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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Schmitz v. Yukon-Koyukuk School District (11/17/2006) sp-6079
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 SCHMITZ, | ) |
| ) Supreme Court No. S- 11683 | |
| Appellant, | ) |
| ) Superior Court No. 4FA-03-789 CI | |
| v. | ) |
| ) | |
| YUKON-KOYUKUK SCHOOL | ) O P I N I O N |
| DISTRICT, CHRISTOPHER SIMON, | ) |
| and DOES 1 THROUGH 10, | ) No. 6079 - November 17, 2006 |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the
Superior Court of the State of Alaska, Fourth
Judicial District, Fairbanks, Randy M. Olsen,
Judge.
Appearances: D. Randall Ensminger, Law
Offices of D. Randall Ensminger, Fairbanks,
for Appellant. Howard S. Trickey and Matthew
Singer, Jermain Dunnagan & Owens, P.C.,
Anchorage, for Appellees.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Fabe,
Justice, not participating.]
BRYNER, Chief Justice.
I. INTRODUCTION
David Schmitz negotiated a contract with the
Yukon-Koyukuk School District to teach at the Coldfoot School for
the 2001-2002 school year. The contract gave him tenure and
provided that if the district eliminated his position he would be
assigned to the districts central office in Fairbanks. Although
the contract contained no grievance provisions, it incorporated
the terms of the collective bargaining agreement (CBA) between
the district and the teachers union, which set out a three-step
grievance process. The district terminated the Coldfoot position
and transferred Schmitz to Fairbanks in January 2002; soon after,
it transferred Schmitz again, to Huslia, and notified him that he
would not be retained after the school year ended. Schmitz sued
the district, asserting breach of contract and various other
claims. The superior court dismissed these claims on summary
judgment, ruling that Schmitz had failed to exhaust his
administrative remedies under the CBA. We affirm, holding that
the CBAs grievance procedures applied to Schmitzs contract, that
Schmitz failed to exhaust his remedies as required under the CBA,
and that he made no timely offer of evidence to excuse his
failure to meet this requirement.
II. FACTS AND PROCEEDINGS
David Schmitz negotiated a contract with the
Yukon-Koyukuk School District to be a teacher at the Coldfoot
school for the 2001-2002 school year. The contract stated that
[s]hould it become necessary to eliminate the position because of
decreased enrollment . . . Mr. Schmitz will be employed by the
District as a Reading Specialist, operating out of the Central
Office. The central office is in Fairbanks. The contract also
stated that [t]his contract creates no obligation on DISTRICT to
offer continuing employment to TEACHER except as provided by
Alaska Law. Mr. Schmitz is tenured on the first day of
employment with Yukon Koyukuk School District because of his
previous five (5) successful years of employment with Yukon
Koyukuk School District.
The contract had no grievance or arbitration
provisions. But it stated that TEACHER shall abide by applicable
laws, regulations, policies of the Yukon Koyukuk School District
Board of Education, procedures established by DISTRICT, and terms
and conditions of the Negotiated Agreement, as may be amended
from time to time.
It is undisputed that the contracts term Negotiated
Agreement referred to the collective bargaining agreement (the
CBA) between the Yukon-Koyukuk School District and the teachers
union, the Middle Yukon-National Education Association (the
Association). The CBA prescribed a three-step grievance and
arbitration process to be followed if any dispute arose under the
CBA. Step I involved filing a letter with ones supervisor. Step
II involved sending a letter to the districts superintendent, who
was required to hold a hearing. And Step III allowed the
Association to demand arbitration.
Schmitz began work at the Coldfoot school on August 16,
2001. In January 2002 the district eliminated Schmitzs position
at the Coldfoot school because of decreased enrollment, and it
transferred him to the central office in Fairbanks. Schmitz then
agreed to teach at Jimmy Huntington School in Huslia from
February 18 through March 1, 2002. Although the assignment was
supposed to be temporary, on March 1 the school districts
superintendent, Christopher Simon, informed Schmitz that the
district needed to keep Schmitz in Huslia for the rest of the
school year.
Schmitz immediately sent a letter of objection to Simon
and the school board, complaining that the permanent reassignment
to Huslia would force him to live 250 miles away from his wife
and children, against his wishes. Schmitz also noted that he had
recently suffered injuries in an accident that required him to
receive therapy that was unavailable in Huslia.
On March 14 Schmitz followed up with a Step I grievance
letter to his immediate supervisor, Doc Lantz, the principal of
Jimmy Huntington School. In his letter, Schmitz asked to be
returned to the district office in Fairbanks, alleging that his
involuntary transfer violated both the CBA and his contract; he
also said that he had heard that the district might not retain
him for the following school year, asserting that, since he was
tenured, this would violate the CBA.
On March 26 Lantz responded to Schmitz, suggesting that
he deal directly with Simon. Schmitz wrote a Step II grievance
letter to Simon on April 1, restating his complaints and asking
Simon to set up a Step II conference.
The Step II conference was scheduled for April 11,
2002. On April 10, the day before the hearing, Simon formally
notified Schmitz that the district would not retain him as a
teacher the following year.
Simon held the Step II grievance hearing by
teleconference on April 11, as scheduled. In a letter sent the
following day, April 12, Simon denied Schmitzs Step I and Step II
grievances. The letter informed Schmitz that the district viewed
his reassignment to Huslia as permissible under his teaching
contract because the contract . . . does not state that you
cannot be transferred from the district office should the need
arise. As to the tenure issue, Simon stated that Schmitzs right
to claim tenure was a right created by state law rather than by
individual contract and that, in the districts view, under
AS 14.20.150(e), Schmitz would not become tenured until the first
instructional day of the third year of employment in the new
school district. Simon sent a copy of the denial letter to
Association President Heidi Wright, as required under the CBA.
Schmitz did not attempt to file a Step III grievance
for arbitration, nor did he ask Wright to file such a grievance
on his behalf. Instead, after the 2001-2002 school year ended,
he simply obtained other employment.
In April 2003, one year after the Step II hearing,
Schmitz filed a superior court action against the school district
and Simon (collectively the District), claiming compensatory and
punitive damages for breach of contract, misrepresentation
regarding the job site and tenure, intentional infliction of
emotional distress, and intentional interference with contract.
The District moved for summary judgment, asserting that
Schmitz had failed to exhaust available administrative and
contractual remedies by neglecting to file a Step III grievance
as required under the CBA.
In response, Schmitz asserted that the CBA did not
apply to his case. Because his claims arose from the Districts
breach of his teaching contract rather than from any alleged
violation of the CBA itself, Schmitz argued, he had no duty to
exhaust the CBAs grievance requirements. He did not claim that
he had exhausted or tried to exhaust the CBAs grievance
requirements; nor did he claim that he had made any effort to
convince the Association to pursue a Step III grievance on his
behalf.
The superior court rejected Schmitzs arguments and
granted the Districts motion for summary judgment, concluding
that Schmitz had failed to exhaust his remedies under the CBA.
Schmitz moved for reconsideration, contending that the
court had overlooked or misconceived the fact that Plaintiff did
request that the Association pursue a Step 3 grievance and was
turned down. In a memorandum accompanying this motion, Schmitz
asserted for the first time that he had actually attempted to
exhaust his administrative remedies but that he had been told
that the Association would not pursue his complaints. Schmitz
sought to support his new claim with affidavits from himself and
his attorney, D. Randall Ensminger.
In his own affidavit, Schmitz alleged that shortly
after the District rejected his Step II grievance in April 2002,
he called Rod Pfisterer, the UniServe Director for NEA-Alaska,
and asked if the Association would file a Step III grievance on
his behalf. According to Schmitz, Pfisterer responded that the
Association would not be able to file the Step III grievance,
because [Schmitzs] complaints involved issues that were off
agreement. Schmitz did not believe that he had ever put this
request in writing or received a written response.
Ensmingers affidavit confirmed that, sometime between
March 2002 and the end of the summer of 2002, Schmitz told
Ensminger that the Association had turned down his Step III
grievance because his complaints were off agreement. Ensminger
noted that it made such perfect sense that the Association had
refused to file the Step 3 grievance for him because it did not
involve issues covered by the negotiated agreement that I did not
investigate the matter further at that time. Ensminger also said
that when he was later preparing Schmitzs complaint in
April 2003, he telephoned NEA-Alaskas Director, Ray Goad, to see
if the Association might help with the costs of the litigation.
According to Ensminger, Goad responded that they would not be
able to do so because the dispute was based on complaints that
were off agreement.
Although Schmitz acknowledged that he had not disclosed
this information to the court in opposing the Districts motion
for summary judgment, he explained that his belated offer of the
evidence was entirely . . . a result of a strategic decision by
his attorney, Ensminger, who had thought that it would be best to
oppose the summary judgment motion solely on the legal ground
that the CBAs grievance procedures did not apply to Schmitzs
claims.
Superior Court Judge Randy M. Olsen denied Schmitzs
motion for reconsideration, concluding that the new evidence
concerning the Associations refusal should have been disclosed
before the court entered its original ruling and, alternatively,
that, even if this evidence were considered, it would not raise a
material issue of disputed fact concerning Schmitzs failure to
meet the exhaustion requirement.
Schmitz appeals.
III. STANDARD OF REVIEW
We review de novo an order granting summary judgment,
determining whether any genuine issue of material fact exists and
whether the moving party is entitled to judgment on the law
applicable to the established facts.1 We review for abuse of
discretion a trial courts order denying a motion for
reconsideration.2
IV. DISCUSSION
A. Superior Courts Ruling on Summary Judgment
1. Applicability of exhaustion requirement
We have repeatedly held that employees must first
exhaust their contractual or administrative remedies, or show
that they are excused from doing so, before they may pursue
direct judicial actions against their employers.3 Schmitz argues
that because his teaching contract was entirely independent from
the CBA, the CBAs grievance provisions did not cover his claim,
so he had no obligation to exhaust the grievance procedures set
out in the CBA. Since his teaching contract included no
grievance requirements, he argues, he had no contractual or
administrative remedies to exhaust.
The CBA states that [a] Grievance shall mean a written
claim by a grievant that a dispute or disagreement exists
involving interpretation or application of the terms of this
Agreement. (Emphasis added.) The CBA Step III, part 1 grievance
provision states:
In the event that the grievant is not
satisfied with the disposition of his/her
grievance at Step II, or in the event that
he/she does not receive notice of its
disposition within five (5) days in Step II,
and provided that the grievance concerns the
meaning of this Agreement or any part or
parts of it or concerns an alleged breach
hereof, the Association may request
arbitration within ten (10) days.
(Emphasis added.)
According to Schmitz, because this provision specifies
that a grievance must concern the meaning of this Agreement, the
Step III arbitration process can be invoked only when a dispute
concerns the meaning of the CBA. Since his claims concern his
teaching contract rather than the CBA, he reasons, he did not
have to follow CBA grievance procedures. Schmitz argues that his
decision to follow Step I and Step II provisions should not
prejudice his right to pursue his claims in court. In Schmitzs
view, the Step I and Step II grievances merely show that he did
more than he was required to do.
These arguments are unpersuasive. The teaching
contract between Schmitz and the District includes no provisions
for disputes arising under its provisions. But it does specify
that the TEACHER shall abide by . . . terms and conditions of the
Negotiated Agreement. As the District observes, this phrase
incorporates the CBA by reference, including its grievance and
arbitration provisions. In light of this provision, the District
reasons, the CBA and the teaching contract merge, so Schmitz was
required to follow CBA grievance provisions.
The Districts argument has merit. When a writing
refers to another document, that document becomes constructively
a part of the writing, and in that respect the two form a single
instrument.4 Here, Schmitzs teaching contract referred to the
CBA, or Negotiated Agreement, expressly requiring Schmitz to
abide by . . . terms and conditions of the Negotiated Agreement.
Moreover, the CBA referred to all individual teaching contracts,
effectively embedding its terms in each individual contract:
The policy set forth herein shall be
included by written reference in the
individual contracts of all teachers employed
by the Yukon-Koyukuk School District. This
Negotiated Agreement, hereafter referred to
as the Agreement, shall be made part of the
teachers individual comprehensive contract
with the same force and effect as though
fully set forth herein.
Given the teaching contracts and CBAs reciprocating
reference provisions, the teaching contract unequivocally
incorporated the terms and conditions of the CBA, and the CBA
encompassed the teaching contract. Because the teaching contract
had no conflicting provisions relating to grievances, it required
Schmitz to abide by the CBA grievance provisions including Step
III in asserting his claims.
2. Futility
Schmitz similarly contends that his claims fell outside
the jurisdiction of the arbitration contemplated by the CBAs Step
III provisions. Noting that the CBAs grievance provisions
authorized arbitrators to decide only issues arising under the
CBA, Schmitz insists that his claims raised questions arising
under his teaching contract. Because the arbitrator would have
had no authority to decide his claims, Schmitz argues, it would
have been futile for him to pursue Step III arbitration under the
CBA. But this argument mistakenly assumes that the teaching
contract and CBA are completely independent the same assumption
we rejected in addressing Schmitzs claim that he had no duty to
follow the CBA grievance process. Because the CBA and the
teaching contract contained mutual incorporation provisions,
Schmitzs claims did not arise exclusively under the teaching
contract.
Schmitz further posits that arbitration would have been
futile because the terms of the CBA created a conflict that would
have precluded the arbitrator from deciding his claims. Schmitz
points out that the CBAs provisions governing Step III
arbitration expressly denied arbitrators the power or authority
to make any decisions which require the commission of an act
prohibited by law or which is violative of the terms of this
Agreement. The CBA further required arbitrators to refer[] back
to the parties without decision or recommendation any case that
they lacked authority to decide.
Because the District asserted in response to his
Step II grievance that the CBA entitled it to reassign him to
Huslia after his transfer to Fairbanks, Schmitz contends, an
arbitrator who found that the teaching contract gave Schmitz a
valid right not to be reassigned could never enforce this
provision: because this contractual right would conflict with the
terms of the CBA, the jurisdictional restrictions governing
Step III arbitration would require the arbitrator to refer the
case back to the parties. Similarly, Schmitz reasons that because
the District asserted that state law precluded it from giving
Schmitz tenure, it would have been futile to seek arbitration on
his claim that his contract entitled him to receive tenure. In
each instance, Schmitz asserts, because his contract creates a
valid right that conflicts with the CBA or state law, his claims
fall beyond the scope of the arbitrators powers under the CBA.
But these arguments are flawed by the same mistaken
assumption that defeated Schmitzs previous arguments: they fail
to recognize that Schmitzs contract expressly incorporated the
CBA, which in turn required compliance with all terms and
provisions of the CBA and with all requirements imposed by state
law. Because these requirements are parts of the teaching
contract, it seems unlikely that the contract could properly be
construed to embody any valid and enforceable promise that
violated the CBA or the law. Although Schmitz insists that his
claims would have required an arbitrator to enforce valid
contractual provisions at odds with the CBA or the law, he fails
to explain how such a conflict realistically might arise.
Moreover, even if we assumed that Schmitzs claims might have
resulted in this kind of conflict, the mere possibility of a
conflict would not suffice to establish futility. Instead, to
establish futility on the face of the CBA, Schmitz would have to
show that the CBAs jurisdictional provision would necessarily
preclude an arbitrator from deciding his claims on any grounds
that might avoid the jurisdictional conflict a showing Schmitz
fails to make.
We thus find no merit in Schmitzs contentions that
arbitration would have been futile as a matter of law.
3. Compliance with exhaustion requirement
Schmitz alternatively argues that the record
demonstrates that he actually did comply with the CBAs exhaustion
requirements. Specifically, Schmitz claims that undisputed
evidence before the court when it ruled on summary judgment
showed that he did all that he was authorized to do in pursuing
his administrative remedies under the CBA. He notes that under
Step III, only the Association may request arbitration; the CBA
contains no provision authorizing or requiring an individual
teacher to request Step III arbitration. Schmitz further notes
that the union countersigned his Step I grievance, and it
received copies of Simons decision on Steps I and II. Because
the Association had all the necessary information to decide for
itself whether to pursue a Step III grievance, Schmitz claims,
the CBA required him to do nothing further.
But this argument conflicts with our case law. In our
past decisions addressing CBAs that required employees to pursue
grievances through their unions, we have consistently ruled that
a unions failure to file a grievance does not by itself establish
that the CBAs remedies were exhausted. Instead, we have
emphasized that employees in such cases must show that they made
good faith efforts to request the union to pursue a grievance,
and that they have received some form of refusal.5
Here, standing alone, evidence of Schmitzs compliance
with Step I and Step II and the Associations subsequent failure
to request arbitration was insufficient to establish exhaustion
Schmitz was required to show both that he made a good faith
effort to pursue a Step III claim through the Association and
that he received some form of refusal from the Association. Yet
Schmitz made no such showing in response to the Districts motion
for summary judgment. When the superior court ruled on that
motion, the only record evidence concerning the Step III
grievance was an affidavit of union representative Heidi Wright,
who insisted that Schmitz had never asked her to bring a Step
III grievance and that she had never declined to help Schmitz in
the process. Wright further attested that she would have been
willing . . . to provide assistance to Schmitz had he requested
it.
Accordingly, based on the record at the time of its
ruling, the superior court correctly granted summary judgment to
the District on the ground that Schmitz had failed to exhaust his
remedies under the CBA.
B. New Evidence Offered on Reconsideration
As already mentioned in the statement of facts, Schmitz
offered new evidence addressing the exhaustion issue when he
moved for reconsideration after the court granted the Districts
motion for summary judgment. Relying on this evidence, he argued
that he had complied with the CBAs exhaustion requirements, or at
least had shown that he was excused from further compliance
because the Association would not have pursued a Step III
grievance.
Schmitz renews these arguments on appeal. But in
denying Schmitzs motion for reconsideration, the superior court
found that Schmitzs new evidence was untimely, ruling that he
could have filed it before the ruling on summary judgment but
failed to submit it for strategic reasons. Unless the superior
court abused its discretion in so finding, we must affirm its
decision to deny reconsideration and refuse to consider Schmitzs
appellate arguments based on this untimely evidence.6
In moving for reconsideration, Schmitz candidly
acknowledged that his new evidence had been available earlier but
that his attorney had opted to withhold it for tactical reasons.
Specifically, after asserting that the superior court had
overlooked a material fact, the memorandum accompanying Schmitzs
motion for reconsideration explained:
Th[e] material fact is the fact that there
exists a question of fact with respect to the
issue of whether or not Plaintiff David
Schmitz did or did not request his
Association to pursue a Step 3 grievance on
his behalf. The reason that the Court has
overlooked or misconceived this fact is
entirely as a result of a strategic decision
made by undersigned counsel. This strategic
decision was to not oppose the Motion for
Summary Judgment on the facts, but rather to
oppose the Motion based on the law. That is,
Plaintiffs undersigned counsel determined
that it would be best to oppose the Motion .
. . based on the argument that the subject
matter of Plaintiffs complaints were not
within the jurisdiction for a Step 3
grievance based on the express limiting
language of the collective bargaining
agreement[.]
In denying the motion for reconsideration, the superior
court relied on this concession, concluding that Schmitzs belated
efforts to submit the evidence were unjustified in light of his
earlier tactical choice:
It is clear from the underlying Motion
for Summary Judgment that exhaustion of
administrative remedies was the central
issue. Pursuant to Civil Rule 56(c) any
dispute of facts needed to be set out in a
statement of genuine issues. Strategic
decisions were made, and the Court cannot act
on a change of strategy after the decision.
Given Schmitzs concession that his counsel had
previously withheld the newly offered evidence of exhaustion for
tactical reasons, the record amply supports the superior courts
determination that the evidence could not properly be offered for
the first time as a basis for reconsideration. The superior
court did not abuse its discretion in so ruling. Although the
superior court went on to deny reconsideration on an alternative
ground as well concluding that Schmitzs new evidence would not
have raised a material factual dispute on the issue of futility
in any event the courts primary finding that the evidence was
untimely provides an independent and adequate basis for affirming
its order denying reconsideration, thus making it unnecessary to
consider what impact the new evidence might have had if it had
been timely filed.
V. CONCLUSION
For the reasons set forth above, we AFFIRM the
superior courts judgment.
_______________________________
1 Grant v. Anchorage Police Dept, 20 P.3d 553, 555
(Alaska 2001) (citing Cozzen v. Municipality of Anchorage, 907
P.2d 473, 475 (Alaska 1995)).
2 Neal & Co., Inc. v. Assn of Village Council Presidents
Regl Hous. Auth., 895 P.2d 497, 506 (Alaska 1995).
3 State v. Beard, 960 P.2d 1, 5 (Alaska 1998).
4 11 Williston on Contracts 30:25 (4th ed.).
5 See, e.g., Beard, 960 P.2d at 5; Casey v. City of
Fairbanks, 670 P.2d 1133 (Alaska 1983).
6 A trial courts decision on a motion for reconsideration
will not be reversed on appeal absent an abuse of discretion.
Neal & Co., Inc., 895 P.2d at 506.
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