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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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
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
DEPARTMENT OF CORRECTIONS, )
) [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
Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
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
judgment.
II. FACTS AND PROCEEDINGS
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.
III. STANDARD OF REVIEW
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
IV. DISCUSSION
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
IV. CONCLUSION
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
2001).
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
1992).
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).
