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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Witt v. State, Dept. of Corrections (8/8/2003) sp-5723

Witt v. State, Dept. of Corrections (8/8/2003) sp-5723

     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,


DAVID S. WITT,                               )
                              )    Supreme Court No. S-10564
             Appellant,                 )
                              )    Superior Court No.
     v.                       )    3PA-01-42 CI
STATE OF ALASKA,                        )    O P I N I O N
                              )    [No. 5723 - August 8, 2003]
             Appellee.                  )
_______________________________ )

          Appeal from the Superior Court of the State
          of Alaska, Third Judicial District, Palmer,
          Eric Smith, Judge.

          Appearances:  Benjamin I. Whipple, Palmer,
          for Appellant.  Jan Hart DeYoung, Assistant
          Attorney General, Anchorage, and Bruce M.
          Botelho, Attorney General, Juneau, for

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

          CARPENETI, Justice.


          I.   David Witt appeals from the superior courts grant of

summary judgment in favor of the state in his breach of contract

suit.  Witt, a former public employee, contends that he was

terminated before the end of his probationary period in violation

of his unions collective bargaining agreement and in violation of

the covenant of good faith and fair dealing.  Because Witt does

not raise any genuine disputes of material fact through

admissible evidence, but instead merely makes allegations of

wrongdoing, we affirm the superior courts grant of summary



     A.   Facts

          David Witt was hired by Alaska Correctional Industries

(ACI) in the Department of Corrections in the summer of 1998 as

an equipment operator IV.  His responsibilities included

transporting inmate-produced office furniture and meat products

in Palmer, Kenai, and Anchorage, which sometimes involved the

supervision and transportation of inmate laborers who assisted

him.  He understood that he would have to complete a six-month

probationary period and that permanent employment was contingent

on successful performance in the position.  As a probationary

employee he was a member of the labor, trades, and crafts

bargaining unit of the Alaska Public Employees Association union,

and was represented by Public Employees Local No. 71.  Article

7.04 of the collective bargaining agreement (CBA) between the

State of Alaska and Local 71 contained certain restrictions on

the states ability to contract with private vendors, if such

contracting would directly result in the layoff of permanent or

probationary employees covered by this Agreement:  the CBA

required the state agency to do a cost efficiency study showing

that contracting would save the state money, and required

contractors to pay their employees an amount equivalent to the

union wage plus benefits.

          Upon his hiring, Witt was provided with and signed a

copy of the Department of Correctionss Code of Ethics and

Standards of Conduct, which warned employees who work directly

with inmates to travel only to and from authorized destinations

without any unauthorized stops and to avoid use of indecent,

abusive or profane language.  Nonetheless, in October 1998 Witt

tried to take several inmates on an unauthorized trip to a pizza

restaurant in Kenai.  Soon afterward Witt was given additional

transportation security training, including instructions that

those working with inmates should avoid giving inmates personal

information, such as a home telephone number.  On December 21,

1998 Witt took two inmates to a coffee stand near his house, and

may have allowed the inmates in his house.  Later in the day Witt

entered into a verbal altercation with an inmate and a fellow

employee that culminated in Witts use of several profanities and

the statement I dont care any more.  Go ahead [f]ire me, I just

dont care.  After investigating the incidents of December 21,

Witts supervisor, William Quam, informed Witt that he would not

be retained because of the incidents in October and December.

Witt was terminated effective January 14.

          On May 6, 1998, roughly two months before Witt had

begun work, Quam had received an e-mail from Wally Roman, his

supervisor at ACI.  In the e-mail Roman noted that ACI had

previously made a series of contracts with World Wide Movers that

collectively exceeded $5,000, and asked Quam to prepare a Request

for Proposals for bidding for future services.  The request for

proposals was drafted and eventually issued as an invitation to

bid on December 22, 1998, which was the day after Witt lost

control in the office.  The invitation to bid called for services

including delivery of meat products and Point to Point freight,

delivery, warehousing, and installation/repair services for the

Alaska Correctional Industries for Juneau, Anchorage, Fairbanks,

and other area locations.  It called for sealed bids to be

submitted on January 15, 1999, which was the day after Witts

final day of work.  Ultimately the invitation to bid was revised,

reissued in April 1999, and did not result in a contract until

May 1999.  The parties agree that ACI never performed a cost

efficiency study in relation to the invitation to bid issued on

December 22, 1998.

     B.   Proceedings

          After his dismissal, Witt filed a grievance against the

Department of Corrections through his union. The union initially

pursued Witts grievance, but the union grievance committee

eventually decided to drop the grievance.  Witt then filed suit

in contract and tort in the superior court, alleging that ACI had

hired him in the summer of 1998 with the intention of terminating

his position as soon as the private bidding process began in the

winter, and that the stated reasons for his termination were a

sham.  Superior Court Judge Eric Smith dismissed Witts tort and

punitive damages claims.  Judge Smith then granted the states

motion for summary judgment on the remaining contract claims,

finding that Witt was an at-will employee, that Witt had no

reasonable expectation that he would retain his job, and that

neither the CBA nor the covenant of good faith and fair dealing

required the state to notify Witt if the state had intended to

replace his position with a private contractor.  Witt moved for

reconsideration under Alaska Civil Rule 77(k)(1)(ii)1 and relief

from the judgment under Alaska Civil Rule 60(b)(1).2  Judge Smith

denied the motions.  Witt appeals.


          I.   We interpret the language of contracts de novo.3  Grants of

summary judgment are reviewed de novo, reading the record in the

light most favorable to the non-moving party and making all

reasonable inferences in its favor as well.4  Summary judgment is

affirmed when there are no genuine issues of material fact and

the moving party is entitled to judgment as a matter of law.5  We

have stated that [t]he party opposing summary judgment must set

forth specific facts showing genuine issues and cannot rest on

mere allegations;6 moreover, such facts must arise from

admissible evidence.7


     A.   Witt Was an At-Will Employee and Was Not Entitled to
          Dismissal Only for Good Cause.
          A.   Witt suggests that ACIs statements that permanent employment

was contingent upon successful performance in the probationary

position converted his employment contract from an at-will

contract into one in which he could be dismissed only for good

cause.  A review of Alaska law refutes this contention.

          The Alaska Constitution mandates that public employment

          will be governed by the merit principle.8  Alaska Statute

39.25.150(7) provides that all public employees will have a

probationary period not exceeding one year.  The purpose of the

probationary period is to evaluate the employees work and to

reject any employee whose performance is not acceptable.9  In

prior cases addressing whether public probationary employees are

at-will employees, we have looked to their contracts to determine

whether they are protected by objective performance standards or

whether, conversely, they serve merely at the pleasure of their

employer.  For instance, where a contract explicitly requires

performance evaluations10 or makes reference to the Raters Guide

to Performance Appraisals,11 we have found the employee to be

protected.  Nothing in Witts contract or ACIs statements does

this.  When Witt was told that permanent employment was

contingent upon his successful performance in the position, this

was no more than a description of the function of the

probationary period in hiring permanent public employees.  During

the probationary period Witt was an at-will employee and was not

entitled to dismissal only for good cause.

     B.   Witt Did Not Present Admissible Evidence Leading to Genuine
          Disputes of Fact About Why He Was Hired or Why He Was Dismissed,
          and Summary Judgment on His Covenant of Good Faith and Fair
          Dealing Claim Was Appropriate.
          Witt claims that his hiring and firing were part of an

elaborate ruse designed by ACI to save money by avoiding the CBAs

restrictions on private contracting.  He contends that ACI hired

him to cover a gap in transportation services that was allegedly

created when ACI began preparing a proposal for an ongoing

service contract with a private vendor; that ACI never intended

to allow him to stay on as a permanent employee and lied to him

about that intent; and that ACIs stated reasons for terminating

his probation were pretextual.  As a result, Witt alleges

breaches of the covenant of good faith and fair dealing, which

[i]n the employment contract context . . . operates as a check on

employers traditional freedom to terminate at-will employment for

          any reason.12

          The covenant can be breached objectively or

subjectively.  The objective prong of the covenant is breached

when an employer fails to act in a manner that a reasonable

person would consider fair, which includes treating similarly

situated employees disparately, terminating employees on

unconstitutional grounds, and terminating employees in violation

of public policy.13  The subjective prong of the covenant is

breached when an employer is motivated by the goal of depriving

the employee of a benefit of the contract.14  The purpose of the

covenant is to effectuate the reasonable expectations of the

parties, not to alter or to add terms to the contract.15  Although

a court can certainly conclude as a matter of law that an

employer did not breach the covenant when no material facts are

disputed, generally whether the covenant has been breached is a

question for the trier of fact.16

          Witts good faith and fair dealing claims depend on his

presenting genuine disputes of several material facts.  When

reviewing a motion for summary judgment, we read the record in

the light most favorable to the non-moving party and make all

reasonable inferences in that partys favor, but the non-moving

party must set forth specific facts showing genuine issues and

cannot rest on mere allegations,17 and such facts must arise from

admissible evidence.18  Because we conclude that no genuine

disputes of material fact exist, we affirm the superior courts

grant of summary judgment.

          1.   There is no admissible evidence implying that Witt was hired
               as a stopgap to meet ACIs transportation needs until its private
               contractor bidding process was complete.
          1.   The crux of Witts argument is that Quam and Roman hired him

only as a stopgap while the bid process materialized and never

intended to entertain the possibility that Witt might stay on as

a permanent employee.  Witt points primarily to two pieces of

evidence.  The first is the e-mail of May 6, 1998 that Roman sent

to Quam asking him to prepare the request for proposals (RFP)

          from private bidders for transportation services, which reads in

relevant part:

          Talked with Al this AM regarding our previous
          [World Wide Movers] services.  Al indicated
          that we need to establish a RFP for these
          services.  While our individual purchases are
          under $5,000, the combined purchases would be
          over.  Up to this point, our purchases could
          be considered a pilot project to see if we
          could have one vendor provide transportation,
          storage, and installation services.  Now that
          we have established that it would be in the
          best interest of the state, we should put
          forth a RFP for a non-professional service to
          establish a contract.
               It would be our choice to request
          statewide or regional for [the] award.  Al
          seems to think that regional might provide
          better pricing.
               Could you prepare a RFP to secure these
          services.  I know you have a lot going on so
          maybe we better discuss timeframes for
          completion next week.
Witt alleges that this e-mail shows an intent to have vendors

take over all transportation and related services for ACI,

including those previously provided by state employees.  In

response, the state offers an affidavit of Quam stating that (1)

ACI contracted with private vendors before and during Witts

employment on an as-needed basis, and (2) the RFP was required by

the procurement staff of the Department of Corrections because of

the level of expenditures on vendors.19  Witt does not address

either of these contentions.

          Second, as evidence of ACIs intent not to keep him on

permanently, Witt points to the fact that ACI terminated his

probation effective on January 14, 1999 rather than on January

20, the date it would have expired on its own.  Witt claims that

Roman and Quam wanted to eliminate his position before the

January 15 deadline for replies on the invitation to bid.  In

response, Quams affidavit states that the invitation to bid was

later revised and re-issued, finally resulting in a contract in

May 1999.

          Even drawing all reasonable inferences in Witts favor,

we do not find that Witt has raised a genuine dispute about ACIs

intentions when it hired him.  Romans e-mail, on which Witt

principally relies for the proposition that his job was intended

to be temporary, makes no reference at all to how the request for

proposals might affect the allotment of transportation tasks

between private vendors and ACIs in-house transportation

employees.  Witt presents no other evidence addressing that

allotment. Witt does not address the assertion that ACI

contracted with private vendors during the course of his

employment, which rebuts his stopgap theory.  Witt himself

provided only regional transportation services at most, whereas

the invitation to bid covered the entire state.  Finally, Witts

probation expired on January 20, only five days after bids were

due, which would not provide ACI sufficient time to agree upon

and implement a contract that would provide the services lost

through Witts dismissal.  An inference in Witts favor on this

point would not be reasonable, and we therefore find no genuine

dispute of fact on this issue.

          2.   There is no admissible evidence implying that Witt was
               dismissed for any reason other than poor job performance.
          1.   Witt alleges that Quam and Romans reasons for terminating

Witt were pretextual.  The reason given to Witt at the time,

which is echoed in Quams later affidavits, was that in the

incidents of October and December 1998 Witt breached security and

showed poor judgment in his supervision of inmates.  Witt admits

these incidents, and at the time of the December 1998 dispute

said that he [took] full responsibility for my bad conduct and

any consequences arising from it.  Witt does not now claim that

these events did not take place, that these events somehow were

not his fault, or that other employees in a similar position

would not have expected to be dismissed for similar conduct, and

he does not rebut the states assertion that these incidents were

in fact the reason why Witt was fired.  Rather, Witts argument

appears to be only that the fact of his dismissal is consistent

with his theory that ACI never intended him to be a permanent

employee.  Witt has not shown the existence of a genuine dispute

of fact on this issue.

          3.   In the absence of any genuine dispute of material fact, the
               superior courts grant of summary judgment on Witts breach of the
               covenant of good faith and fair dealing claim was reasonable.
          1.   Witts claims are heavily dependent on the disputed facts he

hopes to develop at trial.  But because Witt has not set forth

specific facts showing genuine issues, and instead rest[s] on

mere allegations,20 the state is entitled to judgment as a matter

of law.  Witt claims that the covenant of good faith and fair

dealing was violated by ACIs entry into an employment contract it

did not intend to honor.  As noted above, the covenant of good

faith and fair dealing requires employers to treat employees

alike and to refrain from impairing an employees ability to

receive the benefits of the employment.21  We have previously

explained that the standard of factual showing required to defeat

a summary judgment motion in a covenant of good faith claim is

not negligible: If the employee were entitled to jury trial for

breach of the implied covenant of good faith and fair dealing

merely by asserting that the charged misconduct was not true, the

decision to terminate would be at the discretion of a jury, not

the employer.22  Because Witt has not introduced admissible

evidence tending to show that he was hired or fired for an

improper reason, he has no claim that he did not receive the

exact benefit of probationary employment: the opportunity to

prove himself as a worthwhile employee.  The state is entitled to

summary judgment as a matter of law.

     D.   Witt Did Not Present Admissible Evidence Leading to a
          Genuine Dispute of Fact About Whether His Job Was Eliminated
          Through Contracting, and Summary Judgment on His Collective
          Bargaining Agreement Claims Was Appropriate.
          A.   Witt alleges that ACI breached article 7.04 of Local 71s CBA

by failing to do a cost efficiency study, to inform bidders of

union pay requirements, or to require bidders to provide

information about their wage rates.  Witt also claims that the

          unfair labor practices clause of the Alaska Public Employment

Relations Act23 requires us to find an implied duty on ACIs part

to inform Witt and the union that his job would be lost to

contracting.  However, the CBA required the state to do none of

these things unless the contracting at issue actually would

result in the loss of a probationary or permanent union job.24

Unless Witt can raise a genuine dispute about whether his job was

replaced, these claims cannot survive summary judgment.  Witt

argues that his job must have been performed by private vendors

after he was dismissed because his own job duties, which included

the transport of office furniture and meat products in the

Anchorage area, were so similar to the services that were the

subject of the invitation to bid.  He also notes that the

invitation to bid spoke of freight volume in terms of ACIs recent

experience, and argues that this shows that vendors were to take

on all of ACIs freight needs.

          But in light of Quams unrebutted affidavit stating that

ACI used private shipping vendors before and during Witts

employment at ACI, this is not a reasonable inference.  Rather,

it is entirely reasonable that ACI should choose to utilize both

private vendors to make large periodic deliveries and in-house

employees who could take care of daily transportation needs as

they arose.  ACIs recent experience as described in the

invitation to bid could just as easily have referred to ACIs

recent experience with private shipping vendors as to the

combined services of private vendors and in-house employees.

Moreover, Witts theory requires us to overlook the fact that his

job duties would have had to go completely unfulfilled for five

months after his dismissal until the private vending contract was

finalized in May.  It is unfortunate that there is no evidence in

the record to show who performed Witts job tasks after he was not

retained.  But it is Witts duty as the non-moving party to

respond to ACIs evidentiary showing with specific, admissible

facts showing a genuinely disputed issue,25 and we cannot find

          that he has done so here.  Summary judgment was appropriate on

this claim.26


          Because Witt does not raise any genuine dispute of
material fact through admissible evidence, but instead merely
makes allegations of wrongdoing, we AFFIRM the superior courts
grant of summary judgment.
     1     Alaska  R. Civ. P. 77(k)(1) provides in relevant  part
that  [a]  party  may  move  the court  to  reconsider  a  ruling
previously decided if, in reaching its decision: . . .  (ii)  The
court  has  overlooked  or misconceived  some  material  fact  or
proposition of law.

     2     Alaska R. Civ. P. 60(b) provides in relevant part that
[o]n  motion  and  upon such terms as are  just,  the  court  may
relieve  a  party  . . . from a final judgment  .  .  .  for  the
following   reasons:  (1)  mistake,  inadvertence,  surprise   or
excusable neglect.

     3     Simmons v. Ins. Co. of N. Am., 17 P.3d 56, 59  (Alaska

     4    Spindle v. Sisters of Providence in Wash., 61 P.3d 431,
436 (Alaska 2002).

     5    Id.

     6     Braun v. Alaska Commercial Fishing & Agric. Bank,  816
P.2d 140, 144 (Alaska 1991).

     7    Brady v. State, 965 P.2d 1, 8 (Alaska 1998).

     8    Alaska Const. art. XII,  6.

     9    2 Alaska Administrative Code (AAC) 07.240 (2002).

     10     Univ. of Alaska v. Tovsen, 835 P.2d 445, 447  (Alaska

     11     Cassel v. State, Dept of Admin., 14 P.3d 278,  283-84
(Alaska 2000).

     12     Era  Aviation, Inc. v. Seekins, 973 P.2d  1137,  1139
(Alaska 1999).

     13     Charles v. Interior Regl Hous. Auth., 55 P.3d 57,  62
(Alaska 2002).

     14    Holland v. Union Oil Co. of Cal., Inc., 993 P.2d 1026,
1032 (Alaska 1999).

     15    Seekins, 973 P.2d at 1141.

     16    Holland, 993 P.2d at 1032-33.

     17     Braun v. Alaska Commerical Fishing & Agric. Bank, 816
P.2d 140, 144 (Alaska 1991).

     18    Brady v. State, 965 P.2d 1, 8 (Alaska 1998).

     19     See 2 AAC 12.400 (describing administrative authority
to make small purchases).

     20    Braun, 816 P.2d at 144.

     21    Holland, 993 P.2d at 1032.

     22    Id. at 1035 (quoting Burton v. Sec. Pac. Natl Bank, 243
Cal.  Rptr. 277, 281 (Cal. App. 1988)).  In his reply brief  Witt
suggests   that  we  use  the  shifting-burdens  framework   from
employment discrimination law as a justification for allowing his
claims  to go forward.  Issues raised for the first time  in  the
reply  brief are deemed waived. Childs v. Tulin, 799  P.2d  1338,
1340  n.5 (Alaska 1990).  Moreover, application of this framework
in  this case would be inappropriate as Witt has not alleged that
ACI was motivated in any way by any sort of discrimination.

     23    AS 23.40.110(a)(5).

     24    CBAs are contracts that this court interprets de novo,
giving  effect  to the reasonable expectations  of  the  parties.
Larsen  v.  Municipality of Anchorage, 993 P.2d 428, 431  (Alaska
1999).  Witt also argues that he was a third-party beneficiary of
the  CBA.   In  light of our ruling that Witt has  not  raised  a
genuine  dispute of fact about whether the CBA was  breached,  we
need not evaluate this claim.

     25    Brady v. State, 965 P.2d 1, 8 (Alaska 1998); Braun, 816
P.2d at 144.

     26    Witt alleges in his points on appeal that the superior
court  erred  in denying his motion for reconsideration,  but  he
fails  to brief the issue.  Issues not briefed are deemed waived.
DeNardo  v.  ABC  Inc. RVs Motorhomes, 51 P.3d 919,  928  &  n.47
(Alaska 2002).