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Pitka v. Interior Regional Housing Authority (9/13/2002) sp-5627
Pitka v. Interior Regional Housing Authority (9/13/2002) sp-5627
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
JEANETTE PITKA, )
) Supreme Court No. S-10152
Appellant, )
) Superior Court No.
v. ) 4FA-99-2847 CI
)
INTERIOR REGIONAL HOUSING ) O P I N I O N
AUTHORITY, )
) [No. 5627 - September 13,
2002]
Appellee. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Mary E. Greene, Judge.
Appearances: James M. Hackett, Law Offices
of James M. Hackett, Inc., Fairbanks, for
Appellant. Tracey L. Knutson, Sisson &
Knutson, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
FABE, Chief Justice.
I. INTRODUCTION
Jeannette Pitka was dissatisfied with her conditions of
employment and the results of the grievance she filed with her
employer, the Interior Regional Housing Authority. She left work
and never returned. Pitka sued her employer, alleging breach of
the implied covenant of good faith and fair dealing, breach of
employment contract, and constructive termination. The superior
court granted summary judgment in the employers favor on all
claims. We affirm.
II. FACTS AND PROCEEDINGS
The Interior Regional Housing Authority (IRHA) hired
Jeannette Pitka as a temporary accounting assistant in January
1997. Pitkas position later became permanent and she was given
the title of Projects Administrative Clerk. In February 1998 her
supervisor, Rose Baumes, conducted an annual job performance
review and concluded that Pitkas overall performance was above
satisfactory. Pitka received a step increase to Grade 2 and a
salary increase to $24,768 per year. In January 1999 Baumes
conducted another annual review for Pitka, this time rating her
job performance as satisfactory. Pitka received another step
increase to Grade 3 and a salary increase to $27,964 per year.
In August 1999 Pitka filed a written grievance with
IRHAs executive director, Joseph Wilson, and its personnel
director, Gretchen Ray. Pitka claimed that another department
was spontaneously taking over [her] job duties, and that her
supervisor, Baumes, was jumping into her work and taking over her
duties. Pitka argued that her job duties should remain [her]
responsibility until formal action is taken. Shortly thereafter,
Pitka sent another memorandum to Wilson and Ray, informing them
that she would not return to work until issues can be resolved in
a professional manner. She added that she expect[ed] to be
compensated financially for any time missed. The following day,
Wilson informed Pitka that an employee is not permitted to
unilaterally remove oneself from work and continue to be
compensated, even if a grievance has been lodged. He also
apprised her of the grievance procedures and asked her to
schedule a hearing with Ray. Despite this warning, Pitka failed
to return to work.
On August 19, 1999, Wilson issued a written decision on
Pitkas grievance. He detailed the investigation of Pitkas various
complaints and concluded that her job title would be changed to
Administrative Clerk II, that she would split her time between
two departments remaining under the same supervisor, that she
would receive a written job description, and that her wage and
step level would remain the same. The decision also noted that
Pitka had a poor attitude, and that others found it difficult to
work with her given her tendency to complain and her resistance
to performing tasks as directed. Finally, the decision provided
that if Pitka was dissatisfied with Wilsons decision, she could
submit a final written grievance to the IRHA Board of
Commissioners.
Pitka reviewed Wilsons decision, but refused to sign
it. Pitka claimed that she had been demoted because a written
job description contained in her file classified her position as
a Grade 4. Wilsons grievance decision, however, reflected that
Pitka would remain the same in a Grade 3 position.1 Pitka never
signed the written decision, yet she did not file an appeal of
her grievance to the IRHA Board of Commissioners. Pitka never
returned to work at IRHA.
On December 5, 1999, Pitka filed a complaint in the
superior court for breach of the implied covenant of good faith
and fair dealing, breach of employment contract, and constructive
termination. In essence, she claimed that although she had
prevailed in her grievance, IRHA had demoted her from a Grade 4
to a Grade 3 position, which constituted a violation of the
employment contract. She also set forth a claim for wrongful
discharge based on her allegation that her working conditions
were so intolerable she felt compelled to resign. The parties
filed cross-motions for summary judgment. On February 6, 2001,
the trial court granted summary judgment to IRHA on all claims.
III. STANDARD OF REVIEW
We review a grant of summary judgment de novo and view
the facts in the light most favorable to the non-moving party.2
When reviewing a grant of summary judgment, we determine whether
any genuine issue of material fact exists and whether the moving
party is entitled to judgment as a matter of law.3 Summary
judgment may be affirmed on grounds other than those relied upon
by the superior court.4
IV. DISCUSSION
A. Claims Not Raised in the Trial Court Will Not Be Considered.
A. In general, parties cannot advance new theories or raise new
issues in order to secure a reversal of the lower courts
determination.5 However, we take a liberal approach towards
determining whether an issue or theory of a case was raised in a
lower court proceeding.6 In order to determine whether the new
arguments will be considered here, we ask whether they were
raised expressly below and, if not, whether they are closely
related to the trial court arguments and could have been gleaned
from the pleadings.7 We will not consider a new argument if the
issue is dependent on any new or controverted facts.8
IRHA contends that Pitka raises new issues on appeal
that were not before the trial court and are therefore not
properly before this court. It asserts that Pitkas claims below
all flowed from her allegation that she had prevailed in her
grievance, yet when she returned to work, IRHA unilaterally
altered the terms of her employment and demoted her. IRHA
asserts that Pitkas claims focused entirely on the perceived
demotion and constructive termination. In contrast, according to
IRHA, Pitka now argues that she suffered numerous procedural
violations of approximately thirteen different personnel
policies.9 Thus, IRHA contends that most of Pitkas current
claims are not properly before this court. We agree.
It is clear that the arguments Pitka employed in the
superior court are different than those set forth in this appeal.
In her reply to IRHAs opposition to the motion for summary
judgment, Pitka framed her claim this way: The problem is that
IRHA reneged on its commitment made in its grievance decision.
Pitka focused her arguments exclusively on the claim that
although she prevailed in her grievance, IRHAs ultimate response
was to demote her, and she repeatedly emphasized that the actions
of IRHA did not comply with the grievance decision. Pitkas
allegations in the superior court relied on a single set of facts
which she characterized as unrefuted:
IRHA reorganized its offices and failed
to advise Ms. Pitka as to the identity
of her supervisor, job duties and job
title;
Ms. Pitkas personnel file contained a
job description, inserted into her
personnel file without her knowledge,
which set her wage at grade 4;
Ms. Pitka filed a grievance, learned of
the job description in her file, and
prevailed in the grievance. As part of
the grievance decision, IRHA identified
her supervisor and assured her that they
would provide her with a job
description, containing her job duties
and maintain her wage grade and step
level.
Upon reporting to learn her new job
description, Ms. Pitka was provided a
job description with a wage grade of 3.
She raised an objection to Ms. Ray about
this, and was told to simply sign the
grievance and that the matter was
settled.
Thus, Pitkas sole focus was the alleged demotion, and all of her
claims flowed from that demotion. She claimed that the demotion
constituted constructive discharge, that failure to implement the
grievance decision constituted a breach of the implied covenant
of good faith and fair dealing, and that violation of the
personnel rule relating to grievances constituted a breach of the
employment contract.
In contrast, Pitka now points to a broader range of
personnel policies that she claims were not followed. In
addition, she contends that all of the personnel policies, rather
than just the grievance procedures, constitute an enforceable
contract. Yet these claims were neither argued to nor briefed in
the superior court, and we therefore decline to consider them
here.10 Instead, our review is limited to the question actually
presented to and considered by the trial court: whether Pitka was
demoted despite prevailing in her grievance.
B. IRHA Did Not Breach the Implied Covenant of Good Faith
and Fair Dealing.
At-will employees may be terminated for any reason that
does not violate the implied covenant of good faith and fair
dealing.11 [E]very contract is subject to an implied covenant of
good faith and fair dealing.12 Breach of the implied covenant may
be either subjective or objective.13 An employer may violate the
implied covenant by acting with a subjectively improper motive,14
such as when it discharges an employee for the purpose of
depriving him or her of one of the benefits of the contract.15
The subjective element is not based on the employees personal
feelings, but rather on the employers motives.16 Therefore, the
employee must present proof that the employers decision to
terminate him or her was actually made in bad faith.17 An
objective breach of the implied covenant may occur where the
employer does not act in a manner which a reasonable person would
regard as fair.18 Disparate employee treatment, terminations on
unconstitutional grounds, and firings that violate public policy
are examples of actions that may violate the objective aspect of
the implied covenant.19
Although the trial court recognized that the question
of whether an employer has breached the implied covenant of good
faith and fair dealing is usually a question for the trier of
fact, it concluded that Pitka had presented no evidence of IRHAs
improper motives or of Pitkas demotion. Therefore, the superior
court concluded as a matter of law that IRHA did not breach the
implied covenant of good faith and fair dealing. It added that
each of Pitkas concerns was addressed in the grievance decision,
and that although she did lack a written job description as
provided for in the personnel policy,20 this did not place her
employment in jeopardy [and] could not possibly be considered
unfair.
There is no evidence that IRHA violated the implied
covenant of good faith and fair dealing. First, IRHA did not
terminate Pitka. She was dissatisfied with the grievance process
and simply refused to return to work. This occurred after she
had used all of her sick days and had been granted an additional
ten days leave. When Pitka filed her formal grievance, IRHA
followed the procedures outlined in the policy, provided her with
a hearing, and concluded by outlining a new position to
accommodate her departmental preferences. Her pay remained the
same. And although Pitka contends that she was demoted, there is
no evidence to support the claim. Pitka relies on a written job
description that she discovered in her personnel file. It
described a position titled Projects Assistant that was a Grade 4
position. However, Pitka was a Projects Administrative Clerk,
which is a Grade 321 and Pitka was never paid above Grade 3.
Thus, when Pitka was given her new position as Administrative
Clerk II at Grade 3, that action could not be considered a
demotion.22
With regard to the objective component, it is difficult
to see how a reasonable person could regard IRHAs actions as
unfair. On the contrary, the record seems to indicate that IRHA
went out of its way to accommodate Pitka, even though other
employees apparently found it difficult to work with her. The
only procedural failure that can be gleaned from the record is
the lack of a written job description for Pitkas position, and we
agree with the trial court that this one oversight could not be
considered a breach of the implied covenant of good faith and
fair dealing.
C. IRHA Did Not Wrongfully Terminate Pitka.
Constructive discharge is not an independent cause of
action, but merely satisfies the discharge element in a claim for
wrongful discharge.23 Constructive discharge is defined as where
an employer makes working conditions so intolerable that the
employee is forced into an involuntary resignation.24 In order to
establish constructive discharge, an employee has the burden of
showing that a reasonable person in the employees position would
have felt compelled to resign.25
Pitka claims that she was constructively discharged
because her work conditions were so intolerable she had to
resign. She claims that she was humiliated by the executive
directors criticism that she was a complainer, that the grievance
decision was incomplete, nonresponsive, and critical, and that
she could no longer work under [the executive director].
However, criticism of job performance or other management
decisions do not, standing alone, create intolerable workplace
conditions and the record does not indicate that IRHA engage[d]
in a sustained campaign against Pitka.26
The trial court found that there was no evidence of a
campaign against Pitka or evidence of any effort to force her to
resign. It observed that IRHA had gone through a disorganized
period during which Ms. Pitka felt upset, and aptly summarized
that she seemed to feel an almost proprietary right to continue
to perform tasks she had developed herself. The trial court
found that Pitkas fear that she might lose her job and her belief
that she had been demoted were products of her own assumptions
but that her subjective beliefs were not relevant.
With respect to her claim that she was humiliated by
Wilsons remarks that she was a complainer, even if she were
profoundly affected by that isolated remark, criticism of job
performance alone is not enough to create intolerable work
conditions.27 And Pitka has not pointed to any other comments or
remarks that might be viewed as evidence of a campaign against
her. Finally, it is difficult to see how the grievance decision
itself could contribute to intolerable working conditions. In
sum, the facts of this case are legally insufficient to establish
a claim for wrongful discharge.
V. CONCLUSION
For the foregoing reasons, we AFFIRM the superior
courts decision granting summary judgment in favor of IRHA.
_______________________________
1 The discrepancy appears to be explained by the fact
that the job description placed in Pitkas file was for her
supervisors position, and had served only as a model for
composing a new job description for Pitka. Pitka was apparently
never paid as a Grade 4 employee.
2 Holland v. Union Oil Co. of Cal., Inc., 993 P.2d 1026,
1029 (Alaska 1999).
3 Id.
4 Hernandez v. Lambert, 951 P.2d 436, 439 n.5 (Alaska
1998).
5 ONeill Investigations, Inc. v. Illinois Employers Ins.,
636 P.2d 1170, 1175 n.7 (Alaska 1981).
6 Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280
(Alaska 1985).
7 Id.; City of Hydaburg v. Hydaburg Coop. Assn, 858 P.2d
1131, 1136 (Alaska 1993).
8 Crum v. Stalnaker, 936 P.2d 1254, 1257 n.5 (Alaska
1997).
9 Pitkas claim of procedural error refers to thirteen
specific personnel policies that Pitka claims were not followed.
10 Gates v. City of Tenakee Springs, 822 P.2d 455, 460-61
(Alaska 1991).
11 Luedtke v. Nabors Alaska Drilling, Inc. (Luedtke I),
768 P.2d 1123, 1131 (Alaska 1989); Era Aviation v. Seekins, 973
P.2d 1137, 1139 (Alaska 1999).
12 Era Aviation, 973 P.2d at 1139.
13 Id.
14 Id.
15 Ramsey v. City of Sand Point, 936 P.2d 126, 133 (Alaska
1997) (citing as example Mitford v. de Lasala, 666 P.2d 1000,
1007 (Alaska 1983), in which employer violated implied covenant
for terminating employee in order to prevent him from receiving
promised share of future profits).
16 Era Aviation, 973 P.2d at 1141.
17 Id.
18 Ramsey, 936 P.2d at 133.
19 Era Aviation, 973 P.2d at 1139-40.
20 The grievance decision required that Pitka be provided
with a written job description.
21 After the grievance, Pitkas job title was changed to
Administrative Clerk II and she remained at a Grade 3.
22 Because there is no evidence that Pitka was actually
demoted, we need not consider Pitkas claim that the demotion
violated IRHAs grievance procedure and therefore the employment
contract.
23 City of Fairbanks v. Rice, 20 P.3d 1097, 1102 n.7
(Alaska 2000).
24 Beard v. Baum, 796 P.2d 1344, 1350 (Alaska 1990).
25 Cameron v. Beard, 864 P.2d 538, 547 (Alaska 1993).
26 Id.
27 Id.
