fort
Wainwright. Attached to this motion was a sworn affidavit from
Brown. Brown attested that:
I was solely responsible for the
decision to assign Mr. Kinzel to the
Glennallen work site. . . . Hart Crowser had
no input in my decision . . . . Furthermore,
my decision to assign Mr. Kinzel to the
Glennallen job as opposed to some other
project was in no way influenced by Hart
Crowsers request that Mr. Kinzel be removed
from the Ft. Wainwright job.
Brown further insisted that Kinzel would have been removed from
the Wainwright site within a week anyway since that job was
nearing completion. He concluded, [a]fter Mr. Kinzel was removed
from the Ft. Wainwright project Hart Crowser had no involvement
in any aspect of Mr. Kinzels employment.
In his opposition motion, Kinzel attempted to link his
efforts to improve safety at the Fort Wainwright site with his
eventual termination. He accused Martin of seriously
undermining Kinzels position at Discovery by means of a series of
damaging and at times defamatory e-mails. This, according to
Kinzel, led to his removal from Fort Wainwright and his eventual
termination.
Prior to trial the superior court granted Hart
Crowsers motion for summary judgment on this intentional
interference with contract claim. The court gave no reasons for
its decision. Kinzel claims that there are material facts in
dispute as to whether Hart Crowser interfered with his employment
at Discovery.
To prevail on an intentional interference with contract
claim, a plaintiff must prove: (1) the existence of a contract;
(2) the defendant was aware of the contract; (3) the contract was
breached; (4) the defendants conduct was the cause of that
breach; (5) the damages; and (6) the defendants conduct was not
privileged.62
We have recognized that this tort applies to terminable
at-will contracts:
though a contract is terminable at will, a
claim of unjustifiable interference can still
be made, for (t)he wrong for which the courts
may give redress includes also the
procurement of the termination of a contract
which otherwise would have (been) continued
in effect.[63]
Hart Crowser points out that many of Kinzels arguments
are inappropriate because they refer to trial testimony. In this
discussion we only consider facts available to the trial court at
the time of its ruling,64 but we also note that the trial court
had a duty to examine the existing record (including the
aforementioned e-mails) in its entirety before determining that
no genuine issue of material fact existed.65
Hart Crowser claims that Kinzel presented no evidence
in his opposition to Hart Crowsers motion for summary judgment
demonstrating that Hart Crowser, and specifically Martin, had
induced Discovery to terminate Kinzel. It further claims that
the only relevant evidence presented to the superior court was
the affidavit of Brown, confirming that Kinzel was terminated for
reasons particular to Discovery and wholly unrelated to the
project at Fort Wainwright and Hart Crowser. But the e-mails
between Martin and Brown, when viewed in a light most favorable
to Kinzel,66 show that Martin was responsible for Kinzels firing.
In a June 24 e-mail Martin comments to Brown that it
would be better if you didnt have Jeff up here. He further
insinuates that Kinzel was responsible for sabotaging the
worksite. Martins subsequent e-mails demonstrate a pattern of
attempts at undermining Kinzels desirability as an employee:
I think it is very unwise to have these guys
complaining to everyone they meet about the
unsafe work conditions that Hart Crowser
forces them to work under . . . one of our
clients [might not find it humorous].
We will give Jeff (or whoever is up here) [a
group of tasks to accomplish].
TOP THREE WHINES OF THE WEEK [all mentioning
Jeff Kinzel].
I have grave concerns about Jeff doing good
work at a reasonable productive level at this
point.
Brown eventually recalled Kinzel from the worksite
after Martin asked that Kinzel be removed. When Martin asked
Brown to remove Kinzel from the site, Brown asked for an official
reason, stating that it would be helpful. Martins reply did not
mention Kinzels lack of productivity, or whining about health
hazards, or any other past complaint. Rather than these themes,
Martin accused Kinzel of not wearing a respirator. Further,
since respirators were no longer required by the time Martin
responded, he also referred to other Health & Safety concerns in
regards to Jeff. Despite not specifying what these were, he
stated that he would have no choice but to shut down the job if
Kinzel were not removed: My only other option will be to shut
the project down, if we cannot ensure safety at the site.
Removing Jeff from the site is your decision. Given the lack of
any specified present safety concerns and Martins history of
finding fault with Kinzel, the totality of the evidence casts
doubt on the veracity of the official reason.
Hart Crowser nevertheless insists that causation is
impossible to prove in this case. It argues that, though a lapse
in time between interference and termination is not fatal to
these claims, what is fatal is when intervening events make it
highly unlikely that defendants conduct could have caused the
termination. Hart Crowser claims that there were several
intervening occurrences prior to Kinzels termination all of which
demonstrate a separate cause of termination, such as Kinzels
injury and his failure to return to work.
But the e-mails demonstrate that the safety complaints
put a strain on the relationship between Hart Crowser and
Discovery. Brown, anxious to maintain business, quickly
expressed a desire to patch things up as soon as possible. As
early as July, just after Kinzel was recalled from Fort
Wainwright, Brown e-mailed Martin, I assume we might take up all
that at a later time when the wound is not so fresh. On August
13 Brown further urges, I would hope that its not something that
you hold against me forever. This tends to show that Hart
Crowser still had an influence over Discovery after Kinzels
removal from the Fort Wainwright job but before his eventual
termination in September. In subsequent e-mails of December 16,
1998, and March 23, 1999, Brown was still making amends to Martin
for Kinzels complaints. Although the e-mails do not conclusively
prove that Discoverys termination of Kinzel was based upon
Martins complaints to Brown, they clearly raise a genuine issue
of material fact on that point.
It is also a question of fact whether Hart Crowsers
actions against Kinzel were privileged. [W]here there is a
direct financial interest in a contract, the essential question
in determining if interference is justified is whether the
person's conduct is motivated by a desire to protect his economic
interest, or whether it is motivated by spite, malice, or some
other improper objective.67 Here there is no question that Hart
Crowser as contractor had a direct financial interest in the
relationship between its subcontractor Discovery and Kinzel, so
long as Kinzel was employed on the Fort Wainwright project. But
the question remains whether Martins e-mails were intended to
achieve an improper objective such as removal of Kinzel in
retaliation for Kinzels safety complaints. If so, no claim of
privilege could be maintained.
In conclusion, because material facts are in dispute as
to causation and privilege, the superior courts grant of summary
judgment cannot be sustained.
CONCLUSION
Kinzel was entitled to a mixed-motive instruction on
his claim for retaliatory discharge against Discovery. Summary
judgment was improperly granted in favor of Hart Crowser on
Kinzels claims for defamation and intentional interference with
contract rights. The judgments in favor of Discovery and Hart
Crowser must therefore be reversed. This case is remanded for
further proceedings concerning Kinzels claims of retaliatory
discharge, defamation (against Hart Crowser), and intentional
interference with contract rights.
REVERSED and REMANDED.
In the Supreme Court of the State of Alaska
Jeffrey Kinzel and Cheryl Kinzel, )
) Supreme Court No. S-10190
Appellants, )
v. ) Order
) Petition for Rehearing
Discovery Drilling, Inc., et al., )
)
Appellees. ) Date of
Order: 06/25/04
)
Trial Court Case # 3AN-99-10959CI
Before: Fabe, Chief Justice, Matthews, Eastaugh, Bryner,
and Carpeneti, Justices.
On consideration of the Petition for Rehearing filed on
4/26/04,
It is Ordered:
1. The Petition for Rehearing is Granted in Part. Changes
are made to pages 7 and 29 of opinion 5796, but the
result is unchanged.
2. Opinion No. 5796, issued on 4/16/04, is Withdrawn.
3. Opinion No. 5820 is issued on this date in its place,
reflecting the changes.
4. The Petition for Rehearing is Denied on all other
points.
Entered by direction of the court.
Clerk of the Appellate Courts
Marilyn May
cc: Supreme Court Justices
Judge Michalski
Trial Court Appeals Clerk
West Publishing
Other Publishers
Distribution:
Marion Kelly
Wade, Kelly & Sullivan
733 West 4th Avenue, Suite 200
Anchorage AK 99501
Bernard P. Kelly
Bernard P. Kelly & Assoc
1007 W 3rd Ave Ste 204
Anchorage AK 99501
Paul S Wilcox
Hughes Thorsness
550 West Seventh Avenue #1100
Anchorage AK 99501
Harland H McElhany
Eide, Miller & Pate, PC
425 G Street, Suite 930
Anchorage AK 99501
Phillip J Eide
Eide, Miller & Pate, PC
425 G Street #930
Anchorage AK 99501
Mary L. Pate
Eide & Miller
425 G Street, Suite 930
Anchorage AK 99501
_______________________________
1 The actual date of the letter is unknown. The letter
is dated August 17, 1998, but it refers to events in September.
2 l court err in determining that Kinzel could not recover
damages for his back injury in tort against Discovery? No, r
3 The following issues are resolved summarily:
1. Did the trial court err in determining that Kinzel
could not recover damages for his back injury in tort against
Discovery? No, recovery of damages for physical injury is barred
by the exclusive remedy provision of the Workers Compensation
Act, AS 23.30.055, except for statutory claims or intentional
torts.
2. Did the trial court err in excluding the testimony of
employee relations expert Jan Duffy? No, the courts ruling was
discretionary and no abuse of discretion has been demonstrated.
3. Did the trial court err in excluding the testimony of
worksite safety expert Dennis Smythe? No, the courts ruling was
discretionary and no abuse of discretion has been demonstrated.
4. Was Kinzel substantially prejudiced during the trial by
various interjections made by the court during his counsels
examination of witnesses and by imposing time restraints on
counsel? No, the actions complained of were permissible efforts
to bring the trial to a conclusion within a reasonable time and
were neither unfair nor prejudicial.
5. Did the trial court err in instructing the jury as to
the defamation claim against Hart Crowser? As the instructions
in question were not objected to and they are not plain error,
this argument has been waived.
6. Did the trial court err in granting summary judgment
dismissing Kinzels constructive discharge claim? No, because
Kinzel did not resign, he was fired.
4 This instruction was based on an explanation in Holland
v. Union Oil Co. of California, Inc., 993 P.2d 1026 (Alaska
1999).
5 970 P.2d 906 (Alaska 1999).
6 Id. at 921.
7 797 F.2d 727, 730-31 (9th Cir. 1986).
8 Veco, 970 P.2d at 919.
9 Id.
10 Id.
11 Id. at 919 n.29. The mixed-motive instruction offered
by Kinzel provided in relevant part:
To prevail on his mixed-motive claim,
Kinzel need not establish that his complaints
constituted the sole motivation or even the
primary motivation for Discovery Drillings
action. Plaintiff must prove that it is more
likely than not that his complaints were a
causal factor in his termination, even though
Discovery Drilling may also have been
motivated by other factors.
If you find that Kinzel has proved that
his OSHA complaint and/or workers
compensation claim was/were motivating
factor(s) in his termination, then you must
find for Kinzel on his mixed motive wrongful
termination claim, unless you also find that
Discovery Drilling has proved that it is more
likely than not that it would have made the
same decision, if Kinzel had not complained
to OSHA or filed a workers compensation
claim. If you find that Discovery Drilling
would have made the same employment decision
if Kinzel had not made his complaint, then
you must find for Discovery Drilling on the
mixed motive wrongful termination claim.
The fact that Kinzel was an at will
employee who could be terminated without
cause does not mean that Discovery Drilling
could terminate Kinzel because he complained
to OSHA or filed a workers compensation
claim.
12 17 P.3d 40 (Alaska 2000).
13 Id. at 44 (citations omitted).
14 490 U.S. 228 (1989).
15 Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 181
(2d Cir. 1992) (quoting Tyler v. Bethlehem Steel Corp., 958 F.2d
1176, 1185 (2d Cir. 1992)).
16 Id. at 182.
17 Id. at 182-83 (quoting Price Waterhouse, 490 U.S. at
252).
18 See AS 18.60.089(a) (prohibiting retaliation by an
employer against an employee who has filed as OSH complaint); AS
23.30.247(a) (prohibiting discriminating against an employee who
has filed a claim for workers compensation).
19 Era, 17 P.3d at 44.
20 Id. at 45.
21 Id.
22 Id.
23 Ostrowski, 968 F.2d at 182.
24 See Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444,
449 (8th Cir. 1993). The Radabaugh opinion in discussing EEOC v.
Alton Packaging Corp., 901 F.2d 920 (11th Cir. 1990), noted:
The court rejected the employers argument
that it was significant that [a comment by a
decisionmaker that he would not hire blacks]
referred to hiring rather than promoting
blacks, reasoning that the statement
indicated a decidedly negative attitude
toward black people on the part of one of the
people responsible for promotions and that
there was no reason to think that [this
attitude differed] from hiring to promotion.
997 F.2d at 449.
25 Instruction 25 as given by the superior court.
26 We agree with Discovery that there was not sufficient
evidence to justify a mixed-motive instruction relating to
Kinzels filing of a workers compensation claim.
27 782 P.2d 1155 (Alaska 1989).
28 Id. at 1159.
29 Id. at 1158.
30 538 A.2d 1292 (1988).
31 Reed, 782 P.2d at 1159.
32 753 P.2d 1150, 1153 (Alaska 1988).
33 Id.
34 54 P.3d 271 (Alaska 2002).
35 Id. at 278 (quoting Skagway City Sch. Bd. v. Davis, 543
P.2d 218, 225 (Alaska 1975)).
36 Id. As support for this proposition we cited a case
where lost earnings under a specified-term contract were not
limited to the term where there had been a long series of similar
contracts. Id. at n.21 (citing Allen v. Cornish & Carey, 1997 WL
195433, at *6-*7 (N.D. Cal., Apr.11, 1997)).
37 Id. at 279.
38 See AS 18.60.089(a), which prohibits retribution
against discharging or discriminating against an employee because
the employee has filed a safety complaint, and AS 23.30.247(a),
prohibiting retaliation for filing a workers compensation claim.
39 Many states have held that the termination of an
employee in violation of fundamental public policy principles
gives rise to a tort remedy. See, e.g., Fielder v. Southco, Inc.
of South Carolina, 699 F. Supp. 577, 578 (W.D. Va. 1988) (public
policy doctrine enforced in claim for wrongful discharge in
retaliation for filing sexual harassment claim); Cabesuela v.
Browning-Ferris Indus. of Calif., Inc., 80 Cal. Rptr. 2d 60, 63
(Cal. App. 1998) (tort remedy available to employee who was
terminated for protesting unsafe working conditions); Hobson v.
McLean Hosp. Corp., 522 N.E.2d 975, 977 (Mass. 1988) (tort claim
available to employee who was discharged for enforcing state and
municipal safety laws); Cerracchio v. Alden Leeds, Inc., 538 A.2d
1292 (N.J. Super. 1988) (tort remedy available for employee who
was terminated for filing OSHA and workers compensation claims);
Nees v. Hocks, 536 P.2d 512 (Or. 1975) (tort claim recognized for
employee who was allegedly discharged for serving on jury duty).
For a more thorough analysis on the jurisdictions that have
adopted the public policy exception, and particularly those that
have utilized the exception in the whistleblower context, see
Daniel P. Westman, Whistleblowing: The Law of Retaliatory
Discharge 198-211 (App. D) (1991).
40 Beilgard v. State, 896 P.2d 230, 233 (Alaska 1995); see
also Ellis v. City of Valdez, 686 P.2d 700, 702 (Alaska 1984).
41 Ellis, 686 P.2d at 702; Alaska R. Civ. P. 56(c).
42 Alaska Rent-A-Car, Inc. v. Ford Motor Co., 526 P.2d
1136, 1138 (Alaska 1974).
43 497 U.S. 1 (1990).
44 34 P.3d 955 (Alaska 2001).
45 418 U.S. 323, 339-340 (1974). The passage in question
reads:
Under the First Amendment there is no such
thing as a false idea. However pernicious an
opinion may seem, we depend for its
correction not on the conscience of judges
and juries but on the competition of other
ideas. But there is no constitutional value
in false statements of fact.
46 Milkovich, 497 U.S. at 18 (citing Cianci v. New Times
Publg Co., 639 F.2d 54, 61 (2d Cir. 1980)).
47 Id. (citing Cianci, 639 F.2d at 62 n.10).
48 Sands, 34 P.3d at 960.
49 See Restatement (Second) of Torts 566 (1977).
50 W. Page Keeton, et al., Prosser and Keeton on the Law
of Torts 113A, at 814-15 (5th ed. 1984). Keeton argues that a
distinction should be made between an evaluative-type opinion and
the deductive type, the latter actually imputing facts that can
be proven false and thus potentially actionable. Id.
51 Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th
Cir.1993).
52 Gray v. St. Martin's Press, Inc., 221 F.3d 243, 250
(1st Cir. 2000).
53 612 N.E.2d 1158, 1160 (Mass. 1993).
54 Id. at 1162 (citations omitted).
55 Id.
56 Id.
57 Id.
58 See American Restaurant Group v. Clark, 889 P.2d 595,
597-98 (Alaska 1995); Bennett v. Hedglin, 995 P.2d 668, 671
(Alaska 2000).
59 The jury wrote opposite the question whether Browns
statement as to the bogus claim was false: (4-8) no- answer.
60 French v. Jadon, Inc., 911 P.2d 20, 32 (Alaska 1996)
(To prevail on a defamation claim, a plaintiff has to establish
(1) a false and defamatory statement; (2) an unprivileged
publication to a third party; (3) fault amounting at least to
negligence on the part of the publisher; and (4) the existence of
either per se actionability or special harm.).
61 See Great Divide Ins. Co. v. Carpenter ex rel. Reed, 79
P.3d 599, 608 n.10 (Alaska 2003) (Points that are inadequately
briefed are considered waived.); and State v. O'Neill
Investigations, Inc., 609 P.2d 520, 528 (When, in the argument
portion of a brief, a major point has been given no more than
cursory statement, we will not consider it further. Failure to
argue a point constitutes an abandonment of it.).
62 See Briggs v. Newton, 984 P.2d 1113, 1119 (Alaska
1999).
63 Alyeska Pipeline Serv. Co. v. Aurora Air Serv., Inc.,
604 P.2d 1090, 1093 (Alaska 1979) (quoting Smith v. Ford Motor
Co., 221 S.E.2d 282, 290-91 (N.C. 1976)).
64 See Kaiser v. Sakata, 40 P.3d 800, 805 (Alaska 2002).
65 American Restaurant Group v. Clark, 889 P.2d 595, 597-
98 (Alaska 1995).
66 Ellis v. City of Valdez, 686 P.2d 700, 702 (Alaska
1984); see also Beilgard v. State, 896 P.2d 230, 233 (Alaska
1995).
67 RAN Corp. v. Hudesman, 823 P.2d 646, 649 (Alaska 1991).