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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Grant v. Anchorage Police Dept. & Municipality of Anchorage (3/30/01) sp-5377

Grant v. Anchorage Police Dept. & Municipality of Anchorage (3/30/01) sp-5377

     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.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


CARROLL GRANT,                )
                              )    Supreme Court No. S-8844
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-94-9968 CI
                              )
ANCHORAGE POLICE DEPARTMENT   )
and the MUNICIPALITY OF       )
ANCHORAGE, a municipal        )
corporation, DUANE UDLAND,    )
KEVIN M. O'LEARY, and LAREN   )
ZAGER, individually,          )    O P I N I O N
                              )
             Appellees.       )    [No. 5377 - March 30, 2001]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                      John E. Reese, Judge.


          Appearances: Cathleen Nelson McLaughlin,
          Hagans, Ahearn, McLaughlin & Webb, Anchorage,
for Appellant.  S. Lynn Erwin, Assistant Municipal Attorney, and
Mary K. Hughes, Municipal Attorney, Anchorage, for Appellees.


          Before:   Matthews, Chief Justice, Eastaugh,
          Fabe, Bryner, and Carpeneti, Justices.  


          CARPENETI, Justice.


I.     INTRODUCTION
       Carroll Grant was terminated from the Anchorage Police
Department (APD) because physical deterioration from an
accidentally self-inflicted gunshot wound to his hand prevented him
from performing the physical duties of a police officer.  Grant did
not file a grievance of his termination after his union declined to
do so on his behalf.  He then applied for and received permanent
occupational disability from the Anchorage Police and Fire
Retirement Board.  Grant later filed a wrongful termination suit
against the APD.  Although the superior court correctly found that
Grant had failed to exhaust his administrative remedies and entered
summary judgment on Grant's contract-based claims, it improperly
applied collateral estoppel to preclude Grant from pursuing his
disability discrimination claim.  Therefore, we remand this case
for further proceedings on Grant's disability discrimination claim.
II.    FACTS AND PROCEEDINGS
       Grant was an APD officer for fourteen years prior to
being involuntarily terminated in 1992.  Grant served as a senior
patrol officer assigned to the crime prevention division.  His
duties did not routinely require him to respond to calls, drive
marked cars, or fire weapons, although he was required to carry
handcuffs and a duty weapon, and to be prepared to respond to
emergency situations.  In January 1987 Grant became impaired as a
result of an accidentally self-inflicted gunshot wound that
occurred when he was off-duty and holstering his weapon.  He
returned to work later in January and continued to perform his
duties as an officer in the crime prevention unit.
       Grant was reassigned to street patrol duties in 1989
under a new department policy that rotated all officers, including
senior officers, through assignments to street patrol.  Despite the
limitations of his left hand, Grant worked in rotations that
included street patrol duty for over two years.  After several
visits to doctors confirmed Grant's complaints of limited strength
and dexterity in his hand, he was assigned to light duty in October
1991 as a temporary accommodation to his injury pursuant to the
collective bargaining agreement (CBA).  Grant worked on temporary
light duty assignment for about one year, primarily as a counter
clerk in the records division.  In March 1992 a doctor again
recommended that he remain assigned to light duty because of the
limited grip strength and dexterity in his left hand. 
       In October 1992 Grant received a termination letter that
gave him two weeks notice of his termination and recommended that
he contact the retirement board for information on medical
retirement.  Grant requested a disability retirement the same day. 
As advised by the termination letter, Grant's employment was
terminated on November 6, 1992.  On November 12 Grant filed a
formal application for permanent occupational disability benefits
with the retirement board.  
       In its proceedings to determine whether Grant qualified
for occupational disability benefits, the retirement board examined
the nature and severity of Grant's injury, whether the injury
prevented Grant from performing his duties as a police officer, 
and the manner in which the injury occurred.  In a deposition for
the retirement board proceeding, Grant testified that although he
was able to perform many ordinary tasks with his left hand -- such
as picking up a stamp off a flat surface, using a key to open a
locked door, picking up a very small object like a miniature screw
from a pair of eyeglasses, writing left-handed, or tying his shoes
-- he was unable to safely execute a forcible arrest because of the
limited strength and mobility in his left hand.  He testified that
he was able to perform other ordinary patrol officer tasks, such as
shooting a pistol with his left hand and gripping and using a
baton.  The retirement board awarded Grant benefits, concluding
that he had adequately proved that he was permanently disabled and
that his disability was occupational. 
       Grant was a member of the Anchorage Police Department
Employees Association (union).  Accordingly, a collective
bargaining agreement governed Grant's employment.  Under the
department's CBA, both the union and Grant had the right to file
grievances challenging Grant's termination.  After the union
declined to file a grievance on Grant's behalf, Grant failed to
pursue this remedy individually. 
       Grant instead filed a complaint against APD in superior
court alleging wrongful termination, breach of contract, unlawful
discrimination under AS 18.80.220(a)(1), and breach of the covenant
of good faith and fair dealing.  The superior court granted APD's
motion for summary judgment against Grant, finding that he had not
exhausted his administrative remedies and that he was collaterally
estopped from claiming he was not occupationally disabled.  Grant
appeals.

III.   STANDARD OF REVIEW
        "We review de novo an order granting summary judgment."
[Fn. 1]  When reviewing a grant of summary judgment, we are
required to determine whether any genuine issue of material fact
exists and whether the moving party is entitled to judgment on the
law applicable to the established facts. [Fn. 2] 
IV.    DISCUSSION
  A.   Grant Was Precluded from Making Contract-Based Claims
Because He Failed to Exhaust His Administrative Remedies.
       The superior court dismissed Grant's contract claims
because he had failed to exhaust his administrative remedies.  The
trial court also found that Grant had not provided any reasons
justifying relief from this requirement. 
       Grant argues that he should be excused from the
exhaustion requirement because his termination was not a
"grievable" claim under the CBA, the CBA's requirement that he file
an individual grievance within three days of the union's decision
not to represent him was unreasonable, and filing a grievance would
have been futile. 
       1.   Grant's termination claim was grievable.
       Grant argues that the language of the CBA, together with
the union's refusal to pursue his grievance, demonstrate that his
termination was not grievable.  
       Whether Grant had a grievable claim involves the proper
interpretation of a contract provision and is therefore a matter of
law. [Fn. 3] 
       Grant's argument fails because his reading of one CBA
provision makes another provision of the CBA a nullity.  Grant
interprets article 5, subsection 2(A) of the CBA to suggest that if
the union declines to pursue an employee's grievance, it is not
"grievable," and the grievance guidelines of the CBA do not attach. 
Article V, subsection 2(A) provides:
       A "grievance" is defined as any dispute
between the Employer and an employee or the Association regarding
the interpretation or violation of this Agreement which has not
been resolved by prior submission of the problem through the chain
of command, and which has been accepted as a grievance by the
Executive Board of the Association. 
Grant contends that the clause "which has been accepted as a
grievance by the Executive Board of the Association" means that
unless a dispute is certified by the union it is not a "grievance." 
       While the language of this subsection does suggest
Grant's result when read in isolation, article 5, subsection 2(O)
of the CBA suggests a different result:
       If the Association declines to pursue a
termination grievance of a non-probationary employee and the
employee still wishes to grieve the termination, he/she will notify
the Chief and the Labor Relations Office, in writing, within three
(3) days of receiving notification from the Association that it has
declined to pursue the grievance.  Upon receipt of the employee's
request, the Labor Relations Officer shall select an arbitrator
certified by the American Arbitration Association.  The arbitrator
shall hear and resolve the grievance as provided under subsections
5.2(I) through 5.2(M) above. 
       Grant's reading of the last clause of subsection 2(A)
renders all of subsection 2(O) a nullity because in every case that
the association declined to pursue an employee's termination
grievance, it would not be a grievance permissible under the CBA. 
If this were the case, the terminated employee would always be
excused from subsection 2(O)'s notice and arbitration provisions. 
Instead, the terminated employee would be free to immediately file
a lawsuit regarding the termination.
       We have held that "[t]o the extent possible, all
provisions in a contract should be found meaningful." [Fn. 4] 
Since subsection 2(O) would be meaningless under Grant's reading,
the superior court correctly read the CBA as a whole [Fn. 5] to
require Grant to file a grievance despite the union's refusal to
file a grievance on his behalf.  Since this issue is a question of
law, the superior court was correct in granting APD summary
judgment on this issue.
       2.   Grant may not challenge the CBA's three-day
grievance filing period for individually-pursued claims because he
did not file a grievance.
       
       Grant also argues that the factual issue of when the
three-day notice period of article 5, subsection 2(O), ran was not
resolved.  But Grant never pursued a grievance; instead he filed
suit.  Therefore, the three-day deadline did not play a role in
this case, and Grant may not challenge it because it did not
adversely affect his rights. 
       3.   Because the collective bargaining agreement
provided a mechanism for Grant's grievance,  futility did not
excuse him from filing a grievance.
       
       Finally, Grant argues that attempting a grievance would
have been futile.  He cites Casey v. City of Fairbanks [Fn. 6] to
support the proposition that the union's refusal to prosecute his
grievance excuses his failure to file an individual grievance. 
However, Grant omits a crucial element of the Casey holding: that
under the CBA in effect in Casey, the plaintiff had no other
recourse if the union declined to pursue his grievance. [Fn. 7] 
Grant, by contrast, had a CBA that expressly allowed him to file a
grievance if his union declined to represent him.  Accordingly, the
holding of Casey does not apply here, and the superior court
properly refused to excuse Grant's failure to file a grievance.
[Fn. 8]
       4.   Summary judgment was proper because employees whose
contracts are governed by a collective bargaining agreement must
exhaust contractual remedies prior to filing suit.
       We have "consistently held that employees must first
exhaust their contractual or administrative remedies, or show that
they were excused from doing so, before pursuing a direct action
against their employer." [Fn. 9]  Accordingly, summary judgment was
appropriate on Grant's claims because he was not excused from
pursuing the available administrative redress.
       Our decision in Cozzen v. Municipality of Anchorage
controls the analysis in this case: the facts are very similar, the
relevant language of the CBA is identical, and the procedural
history is the same. [Fn. 10]  Cozzen involved a wrongful
termination suit filed by an APD officer who was terminated because
he could no longer meet APD's minimum hearing standards for sworn
officers. [Fn. 11]  Interpreting the same language from the
predecessor of the CBA governing this case, we affirmed the
superior court's grant of summary judgment based on Cozzen's
failure to exhaust his contractual remedies. [Fn. 12]
       Grant's claims rely on his contractual rights to
employment.  The CBA provides his rights and remedies.  Because he
fails to persuasively distinguish Cozzen -- instead relying on
Beard v. Baum [Fn. 13] and Casey v. City of Fairbanks, [Fn. 14]
which Cozzen specifically distinguishes [Fn. 15] -- he cannot
prevail.  Accordingly, the superior court correctly granted summary
judgment on Grant's contractual claims of breach of contract,
wrongful termination, and violation of the covenant of good faith
and fair dealing. [Fn. 16]
  B.   The Doctrine of Collateral Estoppel Does Not Bar Grant's
Disability Discrimination Claim Under AS 18.80.220(a)(1).

       Grant made an additional claim, under AS 18.80.220(a)(1),
[Fn. 17] that APD unlawfully discriminated against him based on his
disability.  The superior court dismissed this claim on the grounds
of collateral estoppel, ruling that Grant's assertion before the
retirement board that he was occupationally disabled precluded him
from claiming that he "can perform the duties of a sworn police
officer."  The trial court ruled that Grant could not show he was
qualified to be a police officer as required by subsection
.220(a)(1) and therefore he could not make out a prima facie case
of disability discrimination.  Grant now argues that the superior
court erred in granting summary judgment on his discrimination
claim because it improperly applied the doctrine of collateral
estoppel. 
       We hold that the doctrine of collateral estoppel does not
bar Grant's disability discrimination claim under AS
18.80.220(a)(1).  While at first blush it might appear that an
employee who successfully argues that he is entitled to a
disability retirement is estopped from later contending that he was
able to perform the job's requirements and was discriminated
against in his termination, a close examination of the doctrine of
collateral estoppel shows why it does not apply.  Collateral
estoppel requires an identity of issues between the two
proceedings. [Fn. 18]  In this case, the issues were not identical. 

       To obtain disability retirement under AMC 03.85.120(A),
Grant was required to establish that his injury prevented him from
performing his assigned duties, which included arrests.  APD
insisted on assigning Grant to patrol work, which required him to
make arrests.  It terminated him because he was physically
incapable of performing this assigned duty.  In seeking retirement,
Grant acknowledged (indeed, proved) that he could not make an
arrest and conceded that this was an assigned duty.  But he did not
concede that he could not perform his job if APD made reasonable
accommodations for his disability.  We have previously held that
"AS 18.80.220 imposes a duty on an employer to reasonably
accommodate a disabled employee." [Fn. 19]  Since the board only
determined that arrests were assigned duties and did not need to
consider whether Grant could perform his job if reasonable
accommodations were made, that issue remained open for litigation.
          A recent decision of the United States Supreme Court,
Cleveland v. Policy Management Systems Corporation, [Fn. 20] is
particularly instructive on this point.  In Cleveland, the Court
considered the argument of an employee that her claim of
discrimination under the Americans with Disabilities Act (ADA)
should not be dismissed due to concessions that she had made in
order to collect Social Security Disability Insurance (SSDI)
benefits. [Fn. 21]  A lower court had dismissed Cleveland's
discrimination claim holding that her claim that she was "unable to
do [her] previous work" and "cannot . . . engage in any other kind
of substantial gainful work which exists in the national economy,"
[Fn. 22] as required to obtain SSDI benefits, estopped her from
showing that she was a qualified person with a disability "who,
with or without reasonable accommodation, can perform the essential
functions of the employment position" [Fn. 23] in order to qualify
under the ADA. [Fn. 24] 
          The Supreme Court disagreed.  The Court recognized that
"an ADA suit claiming that the plaintiff can perform her job with
reasonable accommodation may well prove consistent with an SSDI
claim that the plaintiff could not perform her own job (or other
jobs) without it." [Fn. 25]  The Court ruled that it was therefore
improper for the lower court to preclude the argument of
discrimination or even to apply a "special negative presumption."
[Fn. 26]
          However, the Court did note one limitation on this
finding.  The Court ruled that the "ADA plaintiff cannot simply
ignore the apparent contradiction that arises out of the earlier
. . . disability claim.  Rather, she must proffer a sufficient
explanation [in order to survive summary judgment]." [Fn. 27]  
          Grant's case is very similar.  In order to obtain
occupational disability benefits under AMC 03.85.120(A), he was
required to show that his injury prevented him from performing his
assigned duties.  The superior court ruled that this showing
precluded his argument that he was discriminated against under AS
18.80.220, which prohibits discrimination on the basis of "physical
or mental disability." [Fn. 28]  This ruling overlooked our holding
in Moody-Herrera that "AS 18.80.220 imposes a duty on an employer
to reasonably accommodate a disabled employee." [Fn. 29]  Whether
Grant can perform his duties with reasonable accommodation for his
disability remains an open question.  As the Supreme Court noted in
Cleveland, a claim that an employee can perform her job with
accommodation may be consistent with the claim that she cannot
perform her job without accommodations.  Collateral estoppel does
not bar Grant's discrimination claim.  
          In addition, Grant does provide a sufficient explanation
as to why his presentations to the retirement board do not
contradict his claims of discrimination.  Grant claims that the
board, in finding that he could not perform his assigned duties,
did not consider his claims that he could continue to serve in a
different position or with some accommodation of his disability. 
          Accordingly, we remand so that the superior court may
consider Grant's claim that he was otherwise able to perform the
"reasonable demands of the position" [Fn. 30] if reasonable
accommodations are provided. 
     C.   The Superior Court Did Not Err in Granting Summary
Judgment on Grant's Age Discrimination Claim.          
     
          Grant's AS 18.80.220(a)(1) age discrimination claim 
lacks merit because he does not argue that APD discriminates
against officers on the basis of age; rather, he argues that APD
treats officers of similar age differently based on their seniority
and rank.  But there is no showing that different treatment based
on seniority and rank constitutes discrimination.  Grant even
concedes that "[i]f a senior officer receives APD's
administration's blessing, then they are placed into the detective
division where they are not rotated out due to their years of
experience."  Thus, Grant's argument on this point is contradictory
and insufficient to show age discrimination.  Moreover, Grant fails
to distinguish his age discrimination claim from his disability
claim and provides no evidence that age was a factor in his
termination.  Accordingly, the trial court did not err in granting
summary judgment on Grant's age-based AS 18.80.220(a)(1) claim.
IV.  CONCLUSION

          Because Grant failed to exhaust his administrative
remedies and his age discrimination claim lacks merit, the superior
court did not err in granting summary judgment against him.  We
therefore AFFIRM the judgment below on these claims.  However,
because it was error to apply the doctrine of collateral estoppel
to Grant's disability discrimination claim, we REVERSE the entry of
summary judgment and REMAND for further proceedings on that issue.



                            FOOTNOTES


Footnote 1:

     Cozzen v. Municipality of Anchorage, 907 P.2d 473, 475 (Alaska
1995) (citation omitted).


Footnote 2:

     See id. (citation omitted).


Footnote 3:

     See Leisnoi, Inc. v. Stratman, 956 P.2d 452, 454 (Alaska
1998).


Footnote 4:

     Native Village of Eyak v. GC Contractors, 658 P.2d 756, 760
(Alaska 1983) (citations omitted).


Footnote 5:

     "[N]ot only should a collective bargaining agreement be read
as a whole and in light of the law relating to it when made, the
court must in interpreting it be particularly mindful that it does
not lose sight of the broad contextual underpinnings which support
the instrument."  Juneau Educ. Ass'n v. City and Borough of Juneau,
539 P.2d 704, 710 (Alaska 1975) (Erwin, J., concurring) (citing
Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 279 (1956)).


Footnote 6:

     670 P.2d 1133 (Alaska 1983). 


Footnote 7:

     See id. at 1138.


Footnote 8:

     Grant also cites Beard v. Baum, 796 P.2d 1344 (Alaska 1990),
for the same proposition.  Beard also involved a CBA that provided
no other recourse to the union member when the union declined to
pursue a grievance.  See id. at 1349.  Like Casey, it is therefore
inapposite.


Footnote 9:

     Cozzen, 907 P.2d at 475.


Footnote 10:

     See id. at 474-76.


Footnote 11:

     See id. at 474-75.


Footnote 12:

     See id. at 475 & n.6 (noting that it was not necessary to
reach the issue of collateral estoppel because Cozzen's failure to
exhaust available contractual remedies was dispositive).


Footnote 13:

     796 P.2d 1344 (Alaska 1990).


Footnote 14:

     670 P.2d 1133 (Alaska 1983).


Footnote 15:

     See Cozzen, 907 P.2d at 476 ("Article 5.2(l) [which is now
5.2(O)] provided Cozzen with a contractual remedy, not present in
the Casey or Beard cases, which he failed to exhaust.").


Footnote 16:

     Violation of the implied covenant of good faith and fair
dealing is a breach of contract claim.  See Knight v. American
Guard & Alert, Inc., 714 P.2d 788, 791-92 (Alaska 1986) (holding
that breach of the implied covenant of good faith and fair dealing
expresses an enforceable breach of contract theory).  As with other
contractual claims under a CBA, a good faith and fair dealing claim
must be pursued by grievance.


Footnote 17:

     Alaska Statute 18.80.220(a)(1) provides:

          Except as provided in (c) of this section, it
is unlawful for 
               (1) an employer to refuse employment to a
person, or to bar a person from employment, or to discriminate
against a person in compensation or in a term, condition, or
privilege of employment because of the person's . . . age, physical
or mental disability . . . when the reasonable demands of the
position do not require distinction on the basis of age, physical
or mental disability . . . .


Footnote 18:

     See State, Child Support Enforcement Div. v. Bromley, 987 P.2d
183, 192 (Alaska 1999) (quoting Jackinsky v. Jackinsky, 894 P.2d
650, 654 (Alaska 1995)).


Footnote 19:

     Moody-Herrera v. State, Dep't of Natural Resources, 967 P.2d
79, 87 (Alaska 1998).


Footnote 20:

     526 U.S. 795 (1999).


Footnote 21:

     Id. at 807. 


Footnote 22:

     42 U.S.C. sec. 423(d)(2)(A).


Footnote 23:

     42 U.S.C. sec. 12111(8).


Footnote 24:

     See Cleveland, 526 U.S. at 799.


Footnote 25:

     Id. at 803.


Footnote 26:

     Id. at 802. 


Footnote 27:

     Id. at 806.


Footnote 28:

     AS 18.80.220(a)(1).


Footnote 29:

     967 P.2d at 87.


Footnote 30:

     See AS 18.80.220(a)(1).