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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Morrison v. NANA WorleyParsons, LLC (12/13/2013) sp-6851
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
JIM MORRISON, )
) Supreme Court No. S-14783
Appellant, )
) Superior Court No. 3AN-10-07423 CI
v. )
) O P I N I O N
NANA WORLEYPARSONS, LLC, )
) No. 6851 - December 13, 2013
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Patrick J. McKay, Judge.
Appearances: Joe P. Josephson, Joe P. Josephson Law
Office, Anchorage, for Appellant. Thomas M. Daniel,
Perkins Coie LLP, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
BOLGER, Justice.
I. INTRODUCTION
An at-will employee was placed on probation and subsequently terminated
for making an inappropriate comment at a work party. The employee sued the employer
for breach of contract and breach of the implied covenant of good faith and fair dealing.
The superior court granted summary judgment on both counts. We affirm the superior
court's judgment because the employee was an at-will employee, his termination was not
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a breach of his employment contract, and he failed to present a genuine issue that the
employer acted in bad faith.
II. FACTS AND PROCEEDINGS
Jim Morrison began working for NANA WorleyParsons, LLC (NANA) in
2006. His offer letter stated that he was an at-will employee. NANA's administrative
procedures manual also stated that all employees serve at will. Morrison served in a
piping design position at a remote work site on the North Slope.
Morrison was demoted from his lead design position in 2009. His
supervisor notified Morrison that he was overstepping his authority by attempting to
intervene in conflicts between co-workers, and Morrison indicated that he understood
the reason for the demotion.
A few months later, Morrison's co-worker sent a long letter to Morrison's
supervisor complaining that Morrison was neglecting his duties. The supervisor decided
to place Morrison on a performance improvement plan (PIP), which was outlined in a
letter signed by both parties. One of the PIP's complaints states, "[Y]ou were the
agitator between employees; . . . [you had] unnecessary involvement in issues of no
concern to you, . . . [and] you have not focused on your design duties. Rather, you have
contributed to the friction in the group and uneasiness that exists to this day."
The PIP listed six conditions that Morrison must follow to maintain his
employment:
A. Effective immediately, you will not dispose of any
material in a place not clearly identified as the acceptable
receptacle. You will comply, without deviation, with all
environmental and safety policies and practices of BP and
[NANA].
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B. Effective immediately, you will inform me or Jeff
when you arrive on the slope for your hitch and when you depart.
C. You will document accurate billable hours worked .
D. [Y]ou will attend each client morning meeting at 6:00
a.m. I will call your lead to verify timely attendance.
E. From today forward, you will report to your lead when
you arrive at your work station each morning and leave each
evening.
F. At the end of each hitch, change out notes must be
provided in a comprehensive, accurate, and timely manner.
Additionally, provide me or Jeff a copy of your change out
[1]
notes on your change out (off) day.
Four days after signing the PIP, Morrison attended a going-away party for
a co-worker, Pat Mogford. Morrison was sitting at a table with four women and another
man. Two of the women were discussing the excessive amount of male-oriented
television programming. Morrison mentioned a television show and commented that it
discussed certain rude subjects, which he specifically described. Mogford complained
to Morrison's supervisor that she had been offended, and NANA decided to terminate
Morrison's employment.
Morrison sued NANA, alleging two theories: breach of contract and breach
of the implied covenant of good faith and fair dealing. Following discovery, NANA
moved for summary judgment on both theories, and the superior court granted NANA's
motion. Morrison now appeals.
1 Emphasis in original.
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III. STANDARD OF REVIEW
We review a grant of summary judgment de novo, "reading the record in
the light most favorable to the non-moving party and making all reasonable inferences
2
in its favor." "Summary judgment is only appropriate when there is no genuine issue
3
"[T]he
of material fact, and the moving party is entitled to judgment as a matter of law."
party opposing summary judgment must set forth specific facts showing genuine issues
and cannot rest on mere allegations; moreover, such facts must arise from admissible
4
evidence." "To determine whether the nonmoving party can produce admissible
evidence creating a genuine factual dispute, we will consider the affidavits, depositions,
admissions, answers to interrogatories and similar material."5
IV. DISCUSSION
A. The Performance Improvement Plan Did Not Change Morrison's At-
Will Employment Status.
Ordinarily, an at-will employee may be fired for any reason that does not
violate the covenant of good faith and fair dealing.6
Before the superior court, Morrison
2 Witt v. State, Dep't of Corr., 75 P.3d 1030, 1033 (Alaska 2003) (citing
Spindle v. Sisters of Providence in Wash., 61 P.3d 431, 436 (Alaska 2002)).
3 Alaska Civil Liberties Union v. State , 122 P.3d 781, 785 (citing Odsather
v. Richardson , 96 P.3d 521, 523 n.2 (Alaska 2004)).
4 Witt, 75 P.3d at 1033 (quoting Braun v. Alaska Commercial Fishing &
Agric. Bank , 816 P.2d 140, 144 (Alaska 1991) (internal quotation marks omitted); Brady
v. State, 965 P.2d 1, 8 (Alaska 1998)).
5
Schug v. Moore, 233 P.3d 1114, 1116 (Alaska 2010) (quoting Charles v.
Interior Reg'l Hous. Auth. , 55 P.3d 57, 59 (Alaska 2002)).
6
Era Aviation, Inc. v. Seekins , 973 P.2d 1137, 1139 (Alaska 1999) (quoting
Luedtke v. Nabors Alaska Drilling, Inc ., 768 P.2d 1123, 1130-31 (Alaska 1989)) (citing
(continued...)
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----------------------- Page 5-----------------------
claimed that he was no longer an at-will employee because the PIP altered his
employment status through promissory estoppel. A promissory estoppel claim requires
proof of four elements:
(1) an actual promise that induced action or forbearance; (2)
the action induced was actually foreseen or reasonably
foreseeable; (3) the action amounted to a substantial change
in position; and (4) enforcement of the promise is necessary
[7]
in the interest of justice.
8
Morrison relied on a 1985 Ohio case, Mers v. Dispatch Printing Co. But
the superior court reasoned that Mers was distinguishable because the employer in that
case expressly promised reinstatement to an employee if his criminal charges were
favorably resolved, whereas NANA made no similar promise to Morrison. The court
explained that there was no indication that Morrison should reasonably have expected
that the PIP, which placed him on probation, would somehow elevate his employment
status.
The superior court also noted that NANA's written Code of Conduct states,
"All employment with NANA . . . is 'at-will.' . . . No statement or promise by a
Supervisor, Department Head, Manager, or Human Resource Representative can be
interpreted as a change in policy nor constitute an agreement with an employee." The
court concluded that the PIP did not alter Morrison's at-will status.
6 (...continued)
Eales v. Tanana Valley Medical-Surgical Grp., Inc ., 663 P.2d 958, 959 (Alaska 1983)).
7
Sea Hawk Seafoods, Inc. v. City of Valdez, 282 P.3d 359, 366 (Alaska
2012) (internal quotation marks omitted).
8 483 N.E.2d 150 (Ohio 1985).
-5- 6851
----------------------- Page 6-----------------------
On appeal, Morrison argues that the PIP modified his at-will status because
its stated purpose was "to provide [him] the opportunity to correct [his] behavior," and
because it expressed optimism that Morrison would be able to meet the conditions.
Thus, Morrison contends that the PIP was an implied promise of continued employment
for a reasonable period of time to determine if he could meet the conditions and that
NANA breached this promise by firing him so quickly after it issued this plan. Morrison
also argues that he reasonably relied on this implied promise by continuing to work for
NANA despite his power to terminate the employment relationship at will.
We conclude that the PIP did not alter Morrison's at-will status. The PIP
did not contain any express promise of continued employment. As NANA points out,
Carlson decided to give Morrison "one more chance" and "[i]nstead of firing Morrison
. . . decided to place him on a performance improvement plan." As NANA maintains,
it "merely informed Morrison that his failure to abide by the warnings in the PIP might
result in further disciplinary action, including discharge." The PIP listed seven areas that
needed correction, ranging from eliminating late arrivals and inflation of billable hours
to "stop[ping his] contribution to friction in the group." This last area of correction
included the specific clarification to Morrison that through his "unnecessary involvement
in issues [of co-workers] that were of no concern to [him]," Morrison had "contributed
to the friction of the group and uneasiness that exists to this day."
Morrison testified in his deposition that he understood Carlson to be telling
him that he was "stirring the pot" among the employees and that "he needed to be
cautious about what he said to his co-workers." Yet four days after Morrison received
the PIP, and its warning of the need for correction in various areas, Morrison concedes
that he brought up in a conversation with female co-workers the topic of a television
show called "Manswers," describing it to his co-workers as "a male-oriented show that
-6- 6851
----------------------- Page 7-----------------------
purported to answer questions of interest to men, stupid questions like, how many beers
does it take to kill a guy, or how large [do] a woman's breasts need to be to crush a beer
can . . . ." The women at Morrison's table reported to Carlson that they were "offended"
by Morrison's comments and "made to feel very uncomfortable" by them.
Moreover, recognizing the PIP as an enforceable promise of continued
employment would also be inconsistent with NANA's procedures manual, which
specifically stated that ordinary supervisors could not alter an employee's at-will status.
We conclude that Morrison was an at-will employee who could be terminated for any
reason, unless NANA violated the implied covenant of good faith and fair dealing.
B. Morrison's Termination Did Not Breach The Implied Covenant Of
Good Faith And Fair Dealing.
"All at-will employment contracts are subject to the covenant of good faith
9 1
and fair dealing." This covenant contains both objective and subjective components.
The objective component requires employers to "act in a manner that a reasonable person
would regard as fair," including fair treatment for employees who are similarly situated.11
An employer violates the subjective component when it "discharges an employee for the
purpose of depriving him or her of one of the benefits of the contract."12
Before the superior court, Morrison argued that another employee, Sherry
Berry, was allowed to complete her normal shift following her termination, but Morrison
was required to leave the Slope immediately. On this issue, the superior court concluded
9 Hoendermis v. Advanced Physical Therapy, Inc. , 251 P.3d 346, 356
(Alaska 2011).
10 Id.
11
Id. (quoting Charles, 55 P.3d at 62) (internal quotation marks omitted).
12 Id. (internal quotation marks omitted).
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----------------------- Page 8-----------------------
that Morrison had failed to show that: (1) Berry was a NANA employee; (2) Berry and
Morrison were similarly situated; and (3) the reason for Berry's termination was similar
to the reason for Morrison's termination. The court distinguished Hoendermis v.
Advanced Physical Therapy, Inc. , where the employee made a sworn statement that she
was terminated unfairly because other similarly situated employees who engaged in more
13
severe conduct were not terminated. The court concluded that Morrison failed to raise
a genuine issue of material fact regarding any unfairness in the allegedly disparate
treatment of Morrison and Berry.
On appeal, Morrison raises a somewhat different argument. He argues that
NANA's failure to investigate the allegations against him breached the covenant of good
faith and fair dealing. Morrison cites Mitchell v. Teck Cominco Alaska Inc. for the
14 In
proposition that an investigation of employee misconduct must be conducted fairly.
response, NANA contends that this court has rejected failure to investigate claims in
15 16
Ramsey v. City of Sand Point and Belluomini v. Fred Meyer of Alaska, Inc.
In Mitchell, the employer's personnel policies required it to investigate any
17
allegations of misconduct before terminating the employee. We accordingly concluded
that the employer may have violated the covenant of good faith and fair dealing by
failing to conduct a fair investigation.18
13 251 P.3d at 352.
14 193 P.3d 751, 761 (Alaska 2008).
15
936 P.2d 126, 133 (Alaska 1997).
16 993 P.2d 1009, 1013 (Alaska 1999).
17 193 P.3d at 761.
18 Id.
-8- 6851
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In Ramsey , however, the employment contract expressly authorized the
19
employer to terminate an employee without cause. We accordingly held that the
employee had no entitlement to an investigation that was protected by the covenant of
20
good faith and fair dealing. Likewise, in Belluomini , the employer's personnel policies
requiring an investigation of sexual harassment claims did not apply to the employee's
termination for insubordination, non-sexual harassment, and intimidation.21 We
accordingly affirmed a trial court order dismissing the employee's claim that the
22
covenant required an investigation.
In this case, NANA's policies and procedures did not require it to conduct
an investigation before terminating an at-will employee. We conclude that this case is
more similar to Ramsey and Belluomini , where investigations were not required, than to
Mitchell , where the employer's policies explicitly required an investigation.
On appeal, Morrison does not argue that NANA violated the covenant of
good faith and fair dealing by treating him differently than other employees or that
NANA committed any other violation of public policy. We conclude that the superior
court properly granted summary judgment in favor of NANA on this issue.
V. CONCLUSION
Morrison's termination did not violate his at-will employment contract or
the covenant of good faith and fair dealing. We therefore AFFIRM the superior court's
order granting summary judgment.
19 936 P.2d at 133.
20 Id.
21 993 P.2d at 1013-14.
22 Id. at 1014.
-9- 6851
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