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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Boyko v. Anchorage School District (1/27/2012) sp-6649
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, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
CHANA BOYKO, )
) Supreme Court No. S-13468
Appellant, )
) Superior Court No. 3AN-07-06499 CI
v. )
) O P I N I O N
ANCHORAGE SCHOOL )
DISTRICT, ) No. 6649 - January 27, 2012
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Peter A. Michalski, Judge.
Appearances: Charles W. Coe, Law Office of Charles W.
Coe, Anchorage, for Appellant. Howard S. Trickey and
Cheryl Mandala, Jermain Dunnagan & Owens, P.C.,
Anchorage, for Appellee.
Before: Carpeneti, Chief Justice, Winfree, and Stowers,
Justices. [Fabe, Justice, and Christen, Justice, not
participating.]
STOWERS, Justice.
WINFREE, Justice, concurring.
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I. INTRODUCTION
Chana Boyko is a teacher who resigned in lieu of termination from the
Anchorage School District after violating a "last chance agreement." She alleges the
School District breached a resignation agreement in which it promised not to release
negative information about her to prospective employers. Boyko sued, claiming that she
was terminated as a result of disability discrimination and that the School District's
comments made in violation of the resignation agreement breached the covenant of good
faith and fair dealing and interfered with her prospective contractual relations. The
superior court granted the School District summary judgment on all claims, concluding
that the District had nondiscriminatory reasons for termination and that its comments
were protected by statutory immunity. Boyko appeals. We reverse the grant of summary
judgment on the claims of statutory immunity, breach of the covenant of good faith and
fair dealing, and interference with prospective contractual relations, because there are
genuine issues of material fact regarding these claims. We affirm summary judgment on
the discrimination claim.
II. FACTS AND PROCEEDINGS
In the fall of 2004 Chana Boyko was employed as a teacher at Goldenview
Middle School in the Anchorage School District. One morning she arrived at school late
and appeared to be intoxicated. The school's principal, Julie Maker, sent Boyko to
Providence Breakthrough Program for an assessment and alcohol testing. A blood
alcohol content (BAC) test revealed that Boyko's BAC was 0.155 percent. Boyko
consequently completed an out-of-state treatment program and returned to Providence
Breakthrough for continuing treatment.
The School District had Boyko sign a "last chance agreement," which the
School District uniformly required of employees who reported to work intoxicated. The
agreement conditioned Boyko's continued employment upon several provisions,
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including committing to remain free of alcohol, completing treatment with Providence
Breakthrough, keeping the School District apprised of her progress in treatment, and
meeting all other terms and conditions of the last chance agreement.
Soon after, Boyko limited the School District's access to her treatment
records and neglected to tell the School District about missed treatment appointments.
Boyko also took a BAC test that registered her BAC at .007. Boyko did not attend a
partial hospitalization program that Providence Breakthrough recommended after her
positive BAC test and was discharged from the program. Providence Breakthrough
informed the School District that Boyko had not complied with the conditions of her
program, that she tested positive for alcohol, that she refused to attend the hospitalization
treatment program, and that she was discharged from Providence Breakthrough's
program against medical advice.
As a result of Boyko's discharge from Providence Breakthrough, the
School District placed her on administrative leave and she received a notice of proposed
dismissal and pre-termination hearing. Upon advice from a representative of the
teacher's union, Boyko resigned so that she would not be terminated.
Before turning in her letter of resignation, Boyko spoke on the phone with
Eric Tollefsen, the executive director of human resources for the School District. Boyko
secretly recorded the phone conversation. The following exchange occurred:
MS. BOYKO: . . . If I resign, then, at least I preserve my
right to go to work someplace else?
MR. TOLLEFSEN: Absolutely. And there is nothing in the
record, and there would be nothing that . . . we would release
to anybody else. That's true. . . . I would have a record of it
here . . .
MS. BOYKO: Uh-huh (affirmative).
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MR. TOLLEFSEN: . . . and, you know, you wouldn't be
eligible for - for rehire in this district, but you would
certainly be eligible for - I mean, you wouldn't have
anything negative on your record if you were to apply
somewhere else.[1]
Boyko testified in her deposition that when she handed in her letter of resignation,
Tollefsen told her that she would not have any problems finding work in another school
district and that "no information would be given to anyone that would prevent [her] from
being considered for a position."
After she resigned, Boyko applied for a position with the Matanuska-
Susitna (Mat-Su) Borough School District. She alleged that, when contacted as a job
reference, "the [Anchorage School] District failed to represent [her] qualifications and
failed to represent positive performance evaluations over the years." Carol Comeau,
superintendent of the Anchorage School District, declined to provide a recommendation
at Boyko's request to the Mat-Su School District because she did not directly supervise
Boyko and because of the "circumstances leading up to the termination of [Boyko's]
employment relationship with the District."
Boyko then applied for a position with the Alaska Military Youth
Academy. Boyko alleged that the School District reported negatively on her job
performance by telling the Military Youth Academy that she was not eligible for future
employment with the School District. Irene Lee, the deputy director of the Military
Youth Academy at the time of Boyko's application, stated in an affidavit that "Boyko's
last supervisor/principal at the Anchorage School District . . . advised [us] that she would
not recommend that [the Military Youth Academy] hire Ms. Boyko as a teacher." James
Jones, the principal of the Military Youth Academy at the time, stated in an affidavit that
1 This conversation will be referred to throughout as the "resignation
agreement."
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Boyko's last principal told him that she would not rehire Boyko. Nevertheless, the
Military Youth Academy hired Boyko. Boyko later attempted to rescind her resignation
letter to the School District.
In April 2007 Boyko filed a four-count complaint in superior court alleging
that the School District (I) discriminated against her based on disability; (II) breached
the covenant of good faith and fair dealing by breaching the resignation agreement;
(III) breached her collective bargaining agreement; and (IV) interfered with her
prospective contractual relations by breaching the resignation agreement.
The School District filed a motion for summary judgment, arguing Boyko
was not disabled, the School District had a non-discriminatory reason for termination,
Boyko's failure to exhaust her administrative remedies barred her from claiming a breach
of the covenant of good faith and fair dealing, and the School District did not lie to any
potential future employers.
The superior court granted the School District summary judgment on
Counts I, III, and IV. The court granted the School District summary judgment for
failure to exhaust administrative remedies on Count II to the extent that the claim related
to Boyko's employment agreement, but denied summary judgment "without prejudice
as to possible rebriefing" to the extent that it related to Boyko's resignation agreement.
Both parties moved for reconsideration. Boyko argued that the court should
reconsider its decision to grant summary judgment on Count IV, her claim of
interference with prospective contractual relations. The School District argued that no
claims could arise from Maker's statements because AS 09.65.160 provides employers
who disclose job performance information with immunity. The court agreed and granted
the School District summary judgment on Count II. The court found that, regardless of
any promises the School District made not to release negative information about Boyko,
the School District was statutorily immune from civil liability for any disclosures. The
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court did not reconsider its decision on Count IV. Boyko filed another motion for
reconsideration of the court's full summary judgment on Count II. The court affirmed
its previous grant of summary judgment and issued a final judgment.
Boyko appeals, arguing that the superior court erred in granting the School
District immunity under AS 09.65.160. She also argues that the School District breached
her resignation agreement and as a result breached the covenant of good faith and fair
dealing and interfered with her prospective contractual relations. She also argues that
the superior court erred in dismissing her claim of disability discrimination.
III. DISCUSSION
A. Standard Of Review
We review a superior court's grant of summary judgment de novo.2 In our
review, we must determine "whether any genuine issue of material fact exists and
whether on the established facts the moving party is entitled to judgment as a matter of
law."3 We draw all factual inferences in favor of, and view the facts in the light most
favorable to, the party against whom summary judgment was granted.4
We interpret the meaning of a statute using our independent judgment,
"interpreting the statute according to reason, practicality, and common sense, considering
the meaning of the statute's language, its legislative history, and its purpose."5
2 Nielson v. Benton, 903 P.2d 1049, 1052 (Alaska 1995) (citing Tongass
Sport Fishing Ass'n v. State, 866 P.2d 1314, 1317 (Alaska 1994)).
3 Id. at 1051-52 (citing Wright v. State, 824 P.2d 718, 720 (Alaska 1992)).
4 Rockstad v. Erikson, 113 P.3d 1215, 1219 (Alaska 2005) (citing Ellis v.
City of Valdez, 686 P.2d 700, 702 (Alaska 1984)).
5 Lot 04B & 5C, Block 83 Townsite v. Fairbanks N. Star Borough, 208 P.3d
188, 191 (Alaska 2009) (internal quotations omitted).
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B. There Is A Genuine Issue Of Material Fact Whether The School
District Breached The Resignation Agreement.
Boyko argues that Principal Maker's comments to the Alaska Military
Youth Academy and Superintendent Comeau's refusal to give her a recommendation
breached the resignation agreement. The School District argues that there was no breach
because it did not make any negative or derogatory statements about Boyko.
To overcome summary judgment, Boyko must set forth specific facts
arising from admissible evidence showing that there is a genuine issue of material fact
whether the School District breached the agreement.6 Because this matter comes to us
on an appeal of a grant of summary judgment against Boyko, we take all inferences in
her favor and assume the resignation agreement was a quid pro quo contract for her
resignation.
Boyko included with her opposition to summary judgment the affidavit of
Irene Lee, the deputy director of the Alaska Military Youth Academy. Lee stated in her
affidavit that "[w]hen Ms. Boyko's last supervisor/principal at the Anchorage School
District was contacted we were advised that she would not recommend that we hire
Ms. Boyko as a teacher for our program."
Boyko attached the affidavit of James Jones, the principal at the Military
Youth Academy, to her first motion for reconsideration, filed in response to the superior
court's invitation for additional briefing. He stated that Maker "stated she would not
rehire Ms. Boyko if she reapplied."
The School District contends that neither statement by Maker was a release
of negative information because her statements were not "information" but rather
6 See Witt v. State, Dep't of Corr., 75 P.3d 1030, 1033 (Alaska 2003).
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----------------------- Page 8-----------------------
opinions and they did not provide any details about Boyko's separation from the School
District.
Not providing details about the separation does not necessarily establish
that the School District did not violate the resignation agreement. Tollefsen's promise
in the resignation agreement was not limited to details about the separation: it covered
"anything negative." The promise was also not limited to negative "information."
Tollefsen told Boyko that she would not have "anything negative" on her record and
Boyko alleged that he told her that there would be no "negative or derogatory statements
made" about her. Maker's recommendation that the Military Youth Academy not hire
Boyko and her assertion that she would not rehire Boyko, even if only opinions, are
arguably also negative statements about Boyko. By producing these sworn statements,
Boyko successfully raised a genuine issue of material fact regarding whether Maker's
comments violated the resignation agreement.
Superintendent Comeau's refusal to provide a recommendation for Boyko,
however, did not violate the resignation agreement. The School District promised not
to make negative statements about Boyko, but it did not promise to provide positive
statements or recommendations.
We reverse the grant of summary judgment and remand to the superior
court for trial on the issue of whether Maker's alleged comments violated the resignation
agreement.7 Among the jury issues at trial will be whether the resignation agreement was
7 The School District argues that Boyko waived her rights under the
resignation agreement by later signing a release allowing the School District to provide
job performance information. This waiver has no bearing on the issues on appeal
because the release form that Boyko signed only authorized the School District to share
information with the Mat-Su School District. Boyko bases her appeal on the statements
that Maker allegedly made to the Alaska Military Youth Academy, which is not operated
(continued...)
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----------------------- Page 9-----------------------
in fact a contract and, if so, what performance was called for on the part of the School
District.
C. There Is A Genuine Issue Of Material Fact Whether The School
District Waived Immunity.
Alaska Statute AS 09.65.160 provides:
An employer who discloses information about the job
performance of an employee or former employee to a
prospective employer of the employee or former employee at
the request of the prospective employer or the employee or
former employee is presumed to be acting in good faith and,
unless lack of good faith is shown by a preponderance of the
evidence, may not be held liable for the disclosure or its
consequences. For purposes of this section, the presumption
of good faith is rebutted upon a showing that the employer or
former employer
(1) recklessly, knowingly, or with a malicious purpose
disclosed false or deliberately misleading information; or
(2) disclosed information in violation of a civil right of the
employee or former employee that is protected under
AS 18.80 or under comparable federal law.
The superior court found that the School District was entitled to immunity
under this statute and as a result granted the School District summary judgment on the
claim of interference with prospective contractual relations and the claim of breach of
the covenant of good faith and fair dealing.
Boyko argues that AS 09.65.160 does not apply because the parties
negotiated around it in the resignation agreement.8 She raised this argument for the first
7 (...continued)
by the Mat-Su School District.
8 Boyko also argues that Maker's comments to the Military Youth Academy
(continued...)
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time in her second motion for reconsideration. Normally we do not consider issues
raised for the first time in a motion for reconsideration.9 But we have held that a motion
for reconsideration "permissibly raised new arguments and new facts" when the superior
court "denied [the] original motion 'without prejudice' and expressly invited a second
motion."10 We may consider the arguments in Boyko's motions for reconsideration
because the superior court, in its first order on the School District's motion for summary
judgment, partially denied summary judgment "without prejudice as to possible
rebriefing." Although the argument came in Boyko's second motion for reconsideration,
the court's invitation for rebriefing was apparently not limited to the party's first
responses. Boyko's second motion for reconsideration therefore sufficiently raised her
argument for consideration on appeal.
"[S]tatutorily created rights can generally be waived."11 A party may
impliedly waive a legal right if there is "direct, unequivocal conduct indicating a purpose
to abandon or waive the legal right."12 "Whether a waiver occurred is a question of
8 (...continued)
were outside the scope of AS 09.65.160 because the comments were not about Boyko's
"job performance." Maker's statements, however, were within the scope of the
immunity statute.
9 Clemensen v. Providence Alaska Med. Ctr., 203 P.3d 1148, 1155 (Alaska
2009).
10 Shea v. State, Dep't of Admin., Div. of Ret. & Benefits, 204 P.3d 1023, 1029
n.29 (Alaska 2009).
11 Deptula v. Simpson, 164 P.3d 640, 645 (Alaska 2007).
12 Blood v. Kenneth Murray Ins., Inc., 68 P.3d 1251, 1255 (Alaska 2003)
(quoting Powers v. United Servs. Auto. Ass'n, 6 P.3d 294, 298-99 (Alaska 2000)).
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fact."13 In this case, there is a genuine issue of material fact whether Tollefsen's
statements in the resignation agreement waived the School District's protection under
AS 09.65.160. According to Boyko's deposition testimony, Tollefsen stated to Boyko
when she resigned that "there is nothing in the record, and there would be nothing that
. . . we would release to anybody else." He allegedly stated further that Boyko "wouldn't
be eligible for . . . rehire in this district, but . . . [she] wouldn't have anything negative
on [her] record if [she] were to apply somewhere else." Boyko testified that Tollefsen
also told her that "no one in the school district would make any kind of negative
comment about [her] or about [her] employment." Viewing this evidence in the light
most favorable to Boyko, Tollefsen's alleged statements could be considered an implied
waiver of the School District's right to "disclose information about [Boyko's] job
performance" without fear of liability.14 Boyko has raised a genuine issue of material
fact on whether the parties' resignation agreement included an implicit waiver of
statutory immunity.
We reverse the superior court's determination that the School District was
protected by AS 09.65.160 immunity. We remand on the issue whether Tollefsen's
statements impliedly waived the School District's rights under AS 09.65.160. Because
there are genuine issues of material fact whether the School District breached the
resignation agreement and whether the School District waived its statutory immunity, it
was error for the superior court to grant summary judgment on Boyko's claims of breach
of the covenant of good faith and fair dealing and interference with prospective
contractual relations. We reverse summary judgment as to those claims as well.
13 Id. at 1254.
14 AS 09.65.160.
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D. The Superior Court Properly Granted Summary Judgment On The
Disability Discrimination Claim.
Boyko claims that the superior court erred in granting the School District
summary judgment on her disability discrimination claim under the Alaska Human
Rights Act (AHRA). She specifically argues that the School District terminated her for
being an alcoholic.
The AHRA, specifically AS 18.80.220(a), provides that "it is unlawful for
. . . an employer to . . . bar a person from employment . . . because of the person's . . .
physical or mental disability . . . when the reasonable demands of the position do not
require distinction on the basis of . . . physical or mental disability."
We use a three-part analytical framework for claims under
AS 18.80.220(a):
First, the employee carries the initial burden under the statute
of establishing a prima facie case of . . . discrimination. The
burden then shifts to the employer to articulate some
legitimate, nondiscriminatory reason why the employee was
discharged. Finally, the burden shifts back to the employee
to show that the employer's stated reason for discharging the
employee was in fact pretext.[15]
The parties do not dispute that Boyko raised a prima facie case of
discrimination and that the School District presented a legitimate, nondiscriminatory
reason for Boyko's discharge. We will assume that Boyko had a disability for the
purpose of this case,16 and focus on whether Boyko raised a genuine issue of material
fact that the reason for discharge was pretextual.
15 Haroldsen v. OMNI Enters., Inc., 901 P.2d 426, 430 (Alaska 1995)
(internal citations and alterations omitted).
16 Boyko argues that alcoholism is a disability. We have not previously
addressed this issue, and we do not decide it here.
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To raise a genuine issue of material fact, Boyko must present more than
"unsupported assumptions and speculation."17 We will affirm summary judgment if the
plaintiff "presents nothing more than [her] own subjective belief that the employer's
asserted ground is a pretext."18 We must determine whether Boyko "raised sufficient
doubts regarding the [School District's] stated justifications to permit a reasonable jury
to infer that the reasons given [were] pretextual."19
Boyko presents three arguments to support her claim that the School
District's stated reason for terminating her - that she violated the last chance agreement
- was pretext: (1) Tollefsen promised her that she would not receive negative
employment references, but he did not intend to keep that promise; (2) when she signed
her last chance agreement, Tollefsen said that she would fail and that she was going to
die; and (3) she was not allowed to explain herself after she was accused of violating the
last chance agreement.
Boyko's first argument, that Tollefsen did not intend to keep his promise
that she would not receive negative references, is not supported by any admissible
evidence and presents only unsupported speculation.
Boyko's next argument, that the School District "wrote [her] off the minute
they found out she was an alcoholic" and forced her to resign, is also conclusory and
speculative. She points to Tollefsen's alleged statements to her when she signed the last
chance agreement that she was a liar, that she was going to die, and that she would fail
and probably be terminated. However, the School District did not immediately terminate
17 Perkins v. Doyon Universal Servs., LLC, 151 P.3d 413, 416 (Alaska 2006)
(internal quotations omitted).
18 Id. (internal quotations and alterations omitted).
19 Haroldsen, 901 P.2d at 431-32.
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her upon learning of her alcoholism, but instead made several attempts to assist her in
rehabilitation by sending her to Providence Breakthrough and providing her with the last
chance agreement. It only began the termination process after Boyko violated her last
chance agreement, which provided a permissible reason for termination.20 The District
alleged that Boyko violated her last chance agreement three ways: (1) by changing the
agreed-upon authorization allowing Providence Breakthrough to release information to
the District; (2) by testing positive for alcohol at Providence Breakthrough; and (3) by
not adhering to Hazeldon's conditions for release, which included continued sobriety.
Boyko herself admitted that disability discrimination did not cause her to lose her job.
Boyko's argument that Tollefsen's statements indicated that the School District's
proffered reason was pretextual is not supported by any evidence.
Finally, Boyko argues that she was not allowed to explain at a pre-
termination meeting Providence Breakthrough's decision to discharge her. It is
undisputed that Boyko's last chance agreement conditioned her continued employment
on successfully completing "the approved plan of continued rehabilitation from
Providence Breakthrough," that her continuation of employment was "contingent upon
[Boyko] satisfactorily meeting all of the terms" of the last chance agreement, and that her
failure to do so would "subject [Boyko] to immediate discipline up to and including
termination." Providence Breakthrough discharged Boyko from its rehabilitation
program because it found that she had tested positive for alcohol and refused to attend
a recommended hospitalization treatment program. Boyko's argument is that the School
20 See Longen v. Waterous Co., 347 F.3d 685, 689 n.4 (8th Cir. 2003); Brock
v. Lucky Stores, Inc., 23 Fed. App'x. 709, 711-12 (9th Cir. 2001); Mararri v. WCI Steel,
Inc., 130 F.3d 1180, 1182-83 (6th Cir. 1997); McKey v. Occidental Chem. Corp ., 956
F. Supp. 1313, 1319 (S.D. Tex. 1997); Golson-El v. Runyon, 812 F. Supp. 558, 561
(E.D. Pa. 1993); Rhodes v. URM Stores, Inc., 977 P.2d 651, 654 (Wash. App. 1999).
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District did not give her an opportunity to explain Providence Breakthrough's decision.
Implicit in her argument is that there may have been extenuating circumstances or that
Providence Breakthrough's decision was invalid. There may have been arguments she
could have made to Providence Breakthrough, but the School District was entitled to rely
on Providence Breakthrough's determination. After Providence Breakthrough
communicated to the School District its decision to discharge Boyko, the School District
acted within the scope of the last chance agreement in terminating her. Boyko has not
raised a genuine issue of material fact on whether the School District's decision to follow
the terms of the last chance agreement was pretextual.
Boyko raised no genuine issues of material fact on whether the School
District's reason for termination was pretextual. We affirm the superior court's grant of
summary judgment on the discrimination claim.
IV. CONCLUSION
We REVERSE the grants of summary judgment on the claims of breach of
the covenant of good faith and fair dealing and interference with prospective contractual
relations and REMAND for trial. Among the jury issues at trial will be whether the
agreement was in fact a contract and, if so, what performance was called for on the part
of the School District and whether the District is statutorily immune. We AFFIRM the
grant of summary judgment on the discrimination claim.
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WINFREE, Justice, concurring.
I agree with the court's resolution of the summary judgment issues
presented in this appeal. I write separately only to express my view that if Boyko and
the School District actually entered into a resignation agreement as Boyko alleged, that
agreement itself is a waiver of the School District's statutory immunity under
AS 09.65.160. In the absence of an express reservation of its statutory immunity rights
as a part of a resignation agreement, an employer cannot enter into an agreement limiting
what the employer can say about the resigning employee and then rely on the statute to
immunize itself from damages arising from its breach of the agreement:
A waiver can be accomplished either expressly or implicitly.
An implied waiver arises where the course of conduct
pursued evidences an intention to waive a right, or is
inconsistent with any other intention than a waiver, or where
neglect to insist upon the right results in prejudice to another
[1]
party .
To the extent the court suggests otherwise, by stating there is a genuine
issue of material fact on whether the resignation agreement, if it exists, "included an
implicit waiver of statutory immunity," (emphasis added) I disagree.
1 Milne v. Anderson, 576 P.2d 109, 112 (Alaska 1978) (emphasis added).
-16- 6649
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