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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Blackburn v. State, Dept. of Transportation & Public Facilities (12/17/2004) sp-5854

Blackburn v. State, Dept. of Transportation & Public Facilities (12/17/2004) sp-5854

     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,


                              )    Supreme Court No. S-11096
             Appellant,            )
                              )     Superior  Court  No.  3AN-01-
12376 CI
     v.                       )
                              )    O P I N I O N
MENT OF TRANSPORTATION   )    [No. 5854 - December 17, 2004]
ASSOCIATION,                  )
             Appellees.            )

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

          Appearances:   Stuart  C.  Rader,  Ingaldson,
          Maassen  &  Fitzgerald, P.C., Anchorage,  for
          Appellant.    David   T.   Jones,   Assistant
          Attorney  General, Anchorage,  and  Gregg  D.
          Renkes,   Attorney   General,   Juneau,   for
          Appellee  State  of  Alaska,  Department   of
          Transportation and Public Facilities.   Kevin
          Dougherty,  Anchorage,  for  Appellee  Public
          Employees Local 71.

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

          EASTAUGH, Justice.


          This  appeal concerns the termination of a probationary

state  employee,  Daniel Blackburn, who argues on appeal that  he

was  wrongfully  discharged without just cause.   Asserting  that

Blackburn  was  an  at-will employee,  the  state  contends  that

Blackburn  was not entitled to just cause protection.  We  agree,

and  affirm the superior courts grant of summary judgment against

Blackburn  on his wrongful discharge, misrepresentation,  implied

covenant, and due process claims.


          Daniel Blackburn worked for the State of Alaska at  the

Cold  Bay  airport  from January 21 to March 3,  2000.   Although

Blackburn  had  applied  for  a  position  as  a  heavy-equipment

operator,  the  state mistakenly classified him as  a  heavy-duty

mechanic.  (As a result, he received an additional tool allowance

of  thirty  dollars.)  Under the collective bargaining  agreement

(CBA)  negotiated  between Blackburns union, Local  71,  and  the

state,  Blackburn was required to serve a six-month  probationary


          Blackburn was initially allowed to use a state  vehicle

for  personal  errands,  but in early February he was  instructed

not  to  do so after his supervisor, Gerry Dias, saw the  vehicle

parked  outside a local bar on multiple occasions.   On  February

14, 2000 Dias gave Blackburn a letter that instructed him not  to

use  state vehicles for non-state business without authorization.

Dias later informed his superiors that Blackburn would not follow

directions;  Dias  informed them of evidence that  Blackburn  had

broken the rules by smoking in the state vehicle and that he  had

mishandled  equipment, causing a plow blade to break.   Blackburn

disputes Diass allegations.

          The  state notified Blackburn on February 18, 2000 that

it intended to terminate his employment as of March 3, 2000.  The

states   letter   explained  that  the  reason   for   Blackburns

termination was inadequate performance, citing Blackburns failure

to follow instructions and his failure to operate equipment in an

appropriate manner.  Blackburn responded to the state  by  letter

and defended his performance.

          Blackburn  filed  a grievance through  his  union.   He

claimed that the termination was wrongful; he argued that he  had

received  inconsistent and contradictory instructions during  his

employment, and alleged possible age discrimination.   The  state

denied  the  grievance,  arguing  that  any  disputes  over  non-

retention  of  probationary employees  are  not  subject  to  the

grievance procedure.  The union pursued the grievance to the next

step.   The state denied the grievance again, based on the unions

failure to file the grievance on time and Blackburns probationary

status.   The  union  informed the state that,  while  the  union

disagreed  that  the grievance was untimely, it was  closing  its

grievance  file  because  pursuing it  was  futile  in  light  of

Blackburns probationary status.

          Several months after his termination, Blackburn applied

for  state  employment at the Ted Stevens Anchorage International

Airport.  Blackburn was hired as a nonpermanent on-call equipment

operator, but was dismissed after  both parties agree  management

learned of his Cold Bay experience.

          Blackburn  sued the state and Local 71 on  December  4,

2001,   asserting   claims  against  the   state   for   wrongful

termination,  denial  of due process, and misrepresentation.   He

asserted claims against the union for breach of the duty of  fair

representation and denial of due process.  The state and Local 71

moved  for  summary  judgment.  Five days  before  the  scheduled

trial,  the superior court granted summary judgment to the  state

on  all  claims  and  to  Local 71  on  the  due  process  claim.

Blackburn  moved for reconsideration on January  17,  2003.   The

court  initially granted reconsideration of the implied  covenant

of good faith and fair dealing claim that Blackburn had raised in

opposing  summary  judgment,  but  after  receiving  the   states

response,  the  court  denied  reconsideration  of  the   summary

judgment  order as to that claim.  Final judgment for  the  state

was subsequently entered.  Blackburn appeals.


     A.   Standard of Review
          A  grant of summary judgment is reviewed de novo.1   We

          review the facts presented in the light most favorable to the

non-movant  to determine whether any genuine issues  of  material

fact  exist and whether the movant is entitled to judgment  as  a

matter of law.2

     B.   Blackburn Was an At-Will Employee.

          The superior court determined that, as a matter of law,

Blackburn  was  an at-will employee whom the state could  dismiss

without  just cause.  The contract negotiated between  the  state

and  Local  71  provides that the state can  discharge  permanent

employees only for just cause, but does not expressly so  provide

for   probationary   employees.3    Because   Blackburn   was   a

probationary employee, the superior court concluded that  he  was

not exempt from what that court said was the legal presumption of

at-will  employment.4  Despite Blackburns claims that  the  state

must  apply objective standards to all of its retention decisions

and  that  these standards require that the state  discharge  its

probationary  employees only for objective  reasons,5  the  court

concluded  that Blackburn had simply failed to show that  he  was

for  any  reason exempted from the legal presumption  of  at-will


          Blackburn  argues  on  appeal that  state  probationary

employees  are  distinguishable from  private  employees  because

their employment is governed by the merit principle set forth  in

article XII, section 6 of the Alaska Constitution6 and the  State

Personnel  Act.7   He  asserts that the merit principle  requires

that the state only dismiss employees for just cause.

          Alaska Statute 39.25.010 only specifies that separation

for  cause  is required for permanent employees.8  The  Personnel

Rules  promulgated by the Director of Personnel also  limit  just

cause  protection  to permanent employees.9   The  rules  entitle

probationary employees only to a written statement of the reasons

for  dismissal;   Blackburn  received  a  written  statement   of

reasons.   As  the state points out, the statutory  mandate  that

employees complete a period of probation10 would serve no purpose

          if the state must also show just cause to dismiss probationary


          Nonetheless,  Blackburn  contends  that  the  Act   and

related regulations require performance evaluations of all public

employees,  including  probationary  employees,  and  that  these

create  just  cause protection for probationary employees.11   He

points to a personnel rule  2 AAC 07.295  that provides that  the

Director of the Division of Personnel shall prescribe the nature,

form,  and  frequency of personnel evaluations and may require  a

personal  evaluation at any time during an employees probationary

period.    Blackburn   argues  that   the   regulation   requires

evaluations of probationary employees and only gives the director

discretion  to decide when to conduct the evaluation  within  the

probationary period.  A more plausible interpretation is that  it

authorizes   the  director  to  require  an  evaluation   without

obligating  the  director to do so.  Likewise, AS  39.25.150(14),

which  requires the development, maintenance, and use of employee

performance  records,  does  not  expressly  mandate  performance

evaluations of probationary employees.

          Absent a statutory mandate to the contrary, the parties

to  an  employment  contract may incorporate provisions  such  as

mandatory performance evaluations of probationary employees  into

the  contract.  Blackburn argues that Section 18.04  of  the  CBA

provides for performance evaluations by stating:

          Performance   Evaluation  Reports   will   be
          discussed with an employee by the rater.   An
          employee may, at their option, have  a  Union
          representative present during the discussion.
          An  employee who disagrees with a performance
          evaluation may submit written comments within
          five  (5) working days.  The written comments
          shall   be   attached  to   the   performance
          evaluation and become a part of the employees
          personnel file.  Following the discussion  of
          the performance evaluation with the employee,
          the evaluation will be signed by the employee
          and   the   rater.   The  signed  evaluation,
          together  with  any employee comments,  shall
          constitute  the  evaluation.   The   employee
          shall   receive  a  copy  of  the   finalized
          This  section of the CBA merely outlines the procedures

followed for preparing performance evaluations, however.  It does

not  require  the  state  to prepare performance  evaluations  of

probationary employees.

          Blackburn   also   relies   on   the   Department    of

Transportation  Employee  Handbook for  support.   He  points  to

handbook  language that requires performance evaluations  of  all

employees.   But  the handbook provision cited by Blackburn  does

not  apply  expressly  to probationers, and  its  terms  make  it

apparent  that  the  reports are designed to  evaluate  permanent

employees  on a periodic basis as an integral part of  []  career

development.12   In  the handbooks separate  provision  governing

probationary  employees, the probationary period is described  as

part  of the examination process where employees must demonstrate

their  ability  to do the work and adjust to the demands  of  the

position.   Employees are warned that they must  pass this  trial

period before they can earn permanent status.  As we concluded in

our  discussion  of  the CBA provisions relating  to  performance

evaluations, the Employee Handbooks provision on this topic  does

not  require  the  state  to prepare performance  evaluations  of

probationary employees.

          Blackburn  also maintains that references to the  rater

in  the  CBA establish that preparation of performance evaluation

reports  under  the contract is governed by the Raters  Guide  to

Performance  Evaluations.  The Raters Guide instructs  raters  to

prepare   evaluation   reports  midway   through   an   employees

probationary  period  and just prior to  the  completion  of  the

probationary period.  It recommends use of performance evaluation

results  as  a  guide  to personnel actions  such  as  promotion,

transfer,  retention  after probationary  period,  demotion,  and

termination.   Although this language indicates that  performance

evaluations  of  state probationary employees  are  required,  we

noted in Witt v. State, Department of Corrections that references

          to the rater in the performance evaluation provision of the

predecessor contract between the state and Local 71 do not  refer

to  the Raters Guide.13  Thus, provisions in the Raters Guide are

inapplicable to Blackburn.

          Finally,  Blackburn argues that he was not  an  at-will

employee  because  he was statutorily entitled to  arbitrate  his

grievance.   Although the CBA excludes grievances concerning  the

termination of probationary employees from arbitration, Blackburn

challenges  the exclusions legality under AS 23.40.210(a),  which

requires  that  public  employers  union  contracts  provide  for

grievance procedures that include arbitration. Blackburn  asserts

that  because  the statute requires the State as an  employer  to

explain  the reasons for its termination decisions and to  defend

its decisions to an arbitrator under the grievance procedure, the

state cannot fire a probationary employee on a mere whim.

          In  Hemmen  v. State, Department of Public  Safety,  we

struck down a provision in a public employers union contract that

excluded    involuntary   transfer   grievances   from    binding

arbitration.14   We  held there that the  provision  violated  AS

23.40.210,  and stated that the objective of AS 23.40.210  is  to

ensure  that  all  contracts subject to the  statute  contain  [a

binding  arbitration] procedure, and that binding arbitration  be

included  as  the  final step of all grievance procedures.15   In

State  v. Public Safety Employees Association, we clarified  that

section  .210  requires arbitration of all grievances  concerning

mandatory  subjects  of  bargaining.16  But  unions  enjoy  broad

discretion to serve the employees they represent; they may  waive

employee statutory rights if the waiver is clear and unambiguous.17

The  CBA  negotiated  by  Local 71  and  the  state  clearly  and

unambiguously waives probationary employees right to arbitrate  a

demotion or dismissal.  It provides:

          Any  grievance which involves the application
          or   interpretation  of  the  terms  of  this
          Agreement  or is an appeal from  demotion  or
          dismissal  of  a  permanent employee,  or  an
          appeal   from  dismissal  of  a  probationary
          employee holding permanent status in  another
          classification, which is not settled at  Step
          Three  may  be  submitted to arbitration  for
(Emphasis added.)

          Thus,  the  agreement explicitly limits  the  right  to

arbitrate  demotion or dismissal decisions to permanent employees

and  probationary employees holding permanent employee status  in

another  classification.   It  unmistakably  waives  probationary

employees   right  to  arbitrate  their  termination  grievances.

Blackburn was therefore not entitled to arbitrate his grievance.

          We  held in Witt that a CBA between the state and Local

71  that had language substantially similar to the CBA applicable

to   Blackburn   permitted  the  state  to  dismiss  probationary

employees  at  will.18  Because the contract  neither  explicitly

required   performance  evaluations nor referred  to  the  Raters

Guide,   we  concluded  that,  per  the  contracts  language,   a

probationary  employee  was  an  at-will  employee  and  was  not

entitled to dismissal only for good cause.19

          Because  we  find  nothing in the state  statutes,  the

state  personnel  rules, or the CBA that requires  the  state  to

apply  any  kind  of objective standard to probationary  employee

retention  decisions,  or otherwise indicates  that  probationary

employees  are entitled to just cause protection, we  affirm  the

superior  courts  determination that  Blackburn  was  an  at-will

employee  whom the state could dismiss without just  cause.   The

states  only  duty  was  to  provide  Blackburn  with  a  written

statement of the reasons for his dismissal.20  The states February

18,  2000  letter to Blackburn, in which it described  Blackburns

inadequate job performance, satisfied that duty.

     C.   Blackburns  Termination Did Not Violate His  Procedural
          Due Process Rights.
          The  superior court held that, as a matter of law,  the

state  did  not  violate Blackburns due process  rights  when  it

terminated  him.21  Citing Breeden v. City of Nome,22  the  court

concluded that Blackburn, as an at-will employee, had no property

          interest in his continued employment that was subject to due

process protections.  Blackburn argues that he was not an at-will

employee and therefore had a property interest in his employment.

Because we agree that Blackburn was an at-will employee (see Part

III.B),  we affirm.  A state employee who serves at will  has  no

expectation  of  continued employment and therefore  no  property


     D.   The  Superior Court Did Not Err in Refusing To Consider
          Whether  the State Had Violated Blackburns Due  Process
          Rights by Depriving Him of His Liberty Interest in  His
          Blackburns  motion for reconsideration argued  for  the

first  time  that  the  state had deprived  him  of  his  liberty

interest  in  his  reputation.  Although he had  alleged  in  his

complaint  that  the  state had refused to employ  him  based  on

Blackburns termination from Cold Bay, his due process claim  only

alleged  that  he  had  no  notice of his alleged  unsatisfactory

performance  [and]  no  opportunity to present  evidence  on  the

issue.   His opposition to the states motion for summary judgment

also  failed  to mention his liberty interests.  Concluding  that

the  issue was untimely, the superior court declined to  consider

it in ruling on Blackburns claims.

          The courts ruling was proper.  [T]he court was under no

obligation to consider an issue raised for the first  time  in  a

motion for reconsideration.24  Because Blackburn failed to  raise

the  issue in a timely fashion, it is not properly before  us  on


     E.   The  Superior  Court  Did Not Err in  Granting  Summary
          Judgment  for the State on Blackburns Implied  Covenant
          of Good Faith and Fair Dealing Claim.
          In  ruling  on the states motion for summary  judgment,

the superior court noted:

          Blackburn  does raise  very briefly   in  his
          opposition to summary judgment only the issue
          of  the  implied covenant of good  faith  and
          fair  dealing that adheres to every contract.
          Because  Blackburn neither raised this  issue
          in his complaint nor briefed it appropriately
          during the summary judgment process, it  will
          not be considered in this decision.
The  court  granted summary judgment for the state on all  claims

against it.  Blackburn raised the implied covenant claim again in

his  motion  for reconsideration, arguing that [w]hile  Blackburn

withdrew his claim for misrepresentation based on the bar created

by  AS 09.50.250(3), the facts stated in his complaint support  a

claim  for  the  breach of the covenant of good  faith  and  fair

dealing  against  the  State.  In support  of  his  argument,  he

referred  only  to  the  states misrepresentation  regarding  the

position  he was to fill.  The superior court granted the  motion

to  give  Blackburn an opportunity to file a much  more  detailed

legal  and factual analysis.  Upon receipt of the states response

to  Blackburns  motion,  the court denied Blackburns  motion  for

reconsideration of the issue.

          On appeal, Blackburn argues that the state breached the

implied  covenant  when it hired him based on a misrepresentation

as  to  the nature of the position he was to fill and then failed

to  conduct performance evaluations in order to cover up the fact

that he was hired for the wrong position.  He asserts that he was

hired  as  a placeholder until the State found someone with  more

mechanical skills.

          The  state  asserts that Blackburn waived  his  implied

covenant  claim  when he failed to assert it  before  filing  his

opposition to the states summary judgment motion.  It also argues

that the claim was barred by AS 09.50.250(3) because it arose out

of  the states alleged misrepresentation.  Lastly, it argues that

Blackburns  claim could not survive summary judgment because  the

states alleged misrepresentation deprived him of nothing and  was

not objectively unfair.

          Because  Blackburns implied covenant  argument  relates

closely  to  the misrepresentation claim raised in his complaint,

it  is  timely.26  The implied covenant of good  faith  and  fair

dealing  has  both  objective and subjective  components.27   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.28  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.29

          Blackburn claims that the state misrepresented that  it

had  a position for a permanent heavy equipment operator at  Cold

Bay.   He  maintains  that  the state  only  needed  someone  for

temporary  snow  removal.  Because the only  available  permanent

position was for a heavy duty mechanic, the state hired Blackburn

to  remove  snow, but misclassified him as a heavy duty  mechanic

until it could hire someone with mechanical skills.

          Although it arguably would have violated public  policy

if,  as Blackburn alleges, the state had only hired him until  it

could  find  someone  with  mechanical  skills  to  replace  him,

Blackburn  offers no evidence to support his claim.  Even  if  we

draw  all  inferences  in  Blackburns  favor,  we  conclude  that

Blackburn  has  not  raised a genuine  dispute  over  the  states

motives  for discharging him.  The record indicates that a  heavy

duty  mechanic, Joe Hopkins, was hired to start work at Cold  Bay

on  March  1,  2000,  around the time Blackburn  was  discharged.

[Exc.  46]   But  the  state  had  two  unfilled  positions  when

Blackburn was hired; therefore, Hopkins was not necessarily hired

to   replace   Blackburn.   Contrary  to  Blackburns  assertions,

          Blackburns supervisor had received authorization to hire an

equipment  operator prior to Blackburns hire.  Nothing  suggests,

therefore,   that  the  states  misclassification  of  Blackburns

position was anything other than an innocent error that  did  not

harm Blackburn.

          Even  if  there  were  evidence to  support  Blackburns

misrepresentation  claim, it fails as a matter  of  law.   Alaska

Statute 09.50.250(3) bars any actionable claim against the  state

that  arises out of . . . misrepresentation.  Because  Blackburns

implied   covenant  claim  arises  out  of  the  states   alleged

misrepresentation of the position he was hired  to  fill,  it  is

barred by the statute.


          We AFFIRM the superior courts grant of summary judgment

on  Blackburns  wrongful  discharge,  due  process,  and  implied

covenant  claims  against the state and  his  due  process  claim

against Local 71.

     1    Witt  v.  State,  Dept of Corr.,  75  P.3d  1030,  1033
          (Alaska 2003).
     2     Crosby  v.  Hummell, 63 P.3d 1022, 1027  n.17  (Alaska

     3     The  CBA provides: The Employer retains the  right  to
discharge   a   permanent  employee  for  just  cause   such   as
incompetence, unsatisfactory performance of duties, and unexcused
absenteeism.  (Emphasis added.)

     4     See Luedtke v. Nabors Alaska Drilling, Inc., 768  P.2d
1123,  1131 (Alaska 1989) (stating that if term of employment  is
not  for express or implied determinable length of time, employee
is at-will).

     5     See Cassel v. State, Dept of Admin., 14 P.3d 278, 283-
84 (Alaska 2000) (holding that state could only fire probationary
employee for failure to meet objective standards where employment
contract required performance evaluations).

     6     The  legislature shall establish a system under  which
the  merit principle will govern the employment of persons by the
State. Alaska Const. art. XII,  6.

     7    AS 39.25.010-.995.

     8     Under  AS  39.25.010(b)(3),  the  merit  principle  of
employment  includes . . . retention of employees with  permanent
status  on  the  basis  of  the adequacy  of  their  performance,
reasonable  efforts  of  temporary  duration  for  correction  in
inadequate  performance,  and separation  for  cause.   (Emphasis

     9    2 Alaska Administrative Code (AAC) 07.415 (am. 6/28/84)

          (a)   The appointing authority may dismiss  a
          permanent  employee for just cause  only.  If
          necessary,   the  appointing  authority   may
          approve  a  suspension of up to  30  days  to
          conduct  an  investigation of the  cause  for
          dismissal.  The employee must  be  given  two
          weeks notice before the dismissal, unless the
          employees  presence  at  the  work  site   is
          contrary to the best interests of the state.
          (b)  The appointing authority may dismiss  an
          employee who does not hold permanent status.
          (c)  If the appointing authority dismisses an
          employee,  the  appointing  authority   shall
          provide the employee with a written statement
          of  the reasons for dismissal. The appointing
          authority  shall file a copy of the statement
          with the director.
(Emphasis added.)

     10    See AS 39.25.150(7).

     11    See Cassel, 14 P.3d at 283-84.

     12    The handbook provision relied upon by Blackburn states:

          Performance  Evaluation Reports are  designed
          to  aid  communications between you and  your
          supervisor,  to  clarify  your   duties   and
          responsibilities,  to  inform  you   of   the
          strengths and weaknesses of your performance,
          and to identify future expectations.  Reports
          are  required for all employees.  Evaluations
          are   conducted  periodically  and   are   an
          integral  part  of  your career  development.
          They  will be considered in recommending  you
          for promotion, salary increases, transfer, or
          disciplinary action.
     13     Witt  v.  State, Dept of Corr., 75  P.3d  1030,  1033
(Alaska  2003).   Cf.  Cassel, 14 P.3d at  283  n.19  (concluding
superior  court did not err in citing Raters Guide where  it  was
referred   to   by  name  in  collective  bargaining  agreement).
Blackburn   concedes   that  [t]he  contract   provisions   under
consideration in this case are, at least, substantially  similar,
if  not  precisely  identical, to those the court  considered  in

     14     Hemmen v. State, Dept of Pub. Safety, 710 P.2d  1001,
1003 (Alaska 1985).

     15    Id. (Emphasis added.)

     16     State v. Pub. Safety Employees Assn, 93 P.3d 409, 419
(Alaska 2004).

     17    Id. at 419-20.

     18    Witt, 75 P.3d at 1033-34.

     19    Id.  See also Cassel, 14 P.3d at 284 n.23 (noting that
just  cause  is  not  per  se required  for  the  termination  of
probationary employees).

     20    2 AAC 07.415.

     21    The court also granted summary judgment to Local 71 on
Blackburns  due process claim.  Blackburns appeal of  this  issue
hardly merits discussion.  State action is a requisite element of
a  due  process claim.  See White v. State, Dept of Natural Res.,
984   P.2d  1122,  1126  (Alaska  1999).   As  a  private   labor
organization, the union is not susceptible to constitutional  due
process claims.

     22     Breeden  v. City of Nome, 628 P.2d 924,  926  (Alaska

     23    See Revelle v. Marston, 898 P.2d 917, 925 n.14 (Alaska
1995);  Storrs v. Municipality of Anchorage, 721 P.2d 1146,  1148
(Alaska 1986).

     24     J.L.P. v. V.L.A., 30 P.3d 590, 597 n.28 (Alaska 2001)
(citing  DeNardo v. GCI Communication Corp., 983 P.2d 1288,  1290
(Alaska 1999)).

     25     Stadnicky v. Southpark Terrace Homeowners Assn, Inc.,
939 P.2d 403, 405 (Alaska 1997).

     26     See Pitka v. Interior Regl Hous. Auth., 54 P.3d  785,
788  (Alaska  2002)  (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.)  Insofar as Blackburns arguments relate  to
his  misrepresentation claim, we will consider them.  We will not
consider  new  theories, such as Blackburns  disparate  treatment
argument, raised for the first time on appeal.  See id.

     27     Witt  v.  State, Dept of Corr., 75  P.3d  1030,  1034
(Alaska 2003).

     28    Id.

     29    Id.