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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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
DANIEL N. BLACKBURN, )
) Supreme Court No. S-11096
Appellant, )
) Superior Court No. 3AN-01-
12376 CI
v. )
) O P I N I O N
STATE OF ALASKA, DEPART- )
MENT OF TRANSPORTATION ) [No. 5854 - December 17, 2004]
AND PUBLIC FACILITIES, and )
LOCAL 71, PUBLIC EMPLOYEES )
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.
I. INTRODUCTION
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.
II. FACTS AND PROCEEDINGS
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
period.
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.
III. DISCUSSION
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
employment.
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
employees.
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
evaluation.
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
settlement.
(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
right.23
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
Reputation.
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
appeal.25
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.
IV. CONCLUSION
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
2003).
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
added.)
9 2 Alaska Administrative Code (AAC) 07.415 (am. 6/28/84)
provides:
(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
Witt.
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
1981).
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.
