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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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.