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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Mitchell v. Teck Cominco Alaska, Inc. (09/26/2008) sp-6310

Mitchell v. Teck Cominco Alaska, Inc. (09/26/2008) sp-6310, 193 P3d 751

     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

MAURICE MITCHELL, )
) Supreme Court No. S- 12530
Appellant,)
) Superior Court No. 2KB-05- 00103 CI
v. )
) O P I N I O N
TECK COMINCO ALASKA)
INCORPORATED, ) No. 6310 September 26, 2008
)
Appellee.)
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Second   Judicial   District,
          Kotzebue, Richard H. Erlich, Judge.

          Appearances: Kenneth W. Legacki,  Kenneth  W.
          Legacki,   P.C.,  Anchorage,  for  Appellant.
          Sean  Halloran, Hartig Rhodes Hoge & Lekisch,
          PC, Anchorage, for Appellee.

          Before:    Fabe,  Chief  Justice,   Eastaugh,
          Carpeneti, and Winfree, Justices.  [Matthews,
          Justice, not participating]

          WINFREE, Justice.


I.   INTRODUCTION
          Teck Cominco Alaska Incorporated is the operator of the
Red  Dog  Mine (Mine), which is remotely located in the  Kotzebue
area  on  lands  owned by NANA Regional Corporation,  Inc.   Teck
Cominco  fired  Maurice  Mitchell from his  job  as  a  warehouse
supervisor  at  the  Mine  after  concluding  that  Mitchell  had
sexually  harassed  a contractors employee and  lied  during  the
ensuing  investigation.  Mitchell sued Teck Cominco, asserting  a
statutory claim for race-based discrimination and contract claims
for  breach  of the covenant of good faith and fair  dealing  and
wrongful discharge.
          Teck  Cominco  immediately moved to  dismiss  Mitchells
discrimination claim, and the superior court later converted  the
dismissal motion into a summary judgment motion.  Mitchell  filed
affidavit  testimony  and requested additional  time  to  conduct
planned  discovery  to  further contest summary  judgment.   Teck
Cominco  did  not  oppose  the request or  otherwise  submit  any
evidence to support its converted motion.  The court never  ruled
on Mitchells continuance request, but six months later, while the
parties  were still conducting discovery, the court  granted  the
converted motion for summary judgment on Mitchells discrimination
claim.   Mitchell  then asked the assigned  judge  to  disqualify
himself because the judges wife is a NANA shareholder; the  judge
did  not  disqualify  himself.  The court granted  Teck  Comincos
subsequent  motion  for summary judgment on Mitchells  claim  for
breach  of  the  covenant  of good faith  and  fair  dealing  and
simultaneously denied Mitchells cross-motion on that claim and on
his  wrongful discharge claim.  The court entered final  judgment
and  awarded Alaska Civil Rule 68 attorneys fees to Teck Cominco.
Mitchell appeals.
          We  vacate  the  grant  of summary  judgment  for  Teck
Cominco  on  Mitchells discrimination claim because the  superior
court  should have granted Mitchells request for additional  time
to  oppose it.  We reverse the grant of summary judgment for Teck
Cominco  on  Mitchells good faith and fair dealing claim  because
material issues of fact precluded summary judgment, and we affirm
the  denial  of  summary judgment to Mitchell  on  both  contract
claims for the same reason.  In light of these rulings, we vacate
the  final judgment and the award of attorneys fees in  favor  of
Teck  Cominco  and  remand  for further  proceedings  on  all  of
Mitchells  claims.  Finally, we remand for renewed  consideration
of the judicial disqualification issue.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          Maurice Mitchell is an African-American who had  worked
for  Teck  Cominco at the Mine for fifteen years  before  he  was
fired  in  May  2005.  In early 2005 Mitchell  noticed  L.B.,  an
employee of a contractor at the Mine; he wanted to meet  her  and
have a personal relationship with her.  Mitchells friend Carla W.
knew  L.B.,  and he asked Carla to approach L.B. to see  if  L.B.
might  be  interested in getting to know him.  Carla and Mitchell
exchanged  suggestive e-mails about L.B.,  and  in  one  of  them
Mitchell  mentioned  summer  work  in  the  warehouse   and   the
possibility  that  he might be able to help L.B.  if  she  needed
work.
          Carla  talked  to  L.B. in April  2005.   According  to
Carla, she told L.B. that Mitchell was interested in meeting  her
and  that Teck Cominco hired people for the summer.  Carla  later
maintained  that she did not link the possible employment  and  a
relationship  with  Mitchell; she made sure [L.B.]  knew  it  was
separate.   L.B. interpreted the job possibility and relationship
with  Mitchell  as  linked, although she later acknowledged  that
Carla  did not express a linkage.  L.B. did not respond to Carlas
inquiries  on Mitchells behalf and did not apply for a  job  with
Teck Cominco.
          Mitchell continued to be interested in L.B. and again e-
mailed  Carla about her.  In May 2005 Carla wrote a note to  L.B.
about  Mitchell:  He wanted to know if you were interested and  I
told  him he would have to talk to you. . . . [I]f you decide  to
get involved or not with that situation, could you please let him
know?   Or  if  you  want  me  to  tell  him  something,  let  me
know.  . . . His name is Maurice Mitchell and he is the warehouse
supervisor.  Carla signed the note Carlitta and left it at  L.B.s
dormitory.   L.B. complained to her supervisor after  seeing  the
note.  L.B. and her supervisor then spoke with Jim Somers in Teck
Comincos human resources department.  L.B. was asked to  write  a
statement summarizing her complaint.
          Somers    and   Jeff   Sheardown,   a   Teck    Cominco
superintendent, then met briefly with Mitchell as he was about to
fly  home  from the Mine at the end of his regular work rotation.
The  parties  dispute what happened at the meeting; no  one  took
notes or recorded the conversation.  Mitchell asserts that no one
told  him  he had been accused of offering a job in exchange  for
sex.   The  parties agree that Mitchell was shown a copy  of  the
note  Carla  wrote to L.B. and that Mitchell asked  who  Carlitta
was.  Mitchell stated in an affidavit that during the meeting  he
denied  having  anything  to do with  writing  the  note;  Somers
testified  at a deposition that Mitchell denied asking  Carla  to
approach  L.B. on his behalf about possibilities of a summer  job
and of hooking up.
          Teck Cominco continued its investigation after Mitchell
left the Mine on rotation.  Company e-mails between Mitchell  and
Carla   were  reviewed.   Carla  was  interviewed  about  whether
Mitchell  had asked her to offer L.B. a job in exchange for  sex.
Carla  prepared  a  short written statement at  Somerss  request,
reflecting Carlas position that her discussion with L.B. about  a
summer warehouse position was separate from her discussion  about
Mitchells personal interest in L.B.  Teck Cominco did not contact
Mitchell again during its investigation.
          Robert Scott, then Teck Comincos general manager at the
Mine,  decided  to terminate Mitchells employment  based  on  the
conclusion  that Mitchell had offered L.B. a job in exchange  for
sex  and  had  lied  about it during the investigation.   In  its
May  25,  2005,  termination  letter to  Mitchell,  Teck  Cominco
informed Mitchell that:  (1) allegations that he tied a job offer
to   a   personal  relationship  had  merit;  (2)  he  had   been
considerably  less than candid when asked about the  allegations;
and (3) even if the allegations were not true, his willingness to
misrepresent facts to the detriment of [his] employer would  have
been  cause  for discipline.  Teck Cominco also stated  that  its
reasons  for  firing Mitchell were exacerbated by  his  abuse  of
company e-mail and non-solicitation policies.
     B.   Proceedings
          In  late  July  2005  Mitchell  sued  Teck  Cominco  in
superior  court, alleging race-based disparate treatment,  breach
of  the  implied  covenant of good faith and  fair  dealing,  and
wrongful  termination.   In August 2005  Teck  Cominco  filed  an
answer  to  Mitchells  complaint and moved to  dismiss  Mitchells
discrimination  claim for failure to state  a  claim  upon  which
relief  could be granted.1  At the same time, Teck Cominco served
Mitchell  with an Alaska Civil Rule 68 Offer of Judgment  in  the
amount  of  twelve  dollars.   Mitchell  opposed  the  motion  to
dismiss, supporting his opposition with an affidavit denying that
he had offered a job in exchange for sex and stating that he knew
of  numerous  individuals who were not African-American  who  had
sexually  harassed employees but had not been  terminated.   Teck
Cominco   replied  in  September  2005  without  submitting   any
evidence.
          The  superior  court  held a scheduling  conference  on
October  17, 2005.  Mitchell told the court that he had  filed  a
discrimination  complaint  with  the  federal  Equal   Employment
Opportunity  Commission and would advise the court within  thirty
days  whether he would proceed with the lawsuit.  Mitchell  later
advised that he would proceed with the lawsuit.  In January  2006
the  court converted Teck Comincos dismissal motion into a motion
for  summary  judgment because it intended to consider  Mitchells
affidavit.   The  court  gave  Mitchell  twenty  days  to  submit
additional  opposition  to the converted  motion  and  gave  Teck
Cominco five days thereafter to file a reply.2
          Mitchell  filed  supplemental opposition  arguing  both
that  summary  judgment was premature because discovery  had  not
been  completed  and that his second affidavit  (filed  with  the
supplemental opposition) contained additional facts sufficient to
defeat  summary  judgment.   Mitchell provided  material  to  the
superior  court referencing an upcoming deposition  schedule  and
asked  the court to hold the summary judgment motion in  abeyance
until  discovery was complete.  Although Mitchell did not make  a
separate  motion  under Alaska Civil Rule 56(f),3  he  cited  and
discussed the rule in his supplemental opposition.  Teck  Cominco
did not oppose Mitchells request for a Rule 56(f) continuance and
filed nothing further in connection with the converted motion for
summary judgment.
          On  July  7,  2006, without having ruled  on  Mitchells
request to hold the motion in abeyance pending completion of  the
scheduled  discovery,  the superior court granted  Teck  Comincos
converted motion for summary judgment.  The court concluded  that
Mitchell  had  not  made  a prima facie  case  of  discrimination
because  he  had  not  presented admissible  evidence  that  Teck
Cominco  had  treated  him less favorably  than  other  similarly
situated employees outside his protected class.  The court stated
in   a  footnote  that  Mitchell  had  not  filed  a  Rule  56(f)
continuance  motion  and had not filed any supplemental  briefing
based on depositions that had been conducted in February 2006.
          Mitchell requested reconsideration, noting that he  had
asked for a Rule 56(f) continuance to oppose summary judgment but
that the court had not ruled on it, and attaching some deposition
transcripts and other discovery material reflecting his discovery
efforts.  The court denied reconsideration, stating that  it  had
ruled  on  the summary judgment motion five months after Mitchell
filed  his supplemental opposition and that plaintiff could  have
requested  [that  the  court]  take notice  of  any  supplemental
discovery  [he]  wished to file between January 30  and  July  7,
          2006.
          Shortly  thereafter, Mitchell advised assigned Superior
Court  Judge Richard H. Erlich that he recently had become  aware
that  Judge Erlichs wife owned stock in NANA Regional Corporation
and  that under a case this court decided in 2002,4 she therefore
had  a  financial interest in the outcome of litigation involving
the  Mine.   Mitchell  indicated  this  probably  required  Judge
Erlichs  disqualification.  Judge Erlich declined  to  disqualify
himself,  finding that although his wife was a NANA  shareholder,
her  annual NANA dividend of $200 to $300 was de minimis and  did
not  justify  his recusal.  Judge Erlich also considered  whether
his  wifes  stock  ownership  could  cause  his  impartiality  to
reasonably  be  questioned and concluded that it could  not.   He
requested review of his decision, as required by AS 22.20.020(c),5
and Superior Court Judge Michael I. Jeffery reviewed and affirmed
Judge Erlichs decision.
          Teck  Cominco then filed a motion for summary  judgment
on  Mitchells contract claim for breach of the covenant  of  good
faith  and  fair  dealing.   Mitchell filed  a  cross-motion  for
summary  judgment  on that claim and on his  contract  claim  for
wrongful  termination.  Teck Cominco argued that it was  entitled
to  judgment  as a matter of law because (1) it had conducted  an
investigation,  there  were  no  minimal  contractual  or   legal
standards   specifying  how  the  investigation  needed   to   be
conducted,  and  Mitchells termination  was  the  result  of  the
conclusions drawn from that investigation; and (2) the court  had
already  ruled that Mitchell had not been subjected to  disparate
treatment.  Mitchell argued that he was entitled to judgment as a
matter  of  law  because (1) he in fact had not  engaged  in  the
conduct  of which he was accused, making his termination  per  se
unlawful;  (2) Teck Cominco did not conduct a fair and  impartial
investigation of the allegations against him, in violation of its
personnel  policies; and (3) Teck Cominco treated  Mitchell  more
severely  than  other  employees  who  had  violated  its  sexual
harassment policy.
          The  court  granted  Teck Comincos motion  for  summary
judgment and denied Mitchells cross-motion.  The court determined
that  Mitchells conduct violated Teck Comincos sexual  harassment
policy  because of the note Carla had written to L.B. after  L.B.
had ignored her first overture, stating:  If there had been . . .
no  subsequent contact and [L.B.] made no response to  the  offer
that  had been communicated  all right  there would have been  no
case.  The court found that because Mitchell was confronted  with
Carlas  note,  Mitchell had clear indication of what  the  issues
were  . . . prior to the termination.  As to disparate treatment,
the  court  decided that the two incidents factually  closest  to
Mitchells situation (and supporting Mitchells arguments) were not
relevant, one occurring too long before Mitchells termination and
the   other   occurring   after  the   termination.    Apparently
considering  Mitchells  contract claim for  wrongful  termination
dismissed  along  with  the contract  claim  for  breach  of  the
covenant of good faith and fair dealing, the court later  entered
final  judgment and, based on Teck Comincos nominal Rule 68 offer
of judgment, awarded Teck Cominco Rule 68 attorneys fees.
          Mitchell  appeals the summary judgment  rulings,  Judge
Erlichs  refusal  to recuse himself, and the  award  of  Rule  68
attorneys fees based on the nominal offer of judgment.







III. STANDARD OF REVIEW
          A  Rule  56(f)  decision is reviewed for  an  abuse  of
discretion.6  An abuse of discretion exists when we are left with
the definite and firm conviction that a mistake has been made.7
          We  review  a  grant  of  summary  judgment  de  novo.8
Summary judgment is proper if there is no genuine factual dispute
and the moving party is entitled to judgment as a matter of law.9
When factual disputes exist, the non-movants version of the facts
must  be  accepted as true and capable of proof, and we  make  no
attempt  to weigh the evidence or evaluate witness credibility.10
All  reasonable  inferences to be drawn from the facts  presented
must be drawn in favor of the non-moving party.11
          A  trial  judges decision not to recuse is reviewed  on
appeal  for abuse of discretion.12  We will not overturn a judges
decision  unless it is plain that a fair-minded person could  not
rationally  come  to that conclusion on the basis  of  the  known
facts.13   Interpretation of a statute is a question  of  law  to
which we apply our independent judgment, interpreting the statute
according  to  reason,  practicality, and common  sense.14   When
interpreting  a statute, we consider the meaning of the  statutes
language, its legislative history, and its purpose.15
IV.  DISCUSSION
     A.   The  Superior Court Should Have Granted Mitchells Civil
          Rule  56(f)  Request  for Additional  Time  to  Conduct
          Discovery and Respond to Teck Comincos Motion.
          
          Teck Comincos dismissal motion was filed within a month
of   Mitchells  complaint.   Our  civil  rules  contemplate  that
dismissal motions will be filed early in litigation because  they
generally  are decided on the pleadings; indeed, to expedite  the
resolution  of  litigation some dismissal motions  may  be  filed
before a pleading.16  Summary judgment motions, on the other hand,
may  require  that  parties spend considerable  time  and  effort
discovering   and   developing  facts  necessary   for   a   full
presentation, and for this reason courts must give the parties  a
reasonable  opportunity to present all pertinent  material  after
converting a Rule 12(b)(6) motion into a Rule 56 motion.17
          Rule   56  itself  permits  a  party  opposing  summary
judgment to request additional time to gather and submit evidence
to  support  its  opposition.18  We  have  repeatedly  held  that
requests  made under Rule 56(f) should be granted freely  because
Rule  56(f)  provides  a safeguard against  premature  grants  of
summary judgment. 19  A request for a Rule 56(f) continuance need
not be made in a separate motion,20 but to receive a continuance a
          party (1) must unambiguously request relief on Rule 56(f)
grounds,  although  Rule 56(f) itself need  not  be  specifically
mentioned; (2) must not have been dilatory during discovery;  and
(3) must provide adequate reasons why additional time is needed.21
Mitchell  met  all  three requirements  and  was  entitled  to  a
continuance.
          First,  Mitchell  unambiguously  requested  Rule  56(f)
relief  in  his supplemental opposition, specifically  requesting
that  the  court hold the motion in abeyance so he  could  gather
more  information  during  planned  discovery,  and  specifically
citing  Rule 56(f) and a case construing it.  Mitchells  proposed
order  expressly  stated that the court would  hold  the  summary
judgment  motion in abeyance pending completion of discovery  and
additional briefing, and set a briefing schedule to begin  twenty
days after the scheduled July 20, 2006, close of discovery.
          Second,  Mitchell had not been dilatory with discovery.
When the court converted the motion on January 10, 2006, the case
was less than six months old.  The pretrial scheduling conference
had  been  conducted about three months earlier, but  proceedings
apparently  then went on informal hold for the next  thirty  days
while  Mitchell  decided whether to proceed with the  lawsuit  or
seek   remedies   through   the  Equal   Employment   Opportunity
Commission.  Mitchells decision to proceed with the lawsuit  came
about forty-five days before the courts conversion of the motion,
and  by  then  the  parties had already been in contact  about  a
discovery schedule.  Discovery was set to close on July 20, 2006.
          Third, Mitchell provided adequate reasons why he needed
additional  time to oppose summary judgment.  He noted  that  the
conversion of the dismissal motion came before discovery had been
completed, advised the court that the parties were in the process
of  setting up a deposition schedule, and even described some  of
the information he was trying to discover.  It is noteworthy that
in  conformance  with his representations to the court,  Mitchell
then conducted at least nine depositions between February and May
2006 and participated in others that Teck Cominco conducted.
          Teck  Cominco asserts that the court had no  reason  to
grant   the  Rule  56(f)  request  because  Mitchell  had   ample
opportunity  to submit additional evidence during  the  time  the
court  had  the  summary judgment motion under  advisement.   But
without  an order from the trial court authorizing or  setting  a
deadline  for additional filings, Mitchell had no way of  knowing
when  the  court  would rule on the motion or whether  the  court
would  accept  more filings in addition to those it  had  already
authorized.  By failing to promptly rule on Mitchells Rule  56(f)
request,  the  superior court left the parties  without  guidance
about  whether  supplemental filings would be permitted  or  when
they would be due.
          Teck Cominco also argues that the courts error, if any,
is  moot  or  harmless.   According  to  Teck  Cominco,  Mitchell
presented the evidence of inconsistent discipline  which he would
have  relied on to show disparate treatment in his discrimination
claim   when the parties filed cross-motions for summary judgment
on  the  covenant of good faith and fair dealing claim,  and  the
court  still entered judgment against Mitchell, making the  issue
          moot.  But the courts error is neither harmless nor moot in light
of  our  reversal  of the courts later summary  judgment  ruling,
discussed  in  the next section of this opinion.   Moreover,  the
legal standards for the two claims are different and require  the
evaluation of evidence in light of both standards.22  Finally, in
the  course of discovery Mitchell obtained evidence that  appears
to  support  his claim that Teck Cominco treated persons  outside
his protected class more favorably than it treated Mitchell.
          In  connection with the later cross-motions for summary
judgment  on  his  contract  claims,  Mitchell  presented   newly
discovered  evidence  that  a white supervisor  at  Teck  Cominco
sexually  harassed  a  female employee of a contractor  but  only
received  a disciplinary letter in his personnel file instead  of
termination.   The  superior  court indicated  that  it  did  not
consider  the  evidence  relevant because the  incident  occurred
after  Mitchells termination.  But the fact that the more lenient
discipline happened after Mitchell was fired does not necessarily
make  it  irrelevant  to Mitchells claims.  Federal  courts  have
compared  a  Title VII plaintiffs discipline to  discipline  that
happened  after the plaintiffs termination.23  Thus the  superior
courts  failure  to grant Mitchells Rule 56(f)  request  actually
prejudiced Mitchell.24
          Based on the foregoing, we are left with a definite and
firm conviction that the superior court made a mistake in failing
to grant Mitchells Rule 56(f) request, and we vacate the entry of
summary  judgment and remand for further proceedings on Mitchells
race-based disparate treatment claim.25  On remand, the  superior
court   must  identify  the  appropriate  comparison  group   for
Mitchells  claim.  The superior court previously determined  that
employees  who  are situated similarly to Mr. Mitchell  are  non-
African-American supervisors or managers determined by Cominco to
have  violated  the companys sexual harassment policy.   This  is
unduly  narrow; under this standard an employer could  engage  in
blatant  discrimination  by never determining  that  a  class  of
employees violated company policy, but always escape a finding of
discrimination  on  that  basis.  For  persons  to  be  similarly
situated for a comparison in a Title VII case, the plaintiff must
establish that he was treated differently from similarly situated
persons  whose conduct was comparable in all material respects.26
This  requires  that members of the comparison  group  engage  in
similar conduct, not that the employer finds they have done so.27
In disparate treatment discipline cases, the offenses do not need
to  be identical, but they should be of comparable seriousness.28
Thus  in  further  proceedings after remand, the  superior  court
should  evaluate  whether the conduct  of  the  persons  to  whom
Mitchell  compares  himself is of comparable seriousness  to  the
conduct he committed, and then evaluate Teck Comincos response to
that conduct.
     B.   The  Superior  Court  Should Not Have  Granted  Summary
          Judgment to Teck Cominco on Mitchells Claim for  Breach
          of the Covenant of Good Faith and Fair Dealing.
          
          At-will  employment  contracts  in  Alaska  include  an
implied  covenant of good faith and fair dealing.29  The covenant
does  not  have  a  precise  definition  but  generally  requires
employers to treat like employees alike and act in a manner  that
a reasonable person would regard as fair.30  The covenant has both
a   subjective  and  an  objective  component:   the   subjective
component prohibits an employer from terminating an employee  for
the  purpose of depriving the employee of the contracts benefits,
and  the  objective component prohibits the employer from dealing
with  the  employee  in a manner that a reasonable  person  would
regard as unfair.31  Mitchells claim for breach of the covenant is
under  the  objective  component because he  contends  that  Teck
Cominco  treated him unfairly in its investigation of the  sexual
harassment allegations and disciplined him more severely than  it
did other employees.
          Teck  Cominco based its summary judgment motion on  its
contentions  that  (1)  it conducted an  investigation  that  was
legally sufficient to meet its obligation under its policies  and
procedures;  (2)  based  on  the  facts  available  through   its
investigation, it reasonably could have concluded  that  Mitchell
had  offered a job to L.B. in exchange for sex, making his denial
of  wrongdoing  irrelevant; and (3) the courts grant  of  summary
judgment  on  Mitchells discrimination claim was a  determination
that it had not treated Mitchell disparately.
          Teck  Cominco  agrees  that  under  its  policies   and
procedures, it was required to investigate the sexual  harassment
allegations against Mitchell before firing him.  At oral argument
before  us  Teck  Cominco  conceded  that  the  implied  covenant
requires some minimal level of fairness to the employee during an
employers  investigation.  Mitchell testified that his  interview
lasted no more than five minutes and that he was never told  that
he  was accused of offering a woman a job in exchange for sex  or
that  he  was  being  investigated for  sexually  harassing  L.B.
Somers  testified that it would be reasonable to ask an  employee
being investigated to tell his side of the story and acknowledged
that  he  had not given Mitchell this opportunity.  If even  this
limited  testimony  is  accepted and viewed  in  the  light  most
favorable  to Mitchell, it shows that Teck Cominco never  advised
him  of  the  allegations against him and never gave him  a  fair
opportunity  to  present his side of the story.  This  creates  a
triable  issue  of  fact  of  whether,  considering  all  of  the
circumstances,  Teck  Cominco conducted  a  fair  and  reasonable
investigation.32
          Mitchell  also  created a triable issue of  fact  about
whether  he was disparately treated.  Mitchell presented evidence
of  several  Teck Cominco employees who apparently  violated  the
companys  sexual  harassment policy  but  were  disciplined  less
severely  than  Mitchell.   Teck  Cominco  did  not  assert  that
Mitchells factual allegations were inaccurate, but rather  argued
that  Mitchells disparate treatment claim under the  covenant  of
good  faith  and fair dealing was the same as under  his  already
dismissed  race discrimination claim.  As noted above, the  legal
standards  for  the two claims are different33  an  employer  can
breach the covenant of good faith and fair dealing when it treats
members of the same class disparately.34  At a minimum, Mitchells
          example of the white supervisor who sexually harassed a
contractors employee and whose discipline consisted of  a  letter
of  warning  created a triable issue of fact about  whether  Teck
Cominco  treated  Mitchell  disparately.   The  fact  that   this
incident  happened  after  Mitchells  firing  does  not  make  it
irrelevant.35
          We  therefore  vacate  the  superior  courts  entry  of
summary judgment for Teck Cominco on Mitchells contract claims.36
     C.   Material  Issues of Fact Precluded Summary Judgment  on
          Mitchells Cross-Motion.
          
          Mitchell asked the superior court to grant him  summary
judgment  on  his contract claims that Teck Cominco violated  the
covenant of good faith and fair dealing and wrongfully terminated
his  employment.  He offered evidence that Teck Cominco  had  not
disciplined  or terminated other employees for sexual harassment,
and  Teck  Cominco did not dispute his evidence.   Mitchell  also
argued  that  because he did not engage in quid  pro  quo  sexual
harassment as a matter of fact or law, Teck Cominco breached  its
employment  contract with him as a matter of  law.   Finally,  he
argued that as a matter of law Teck Cominco breached the covenant
of  good  faith and fair dealing because it did not give Mitchell
an  opportunity  to  tell  his  side  of  the  story  during  the
investigation.  Mitchell asks us to reverse the courts denial  of
his summary judgment motion.
          We  conclude  that the superior court  properly  denied
Mitchells summary judgment motion because disputed factual issues
prevented  entry of summary judgment on his claims.  A  party  is
not  entitled  to summary judgment simply because the  non-moving
party  does not oppose summary judgment,37 so the fact that  Teck
Cominco  did not dispute some of the evidence Mitchell  presented
about  other employees who engaged in sexual harassment does  not
mean  that  he is automatically entitled to summary  judgment  on
that issue.
          Accepting  and viewing the evidence in the  light  most
favorable  to  Teck  Cominco, as we  must  do  when  we  evaluate
Mitchells  motion:   (1) Carla, at Mitchells  request,  discussed
both  a  summer job with Teck Cominco and a personal relationship
with Mitchell, thus implicitly linking the two when she talked to
L.B.; (2) Teck Cominco promptly and reasonably investigated L.B.s
complaint;  (3) Teck Cominco reasonably concluded that  Mitchells
conduct  violated  its  sexual harassment policy;  and  (4)  Teck
Cominco  reasonably terminated Mitchell because of his underlying
conduct,  his  lack of candor during the investigation,  and  his
abuse  of  company e-mail.  This precludes the grant of Mitchells
cross-motion for summary judgment on his contract claims.
     D.   We   Remand  for  Further  Consideration  of   Judicial
          Disqualification.
          
          By  letter  dated  July  27,  2006,  Mitchells  counsel
advised  Second  Judicial  District Presiding  Judge  Michael  I.
Jeffery  and  Judge  Erlich that it had recently  come  to  [his]
attention  that  Judge  Erlich may have a conflict  and  probably
should  disqualify  himself from the case under  Alaska  Code  of
          Judicial Conduct Canon 3E(1)(c)(i).38  Specifically, counsel
referenced Judge Erlichs wifes ownership of NANA stock and  Reich
v.  Cominco  Alaska, Inc.39  In Reich, we upheld a  trial  courts
decision  to exclude NANA stockholders as jurors in an employment
discrimination  case  against Teck Cominco  because  NANA  had  a
direct  financial interest in the outcome of the case that  could
be  imputed to its shareholders, even though NANA was not a party
to  the  case.40  Former Alaska Civil Rule 47(c)(12)41  permitted
challenges for cause for jurors with a financial interest .  .  .
in   the  outcome  of  the  case.   We  adopted  a  per  se  rule
disqualifying  as jurors shareholders of a non-party  corporation
that has a financial interest in the outcome of the litigation.42
          In  Mitchells  case, Judge Erlich  held  a  hearing  on
August  2, 2006, and indicated that he would consider the  letter
as  a motion for disqualification.  He later denied the motion in
a  written  order.  Judge Erlich noted that his  wife  owned  two
hundred  shares of NANA stock and received a dividend of  between
$200  and  $300  per  year, but that she was not  a  director  or
officer or employed by [NANA].  Judge Erlich stated that his wife
was  otherwise  employed and received a salary in  the  range  of
$60,000  to $70,000 per year.  Judge Erlichs salary as a superior
court judge is in excess of $152,760 per year.43  Thus, the impact
of  the  NANA  dividends on the Erlich family annual  income  was
perhaps one-tenth of one percent of the Erlichs salaries.   Judge
Erlich  first determined that his wifes interest was  de  minimis
under  the Code of Judicial Conduct.  He then considered  whether
he  should  be  disqualified  under the  Codes  mandate  that  he
disqualify  himself  if  his  impartiality  could  be  reasonably
questioned  or  under  AS  22.20.020(a)(9),  which  prohibits   a
judicial officer from acting in a matter when he or she  feels  a
fair  and impartial decision cannot be given.  He determined that
he could be both objectively and subjectively impartial.
          Pursuant   to   AS  22.20.020(c),  Judge  Jeffery   was
appointed to review Judge Erlichs decision.  Judge Jeffery agreed
that  the  NANA  dividends  were de minimis  under  the  Code  of
Judicial  Conduct and that Judge Erlich could be,  and  could  be
seen as, impartial.  But he also considered AS 22.20.020(a)(4) as
another   possible  basis  for  Judge  Erlichs  disqualification.
Subsection  .020(a)(4) provides that a judicial officer  may  not
act  in  a  matter in which the judicial officer or  his  or  her
spouse  has  a direct financial interest in the matter.44   Judge
Jeffery  decided  that the Code of Judicial Conducts  de  minimis
exception  was an appropriate limitation on subsection .020(a)(4)
and  did not infringe on the substantive right to have a judicial
officer  who  is actually impartial and who also  appears  to  be
impartial.   Judge Jeffery distinguished Reich on the basis  that
the  court  rule for juror disqualification does not  have  a  de
minimis  exception,  while  the Code of  Judicial  Conduct  does.
Judge Jeffery affirmed Judge Erlichs decision.
          Mitchell   argues   to  this  court   that   subsection
.020(a)(4) requires Judge Erlichs disqualification in  his  case,
relying  chiefly on federal cases construing the federal judicial
disqualification statute to require recusal even when the  judges
interest is extremely small.  Mitchells reliance on federal cases
          is misplaced.  The federal counterpart to subsection .020(a)(4)
has  stricter language than does the Alaska statute  the  federal
law requires disqualification when the judicial officer or spouse
has a financial interest, however small, in the subject matter of
the  litigation or in a party to the proceeding.45   Because  the
federal statute explicitly states that any financial interest  is
reason for disqualification and the Alaska statute does not,  the
federal cases are not truly analogous.
          The   Alaska   Code  of  Judicial  Conduct  establishes
standards  for ethical conduct of judges and provides a structure
for regulating conduct through disciplinary agencies.46  It is to
be   applied   consistently  with  constitutional   requirements,
statutes, other court rules and decisional law and in the context
of  all relevant circumstances.47  Because a de minimis financial
interest  does  not conflict with the right to  have  a  judicial
officer  who is actually unbiased and who appears unbiased,48  we
agree  with  Judge Jeffery and hold that AS 22.20.020(a)(4)  does
not  impose  a more stringent standard for disqualification  than
does  the Code when a judicial officer or spouse has a de minimis
financial interest in the matter before the court.
          Teck Cominco argues that nothing in the record supports
the  proposition  that  the relationship between  NANA  and  Teck
Cominco  is  the  same now as it was at the time  of  Reich  and,
therefore,  that  Mitchells  allegations  of  financial  conflict
cannot  be  sustained.  This argument is moot  in  light  of  our
resolution  of  the recusal issue.49  However, we  take  judicial
notice  of  a  January 2007 affidavit by the  vice-president  and
general counsel of NANA in connection with another case50 that has
reached  this court.51  This affidavit describes the relationship
between  NANA  and Teck Cominco in the same manner  reflected  in
Reich  and notes the significant employment and related financial
impact  of the Mine on NANA shareholders and the Northwest Arctic
Borough.   The affidavit further provides that (1) Mine royalties
to  NANA for 2008 are projected to exceed $250 million, over four
times  the 2007 royalties, although (2) sixty-two percent of  the
royalties are shared with other entities under the Alaska  Native
Claims  Settlement Act.  This suggests that the future stream  of
NANA  shareholder dividends, as well as the value of  NANA  stock
(notwithstanding current restrictions on transfer52), may increase
substantially as a direct result of NANAs investment in the Mine.
          Canon  3E(1) requires disqualification when the  judges
impartiality might reasonably be questioned . . . .   While  this
requires disqualification when a judge or spouse has more than  a
de  minimis  interest  in the outcome of  a  case,  financial  or
otherwise,53  that does not mean that such a de minimis  interest
can  never  give  rise to a reasonable question  about  a  judges
impartiality.    In  light  of  the  information  about   greatly
increased  royalties  from  the Mine and  the  Mines  significant
financial  impact  on NANA shareholders and the Northwest  Arctic
Borough,  we  remand for Judge Erlichs renewed  consideration  of
Mitchells request that he disqualify himself from this case.   On
remand  Judge  Erlich  should consider and indicate  whether  his
wifes ownership of NANA stock has a financial or other impact  on
the  Erlich  household, de minimis or not, that would  reasonably
          call into question his ability to serve as the trial judge in
this case.54
V.   CONCLUSION
          We  REVERSE  the  superior courts  implicit  denial  of
Mitchells  Rule 56(f) request for a continuance because  Mitchell
met  all of the requirements of the rule, and we therefore VACATE
the grant of summary judgment ruling to Teck Cominco on Mitchells
discrimination claim.  Because there are genuine issues  of  fact
about  the  reasonableness  of Teck  Comincos  investigation  and
differences in discipline for sexual harassment, we also  REVERSE
the  grant  of  summary  judgment to Teck  Cominco  on  Mitchells
contract  claims  and  AFFIRM the denial of summary  judgment  to
Mitchell on those claims.  We VACATE the final judgment and award
of  attorneys  fees and costs to Teck Cominco and REMAND  to  the
superior  court  for  further proceedings  consistent  with  this
opinion, including renewed consideration of Mitchells request for
judicial disqualification.
















_______________________________
     1    See Alaska R. Civ. P. 12(b)(6).

     2    Cf. Alaska R. Civ. P. 12(b) which provides, in part:

          If,   on   a  motion  asserting  the  defense
          numbered (6) to dismiss  for failure  of  the
          pleading  to state a claim upon which  relief
          can  be granted, matters outside the pleading
          are  presented  to and not  excluded  by  the
          court, the motion shall be treated as one for
          summary  judgment and disposed of as provided
          in  Rule  56, and all parties shall be  given
          reasonable   opportunity   to   present   all
          material  made pertinent to such a motion  by
          Rule 56.
          
     3    Alaska R. Civ. P. 56(f) provides:
          
          When  Affidavits Are Unavailable.  Should  it
          appear   from  the  affidavits  of  a   party
          opposing the motion that the party cannot for
          reasons  stated  present by  affidavit  facts
          essential  to justify the partys  opposition,
          the  court  may  refuse the  application  for
          judgment or may order a continuance to permit
          affidavits  to be obtained or depositions  to
          be  taken or discovery to be had or may  make
          such other order as is just.
          
     4     See  Reich v. Cominco Alaska, Inc., 56 P.3d 18,  23-25
(Alaska  2002)  (NANA shareholders have imputed direct  financial
interest in the outcome of litigation involving the Mine and  are
excluded as jurors under former Alaska R. Civ. P. 47(c)(12)).

     5    AS 22.20.020(c) provides, in relevant part:

          If a judicial officer denies disqualification
          the question shall be heard and determined by
          another judge assigned for the purpose by the
          presiding judge of the next higher  level  of
          courts  or, if none, by the other members  of
          the  supreme court.  The hearing  may  be  ex
          parte  and  without notice to the parties  or
          judge.
          
     6     Hymes  v.  DeRamus, 119 P.3d 963,  965  (Alaska  2005)
(quoting  Kessey  v.  Frontier Lodge, Inc., 42  P.3d  1060,  1062
(Alaska 2002)).

     7     Dougan v. Aurora Elec. Inc., 50 P.3d 789, 793  (Alaska
2002) (citing Morgan v. State, Dept of Revenue, 813 P.2d 295, 297
n.4 (Alaska 1991)).

     8     Miller  v.  Safeway, Inc., 170 P.3d 655,  658  (Alaska
2007) (citing DeNardo v. Bax, 147 P.3d 672, 676 (Alaska 2006)).

     9    Id.

     10    Sykes v. Melba Creek Mining, Inc., 952 P.2d 1164, 1167
n.3 (Alaska 1998).

     11    Id.

     12     Amidon  v.  State, 604 P.2d 575,  577  (Alaska  1979)
(citing  United States v. Halderman, 559 F.2d 31, 139 (D.C.  Cir.
1976)).

     13    Id.

     14    State v. Jeffery, 170 P.3d 226, 229-30 (Alaska 2007).

     15    Catholic Bishop of N. Alaska v. Does 1-6, 141 P.3d 719,
722 (Alaska 2006) (quoting Marshall v. First Natl Bank of Alaska,
97 P.3d 830, 834 (Alaska 2004)).

     16    See Alaska R. Civ. P. 12(b).

     17    See Demmert v. Kootznoowoo, Inc., 960 P.2d 606, 611-12
(Alaska 1998); Alaska R. Civ. P. 12(b).

     18    See supra note 3.

     19    Hymes, 119 P.3d at 965 (quoting Ball v. Birch, Horton,
Bittner & Cherot, 58 P.3d 481, 489 (Alaska 2002)).

     20    Id. (quoting Parson v. Marathon Oil Co., 960 P.2d 615,
618 (Alaska 1998)).

     21    Id. (quoting Parson, 960 P.2d at 618).

     22     Compare Charles v. Interior Regl Hous. Auth., 55 P.3d
57,  62-63 (Alaska 2002) (noting that covenant of good faith  and
fair  dealing requires that employer treat like employees alike),
with  Haroldsen v. Omni Enters., Inc., 901 P.2d 426, 430  (Alaska
1995)  (setting  out  three-part test for  racial  discrimination
claims).

     23     See  Bio v. Fed. Express Corp., 424 F.3d 593, 594-95,
598  (7th  Cir. 2005) (holding that plaintiff in Title  VII  case
could  not  show  less favorable treatment when  other  employee,
fired five months after plaintiff, was fired after receiving same
number of disciplinary notices); Lynn v. Deaconess Med. Ctr.   W.
Campus,   160  F.3d  484,  485-88  (8th  Cir.  1998)   (comparing
discipline  of  plaintiff  in Title VII  case  to  discipline  of
similar  employee  whose discipline happened  four  months  after
plaintiffs forced resignation).

     24     A detailed showing of prejudice is not necessary  for
reversal  of  a wrongful dismissal of a Rule 56(f)  motion.   See
Demmert, 960 P.2d at 612 (holding it is inappropriate to  require
a  detailed showing of prejudice from a party who has not  had  a
reasonable  opportunity to oppose a motion for  summary  judgment
due to the courts failure to grant a Rule 56(f) continuance).

     25      Although  we  vacate  the  superior  courts  summary
disposition  of  Mitchells discrimination  claim  on  Rule  56(f)
grounds,  we  also note that the effect of the courts  conversion
order was to stand summary judgment procedure on its head.   Teck
Cominco  did  not  submit  any  evidentiary  materials  with  its
original  Rule  12(b)(6) motion or with its Rule  12(b)(6)  reply
memorandum.  After the court converted the dismissal motion  into
a  summary  judgment motion and gave Teck Cominco the opportunity
to  file  a  reply  to  Mitchells supplemental  opposition,  Teck
Cominco  filed nothing at all. The court then ruled that Mitchell
had failed to present sufficient admissible evidence to establish
a  prima  facie  case  for  discrimination  under  his  disparate
treatment theory and summarily dismissed his claim.

          But  a  party seeking summary judgment has the  initial
burden of proving, through admissible evidence, that there are no
disputed  issues  of material fact and that the moving  party  is
entitled  to judgment as a matter of law.  Shade v.  Co  &  Anglo
Alaska Serv. Corp., 901 P.2d 434, 437 (Alaska 1995) (noting  that
courts  should be mindful of burdens of proof to avoid  premature
grant of summary judgment).  When the moving party does not  meet
its  burden,  the non-moving party need not present any  opposing
evidence at all.  See Weaver Bros. v. Chappel, 684 P.2d 123,  126
(Alaska  1984).  Only when the moving party establishes  a  prima
facie  case for summary judgment is the non-moving party required
to  come forward with contradictory evidence to prevent the entry
of  summary  judgment.   Preblich v. Zorea,  996  P.2d  730,  733
(Alaska  2000)  (quoting Jennings v. State, 566 P.2d  1304,  1309
(Alaska 1977)).

          Here,  Teck  Cominco  obtained summary  judgment  on  a
factual   issue   without  submitting  any  admissible   evidence
whatsoever, relying only on assertions of fact in its  memoranda.
Cf.  Brock  v. Rogers & Babler, Inc., 536 P.2d 778,  783  (Alaska
1975) (assertions of fact in pleadings and legal memoranda cannot
be relied upon for summary judgment purposes).  When converting a
dismissal motion to a summary judgment motion, trial courts  must
ensure that the appropriate parties bear the burdens of proof and
persuasion.

     26    Raymond v. Ameritech Corp., 442 F.3d 600, 610 (7th Cir.
2006);  Graham  v. Long Island R.R., 230 F.3d  34,  39  (2d  Cir.
2000).

     27    See Graham, 230 F.3d at 40.

     28    Id.; see also Lynn, 160 F.3d at 488 (noting requirement
that  employee  engage  in  exact same offense  could  result  in
scenario  in  which  treatment  of employee  who  committed  more
serious   offense   could  never  be   relevant   to   proof   of
discrimination).

     29     Id. at 1013 (citing Luedtke v. Nabors Alaska Drilling
,  Inc.,  834  P.2d  1220, 1223-24 (Alaska 1992)).The  reasonable
ness of any investigation is a fa

     30    Id. at 1012-13.

     31    Id. at 1013 (citing Luedtke v. Nabors Alaska Drilling,
Inc., 834 P.2d 1220, 1223-24 (Alaska 1992)).

     32     The  reasonableness of any investigation is  a  fact-
dependent question and may depend on the strength of the evidence
of  the underlying infraction.  Here, Mitchell strenuously denies
that he offered L.B. a job in return for sex and contends he  was
fired  for  something  he never did.  An unreasonable  or  unfair
investigation  may  lead to an unreasonable conclusion,  although
this is not always the case.  But having concluded that there  is
a  triable issue of fact about the fairness and reasonableness of
Teck  Comincos investigation, the reasonableness of Teck Comincos
conclusion is also a triable issue of fact.

     33    See supra note 22.

     34    See Charles, 55 P.3d at 62.

     35    The superior court also discounted another of Mitchells
examples  because,  according to the trial  court,  the  incident
happened   seventeen   years  prior  to  Mitchells   termination.
Mitchell  contends that the record does not support this finding,
and  our  review of the record did not reveal when that  incident
happened.

     36     Having vacated the superior courts entries of summary
judgment  in  favor  of Teck Cominco, we also  vacate  the  final
judgment  and the award of attorneys fees and costs in  favor  of
Teck  Cominco.  We therefore do not need to decide  whether  Teck
Comincos Rule 68 offer of judgment was valid.

     37     Morris  v. Rowallan Alaska, Inc., 121 P.3d  159,  164
(Alaska 2005).

     38     Alaska Code of Judicial Conduct Canon 3E provides  in
part:

           E.  Disqualification.

          (1)   Unless all grounds for disqualification
          are  waived  as  permitted by Section  3F,  a
          judge shall disqualify himself or herself  in
          a proceeding in which the judges impartiality
          might reasonably be questioned, including but
          not limited to instances where:
          
          . . . .

          (c)    the  judge  knows  that  he  or   she,
          individually or as a fiduciary, or the judges
          spouse,  parent, or child wherever  residing,
          or  any  other  member of the  judges  family
          residing in the judges household:
          
          (i)   has an economic interest in the subject
          matter in controversy . . . .
          
          Alaska  Code  of Judicial Conduct Canon  5  Commentary,
Terminology defines economic interest as follows:

          Economic interest means ownership of  a  more
          than  de  minimis legal or equitable interest
          or  a  relationship as an officer,  director,
          advisor,  or other legal participant  in  the
          affairs of a party . . . .
          
     39    Reich, 56 P.3d at 18.

     40     See  id. at 23-25.  The record in that case reflected
that  NANA owned the Mine, that Teck Cominco operated it under  a
development  agreement, that under the agreement  NANA  and  Teck
Cominco shared net profits, and that under the agreement the  net
profits to be shared could be reduced by litigation expenses  and
the  payment of judgments in the absence of a finding  that  Teck
Cominco  was  liable for gross negligence or willful  misconduct.
See id. at 20.

     41    Now Alaska R. Civ. P. 47(c)(13).

     42    Reich, 56 P.3d at 23.

     43    See AS 22.10.190.

     44    AS 22.20.020(a)(4).

     45     28  U.S.C.  455(b)(4), (d)(4) (2006).  Alaskas former
Code  of  Judicial  Conduct mirrored this language.   See  former
Alaska Code of Judicial Conduct Canon 3C(1)(c) (1973).

     46    Alaska Code of Judicial Conduct Preamble.

     47    Id.

     48    See Amidon, 604 P.2d at 577 (citing Keel v. State, 552
P.2d  155, 156 (Alaska 1976)) (holding that AS 22.20.020 embodies
right to impartial tribunal).

     49     Teck  Cominco also argues that Mitchells  efforts  to
disqualify  Judge Erlich below were untimely, that having  failed
below  to  rely  on AS 22.20.020(a)(4) he cannot rely  on  it  on
appeal, and that Mitchell lacks standing to appeal the denial  of
recusal.   In  light of our resolution of the recusal  issue,  we
need not address these arguments.

     50     See  Drake v. Wickwire, 795 P.2d 195, 197 n.1 (Alaska
1990)  (noting court may take judicial notice of pleadings  filed
in another case).

     51     Council of Alaska Producers v. Parnell, Supreme Court
Nos. S-13059/S-13060, Superior Court Case No. 4FA-07-02696 CI.

     52     See 43 U.S.C.  1606(h) (2006) (restricting alienation
of  Alaska  Native  Claims Settlement Act common  stock  and  all
inchoate    rights,   including   rights   to    dividends    and
distributions); AS 13.16.705 (providing inheritance mechanism for
ANCSA  common  stock while federal law against alienation  is  in
existence).

     53    See Alaska Code of Judicial Conduct Canon 3E(1)(c)(i),
(iii),  (explaining  circumstances  requiring  disqualification);
Alaska  Code of Judicial Conduct Terminology (defining de minimis
interest).

     54     The  commentary to Canon 3E(1) provides that a  judge
should disclose on the record information that the judge believes
the  parties  or  their lawyers might consider  relevant  to  the
question of disqualification, even if the judge believes there is
no  real  basis  for disqualification.  Alaska Code  of  Judicial
Conduct  Canon  3E(1) cmt.  Alaska Statute 22.20.020(b)  likewise
provides that a judge shall disclose reasons for disqualification
at  the commencement of the action.  This strongly suggests  that
Judge  Erlich should have disclosed his wifes NANA stock  at  the
inception of this case, and his consideration of disqualification
on remand should consider whether his prior non-disclosure has  a
bearing   on   whether  his  impartiality  might  reasonably   be
questioned.

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