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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Thomas v. State, Dept. of Environmental Conservation, Division of Environmental Health, Food Safety & Sanitation (8/26/2016) sp-7121

Thomas v. State, Dept. of Environmental Conservation, Division of Environmental Health, Food Safety & Sanitation (8/26/2016) sp-7121

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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  



                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  

ERNEST  FRANK  THOMAS,                                      )  


                                                            )         Supreme Court No. S-15371  

                              Appellant,                    )  


                                                            )         Superior Court No. 3AN-10-10515 CI  

                    v.                                      )  


                                                            )         O P I N I O N  






                                                                     No. 7121 - August 26, 2016  










                              Appellee.                     )  



                    Appeal from the Superior Court of the State of Alaska, Third  


                    Judicial District, Anchorage, Eric A. Aarseth, Judge.  


                    Appearances:           Ernest  Frank  Thomas,  pro  se,  Eden,  New  


                    York, Appellant. Margaret Paton Walsh and Aesha Pallesen,  


                    Assistant  Attorneys  General,  Anchorage,  and  Craig  W.  


                    Richards, Attorney General, Juneau, for Appellee.  


                    Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and  


                    Bolger, Justices.  


                    MAASSEN, Justice.  

----------------------- Page 2-----------------------



                    Astateagencyterminated theemployment ofaseafoodinspector following  


a contentious airport inspection that resulted in complaints by a seafood processor and  


an airline.  The inspector contends that his termination was actually in retaliation for an  


ethics complaint he had filed over a year earlier against the agency's director.   The  


superior court decided most of the inspector's claims against him on summary judgment  


but allowed one claim, alleging a violation of his free speech rights, to go to trial.  The  


jury found that the ethics complaint was not a substantial or motivating factor in the  


inspector's termination, and the superior court entered final judgment for the agency.  


                     On appeal, the inspector argues that the superior court erred in granting  


summary judgment, in denying his motion for a new trial based on allegations of jury  


misconduct, and in awarding attorney's fees to the agency. Finding no error, we affirm.  




          A.         Thomas's Discipline History And His Ethics Complaint  


                    Ernest Thomas was employed by the Alaska Department of Environmental  


Conservation (the Department or the State) as a seafood inspector for more than 20 years.  


Though he had previous instances of discipline, the principal storyline of his lawsuit  


began on February 12, 2008.  Thomas spoke that day with an unknown member of the  


public about new seafood regulations.  Thomas's acting supervisor, Duane McIntire,  


asked Thomas to find the person's name for follow-up. After several reminders, Thomas  


sent McIntire a "menu of telephone numbers that perhaps are the correct person," along  


with the advice "happy hunting."  McIntire asked human resources specialists in the  


Department for help in responding to Thomas's email. Based on their recommendations,  


he ultimately emailed Thomas: "My expectation is that you politely and professionally[]  


make the calls to track down who you spoke to."  Thomas responded, and included in  


his lengthy email was this: "Your patronizing message is not appreciated. . . . I believed  


                                                               - 2 -                                                       7121

----------------------- Page 3-----------------------

you to be a person of some principle and now see after today that I was wrong.                                                                                                                                                  Please  

do   not   allow   your   new   found  acting  supervisory   position   to   swell   your   head   too  

much . . . ."                      

                                      The Department initiated an investigation of Thomas's behavior in the                                                                                                                                

exchange, serving him with a notice of investigatory hearing in the early afternoon of                                                                                                                                                        

February 14.  A few hours later Thomas sent an email to an assistant attorney general,                              

alleging that the Department's director, Kristin Ryan, had committed an ethics violation.                                                                                                                                                              

Thomas alleged that he had recently discovered Ryan's marriage to a seafood industry                                                                                                                                        

lobbyist, creating a conflict of interest, and that she was unfairly punishing him for his                                                                                                                                                  

discovery.   At the bottom of the email Thomas asserted:                                                                                                       "This is my formal complaint                             

to commence an investigation:                                                          This is my formal request for whistleblower protections                                                                       


to be implemented for myself."                                                              

                                      Theassistant attorney generalsentThomasaconfidential reply on February  


20.  She informed him that the information he had provided did "not appear to allege a  


violation of the Ethics Act by Ms. Ryan," that his invocation of whistleblower status was  


without effect, and that if he believed he was the subject of retaliation he should pursue  


the grievance procedures available through his collective bargaining agreement.  


                                      OnFebruary25 Thomas received a written reprimand fromtheDepartment  


for his "inappropriate and unprofessional behavior" in the course of his email exchange  


with  McIntire.                                    Over  the  next  year  he  was  disciplined  several  more  times  for  


disrespectful  and  argumentative  emails,  derogatory  remarks  about  coworkers,  and  


ignoring the chain of command.   The complaints against him prompted three more  


investigatory hearings and resulted in three suspensions without pay (one for three days  


and two for five), as well as written admonitions. A May 2009 letter to Thomas from his  




                                      Emphasis omitted.  


                                                                                                                    - 3 -                                                                                                                        7121  

----------------------- Page 4-----------------------

new supervisor, Robert Pressley, outlined Thomas's history of discipline since early                                                                                                                                                                                                   

2008 and warned him "that any further violations may result in further discipline up to                                                                                                                                                                                                           

and including dismissal."                                                                

                       B.                     The Cordova Incident And Thomas's Termination                                                                                              

                                              On August 25, 2009, Thomas traveled to Cordova to conduct inspections                                                                                                                                               

at area seafood facilities.                                                           The next day a representative of Ocean Beauty Seafoods sent                                                                                                                                          

an email to Pressley and Ryan enclosing a report of an incident at the Cordova airport.                                                                                                                                                                                                                     

According to the report, when Thomas got off the plane in Cordova he approached the                                                                                                                                                                                                           

gate counter, "asked for the [Alaska Airlines] manager[,] . . . confronted her in an                                                                                                                                                                                                           

abusive manner[,] and complain[ed] that the fish on the tarmac . . . had been sitting too                                                                                                                                                                                                     



long in 60[-]degree weather and he was going to do something about it."                                                                                                                                                                                     The manager  


asked Thomas for identification, but he could not comply because it was in his checked  


luggage; he instead gave her a business card.  When the manager pressed him for an  


official identification, Thomas engaged in "another round of complaints and general  


abuse" until his luggage arrived, when "he finally produced [a] very old and tattered  


 [Department] ID."  


                                              As the email described it, the Alaska Airlines manager informed Thomas  


that "all the cases had already been TSA screened and that Ocean Beauty was part of the  


screened facility program." The email said that Thomas "then threw another tantrumand  


insisted on removing a case of [Ocean Beauty] fish from the tarmac."  The manager  


contacted her cargo supervisor, who spoke to Thomas on the phone, describing this  


conversation later as a "loud, unpleasant and non-productive communication."  Local  


police at the airport contacted state troopers, who authorized Thomas's inspection.  

                       2                      According to the report, Alaska Airlines had moved the pallets of frozen                                                                                                                                                            

fish "out on the tarmac directly from the cooler only 5 minutes before                                                                                                                                                                                           the aircraft   


                                                                                                                                              - 4 -                                                                                                                                     7121

----------------------- Page 5-----------------------

                                 According to Ocean Beauty's report, "Thomas had produced a simple                                                                                                     

thermometer early on in [the] confrontation and walked around with it, took it to the                                                                                                                           

bathroom and later laid it on the ticket counter; no attempt was made to sanitize it in any                                                                                                                     

way."   When the case of fish was produced for his inspection, he opened it, "plunge[d]                                                                                                       

his hands into the fish cavities without gloves," and "claimed the flesh temperature                                                                                                      

                                                            3      Alaska  Airlines  repackaged  the  box  of  fish,  but  after  the  

registered   40   degrees."                                                                                                                                                                                     

inspection Ocean Beauty could no longer attest to its quality and therefore instructed its  


customer to destroy it.  According to Ocean Beauty's report, this entire process delayed  


the aircraft's departure by 25 minutes.  


                                 Upon receipt of Ocean Beauty's report - and a corroborating complaint  


from Alaska Airlines - Ronald Klein, manager of the Department's Food Safety and  


Sanitation Program, asked for investigative assistance from the Environmental Crimes  


Unit.  The Unit was given the Department's inspection protocols and interviewed six  


witnesses,  though  not  Thomas.                                                       It  submitted  a  report  to  the  Department  in  early  


September 2009,which largely substantiated OceanBeauty's description of theincident.  


                                 Following  an  investigatory  hearing  on  September  18,  the  Department  


terminated Thomas's employment because of the Cordova incident.  The September 23  


termination letter advised Thomas that he had shown poor judgment, failed to follow  


established  protocols,  displayed  highly  inappropriate  behavior,  and  communicated  


unprofessionally.  The letter took note of Thomas's history of warnings and discipline  


for similar behavior and concluded that he should have known "what management's  


                 3                Ocean Beauty questioned the accuracy of this result, but it was within the                                                                                                     

range allowed for safe transport, as Thomas acknowledged at the later investigatory                                                                                                    

hearing.  See   18 Alaska Administrative Code (AAC) 34.105(c) (2016) (providing that                                                                                               

"[t]he processor shall hold seafood products upon receipt at a temperature of not more         


than 45 Fahrenheit until processing of the seafood product begins").  


                                                                                                       - 5 -                                                                                                7121

----------------------- Page 6-----------------------

expectations  [were]  regarding  .  .  .  appropriate  communication."                                  The  day  after  he  


received this letter Thomas tendered his resignation.  


          C.        Thomas's Lawsuit  


                    Thomasfiled acomplaint againsttheStateinSeptember 2010, alleging nine  


causes of action.  An amended complaint trimmed away all non-employment-related  


claims, leaving his assertions that the State (1) breached the covenant of good faith and  


fair dealing; (2) violated his First Amendment rights; (3) deprived him of due process in  


the   disciplinary   proceedings;   (4)   violated   the   Alaska   Whistleblower   Act;   and   (5)  

wrongfully retaliated against him.  The State moved for summary judgment on all these  


claims on grounds that there was no genuine dispute about the reasons for Thomas's  


dismissal, and the superior court granted the motion.  


                    Thomas moved for reconsideration, which the superior court granted only  


as to his claim that he had been terminated for exercising his First Amendment rights,  


i.e., bringing his ethics complaint against the director.  The claim was tried to a jury.  


During ten days of trial the parties submitted several hundred exhibits, and the jury heard  


from 14 witnesses.  The jury deliberated for two hours before returning a verdict for the  


State,  answering  "no"  to  the  question,  "Was  Ernest  Thomas's  filing  of  the  ethics  


complaint against Director  Ryan  a substantial or  motivating  factor  for  the State of  


Alaska's termination of his employment?"  


                    The superior court denied Thomas's motion for a new trial, which was  


based largely on allegations of juror misconduct.   The court also awarded the State  


attorney's fees of $75,000.  Thomas appeals.  




                    "We review a grant of summary judgment de novo to 'determine whether  


any genuine issue of material fact exists and whether the moving party is entitled to  


                                                              - 6 -                                                        7121


----------------------- Page 7-----------------------


judgment on the law applicable to the established facts.' "                                                                   " 'Whether the evidence           

presented a genuine issue of material fact is a question of law,' and '[w]e 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.' "                                                 5  

                            "The standard of review applicable to a superior court's denial of a motion  


 for a new trial based upon alleged juror misconduct is the abuse of discretion standard."6  


 "This court 'will not disturb a trial court's decision on [a motion for a new trial] except  


 in exceptional circumstances to prevent a miscarriage of justice.' "7  


                            Finally, "[w]hether thesuperior court appliedtheappropriatelegalstandard  


 in its consideration of a fee petition presents a question of law that we review de novo."8  


 Once we have identified the appropriate standard, "we review awards of attorney's fees  


              4             Mills v. Hankla                , 297P.3d           158, 165 (Alaska2013)                           (internalcitation omitted)         

 (quoting   Wright v. State                       , 824 P.2d 718, 720 (Alaska 1992)).                                         

              5             Becker v. Fred Meyer Stores, Inc., 335 P.3d 1110, 1113 (Alaska 2014)  


 (alteration in original) (footnote omitted) (first quoting Lockwood v. Geico Gen. Ins. Co.,  


 323 P.3d 691, 696 (Alaska 2014); and then quoting Hoendermis v. Advanced Physical  


 Therapy, Inc., 251 P.3d 346, 351 (Alaska 2011)).  


              6             Van Huff v. Sohio Alaska Petroleum Co., 835 P.2d 1181, 1187 (Alaska  


 1992) (citing West v. State, 409 P.2d 847, 852 (Alaska 1966)).  


              7             Id. (alteration in original) (quoting Buoy v. Era Helicopters, Inc., 771 P.2d  


439, 442 (Alaska 1989)).  


              8             Powell v. Powell, 194 P.3d 364, 368 (Alaska 2008).  


                                                                                     - 7 -                                                                              7121


----------------------- Page 8-----------------------


 for an abuse of discretion."                        "Abuse exists if the [superior] court's decision 'is arbitrary,                             

 capricious, manifestly unreasonable, or the result of an improper motive.' "                                                               10  

IV.          DISCUSSION  


             A.          The Superior Court Did Not Err By Granting Summary Judgment.  


                         Thomas's amended complaint asserted five causes of action against the  


 State; the superior court granted summary judgment on all of them before reinstating  


 Thomas's First Amendment claim on reconsideration.  Thomas contends that the grant  


 of summary judgment as to his other claims is reversible error.  We do not agree.  


                         "Alaska Civil Rule 56 provides for judgment to be granted to a party where  


 'there is no genuine issue as to any material fact' and 'the moving party is entitled to  



judgment as a matter of law.' "                                "[A] party seeking summary judgment has the initial  


burden of proving, through admissible evidence, that there are no disputed issues of  



material fact and that the moving party is entitled to judgment as a matter of law." 


 "Once the moving party has made that showing, the burden shifts to the non-moving  


party 'to set forth specific facts showing that he could produce evidence reasonably  

             9            Wagner v. Wagner                   , 183 P.3d 1265, 1266 (Alaska 2008) (citing                                           Ware v.   

 Ware, 161 P.3d 1188, 1192 (Alaska 2007)).                           

             10           Weimer v. Cont'l Car & Truck, LLC, 237 P.3d 610, 613 (Alaska 2010)  


 (quoting Monzingo v. Alaska Air Grp., Inc., 112 P.3d 655, 659 (Alaska 2005)).  


             11          Christensen v. Alaska Sales &Serv., Inc., 335 P.3d 514, 517 (Alaska 2014)  


 (quoting Alaska R. Civ. P. 56(c)).  


             12          Mitchell v. Teck Cominco Alaska Inc., 193 P.3d 751, 760 n.25 (Alaska  


2008) (citing Shade v. Co & Anglo Alaska Serv. Corp., 901 P.2d 434, 437 (Alaska  



                                                                             - 8 -                                                                      7121


----------------------- Page 9-----------------------

tending to dispute or contradict the movant's evidence and thus demonstrate that a                                                                   


material issue of fact exists.' "                            


                         1.	         There  was  no  genuine  issue  of  material   fact  precluding  


                                     summary judgment on Thomas's due process claim.  


                         One of Thomas's causes of action cited 42 U.S.C.  1983 and alleged that  


he was deprived of due process in the course of the proceedings that resulted in his  


termination; he alleged specifically that he was not informed before the hearing of the  



allegations made by Ocean Beauty and Alaska Airlines.                                                       "To sustain an action under  


42 U.S.C.  1983, [a claimant] must show:   (1) that the conduct complained of was  


committed by a person acting under color of state law and (2) that the conduct deprived  



the plaintiff of a constitutional right."                                 Public employees, because of their recognized  


property interest in continued employment, have a constitutional due process right to a  



pre-termination hearing.                          "At a minimum, the employee must receive oral or written  


notice of the proposed discharge, an explanation of the employer's evidence[,]  and an  



opportunity to present his position." 

            13           Christensen, 335 P.3d at 517 (quoting                                 State, Dep't of Highways v. Green                              ,  

586 P.2d 595, 606 n.32 (Alaska 1978)).                       

            14           Thomas also alleged as a basis of his due process claim that McIntire, his  


then-acting supervisor, "was unavailable for cross-examination" at the time of his first  


investigatory hearing, apparently in reference to the February 2008 email exchange. He  


does not pursue this assertion on appeal.  


            15           Okpik v. City of Barrow, 230 P.3d 672, 677 (Alaska 2010) (alteration in  


original) (quoting Crawford v. Kemp, 139 P.3d 1249, 1255 n.10 (Alaska 2006)).  


            16           City of North Pole v. Zabek, 934 P.2d 1292, 1297 (Alaska 1997).  


            17           Storrs v. Municipality of Anchorage, 721 P.2d 1146, 1149 (Alaska 1986).


The hearing procedure "should provide an initial check against a mistaken decision by



                                                                            - 9 -	                                                                    7121


----------------------- Page 10-----------------------

                          In granting summary judgment to the State on Thomas's  1983 claim, the                                                                  

superior court reasoned that the constitutional minimum had been satisfied:                                                                          "Thomas  

was provided with 'notice and opportunity for hearing appropriate to the nature of the                                                                             

               18    Thomas contends this was error because the State "did not fully explain its  

case.' "                                                                                                                                                            

evidence" against him.  On appeal he cites the Department's failure to give him a copy  


of the Environmental Crimes Unit's report before the hearing,  though  he does not  


cogently explain how the report would have helped his defense.19   And the law requires  


only that the State provide Thomas with an explanation of the evidence against him, not  


necessarily every piece of it.  


                          The written notice of the "investigatory interview" that led to Thomas's  


termination advised him that "on Tuesday, August 25, 2009, while in travel status for the  


State of Alaska, you engaged in inappropriate and unprofessional communication and  


behavior while performing your duties in your capacity as an Environmental Health  


Officer III."  The letter, dated September 17, scheduled the interview for the following  


day; it informed himthe interviewwould be his "only opportunity to provide explanation  


or mitigating facts prior to a determination regarding possible administrative action" and  


warned that the allegations against him, "[i]f substantiated, . . . may result in discipline  


up to termination."  




the employer, ensuring that there are reasonable grounds to believe  the allegations  


against the employee are true."  Id.  

             18           The superior court's quoted phrase is from Zabek, 934 P.2d at 1297.  


             19           Thomas argues that it was unusual for the Environmental Crimes Unit to  


be involved in the investigation of a State employee's conduct "when no [c]riminal  


[a]ctivity was suspected" and implies that he could have attacked the report's credibility  


on that basis.  But he provides no record support for the claim that this was a suspicious  


use of the Unit's expertise.  


                                                                               - 10 -                                                                          7121


----------------------- Page 11-----------------------

                                            Though the letter was short on detail, Thomas had learned of the complaint                                                                                                                                        

over two weeks earlier, soon after his return from Cordova.                                                                                                                                             In an email to a coworker                            

on September 2, he explained that a supervisor had informed him that he was "being                                                                                                                                                                       

investigated as a consequence of a complaint by Alaska Airlines"; he had therefore                                                                                                                                                                              

begun "composing [a] narrative of events for the investigation while fresh in [his] mind."                                                                                                                                                                                                        

The record does not fully explain how he learned the details of the complaints against                                                                                                                                                                                 

him, but the transcript of the September 18 interview demonstrates that he came prepared                                                                                                                                                                          

to address them.                                        He brought copies of photos he had taken on the tarmac and inside the                                                                                                                                                        

airport, and he read his lengthy narrative of events, providing a copy to one of the                                                                                                                                                                                                

                                           20   He cited the statutes and regulations he believed applied to the situation  


and responded to the interviewers' pointed questions about other witnesses' accounts,  

his demeanor and communications at the scene, and the procedures he used to test the  


fish.                 The  interview  lasted  about  an  hour;  it  clearly  "allow[ed]  the  administrative  


authority to examine both sides of the controversy."21  Since Thomas received "notice  


of  the  proposed  discharge,  an  explanation  of  the  employer's  evidence[,]  and  an  


opportunity to present his position,"22 we agree with the superior court that there was no  


genuine issue of material fact precluding summary judgment for the State on Thomas's  


due process claim.  


                      20                    Attending the interview besides Thomas were a human resources manager,                                                                                                                                               

Thomas's supervisors Pressley and Klein, and a union representative.                                                                                                                                                                      

                      21                    Nichols v. Eckert, 504 P.2d 1359, 1365 (Alaska 1973).  


                      22                    Storrs, 721 P.2d at 1149.  


                                                                                                                                       - 11 -                                                                                                                                  7121


----------------------- Page 12-----------------------

                         2.	         There   was    no    genuine    issue    of material fact precluding                                 

                                     summary   judgment   on   Thomas's   claim   for   breach   of   the  

                                     covenant of good faith and fair dealing.                       

                         "Every employment contract in Alaska is subject to the implied convent of                                                           



good faith and fair dealing."                              "The covenant contains both objective and subjective  



components. An employer can breacheither component."                                                        "[T]heobjectivecomponent  


 'prohibits the employer from dealing with the employee in a manner that a reasonable  



person would regard as unfair.' "                                 The subjective component requires proof that "the  


employer's  termination  decision  was  'actually  .  .  .  motivated  by  an  improper  or  

                                                                                                                                                26   Proof  


impermissible objective' - that the decision 'was actually made in bad faith.' " 

of subjective bad faith requires more than "[t]he employee's own speculation" and  


            23           Crowley v. State, Dep't of Health & Soc. Servs.                                             , 253 P.3d 1226, 1230            

(Alaska 2011) (citing                   Smith v. Anchorage Sch. Dist.                          , 240 P.3d 834, 844 (Alaska 2010)).                 

            24           Hoendermis  v.  Advanced  Physical  Therapy,  Inc.,  251  P.3d  346,  356  


(Alaska 2011) (internal citation omitted) (citing Charles v. Interior Reg'l Hous. Auth.,  


55 P.3d 57, 62 (Alaska 2002)).  


            25          Lentine v. State, 282 P.3d 369, 376 (Alaska 2012) (quoting Mitchell v. Teck  


Cominco  Alaska,  Inc.,  193  P.3d  751,  761  (Alaska  2008)).                                                      Thomas  makes  a  terse  


argument based on the test's objective component, contending that the Department's  


treatment of him was objectively unreasonable because another seafood inspector was  


not terminated for emails that "were every bit as hostile as" Thomas's (though the other  


employee was eventually "forced into voluntary resignation" for drinking while driving  


a State vehicle).  The superior court held that the two men were not similarly situated.  


"[S]imilarly situated employees are those who are members of the same class, as defined  


by job position and the nature of the alleged misconduct." Hoendermis, 251 P.3d at 357.  


Thomas's wholly unsourced description of the other employee's circumstances gives us  


no basis on which to conclude that the superior court erred in its holding.  


            26           Crowley, 253 P.3d at 1230 (alteration in original) (quoting Era Aviation,  


Inc. v. Seekins, 973 P.2d 1137, 1141 (Alaska 1999)).  


                                                                           - 12 -	                                                                    7121


----------------------- Page 13-----------------------


"personal feelings of unfairness" about the employer's motives.                                                                                                                                                          Here, in granting              

summary judgment on Thomas's claim that the Department breached the covenant, the                                                                                                                                                                                         

superior court found no evidentiary support for his theory that he was fired in retaliation                                                                                                                                                        

for his ethics complaint - only Thomas's own "speculation and personal feelings of                                                                                                                                                                                          


                                           Thomas appears to take a different tack on appeal, arguing that there was                                                                                                                                                   

a genuine issue of material fact involving what he terms the "ghost-written" email                                                                                                                                                                               

McIntire sent him in February 2008, when Thomas was resisting McIntire's request that                                                                                                                                                                                   

                                                                                                                          28  Thomas contends that the email, drafted with  

he track down a constituent's identity.                                                                                                                                                                                                                              

the help of a human resources specialist, was intended to goad him into making an  


insubordinate response and therefore was in subjective bad faith.  The State argues, on  


the other hand, that there can be no evidence of bad faith in the fact that an acting  


supervisor seeks the assistance of those with expertise in personnel issues when drafting  


a potentially sensitive communication to an employee.  


                                           The State does not dispute that McIntire sought advice from the personnel  


division before he drafted his email. We must simply decide whether, on the undisputed  


facts, the State was entitled to judgment as a matter of law on Thomas's claim.29                                                                                                                                                                                       We  


agree with the superior court that the undisputed facts themselves provide no evidence  


of subjective bad faith.  Thomas's argument depends instead on speculation about the  


                     27                   Id.  

                     28                    McIntire's email informed Thomas that he was expected to "politely and                                                                                                                 

professionally[] make the calls                                                                          to  track down who [he] spoke to," suggested some                                                                                                       

sources  for him to check, reminded him that he represented the Department in his                                                                                                                                                                                        

dealings with the public, and asked for the requested information "as soon as possible,                                                                                                                                                                

hopefully by this afternoon."                                                                 

                     29                   Alaska R. Civ. P. 56(c).  


                                                                                                                                 - 13 -                                                                                                                             7121


----------------------- Page 14-----------------------

 actors' motives: He contends that the Department's representatives intentionally drafted                                                                                                                                                                        

 an email that he would find "patronizing" and that would provoke him to respond                                                                                                                                                                            

inappropriately.   His speculation is not enough to support his claim.                                                                                                                                                        

                                           3.	                   Whether   the   State   was   entitled   to   summary   judgment   on  

                                                                 Thomas's whistleblower and wrongful termination claims is                                                                                                                                                       

                                                                 moot because the jury rejected the factual basis of the claims.                                                                                                                            

                                           Thomas   next   asserts   that   the   superior   court   erred   in   dismissing   his  

"whistleblower claim" under AS 39.90.100.                                                                                                      The State counters that Thomas "fully and                                                                                    

 fairly litigat[ed] his basic theory that he was fired in retaliation for making an ethics                                                                                                                                                                          

complaint," and the jury rejected that theory. We agree: Thomas's whistleblower claim                                                                                                                                                                                 

had the same factual basis as the First Amendment claim that was presented to the jury                                                                                                                                                                                    

 and decided against him.                                                           

                                           "To bring suit under the Whistleblower Act 'an employee must show that                                                                                                                                                          

 (1)   she has engaged in protected activity and (2) the activity was a "substantial" or                                                                                                                                                                                        


"motivating factor" in her termination.' "                                                                                                                                                                                                                                          

                                                                                                                                               "Reporting a matter of public concern to a  



public  body  is  'protected  activity.'  "                                                                                                   Thomas  went  to  trial  only  on  his  First  


Amendment claim, which required that he prove the following:  "(1) he was subjected  


to an adverse employment action, . . . (2) he engaged in speech that was constitutionally  


protected because it touched on a matter of public concern[,] and (3) the protected  



 expression was a substantial motivating factor for the adverse action." 

                      30                    Okpik   v.   City   of  Barrow,   230   P.3d   672,   678   (Alaska   2010)   (quoting  

Hammond v. State, Dep't of Transp. & Pub. Facilities, 107 P.3d 871, 874 n.5 (Alaska  


                      31	                  Id.  



                                           Sengupta v. Univ. of Alaska, 139 P.3d 572, 576 (Alaska 2006) (quoting  


 Ulrich v. City & Cty. of San Francisco, 308 F.3d 968, 976 (9th Cir. 2002)).  


                                                                                                                                   - 14 -	                                                                                                                             7121

----------------------- Page 15-----------------------

                                The "protected activity" that Thomas alleged as a necessary element of the                                                                                            

whistleblower claim was the same activity that he alleged as a necessary element of the                                                                                                               

                                                                                                                                                                                              33      To  

First Amendment claim:                                         his report of the director's alleged ethics violation.                                                                               

succeed on either claim he had to prove that the report was a substantial motivating  


factor in his termination.  The jury answered "no" when asked on the special verdict  


form whether Thomas's "filing of the ethics complaint against Director Ryan [was] a  


substantial or motivating factor for the State ofAlaska's terminationofhis employment."  


The jury's rejection of the factual basis for his whistleblower claim moots his argument  


that the superior court erred by deciding it on summary judgment.34  


                                Thomas's first amended complaint asserted a separate cause of action for  


wrongful termination, alleging that he was terminated in retaliation for two protected  


activities:  (1) "fil[ing] a complaint with the Attorney General's office," i.e., the ethics  


                33              Thomas also appears to argue that his whistleblower claim encompassed                                                                        

the   Department's   "use   of   dishonest   and   deceitful   baiting   e-mails"   because   he   was  

disciplined for his own email responses after having claimed whistleblower status.                                                                                                                 But  

Thomas does not explain why the communications for which he was disciplined should                                                                                                           

be viewed as "protected activities."  Public employers are prohibited "from retaliating                                                                                              

against employees or prospective employees for engaging in                                                                                     constitutionally protected   

expression,"    id.    (emphasis    added);    not    every    instance    of    workplace    speech    is  

constitutionally protected, as Thomas apparently contends.                                                                                   

                34              See, e.g., Rockstad v. Erikson, 113 P.3d 1215, 1221 (Alaska 2005) (holding  


that any error in the court's grant of summary judgment against a borrower on his statute  


of limitations defense was harmless where evidence at trial showed a later payment that  


revived the debt); see also Martin v. Cty. of San Diego, 512 F. App'x 677, 679 (9th Cir.  


2013) (holding that a challenge to the district court's grant of summary judgment to the  


county on a  1983 claim based on a deputy sheriff's allegedly misleading warrant  


application was mooted by the jury's verdict in favor of the deputy);  Hinkle v. City of  


Clarksburg, W. Va., 81 F.3d 416, 420-21 (4th Cir. 1996) (holding that a challenge to the  


district court's grant of summary judgment on excessive force claims against "non- 


shooting officers, a supervisor, or the City" was mooted by the jury's verdict in favor of  


the shooting officer).  


                                                                                                - 15 -                                                                                           7121


----------------------- Page 16-----------------------

 complaint against the director; and (2) his "[u]nion activity and his history of filing                                                                             

 grievances."   His brief on appeal mentions the wrongful termination claim but does not                                                                                  

provide a factual or legal basis on which to analyze it separately from his whistleblower                                                          

 claim.   To the extent the wrongful termination claim is not governed by our discussion                                                                   

 of the whistleblower claim, we consider the issue waived.                                                           35  


              B.	           The  Superior  Court  Did  Not  Abuse  Its  Discretion  In  Denying  


                            Thomas's Motion For An Evidentiary Hearing Or New Trial Based  


                            On Alleged Juror Misconduct.  


                           Thomas argues that the superior court erred when it refused to grant him  


 an evidentiary hearing or new trial after he raised allegations of juror misconduct.  In  


 support ofapost-trial motion, Thomas submitted hisown affidavit relating conversations  


he had with one juror after trial.  According to Thomas, the juror told him that another  


juror demanded that deliberations end by a certain time; that other jurors said demeaning  


things about Thomas's appearance; that somejurors falselyclaimedtohaveseen Thomas  


 "selling or handing out pickles on the street corner" across from the court house; and that  


 one juror acted "like a school yard bully."  Thomas asserts in his brief that the juror he  


 spoke to also submitted an affidavit to the presiding judge of the Third Judicial District  


 stating his concerns, but this affidavit is not in our record.  


                           Whether the superior court should have considered Thomas's proffered  


 evidence is governed by Alaska Evidence Rule 606(b), which provides:  


                                         Upon  an  inquiry  into  the  validity  of  a  verdict  or  


                           indictment, a juror may not be questioned as to any matter or  


                            statement   occurring   during   the   course   of   the   jury's  


                            deliberations or to the effect of any matter or statement upon  


                           that or any other juror's mind or emotions as influencing the  


                           juror to assent to or dissent from the verdict or indictment or  



                           Hymes v. DeRamus, 222 P.3d 874, 887 (Alaska 2010) ("[I]ssues not argued  


 in opening appellate briefs are waived.  This rule applies equally to pro se litigants.").  


                                                                                   - 16 -	                                                                                  7121  

----------------------- Page 17-----------------------

                      concerning    the    juror's    mental    processes    in    connection  

                      therewith,   except that a juror may testify on the question                        

                      whether extraneous prejudicial information was improperly  


                      brought  to  the  jury's  attention  or  whether  any  outside  


                      influence was improperly brought to bear upon any juror.  


                      Nor may a juror's affidavit or evidence of any statement by  


                      the juror concerning a matter about which the juror would be  


                      precluded from testifying be received for these purposes.  


In Titus v. State we identified the competing interests addressed by Rule 606(b):  Its  


"general ban on using juror testimony to impeach verdicts" is intended "to protect jurors  


from harassment, to encourage free jury deliberation, and to promote the finality of  


verdicts," while the exceptions to the general ban are designed to "protect[] the interest  


in  avoiding  injustice"  by  allowing  juror  testimony  in  those  "situations  where  



irregularities have marred the integrity of the deliberation process."                                             The exceptional  


situations  identified  by  the  rule  involve  "extraneous  prejudicial  information  .  .  .  


improperly  brought  to  the  jury's  attention" and  "outside  influence  .  .  .  improperly  


brought to bear upon any juror."37  


                      None  of  the  allegations  in  Thomas's  affidavit  satisfy  these  narrow  


exceptions. The superior court did not abuse its discretion when it denied his motion for  


an evidentiary hearing or  new trial based on jury misconduct.  


           36         963 P.2d 258, 261 (Alaska 1998);                          see also      Alaska R. Evid. 606(b) cmt.              

(summarizing the policy behind the rule as "to insulate the deliberative process and to  


promote finality of verdicts while not foreclosing testimony as to the extrinsic forces  


erroneously injected into the process").  

           37         Larson v. State, 79 P.3d 650, 654 (Alaska App. 2003).  


                                                                   - 17 -                                                             7121


----------------------- Page 18-----------------------

                    C.                  The Superior Court Did Not Err In Its Attorney's Fees Award                                                                                                                                            .  

                                        Finally, Thomas argues that the superior court erred when it awarded the                                                                                                                                         

 State $75,000 in attorney's fees, which was the presumptively reasonable 30% of the                                                                                                                                                                    

 State's reasonable, actual attorney's fees pursuant to the Alaska Civil Rule 82(b)(2)                                                                                                                                                  

 schedule.   Thomas makes a number of arguments, but his primary ones are that the size                                                                                                                                                               

of the award unconstitutionally restricted his access to the courts and that he was a public                                                                                                                                                 

interest litigant exempt from the application of Rule 82.                                                                                                             We conclude that there was no                                                       


                                        1.	                 The State's attorney's fees award does not unconstitutionally                                                                              

                                                            block access to the courts.                                 

                                        We have acknowledged the possibility that a fee award could be "too high"                                                                                                                                 

and thereby deny a litigant's right of access to the courts.                                                                                                                    38  


                                                                                                                                                                                         But we have upheld fee  



awards in employment cases comparable to the award at issue here.                                                                                                                                                         And Rule 82  


provides a safeguard against  awards that would deter access by allowing courts to  


consider "the extent to which a given fee award may be so onerous to the non-prevailing  


party  that  it  would  deter  similarly  situated  litigants  from  the  voluntary  use  of  the  



                    38	                 State v. Native Vill. of Nunapitchuk                                                                     , 156 P.3d 389, 406 (Alaska 2007).                                                                         



                                        See, e.g., Lentine v. State, 282 P.3d 369 (Alaska 2012) (affirming award of  


over $50,000 against former employee of Department of Fish & Game despite her claims  


that the equities weighed in her favor);   Van Huff v. Sohio Alaska Petroleum Co., 835  


P.2d 1181, 1188-89 (Alaska 1992) (explaining that because the "the case was actively  


pending over five years, there was extensive pretrial discovery, numerous complex legal  


issues were briefed and argued before the trial court, the trial lasted thirteen days, and  


 Sohio won a total victory in the case," a $117,251.50 award was appropriate).  

                    40                  Alaska R. Civ. P. 82(b)(3)(I); see Gold Country Estates Pres. Grp., Inc. v.


Fairbanks N. Star Borough, 270 P.3d 787, 799-800 (Alaska 2012) (observing that this



                                                                                                                         - 18 -	                                                                                                                   7121


----------------------- Page 19-----------------------

                            Here,   the   State's   itemized   billing   records   and   affidavits   support  the  

presumptive award.                          An assistant attorney general described the two years of pretrial                                                        

activity as involving "a myriad of issues and complaints spanning the twenty-plus years                                                                                   

 [Thomas]   worked   for   the   State,"   a   description   reflected   in   the   issues   on  appeal.   

Thomas's   discovery   requests   for   years   of   electronic   records   required   "review   of  

approximately  26,867   emails   and   3   [gigabytes]   of data                                                          for   privilege,   relevance,   or  

applicability to the discovery requests or the case in general."                                                                       Trial lasted ten days.                         

Thomas made no attempt to show actual financial harm that would indicate he was                                                                                             

deterred   from   using   the   courts.     Given   these   circumstances,   we   cannot   say   that   a  

presumptive   award   of   fees  based   on   the   Rule   82(b)(2)   schedule   was   an   abuse   of  

discretion.   And because the award was reasonable, in both its amount and its apparent                                                                           

effect on Thomas, it did not impermissibly infringe on his right of access to the courts.                                                                                        41  



rule provision requires superior court judges to "consider whether an award of attorney's  


fees will impair the constitutional right of access to the courts" (quoting Bozarth v.  


Atlantic Richfield Oil Co. , 833 P.2d 2, 6 (Alaska 1992) (Matthews, J. dissenting))).  

              41            Thomas takes issue with the State's billing rates and hours he contends  


were "excessive and duplicative."  We have considered these arguments as well and  


conclude they have no merit.  See Atlantic Richfield Co. v. State, 723 P.2d 1249, 1252  


(Alaska 1986) ("One permissible way to calculate fees for assistant attorneys general is  


to use an average hourly billing rate for private attorneys. . . .  We find no error in the  


 state's use of the Department of Law study to fix the hourly rate for assistant attorneys  


general."); Belluomini v. Fred Meyer of Alaska, Inc., 993 P.2d 1009, 1017 (Alaska 1999)  


("It is . . . for the trial judge to determine whether too much time was spent by attorneys  


for the prevailing party or whether too many attorneys were employed." (alteration in  


original) (quoting Integrated Res. Equity Corp. v. Fairbanks N. Star Borough, 799 P.2d  


295, 304 (Alaska 1990))).  


                            Thomas  also  relies  on  Continental  Insurance  Co.  v.  U.S.  Fidelity  &


 Guaranty Co., 552 P.2d 1122, 1128 (Alaska 1976), to argue that Rule 82 does not allow



                                                                                     - 19 -                                                                              7121


----------------------- Page 20-----------------------

                            2.            Thomas is not exempt from an attorney's fee award.                                                   

                            Thomas next asserts that he is a public interest litigant who should be                                                                            

exempt from the application of Rule 82.  Under AS 09.60.010, parties may be exempt                                                   

from attorney's fees awards only in cases concerning "the establishment, protection, or                                                                                         

enforcement of a right under the United States Constitution or the Constitution of the                                                                                        


State of Alaska."                                                                                                                                                          

                                           The claim on which Thomas went to trial was based on the First  


Amendment to the United States Constitution.  But a litigant claiming the protection of  


the statute must also prove that "the action or appeal asserting the right was not frivolous,  


and the claimant did not have sufficient economic incentive to bring the action."                                                                                            "A  


litigant has sufficient economic incentive to bring a claim when it is brought primarily  


to advance the litigant's direct economic interest," something we generally discern by  


examining "two factors - the nature of the claim and relief sought and the direct  



economic interest at stake." 



awards of fees for in-house counsel like the State's assistant attorneys general.  But we  


have clarified  Continental, explaining that "[n]othing in Continental was intended to  


alter our long-standing practice of awarding attorney's fees to public entities who litigate  


chiefly,  and  often  entirely,  through  in-house  counsel."                                                                Greater  Anchorage  Area  


Borough v. Sisters of Charity of House of Providence, 573 P.2d 862, 863 (Alaska 1978).  

              42            AS 09.60.010(c). "In 2003 the Alaska Legislature abrogated and replaced  


our  public  interest  litigation  exception  to  Rule  82  with"  AS  09.60.010,  which  


"encourages and protects parties bringing constitutional claims." Alaska Conservation  


Found. v. Pebble Ltd. P'ship, 350 P.3d 273, 280 (Alaska 2015)  


              43            Id. at 280-81 (quoting AS 09.60.010(c)(2)).  


              44            Id.  at 281-82 (holding that the legislature's change in the public interest  


litigation statute was intended to maintain the court's previous holdings regarding what  


constituted "sufficient economic incentive").  In considering the nature of the claim, we  


look to "statements made in the pleadings and proceedings about the rationale for the  



                                                                                     - 20 -                                                                               7121


----------------------- Page 21-----------------------

                                       Thomas's   claims,   though   varied,   were   based   on   his  loss   of   State  

employment.   His initial complaint sought "[c]ompensatory damages less mitigation at                                                                                                                                                                    

$800,000,""[u]ndeterminedfuture,                                                                      and consequentialdamages,"post-judgmentinterest,                                                                                  

"[s]tatutory   damages   as   allowed   by   specified   laws,"   and   "[u]ndetermined   special  

damages."   His amended complaint broke down his damages request into five separate                                                                                                                                                   

claims in excess of $100,000 each. On appeal he explains that the State's actions forced                                                                                                                                                    

him to file suit because he was no longer eligible for rehire by other State departments.                                                                                                                                                                        

The record strongly supports the conclusion that Thomas's primary purpose in filing suit                                                                                                                                                            

was monetary recovery, rehire rights, or both.                                                                                              Because he had "sufficient economic                                                 

incentive to bring the action" despite his constitutional claims, the superior court did not                                                                                                                                                        

err when it failed to give him the protection of AS 09.60.010.                                                                                                                      45  

V.                  CONCLUSION  

                                       The judgment of the superior court is AFFIRMED.  




lawsuit, to whether the relief requested was equitable or legal, and the amount of money  


in controversy."  Id. at 282 (internal citations omitted).  Our primary goal is to find "the  


litigant's primary motivation for filing the suit." Id. (quoting O'Callaghan v. State, 920  


P.2d 1387, 1390 (Alaska 1996)).  

                    45                 As  in  Pebble  Limited  Partnership,  350  P.3d  at  284  n.60,  we  find  it  


unnecessary  to  determine  the  standard  of  review  applicable  to  determinations  of  


constitutional litigant status under AS 09.60.010, as we would affirmthe superior court's  


decision in this case regardless of the standard.  


                                                                                                                       - 21 -                                                                                                                  7121


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