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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Peterson v. State, Dept. of Natural Resources (7/2/2010) sp-6489
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
| ALLEN PETERSON, | ) |
| ) Supreme Court No. S- 13376 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-07-09654 CI | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| DEPARTMENT OF NATURAL | ) No. 6489 July 2, 2010 |
| RESOURCES, | ) |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Jack Smith, Judge.
Appearances: Kenneth P. Jacobus, Kenneth P.
Jacobus, P.C., Anchorage, for Appellant.
David T. Jones, Assistant Attorney General,
Anchorage, and Daniel S. Sullivan, Attorney
General, Juneau, for Appellee.
Before: Fabe, Winfree, Christen, and Stowers,
Justices. [Carpeneti, Chief Justice, not
participating.]
FABE, Justice.
I. INTRODUCTION
Allen Peterson, a seasonal forester formerly employed
by the Alaska Department of Natural Resources (DNR), Division of
Forestry (the Division), appeals the grant of summary judgment
entered against him. Petersons claims concern the Divisions
removal of his firefighting qualifications following an incident
in 2005, the Divisions failure to hire or transfer him into a
full-time forester position, the Divisions reduction of his work
time, and his perception that the Divisions employees have
harassed him and created a hostile work environment. Peterson
argues that the Divisions actions constituted age, sex, and
disability discrimination; that the Division breached the implied
covenant of good faith and fair dealing; and that the Division
violated state and national standards in removing his
firefighting qualifications. The superior court granted summary
judgment as to all claims.
Following the superior courts entry of final judgment,
Peterson moved for relief from judgment based on Alaska Civil
Rule 60(b). In support of that motion, Peterson submitted a
number of documents that now appear in the record but were not
before the superior court when it granted summary judgment.
Petersons Rule 60(b) motion was denied, but he does not appeal
that ruling. Peterson appeals the superior courts grant of
summary judgment and argues that we may consider the whole record
and are not limited to those facts and arguments that were before
the superior court when it ruled on the motion for summary
judgment. We disagree and instead consider only the record that
was before the superior court at the time summary judgment was
granted.
Based on that record, we affirm the superior courts
grant of summary judgment, holding that Peterson has presented no
evidence raising genuine issues of material fact and that DNR is
entitled to judgment as a matter of law.
II. FACTS1
The State of Alaska, Department of Natural Resources
(DNR), Division of Forestry (the Division) employed Allen
Peterson in various forest management jobs beginning in October
1990. Peterson assumed his most recent position as a regional
stewardship forester for the Kenai-Kodiak region in 1999 and
worked out of an office in Soldotna. Petersons main
responsibility in that job involved the administration of timber
sales ensuring that harvesting units are in compliance with
existing state contracts.
There are two programs offered by the Division: one
focusing on the management of forest resources and one dedicated
to wildland fire management. Resources employees are encouraged
to obtain firefighting qualifications, certified on red cards, so
that they are qualified for fire assignment but employees are
neither required to perform firefighting duties, nor are they
guaranteed to participate in firefighting. Peterson was a
seasonal employee in the resources program but had obtained such
red card firefighting qualifications.
Petersons claims focus on several distinct
circumstances concerning his employment with the Division: the
suspension of his firefighting qualifications; the increase in
his unpaid seasonal layoff period; the failure to either
laterally transfer him into a full-time position or select him
for one of several full-time openings; and several workplace
incidents that Peterson claims were harassing in nature and/or
created a hostile work environment. In our consideration of the
relevant facts of each situation, we draw all reasonable
inferences in favor of Peterson.2
A. The Removal Of Petersons Firefighting Qualifications
In May 2005 Peterson responded to a fire emergency in
Homer known as Fire 072. While Peterson claims that his actions
at this fire were the result of following direct orders, Matt
James, the incident commander at Fire 072, submitted a negative
evaluation of Petersons performance. Jamess evaluation
identified several areas where Petersons performance did not meet
expectations, including Petersons knowledge of the job, his
attitude, his ability to make decisions under stress, his ability
to work safely by understanding the fuel type, and his
willingness to immediately follow orders. According to Jamess
report, Petersons failure to properly extinguish a portion of the
fire caused the fire to jump[] the line behind the nozzle and
destroy some booster line and one-inch fire hose.
Following the Fire 072 incident, the area forester for
the Kenai-Kodiak region, James Peterson (no relation to Allen
Peterson), reviewed the circumstances surrounding the fire.
Based on the reports of Al Petersons conduct at the 072 fire, in
particular, his lack of situational awareness, failure to respond
appropriately to the changing fire conditions, and his failure to
follow the instructions of the Incident Commander, James Peterson
suspended two of Allen Petersons firefighting qualifications and
returned him to trainee status for those positions.
Peterson requested review of this decision, but both
Regional Fire Management Officer John See and Chief of Fire and
Aviation Lynn Wilcock upheld the removal of these qualifications.
At about the same time in 2006, Wilcock reviewed Petersons
overall participation in the fire management program and
concluded that Peterson represented a potential liability to the
program. After considering reports of Petersons behavior,
Wilcock identified three examples of problematic conduct leading
to his decision: Petersons actions at Fire 072, an incident at a
2004 fire that resulted in property damage and a complaint about
Petersons people skills, and a 2006 office incident where
Peterson reportedly had a violent and unprofessional outburst.
Petersons firefighting qualifications for participation in the
fire management program were withdrawn following this review.
B. The Increase In Petersons Seasonal Layoff Period
In 1999, shortly before Peterson transferred into the
Forest Stewardship program, his position was reclassified as
seasonal. Most of the Divisions employees are seasonal.
Seasonal status means that the Division has full discretion to
determine the period of employment that a particular employee
will work each year. In its official memorandum notifying
Peterson of this change, the Division explained that the change
in position status was not performance-related but was solely due
to a lack of funding. The Divisions Stewardship program is
entirely funded by federal grants. As a result of this
reclassification, Peterson was eligible for non-competitive
layoff recall to full-time positions for three years, but
Peterson did not exercise these rights for available positions.
Although Peterson was technically a seasonal employee and had not
been returned to full-time status, he was provided with year-
round employment for several years following the reclassification
of his position because of available funds in the budget. But
each year the Division sent Peterson a memorandum reminding him
that he remained subject to seasonal layoffs.
In November 2005 the Division informed Peterson that he
would be subject to a seasonable layoff from January 16 to 31,
2006 a period of just over two weeks. Petersons layoff period
was increased to one month for the 2007 fiscal year. In support
of its motion for summary judgment, DNR provided an affidavit
from the forestry resources program manager, Martha Welbourn-
Freeman, stating that the increase in layoff time was due to a
decrease in the level of federal funding for the Stewardship
program and that Petersons layoff was extended to six months in
2008.
C. The Divisions Failure To Offer Peterson A Lateral
Transfer Or Select Him For A Full-Time Forester
Position
In September 2004 the Division received legislative
approval to hire a full-time forester for the Kenai-Kodiak area.
After a competitive recruitment process, a woman named Ashley
Reed was hired for the position. In August 2005 Reed left the
position to pursue other opportunities. According to the
Divisions forest stewardship coordinator, the opening created by
Reeds departure was not advertised for competitive recruitment
until October 2006 because of a decline in federal funding.
Beginning in October 2006 the Division held a
competitive recruitment for the full-time forester position in
the Kenai-Kodiak area. Nine applicants, including Reed and
Peterson, were interviewed by the hiring committee. DNR provided
affidavits from two of the three committee members explaining the
evaluation process and stating that Reed had been unanimously
selected for the position. When Reed declined the position,
another applicant was selected to fill the position in October
2007 on the basis of her overall qualifications.
Peterson claimed in his briefs and at oral argument
that he also twice requested transfer to a full time position in
both 2004 and 2006, but there is little in the record to support
this claim. The collective bargaining agreement that Peterson
was subject to authorized such a transfer to be made without
recruitment or application, if the State so chooses. A non-
competitive lateral transfer was not provided to Peterson.
In 2007 the Division held another competitive
recruitment for an operations forester position in the Kenai-
Kodiak area. Five applicants with the requisite qualifications
were interviewed, including Peterson and John Winters. The
committee unanimously selected Winters for the position based on
work experience, references, attitude, ability to accept
supervision, level of trust and confidence we could place in the
employee, and performance in the interview.
D. Workplace Incidents That Peterson Claims Were Harassing
In Nature And/Or Created A Hostile Work Environment
In addition to the events previously summarized,
Peterson identifies several other incidents as events which he
contends were either harassing in nature or created a hostile
work environment, including Matt Jamess evaluation, a
conversation with his supervisor, and a conversation with a co-
worker.
In his deposition testimony, Peterson described a
conversation with his supervisor, Jeff Graham, in which Graham
indicated that his superiors want[ed Peterson] out. Petersons
response to DNRs interrogatories stated that Graham also said,
[w]hen youre looking for your next job theyll have to come to me.
Grahams affidavit stated that he did not recall making these
comments to Peterson, but we will assume that Petersons version
of the events is correct for the purposes of our review.3
Petersons deposition testimony and interrogatory
responses also identified a conversation with Regional Forester
Mike Curran as a suspect interaction. Peterson explained that he
was riding in an elevator with Curran and commented on Currans
jacket which said Curran Consultant Forestry on it. In response,
Curran answered, Maybe its trying to tell you something.
Peterson felt that this comment was demeaning and interpreted it
to mean that he (Peterson) should consider consulting because he
did not have a future in the Division.
Peterson also identified Matt Jamess negative
evaluation of his performance at Fire 072 as a suspect
interaction that created or reflected a hostile work environment.
Peterson explained that James commented in a telephonic Division
meeting between Ric Plate, James, and Peterson that Peterson was
not safe. Peterson stated that the comments were demeaning.
III. PROCEEDINGS
In August 2007 Peterson filed a complaint in superior
court asserting six claims against DNR: (1) that the Division
created a hostile work environment which constituted sex, age,
and disability harassment; (2) that the reduction in Petersons
work time constituted sex, age, and disability discrimination;
(3) that the reduction in his work time was a violation of the
implied covenant of good faith and fair dealing; (4) that the
withdrawal of his firefighting qualifications was not in
accordance with state procedures and violated applicable national
standards; (5) that the hiring of Reed constituted age and sex
discrimination; and (6) that the selection of Winters as the
operations forester was a violation of the implied covenant of
good faith and fair dealing. In July 2008 DNR moved for summary
judgment on all claims.
On August 28, 2008, the superior court granted the
motion for summary judgment, along with a statement that the
court finds [DNRs] arguments persuasive as to all issues. The
superior court entered final judgment on November 19, 2008.
On December 7, 2008, Peterson moved to be relieved from
the order of summary judgment and the final judgment pursuant to
Rule 60(b). In support of this motion, Peterson filed a thirty-
two page memorandum and a short affidavit and attached a
significant number of documents and exhibits that were not before
the superior court prior to the entry of final judgment. DNR
opposed the Rule 60(b) motion. In the meantime, Peterson filed
the current appeal, but it was stayed pending the resolution of
the Rule 60(b) motion. Shortly thereafter, the superior court
denied Petersons Rule 60(b) motion, stating that Peterson did not
establish grounds for relief under Civil Rule 60(b).
The stay in the current appeal was lifted in January
2009. Peterson does not appeal the denial of his Rule 60(b)
motion.
IV. STANDARD OF REVIEW
We review the superior courts grant of summary judgment
de novo and draw all factual inferences in favor of and view the
facts in the light most favorable to the non-prevailing party.4
We affirm a grant of summary judgment when there are no genuine
issues of material fact, and the prevailing party . . . [is]
entitled to judgment as a matter of law.5
V. DISCUSSION
A. Petersons Rule 60(b) Motion And Its Supporting
Documentation Are Not Part Of The Record For Purposes
Of Reviewing The Grant Of Summary Judgment.
After the superior court entered final judgment,
Peterson moved for relief under Rule 60(b). In support of the
motion, he submitted substantial additional evidence that was not
before the superior court when it granted summary judgment. The
court denied the motion, but Peterson does not appeal this
ruling. Nonetheless, Peterson argues that we should consider
this additional evidence in our review of the superior courts
summary judgment ruling.
We addressed a similar argument in Schmitz v. Yukon-
Koyukuk School District.6 In Schmitz, after summary judgment was
entered against him, the plaintiff moved for reconsideration and
provided the superior court with additional evidence.7 The
superior court found that the new evidence had been withheld for
tactical reasons and was untimely, and therefore declined to
consider it.8 Because the superior court did not abuse its
discretion in so ruling, we too declined to consider the evidence
on appeal.9 Other courts have stated explicitly what we implied
in Schmitz: that appellate review of a grant of summary judgment
is limited to the evidence that was before the superior court
when its rendered its decision.10 DNR maintains that [i]f a
plaintiff who loses on summary judgment could use a Rule 60(b)
motion to supplement the record on appeal with documents and
arguments he inexcusably failed to present in opposition to the
summary judgment motion, the summary judgment process would
become a virtually meaningless exercise. We agree.
If Peterson wished us to review whether the additional
evidence warranted relief from the grant of summary judgment
because of mistake, inadvertence, surprise or excusable neglect
or newly discovered evidence, he had the option of appealing the
denial of his Rule 60(b) motion. But he did not do so,
apparently for tactical reasons. We review grants of summary
judgment de novo but review a ruling on a Rule 60(b) motion under
the more deferential abuse of discretion standard.11 As Petersons
counsel candidly explained at oral argument, he did not consider
an appeal of the denial of the Rule 60(b) motion to be in
Petersons best interest because the review [of a summary judgment
ruling] is de novo [and] we dont want to convert the case to
abuse of discretion. That doesnt make any sense from Mr.
Petersons point of view. We agree that Peterson is entitled to
de novo review of the grant of summary judgment based on the
record that was before the superior court at the time it issued
its ruling.12 But because Peterson declined, for tactical
reasons, to appeal the Rule 60(b) motion, we do not consider the
additional evidence submitted in support of that motion as part
of our review of the grant of summary judgment.
B. The Superior Court Did Not Err In Granting Summary
Judgment On Petersons Claims.
1. The superior court did not err in granting summary
judgment on Petersons discrimination claims.
Of the six claims for relief contained in Petersons
complaint, three of them allege discrimination: (1) that he was
harassed and subjected to a hostile work environment because of
his sex, age, and alleged disability;13 (2) that his employer
reduced his work time because of his sex, age, and alleged
disability; and (3) that he was passed over for several full-time
positions because of his sex and age. We will consider each
claim in turn.
a. The superior court did not err in granting
summary judgment on the hostile work
environment claims.
Alaska Statute 18.80.220 provides employees with broad
protection against discriminatory treatment by making it unlawful
for employers to discriminate against a person because of the
persons race, religion, color, or national origin, or because of
the persons age, physical or mental disability, sex, marital
status, changes in marital status, pregnancy, or parenthood when
the reasonable demands of the position do not require distinction
on [that] basis.
Peterson alleges that he was subjected to several
incidents that amounted to harassment sufficient to constitute a
hostile work environment: that Jeff Graham told Peterson that the
people above Graham wanted Peterson out; that Mike Curran
commented to Peterson that Currans consulting jacket might be
trying to tell [Peterson] something; that the removal of
Petersons firefighting qualifications was harassment because it
was without justification; that hiring Winters for the 2007
operations forester position was retaliatory in nature;14 and that
Matt Jamess description of Fire 072 demeaned Peterson.15
DNR counters that Peterson failed to offer any evidence
that his sex, age, or alleged disability played any role in any
of those incidents. DNR offered affidavits to the superior court
in support of its position that unlawful discrimination was not
involved in the incidents to which Peterson points. For example,
DNR provided an affidavit from Graham where Graham states that he
does not recall telling Peterson that the people above him
(Graham) wanted Peterson gone, but that if he had, it could only
have been in the context of a supervisory conversation intended
to encourage Mr. Peterson to improve his work performance by
alerting him to concerns expressed about his work by others in
the division. DNR also points out that Peterson admitted in his
deposition that he did not know why Curran made the comment about
the jacket and that he thought that the removal of his
firefighting qualifications was connected to James Petersons
personal dislike of Allen Peterson, not sex, age, or disability
discrimination.16 Finally, Peterson does not offer any
explanation of how Winterss selection for the operations forester
position is connected to his age, sex, or disability, and he
offers no evidence to show that Winters is not in the same
protected class as himself,17 except to point out that he and
Winters had different job classifications before Winters was
selected for the operations forester position. The only evidence
that Peterson presented to the superior court in opposition to
the motion for summary judgment that connects any of these
incidents to Petersons age, sex, or disability was Matt Jamess
statement in his report that Peterson appears to have issues
working for people younger or lower on the org chart than
himself.
In assessing a claim that an employees work environment
violates Alaska law, we consider federal precedent for guidance,
and after reviewing Title VII cases we concluded that
discriminatory behavior sufficiently severe or pervasive to alter
the conditions of the victims employment and to create a
discriminatory hostile work environment violates AS 18.80.220.18
We also considered federal precedent in deciding what conduct was
actionable in the hostile work environment context and adopted
the Harris v. Forklift Systems, Inc.19 rule that the challenged
conduct must be severe or pervasive enough to create an
objectively hostile or abusive work environment an environment
that a reasonable person would find hostile or abusive. 20 In
Harris, the Supreme Court of the United States further elaborated
that, [w]hether an environment is hostile or abusive can be
determined only by looking at all the circumstances, which may
include the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably
interferes with an employees work performance.21 The United States
Supreme Court has also held that simple teasing, offhand
comments, and isolated incidents (unless extremely serious) will
not amount to discriminatory changes in the terms and conditions
of employment and that anti-discrimination laws are not intended
to be a general civility code.22
Even viewing the facts in the light most favorable to
Peterson, we conclude that he has not established the existence
of a hostile or abusive work environment. Currans comments were
offhand and cryptic; even though Peterson may have interpreted
them to mean that he did not have a future with the Division,
they were not objectively threatening. Similarly, Grahams
comments, made on a single occasion, even if interpreted as a
veiled threat to Petersons job or future employment prospects,
constituted an isolated incident that was not sufficient to
demonstrate a change in the terms and conditions of Petersons
employment.
Petersons other claim centers around the Matt James
report and the removal of Petersons firefighting qualifications.
Peterson implies that the removal of these qualifications changed
the terms and conditions of his employment to some extent.
Peterson presents the loss of his firefighting qualifications as
an example of the hostile work environment actions taken by the
Division against him. However, this claim is more appropriately
considered as an independent claim that the Division subjected
him to an adverse employment action for discriminatory reasons.
We therefore consider whether the Divisions actions to remove
Petersons firefighting qualifications, including the Matt James
evaluation, were based on impermissible factors that include sex,
age, or disability in violation of AS 18.80.220.
Because it is usually impossible for an employee to
prove that the actions of an employer were motivated by
discriminatory intent,23 we have adopted the three-part pretext
analysis that involves a series of shifting burdens24 for claims
of employment discrimination where there is no direct evidence of
discriminatory intent, known as the McDonnell Douglas test.25
First, the employee bears the burden of establishing a prima
facie case of disparate treatment by showing intentional
discrimination.26 The prima facie case serves to eliminate the
most common nondiscriminatory reasons for the adverse action and
raises an inference of discrimination only because we presume
that these acts, if otherwise unexplained, are more likely than
not based on the consideration of impermissible factors.27
Second, the burden shifts to the employer to offer a legitimate,
nondiscriminatory reason for its actions.28 Third, the employee
bears the final burden of demonstrating that the employers stated
reason for the action was pretextual.29
As a matter of law, Peterson failed to establish a
prima facie case that either the removal of his firefighting
qualifications or Matt Jamess negative evaluation was the result
of discrimination. As discussed earlier, DNR points out that
Peterson failed to offer any evidence that his sex, age, or
alleged disability played any role in the Divisions actions
toward Peterson. In his opposition to the motion for summary
judgment, Peterson offered nothing to show that his sex or
disability were implicated in the decision to remove his
firefighting qualifications, nor is there any evidence suggesting
that he was treated less favorably than other Division resources
employees. The only evidence Peterson offered was that Matt
Jamess evaluation stated that Peterson appear[ed] to have issues
working for people younger . . . than himself. This statement,
in context, was referring to Petersons interpersonal skills and
does not suggest that Peterson was given a negative evaluation
because of his age. There was no further evidence to show that
Petersons age was even taken into account in the decision to
remove his firefighting qualifications or in the two reviews of
the decision. We therefore conclude that Peterson failed to
raise a reasonable inference that his age was the underlying
reason that his qualifications were taken away.
Even if Peterson had established a prima facie case,
DNR met its burden at the second step of the McDonnell Douglas
test by offering evidence showing legitimate, nondiscriminatory
reasons for withdrawing Petersons firefighting qualifications.
Peterson makes no further attempt to argue that any of DNRs
justifications were pretextual, thus also failing the third prong
of the McDonnell Douglas test.
b. The superior court did not err in granting
summary judgment on Petersons claim that the
reduction of his work time was the result of
unlawful discrimination.
Peterson also claims that the diminution of his work
time from permanent full time to permanent seasonal in October
2006 was a discriminatory decision. Petersons brief simply
asserts that the decision to reduce his position to six months
was a discriminatory decision, and a pretext to give the job to
Ashley Reed, a young female, but Peterson offered no evidence to
connect the reduction in his work time to his age, sex, or
alleged disability. For example, he produced no evidence showing
that other individuals outside of his protected class were
treated more favorably by receiving shorter layoff periods.30 We
conclude that Peterson failed to establish a prima facie case of
discrimination with regard to his reduced work time.
c. The superior court did not err in granting
summary judgment on Petersons claims of
hiring discrimination.
Peterson claims that the Division discriminated against
him on the basis of age and sex when it selected Ashley Reed for
the stewardship forester position in February 2007 and when he
did not receive a lateral transfer into a full-time position. He
also asserts that several of the Divisions practices were
discriminatory, including the delay in advertising the 2007
stewardship forester position for competitive recruitment to
coincide with Reeds return to Alaska, the high evaluations of
Reeds job performance, and the early termination of Reeds
probationary period during her first period of employment.
Peterson also makes the unsupported claim that he twice
requested transfer to a full-time position in both 2004 and 2006.
Peterson argues that the Division had the right to permit his
transfer into the full-time position that Reed occupied without
competitive recruitment.31 However, as DNR points out, it was not
required to permit such a transfer.32 Peterson has offered no
admissible evidence to demonstrate that he requested such a
transfer, and his brief does not explain how the decision to put
the job up for competitive recruitment constituted age or sex
discrimination.
Petersons hiring discrimination claims are analyzed
under the same three-part McDonnell Douglas test discussed
previously.33 For purposes of summary judgment, DNR expressed its
willingness to assume that Peterson had established a prima facie
case of sex and age discrimination with regard to the hiring of
Reed.34 DNR then fulfilled its burden at the second prong of the
McDonnell Douglas test by offering affidavits from two of the
three members of the hiring committee that selected Reed. Both
hiring committee members explained the interview process and how
the interviewees answers were scored. They stated that Ashley
Reed was the top candidate for the position after the interview
scores, education, experience, writing samples, evaluations, and
references were considered.
After DNR met its burden, Peterson was required to make
a showing that this explanation was pretextual.35 Peterson
argues that Reeds evaluations were only higher because of the
discrimination which was occurring in the workplace, but provides
no factual support for this argument. In his deposition,
Peterson explained that he thought that the influential and
powerful people in the Division were female and at least one of
them had a definite preference toward females over the years. He
also asserted that he thought that his age was a factor because
he was at a higher paygrade than Ashley Reed and thus would be
more expensive to hire.
A claimant must offer something more than unsupported
assumptions and speculation to demonstrate that the reason
articulated by the employer is a pretext, and [s]ummary judgment
is appropriate when a plaintiff presents nothing more than his
own subjective belief that the employers asserted ground is a
pretext.36 Peterson offered no solid evidence or factual details
to substantiate his perception that Reed was selected because she
was younger and a woman, but instead relies entirely on
subjective, after-the-fact impressions.37 Because DNR supported
its summary judgment motion with ample evidence that Reeds
selection was based on legitimate, non-discriminatory criteria
and because Peterson only presented his own subjective belief
that DNRs asserted grounds were a pretext, we hold that summary
judgment was appropriate.
Petersons other arguments, that Reed was given
preferential treatment in her probationary employment and that
leaving the position open until October 2006 was a pretext to
ensure that she got the job, were not raised below in opposition
to summary judgment. The evidence that Peterson uses to support
this argument was not presented to the superior court before it
ruled on the summary judgment motion, as it was added to the
record as part of the Rule 60(b) motion. We therefore do not
consider it.
2. The superior court did not err in granting summary
judgment on Petersons breach of the implied
covenant of good faith and fair dealing claims.
Peterson argues that the Division violated the implied
covenant of good faith and fair dealing by reducing his work time
through increasing his seasonal layoff period, by hiring Winters
for the operations forester position in 2007, and by removing his
firefighting qualifications.
All employment contracts in Alaska include an implied
covenant of good faith and fair dealing.38 A breach of this
covenant may be either subjective where the employer acts with a
bad faith purpose, such as to deprive an employee of a benefit of
the contract or objective where the employer does not act in a
manner which a reasonable person would regard as fair.39 The
purpose of the covenant is to effectuate the reasonable
expectations of the parties, not to alter or to add terms to the
contract.40
As previously discussed, Peterson was neither entitled
by contract to receive a lateral transfer to the full-time
operations forester position for which Winters was selected, nor
was Peterson entitled to anything more than six months of work as
a seasonal employee. DNR provided evidence that its reasons for
both increasing Petersons seasonal layoff period and selecting
Winters were not motivated by bad faith.41 Peterson only offers
unsupported assertions: that the Winters hire was retaliatory,
that James Peterson had groomed Winters for the job, and that the
reduction in Petersons work time may have been a way for DNR to
save money. However, in order to defeat summary judgment,
Peterson was required to produce admissible evidence tending to
dispute DNRs evidence an adverse party may not rest upon mere
allegations, but must set forth specific facts showing that there
is a genuine issue of material fact.42 Peterson was unable to do
so with regard to the subjective prong of the breach analysis.
Petersons argument with respect to the objective
element of the covenant suffers from the same fatal flaw: there
is a lack of evidence to substantiate his allegations. Peterson
claims that Winters was working outside of his job classification
responsibility, that James Peterson assisted Winters in getting
the position, that Winters faced a smaller panel of interviewers
than Peterson faced, that Peterson outscored Winters in the
interview, and that Winters had the added advantage of being the
last interviewee after being able to hear the other interviews
being conducted. Peterson cites to his amended opposition to
summary judgment in support of these allegations but does not
point to any actual evidence. Because [a]ssertions of fact in
pleadings and memoranda are not admissib[le] evidence and cannot
be relied upon for the purposes of summary judgment,43 we conclude
that Peterson has not provided sufficient evidence to show that
there is an issue of material fact that would require trial on
these claims.44
Peterson also argues that the Divisions removal of his
firefighting qualifications constituted a breach of the implied
covenant of good faith and fair dealing because the Divisions
action violated state and national policies. At his deposition,
Peterson explained his central contention that he wasnt guilty
of anything that would qualify for the decertification under the
National Wildland Coordinating Groups Wildland Fire and
Prescribed Fire Qualifications System Guide, known as PMS 310-1.
Peterson contends that the facts of Fire 072 are central and
critical because they led to [the] devastation of Mr. Petersons
career with the Division. DNR counters that any dispute about
the underlying facts is not material because firefighting is not
a duty that is required for Petersons job, that Peterson has no
valid legal claim regarding the withdrawal of these
qualifications, and that even if Peterson had such a claim, DNRs
good faith reliance on the reports of Petersons conduct warranted
the withdrawal of his qualifications.
As discussed previously, for the Division to have
violated the implied covenant of good faith and fair dealing, it
must have breached either the subjective or objective prong of
the covenant.45 Peterson does not argue that the Division was
subjectively seeking to deny him the benefits of his contract in
bad faith, but instead focuses his discussion on whether the
removal of his firefighting qualifications and the process by
which the removal occurred was objectively unfair. Peterson
points to national standards found in PMS 310-1 to support his
contention that his conduct was not sufficiently problematic to
justify the removal of his qualifications. But PMS 310-1 makes
it clear that the decision to allow an individual to engage in
firefighting activities is ultimately a subjective determination:
[a] key component in the certification or re-certification
process is the subjective evaluation by the appropriate agency
official of an individuals capability to perform a position.
Completion of required training and experience requirements alone
does not guarantee that an individual is qualified to perform in
a position. (Emphasis in original.)
Matt Jamess negative evaluation of Petersons
performance at Fire 072 in combination with the two other
incidents cited in Wilcocks review gave ample reason for
Petersons superiors to question his ability to perform in the
type of high pressure situations presented by firefighting
activities. The Division was empowered to reject Petersons
version of the events that Wilcock cited in favor of the accounts
offered by other witnesses. Our past precedent makes it clear
that, [i]f the employer makes a determination in good faith that
[] misconduct occurred, there is no breach of the implied
covenant of good faith and fair dealing, even if the employee
could subsequently prove that the factual finding of misconduct
was a mistake.46 Thus, even if Peterson could now prove that Matt
Jamess report was inaccurate, DNRs good faith reliance on Jamess
evaluation of Petersons performance at Fire 072, for example,
would still not constitute a breach of the implied covenant.
We therefore conclude that the superior courts grant of
summary judgment on Petersons claims that the removal of his
firefighting qualifications was a breach of the implied covenant
of good faith and fair dealing was not error.
VI. CONCLUSION
For these reasons we AFFIRM the superior courts grant
of summary judgment as to all claims.
_______________________________
1 These facts and characterizations of Petersons claims
are taken from the record that was before the superior court at
the time that it granted summary judgment on August 28, 2008.
Assertions of fact that appear only in the pleadings or
supporting memoranda are not admissible evidence, and accordingly
we do not rely upon them for the purposes of our review of
summary judgment. Brock v. Rogers & Babler, Inc., 536 P.2d 778,
783 (Alaska 1975).
2 Ellis v. City of Valdez, 686 P.2d 700, 702 (Alaska
1984).
3 Ellis, 686 P.2d at 702.
4 Rockstad v. Erikson, 113 P.3d 1215, 1219 (Alaska 2005).
5 Id.
6 147 P.3d 720, 727-28 (Alaska 2006).
7 Id. at 727.
8 Id.
9 Id. at 727-28.
10 See, e.g., MacGlashing v. Dunlop Equip. Co., 89 F.3d
932, 936 (1st Cir. 1996); Guillory v. Domtar Indus. Inc., 95 F.3d
1320, 1327 (5th Cir. 1996); Yanowitz v. LOreal USA, Inc., 116
P.3d 1123, 1127 (Cal. 2005); see also 5 Am. Jur. 2d Appellate
Review 649 (2009).
11 Compare Rockstad v. Erickson, 113 P.3d 1215, 1219
(Alaska 2005) (grant of summary judgment reviewed de novo) with
Ghete v. Anchorage, 948 P.2d 973, 975 (Alaska 1997) (denial of
Rule 60(b) motion reviewed for abuse of discretion).
12 If Peterson believed he lacked the evidence to
successfully oppose DNRs summary judgment motion, he could have
made a Rule 56(f) request seeking additional time to gather
evidence before filing an opposition. Such requests are
liberally granted. See Hymes v. DeRamus, 119 P.3d 963, 965
(Alaska 2005). He failed to do so. DNR contends that Peterson
had adequate opportunity to oppose the motion for summary
judgment and made no showing that the evidence submitted in
support of his Rule 60(b) motion could not have been presented to
the superior court at the time he filed his opposition to DNRs
motion for summary judgment.
13 Although Peterson claims disability discrimination, the
details of his alleged disability are unclear. His response to
DNRs discovery request states: Mr. Peterson injured his left foot
in 1992-1993 and has symptoms until the present. He injured his
right foot in 2002-2003, as a direct result of his left foot
injury. Surgery on the left foot was conducted November, 2007.
14 While Peterson described the hiring of John Winters as
retaliatory in the facts section of his opening brief, the hiring
was not raised as a separate claim of retaliation under AS
18.80.220(a)(4) in Petersons complaint or in his opposition to
summary judgment. Because the allegations of retaliation were
not raised below, we hold them to be waived as a separate claim
and consider them only in the context of Petersons claims of a
hostile work environment and breach of the covenant of good faith
and fair dealing. See Baseden v. State, 174 P.3d 233, 239 n.17
(Alaska 2008).
15 Petersons reply brief also argues that he was
humiliated by the display of the burned fire hose that was
destroyed in Fire 072, but the record before the superior court
at the time summary judgment was granted did not provide any
support for this allegation, as it was first raised in Petersons
memorandum in support of his Rule 60(b) motion. We also do not
rely on unsupported assertions of fact in memoranda for purposes
of our review of summary judgment. Brock v. Rogers & Babler,
Inc., 536 P.2d 778, 783 (Alaska 1975). We therefore do not
consider this assertion.
16 While there may be some minor dispute between the
parties about James Petersons actions toward Allen Peterson when
Allen Petersons firefighting qualifications were taken away,
Allen Peterson neither alleges that James Petersons actions were
motivated by age, sex, or disability, nor does he present any
evidence showing such discrimination.
17 Peterson and Winters are both men, and Peterson does
not argue that Winters is a member of a different age group.
18 French v. Jadon, 911 P.2d 20, 28 (Alaska 1996); see
also Alaska State Commn for Human Rights v. Yellow Cab, 611 P.2d
487, 490 (Alaska 1980) (using Title VII decisions for guidance in
interpreting Alaska anti-discrimination law).
19 510 U.S. 17, 21-23 (1993) (elaborating on the standard
first enunciated in Meritor Savings Bank, FSB v. Vinson, 477 U.S.
57, 67 (1986)).
20 French, 911 P.2d at 28 (quoting Harris, 510 U.S. at
21).
21 510 U.S. at 23.
22 Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998) (internal citations omitted).
23 Miller v. Safeway, Inc., 102 P.3d 282, 290 (Alaska
2004).
24 Raad v. Alaska State Commn for Human Rights, 86 P.3d
899, 904 (Alaska 2004).
25 Brown v. Wood, 575 P.2d 760, 770 (Alaska 1978)
(adopting the test named for the United States Supreme Court case
where it was articulated: McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973)), modified, 592 P.2d 1250 (Alaska 1979); see
also Raad, 86 P.3d at 904; VECO, Inc. v. Rosebrock, 970 P.2d 906,
918-19 (Alaska 1999); Haroldsen v. Omni Enters., Inc., 901 P.2d
426, 430 (Alaska 1995).
26 To establish that the Division removed his firefighting
qualifications with intent to discriminate, Peterson needs to
show that (1) he is a member of a protected class under the
statute; (2) he was qualified for the position; (3) he suffered
adverse employment action, despite these qualifications; and (4)
the employer treated him less favorably than other qualified
persons. Miller, 102 P.3d at 291.
27 Texas Dept of Cmty. Affairs v. Burdine, 450 U.S. 248,
254-55 (1981) (quoting Furnco Constr. Corp. v. Waters, 438 U.S.
567, 577 (1978)); see also State, Dept of Fish & Game, Sport Fish
Div. v. Meyer, 906 P.2d 1365, 1374 (Alaska 1995) (In the first
stage, the employee claiming discrimination must introduce
evidence raising an inference of employer discriminatory
intent.); 45C Am. Jur. 2d Job Discrimination 2460 (This consists
of evidence that, under the circumstances, raises at least a
reasonable inference that the action taken by the employer, if
otherwise unexplained, was based on impermissible factors
. . . .).
28 Miller, 102 P.3d at 291.
29 Id.
30 Petersons argument that John Winters was treated
differently is unclear. Although Peterson asserts that Winters
was not in Petersons protected class because Winterss job
classification differed from Petersons, this argument is without
merit. Job classification is not a protected class within the
meaning of AS 18.80.220(a). Further, no evidence was provided to
the superior court showing that Winters was treated differently
with regard to seasonal leave or layoff time.
31 The referenced provision, 11.07, of the collective
bargaining agreement governing transfer of General Government
Bargaining Unit employees like Peterson reads, An employee,
except a provisional employee, may apply for and be transferred
to a position in the same class, or to a parallel or closely
related job class at the same pay range in State service.
32 Provision 11.07(E) specifically states that [t]he
voluntary transfer of an employee within an agency or between
agencies may be made at the discretion of the appointing
authority(ies).
33 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973); Brown v. Wood, 575 P.2d 760, 770 (Alaska 1978); see also
Raad v. Alaska State Commn for Human Rights, 86 P.3d 899, 904
(Alaska 2004); VECO, Inc. v. Rosebrock, 970 P.2d 906, 918-19
(Alaska 1999); Haroldsen v. Omni Enters., Inc., 901 P.2d 426, 430
(Alaska 1995). As discussed previously, the three steps of the
test require the employee to bear the initial burden of
establishing a prima facie case; then the burden shifts to the
employer to offer a legitimate, nondiscriminatory reason for its
actions; and lastly, the employee bears the final burden of
demonstrating that the employers stated reason for the action was
pretextual.
34 Because DNR does not contest this, we assume that a
prima facie case has been established. A prima facie showing
would have required Peterson to demonstrate that (1) [he] belongs
to a protected class; (2) [that he] applied for and was qualified
for a job for which the employer was seeking applications; (3)
[that he] was rejected despite [his] qualifications; and (4)
[that] after [he was rejected], the position remained open and
the employer continued seeking applications from persons with
[his] qualifications. Raad, 86 P.3d at 904 (citing Alaska State
Commn for Human Rights v. Yellow Cab, 611 P.2d 487, 490 (Alaska
1980)).
35 See Raad, 86 P.3d at 904.
36 Perkins v. Doyon Universal Servs., LLC, 151 P.3d 413,
416 (Alaska 2006) (quoting Mahan v. Arctic Catering, Inc., 133
P.3d 655, 661 (Alaska 2006)).
37 Mahan, 133 P.3d at 661 (requiring the claimant to
produce admissible evidence, beyond speculation and unsupported
assumptions, sufficient to raise a genuine issue of material fact
that the reasons given by the employer were pretextual).
38 Willard v. Khotol Servs. Corp., 171 P.3d 108, 113
(Alaska 2007).
39 Pitka v. Interior Regl Hous. Auth., 54 P.3d 785, 789
(Alaska 2002) (internal quotation marks omitted); see also Miller
v. Safeway, Inc., 170 P.3d 655, 658-59 (Alaska 2007).
40 Miller, 170 P.3d at 659.
41 Petersons suggestion that DNRs budget-related
explanation was inaccurate or pretextual is not supported by the
record that was before the superior court when it granted summary
judgment.
42 Cikan v. ARCO Alaska, Inc., 125 P.3d 335, 339 (Alaska
2005).
43 Brock v. Rogers & Babler, Inc., 536 P.2d 778, 783
(Alaska 1975).
44 Peterson includes a section in his brief entitled, The
State Violated Various Statutes and Regulations. Within it, he
sets out a number of constitutional, statutory, and regulatory
citations, arguing that they are relevant. But the relevance of
some of these authorities to his argument is not entirely clear.
For example, he begins by citing the oath that he took before
assuming his forester position. It appears that the main point
of Petersons argument is that the Divisions hiring decisions
violated the principles of merit selection, which are enshrined
in article XII, section 6 of the Alaska Constitution. But nearly
all of the factual assertions in support of this argument are
based on portions of the record that were not before the superior
court at the time it granted summary judgment. As previously
discussed, we do not consider this evidence as part of our review
of the summary judgment decision. In any event, the analysis of
Petersons merit selection claim is subsumed within our discussion
of Petersons other claims concerning the hiring process,
including his claims of discrimination and his claims concerning
the implied covenant of good faith and fair dealing.
45 See Pitka v. Interior Regl Hous. Auth., 54 P.3d 785,
789 (Alaska 2002).
46 Holland v. Union Oil Co. of Cal., Inc., 993 P.2d 1026,
1035 (Alaska 1999) (quoting Burton v. Sec. Pac. Natl Bank, 243
Cal. Rptr. 277, 281 (Cal. App. 1988)).
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