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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Okpik v. City of Barrow (4/30/2010) sp-6473

Okpik v. City of Barrow (4/30/2010) sp-6473, 230 P3d 672

     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

LUCY OKPIK, )
) Supreme Court No. S- 13195
Appellant,)
) Superior Court No. 2BA-06- 00051 CI
v. )
) O P I N I O N
CITY OF BARROW, ALASKA,)
) No. 6473 April 30, 2010
Appellee.)
)
          Appeal  from the Superior Court of the  State
          of  Alaska, Second Judicial District, Barrow,
          Ben Esch, Judge.

          Appearances:  Michael J. Walleri, Law Offices
          of   Michael   J.  Walleri,  Fairbanks,   for
          Appellant.  Greg Dorrington, Matthew  Singer,
          and Howard Trickey, Jermain Dunnagan & Owens,
          P.C., Anchorage, for Appellee.

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

          CHRISTEN, Justice.

I.   INTRODUCTION
          An  employee of the City of Barrow (Barrow) who  served
as  finance  director  for  nearly  eight  years  resigned  after
learning  the  mayor was demoting her to the position  of  senior
accountant.   She filed suit alleging violation of her  right  to
due  process  under 42 U.S.C.  1983, alleging  violation  of  the
Alaska  Whistleblower Act, and alleging wrongful termination  and
intentional and negligent infliction of emotional distress.   The
superior court granted summary judgment for Barrow on all claims.
We  affirm  the grant of summary judgment on the employees   1983
claim  because  she was an at-will employee and had  no  property
interest in continued employment.  Because the employee  did  not
make a report to a public body or participate in an investigation
while  employed,  we  also affirm the superior  courts  grant  of
summary  judgment on the whistleblower claim.  But  the  employee
presented sufficient admissible evidence to create genuine issues
of  material  fact as to whether her demotion was  wrongful.   We
therefore  reverse the grant of summary judgment on the  wrongful
termination claim.1
II.  FACTS AND PROCEEDINGS
     A.   Facts
          Lucy Okpik began working for the City of Barrow in 1994
as chief accountant.  In 1997 the then-mayor appointed her to the
position  of  finance director, a position that  includes  budget
duties and payroll oversight.
          Nathaniel  Olemaun was elected mayor in  October  2004.
Shortly  after  his  election, Olemaun sent a memorandum  to  All
Staff  stating  he  was  placing city employees  holding  mayoral
appointee  positions  the finance director, grants administrator,
and administrative assistant  in acting status.
          Before Olemauns election, the approved mayoral pay  was
$47.49 per hour. It is undisputed that from October 2004 to March
2005  Olemaun  was  paid  about $70 per  hour,  resulting  in  an
overpayment of nearly $20,000.  It is also undisputed  that  both
Olemaun  and Okpik knew he was being overpaid during  this  time,
but the parties dispute how and why the overpayment occurred.
          It  was  Okpiks job to prepare the payroll  for  Barrow
employees.  Okpik asserts that Olemaun brought a blank  personnel
action  form  to her shortly after he was elected.   She  recalls
that  she showed him the budget, including his rate of pay,  that
the  mayor  left, but later returned, and that when  Okpik  again
showed  him his rate of pay,  he expressed that the pay  was  too
low.   According to Okpik, the mayors assistant Susan Atos  later
told  her  that the mayor wanted his pay calculated at  a  higher
rate.  Okpik testified that neither she nor Atos wrote the higher
rate  of  pay  on  the personnel action form, but  together  they
calculated higher rates of pay on a calculator tape and that Atos
left Okpiks office with the tape.  Okpik claims she does not know
who  wrote  the higher hourly rate on the mayors personnel  form,
but  admits she knew Olemaun was receiving the higher hourly  pay
and  that  she did not report the overpayment while  she  was  an
employee of Barrow.
          Olemaun  claims  that  he asked to  be  paid  what  the
previous  mayor had been paid, that he discovered  he  was  being
overpaid  in the fall of 2004 and that he asked Okpik to  correct
the  problem but she did not do so.  He denies that he wrote  the
incorrect hourly rate on his personnel action form, but admits he
otherwise filled out the form and signed it.
          In  February  2005  Olemaun hired a special  assistant,
Deborah  Lyn, and assigned her to work with Okpik on the  budget.
According  to Lyn, Olemaun informed her several weeks  after  she
was   hired  that  he  believed  his  pay  was  being  calculated
incorrectly and that Okpik had told him she would fix  it.   When
Lyn  conducted a personnel file audit several months  later,  she
discovered Olemaun was still being overpaid.  For reasons unclear
          in the record, Olemauns salary was still incorrect in early April
2005.   On  April 6, 2005, Lyn personally created a new personnel
form for Olemaun with the correct salary, effective April 1.
          On April 14, Olemaun told Okpik she was still in acting
status,  that  he  intended  to advertise  the  finance  director
position,  that he wanted her to remain in the position  until  a
new  director  was hired, and that she would then be  Accountant,
Senior.   Olemaun cited the budget problems that   had  developed
during  Okpiks  nearly eight-year tenure as finance  director  as
reason  for  his decision.  He also stated he believed  the  city
would  benefit from a finance director with more training, better
qualifications[,] and more experience.
          The next day, Okpik submitted a resignation letter that
was effective April 22.  She disputed Olemauns claim that she was
not  qualified,  indicated she would not train  the  new  finance
director as he had requested, and said I cannot work under  these
circumstances.
          Lyn  was appointed acting finance director on April 28,
2005.   She  discovered  Olemauns  salary  had  still  not   been
corrected  because the form she created on April 6 had apparently
been  lost.   Lyn  created  a  second,  correct  personnel  form,
effective April 1.  Olemaun signed it on April 29.
          In  May 2005, after Olemauns pay had been corrected and
after  Okpik  had resigned, Okpik met with a city council  member
and  revealed that Olemaun had been overpaid since October  2004.
On  May  25,  2005, Lyn circulated a memorandum to  city  council
members  discussing the personnel audit results.   She  explained
that Olemaun had been overpaid from October 2004 until the end of
March  2005.   The  memorandum blamed Okpik  for  not  correcting
Olemauns  rate of pay and suggested that if an independent  legal
advisor  could find that Okpik was entirely responsible  for  the
incorrect  hourly  pay Olemaun had received, repayment  would  be
unnecessary.   The memorandum also identified several  accounting
problems,  including  budget miscoding errors,  depleted  reserve
accounts, and failure to include grants in the budget.
          Barrow  hired outside counsel to investigate the mayors
overpayment in late May 2005.  The investigator found Olemaun had
been  overpaid nearly $20,000 and recommended that he be required
to  reimburse  Barrow.   The  investigator  could  not  determine
conclusively who was responsible for the salary error  but  found
that  Olemaun was the official responsible for the final approval
of the personnel action form that led to his overpayment.
     B.   Proceedings
          Okpik  filed  suit in April 2006.  She asserted  claims
against  Barrow under 42 U.S.C.  1983 for violation  of  her  due
process rights, under Alaskas Whistleblower Act,2 and also  under
the  common law for wrongful termination (constructive discharge)
and  negligent and intentional infliction of emotional  distress.
Okpik  alleged  that Olemaun took retaliatory employment  actions
against  her  and threatened her because of her role in  Olemauns
improper receipt of city funds.
          Barrow  moved  for summary judgment on  all  of  Okpiks
claims.   In  March 2008 the court granted summary  judgment  for
Barrow  on  Okpiks   1983, whistleblower, and emotional  distress
          claims.  But the court denied summary judgment on Okpiks wrongful
termination  claim.  It concluded a reasonable person  in  Okpiks
position  could  have felt compelled to resign and  that  a  jury
could  find  that Mayor Olemauns actions breached the  obligation
[of good faith and fair dealing] owed [to Okpik].
          Barrow filed a motion for reconsideration on the  issue
of breach of the implied covenant of good faith and fair dealing.
The  court granted Barrows motion and reversed its ruling on  the
breach of the implied covenant of good faith and fair dealing and
granted summary judgment on Okpiks wrongful discharge claim.  The
court  stated  that  Barrows  adverse  employment  actions   were
expressly  permitted under [Okpiks] contract of  employment  and,
therefore, could not constitute a breach of the implied covenant.
          Okpik  moved  for clarification, which Barrow  opposed.
The  court  issued a written clarification explaining that  Okpik
did  not  defeat Barrows summary judgment motion because she  did
not  present any evidence to support her retaliation theory;  she
merely asserted the existence of a conspiracy.
          Okpik  appeals  the  superior courts  summary  judgment
order  dismissing her  1983 claim, her whistleblower  claim,  and
her wrongful termination claim.
III. STANDARD OF REVIEW

           We review a grant of summary judgment de novo, reading
the  record  in the light most favorable to the non-moving  party
and  making all reasonable inferences in [her] favor.3   We  will
affirm  a  grant  of summary judgment when there are  no  genuine
issues  of  material  fact and the moving party  is  entitled  to
judgment as a matter of law.4
          The  party  opposing summary judgment  must  set  forth
specific  facts showing genuine issues and cannot  rest  on  mere
allegations.5  These facts must arise from admissible  evidence.6
To  determine whether the nonmoving party can produce  admissible
evidence creating a genuine factual dispute, we will consider the
affidavits,  depositions, admissions, answers to  interrogatories
and similar material.7
IV.  DISCUSSION
     A.   The  Superior  Court  Did Not Err in  Granting  Summary
          Judgment on Okpiks  1983 Due Process Claim.
          
          Okpik  argues  the  court  erred  in  granting  summary
judgment for Barrow on the due process claim she raised under  42
U.S.C.   1983  because  she  was  not  an  at-will  employee  and
therefore   had  a  protected  property  interest  in   continued
employment.  The superior court agreed with Barrow that Okpik was
an  at-will employee who served at the pleasure of the mayor.  It
concluded  Okpik had no claim for deprivation of any right  under
1983.
          To   sustain  an  action  under  42  U.S.C.   1983,  [a
claimant]  must  show:  (1) that the conduct  complained  of  was
committed  by a person acting under color of state  law  and  (2)
that  the  conduct  deprived the plaintiff  of  a  constitutional
right.8   Okpik  claims she was deprived of her  constitutionally
protected   property interest in continued employment.   Property
          interests are created and their dimensions are defined by
existing  rules  or understandings that stem from an  independent
source  such  as  state law rules or understandings  that  secure
benefits  and  that  support  claims  of  entitlement  to   those
benefits.9  Here, the independent source is the Barrow Code.
          Section  3.41.010  of  the  Barrow  Code  distinguishes
between  two  types  of  city employees: classified  service  and
confidential  and/or managerial positions.  The finance  director
position   and   the   acting  finance  director   position   are
confidential  and/or managerial positions.10   Section  3.41.030,
titled Appointment; at-will employment, describes how persons  in
confidential/managerial positions are chosen. It provides:
          The  mayor  shall  make appointments  to  all
          confidential/managerial positions except that
          the city clerk and the finance director shall
          be appointed and confirmed in accordance with
          Section        2.20.020        of         the
          code   .   .   .   .   Employees   who   hold
          confidential/managerial positions have an at-
          will  employment relationship with the  city.
          They serve at the pleasure of the mayor,  and
          may  be terminated with or without cause, for
          any reason or for no reason, by the mayor.[11]
          
Section 2.20.020 reinforces this scheme, stating, in part:
          B.   The  finance director shall be appointed
          by    the   mayor   acting   as   the   chief
          administrative   officer   of    the    city.
          Appointments  by  the mayor  are  subject  to
          confirmation by the city council.
          C.   Officers  serve at the pleasure  of  the
          appointing authority.
Finally,  Section  2.20.050, which defines the finance  directors
duties,  states  that the finance director is  appointed  by  the
mayor subject to council approval.
          Under  these code provisions, Okpik held a confidential
and/or  managerial  position and served at the  pleasure  of  the
mayor.12   A public employee who serves at the pleasure of  [her]
employer  can  have  no expectation of continued  employment  and
therefore  does  not  have a property interest  in  [her]  job.13
Because  Okpik served at the pleasure of the mayor,  she  had  no
property  interest in continued employment and thus no valid  due
process claim under  1983.14
          We affirm the superior courts grant of summary judgment
for Barrow on Okpiks  1983 claim.
     B.    The  Superior  Court Did Not Err in  Granting  Summary
Judgment       on Okpiks Claim Under the Whistleblower Act.

          Okpik  argues  the  court  erred  in  granting  summary
judgment  on her Whistleblower Act15 claim.  She argues that  the
Whistleblower Act did not require her to report to a public  body
during her employment.
          Alaskas Whistleblower Act protects public employees who
report  to  public  bodies  on matters  of  public  concern  from
          retaliation by their employers.16  Alaska Statute 39.90.100
provides:
          (a)   A  public  employer may not  discharge,
          threaten,  or otherwise discriminate  against
          an    employee   regarding   the    employees
          compensation, terms, conditions, location, or
          privileges of employment because
          (1)   the employee . . . reports to a  public
          body or is about to report to a public body a
          matter of public concern; or
          (2)   the  employee participates in  a  court
          action,  an investigation, a hearing,  or  an
          inquiry held by a public body on a matter  of
          public concern.
          
          To  bring  suit under the Whistleblower Act an employee
must show that (1) she has engaged in protected activity and  (2)
the  activity  was  a  substantial or motivating  factor  in  her
termination.17  Reporting a matter of public concern to a  public
body is protected activity.18  The superior court recognized that
to  trigger application of the statute there must be a report and
concluded  that  because  Okpik  did  not  make  a  report  while
employed, her claim failed.19
          Alaska  Statute 39.90.100 only protects  employees  who
blow  the whistle during their employment.  Okpik did not make  a
report,  did not allege that she was about to make a report  when
she  was  demoted,  and did not participate in  an  investigation
while  employed.  She testified that she knew Olemaun  was  being
overpaid from his first pay period, but she did not disclose this
to  anyone,  except perhaps the bookkeeper (a subordinate),  from
the  time she spoke with Olemaun and his administrative assistant
in  October 2004 until after her resignation on April  22,  2005.
Okpik  reported  Olemauns salary discrepancy to  a  city  council
member  and participated in the investigation, but both of  these
events occurred one to two months after she resigned, when she no
longer fell under the Acts protection.
          Because  Okpik  failed to report or participate  in  an
investigation  until  after she had already resigned,  we  affirm
summary judgment for Barrow on Okpiks Whistleblower Act claim.
     C.    It  Was Error for the Superior Court To Grant  Summary
Judgment       on Okpiks Claim for Wrongful Termination.

          To  prevail on a wrongful termination claim an employee
must  prove: (1) that the employee was discharged by [his or her]
employer  and  (2)  that  the employer  breached  a  contract  or
committed  a tort in connection with the employees termination.20
Constructive discharge satisfies the first element;21 a breach of
the implied covenant of good faith and fair dealing satisfies the
second.22
           The superior court  concluded that Okpik had presented
sufficient evidence to survive summary judgment on the  issue  of
constructive  discharge because she could have felt compelled  to
resign  after  she  was demoted.  Barrow did not  challenge  this
ruling  in  its motion for reconsideration, but it did  challenge
          the denial of summary judgment on the issue of breach of the
implied  covenant of good faith and fair dealing.   The  superior
court  granted  Barrows  motion for reconsideration  and  entered
summary judgment in favor of Barrow on the issue of breach of the
implied covenant.  Okpik challenges this ruling on appeal.23
          At-will employees may be terminated for any reason that
does  not  violate the implied covenant of good  faith  and  fair
dealing.24   An  employer may breach the covenant objectively  or
subjectively.25  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.26
          In  support  of  her  theory  that  Barrow  objectively
breached the covenant when Olemaun demoted her, Okpik argues that
she  presented  sufficient evidence from which a reasonable  jury
could  conclude that Olemaun improperly received city  funds  and
demoted her to cover up actions he took to increase his own  pay,
thereby violating public policy.27  Barrow disputes this argument
and  claims Okpik was replaced and reassigned based on legitimate
business  considerations.  It argues that  she  did  not  produce
sufficient  admissible evidence to show a connection between  the
improper  payments  Olemaun received and his decision  to  demote
her, or that Barrow treated her objectively unfairly.
          To  defeat the summary judgment motion, Okpik needed to
present  sufficient evidence from which a reasonable  jury  could
infer  a  nexus  between the improper payments and her  demotion,
thereby showing a violation of public policy and a breach of  the
covenant.  Demonstrating Olemauns improper receipt of city  funds
without  a  nexus  to the employment action  is  insufficient  by
itself.
          To  support  her theory that the demotion and  Olemauns
improper  payments  were connected, Okpik argued  that:  (1)  the
April  14  meeting, in which Olemaun told Okpik  he  intended  to
replace  and reassign her, occurred within days of April 6,  when
Lyn  gave him the first corrected personnel form; (2) Olemaun did
not  sign  the  corrective personnel action  notice  until  after
Okpiks  resignation and upon the presentation of a second notice;
(3)  Okpik  had no authority over personnel matters; (4)  Olemaun
had  exclusive control over personnel action notices  because  he
was   the   personnel  director;  (5)  Olemaun  knew  about   the
overpayment  for [six] months and took no corrective  actions  on
his own volition; (6) Olemaun and Lyn drafted a confidential memo
to  the  [c]ouncil  blaming Okpik for the error;  and  (7)  Okpik
competently  performed her job as [f]inance [d]irector  for  many
years prior to Mayor Olemauns election and the alleged reason for
Okpik[s]  demotion  in April[] 2005  lack of qualifications   was
pretextual.
          The  mere fact that Olemaun signed the second corrected
personnel form after Okpik resigned does not establish  a  causal
link between the improper payments and her demotion.28  It is also
unclear what Okpik means to show by stating Olemaun knew  he  was
overpaid  since October 2004 and did not correct it.29 Similarly,
          the temporal proximity between Olemaun receiving a corrected
personnel  form  from  Lyn and Olemaun informing  Okpik  that  he
intended to replace her does not by itself create an inference of
a  connection  between  the  two events.   But  we  conclude  the
remaining  pieces  of evidence, taken together and  construed  in
Okpiks  favor,  support  her  argument  that  she  has  met   her
evidentiary burden for purposes of surviving summary judgment.
          Okpik  was  required to present admissible evidence  to
rebut  Barrows  justifications for its employment action  if  her
claim  for breach of the implied covenant was to survive  summary
judgment.30  It is well established that the evidentiary threshold
necessary  to  preclude  an  entry of summary  judgment  is  low,
including  in  employment  cases.31  And  generally  whether  the
covenant has been breached is a question for the trier of fact.32
          Barrow argued that Okpiks inadequate performance of her
duties  as  finance director, which included overseeing  payroll,
constituted a legitimate reason for replacing her.  Specifically,
Olemaun  stated he decided to replace and reassign Okpik  because
of budget problems created under her watch, and that he concluded
that  the [c]ity would benefit from having a [f]inance [d]irector
with  more  training, better qualifications and more  experience.
Barrow  also  appears to blame Okpik for Olemauns six  months  of
overpayment.
          On  the  first  issue   that Okpik was  unqualified  or
incapable  of  performing  her job   Okpik  presented  admissible
evidence  to  rebut  Barrows  justification  for  replacing   and
reassigning  her:  positive job evaluations in  1996,  1999,  and
2000.  Her relevant job evaluations, which rank her work as  very
good  or  outstanding on all rating criteria, create  a  disputed
question of fact about whether Okpik had the necessary competency
for  the position.  On the second issue  that Okpik was to  blame
for  the six months of overpayment  Okpik argues that she had  no
authority  to correct Olemauns pay because he had sole  authority
over personnel matters.  To support this assertion, she points to
Olemauns testimony that under the Barrow Code, the mayor  is  the
personnel  director, and the personnel director is the  one  with
final  responsibility to sign personnel action forms.33  Although
Olemaun testified that only the finance director would know  what
the  salary  should be for a particular employee,  this  evidence
creates  a  disputed  question  of  fact  about  whether  Olemaun
improperly  blamed Okpik for the change in his  salary.   A  fact
finder  could  decide that this evidence shows that  the  alleged
reasons  for  Okpiks demotion were pretextual and  that  she  was
actually demoted for an improper reason.
          Barrows reliance on French v. Jadon, Inc.34 and Witt v.
State,  Department  of  Corrections35 is misplaced.   Unlike  the
employees  in French and Witt, Okpik has presented at least  some
admissible evidence in support of her claim separate from her own
allegations: Olemauns deposition testimony, Lyns memorandum,  and
three  positive job evaluations.  Taken together,  this  evidence
creates   an   issue  of  material  fact  about  whether   Barrow
objectively breached the covenant of good faith and fair dealing.
          Because  Okpik presented sufficient admissible evidence
tending  to  show a genuine issue of material fact about  whether
          Barrow demoted her for an improper reason, and because she
presented  admissible evidence to rebut some of  Barrows  reasons
for demoting her, she satisfied her evidentiary burden to survive
summary  judgment on the issue of breach of the covenant of  good
faith and fair dealing.
V.   CONCLUSION
          We  AFFIRM summary judgment for Barrow on Okpiks claims
under  42  U.S.C.   1983 and the Whistleblower Act.   We  REVERSE
summary  judgment for Barrow on the claim of wrongful termination
and REMAND for further proceedings.
_______________________________
     1     The dismissal of the emotional distress claims was not
appealed.

     2    AS 39.90.100-.150.

     3     Witt  v.  State,  Dept of Corr., 75  P.3d  1030,  1033
(Alaska 2003) (citing Spindle v. Sisters of Providence in  Wash.,
61 P.3d 431, 436 (Alaska 2002)).

     4    Id. (citing Spindle, 61 P.3d at 436).

     5     Braun v. Alaska Commercial Fishing & Agric. Bank,  816
P.2d 140, 144 (Alaska 1991).

     6    Witt, 75 P.3d at 1034 (internal citations omitted).

     7     Charles v. Interior Regl Hous. Auth., 55 P.3d  57,  59
(Alaska 2002) (internal citations omitted).

     8     Crawford  v.  Kemp, 139 P.3d 1249, 1255  n.10  (Alaska
2006).

     9     Breeden  v.  City of Nome, 628 P.2d 924,  926  (Alaska
1981) (citing Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)).

     10    Barrow Code (BC) 3.41.010(B)(3), (10) (2005).

     11    BC 3.41.030 (2005).

     12    BC 3.41.030 (2005); 2.20.020 (1998); 2.20.050 (1998).

     13    Ramsey v. City of Sand Point, 936 P.2d 126, 132 (Alaska
1997) (citing Bishop v. Wood, 426 U.S. 341, 344-47 (1976)).

     14     Okpiks argument that BC 2.20.020 and BC 2.20.050  are
conflicting and should be read as providing that she may  not  be
discharged unless both the mayor and city council concur is  both
unconvincing  and without precedent.  We agree with the  superior
court  that these provisions do not conflict and, read  properly,
they  create no such limitation on the mayors ability  to  remove
appointed officers.

     15    AS 39.90.100-.150.

     16     Hammond  v. State, Dept of Transp. & Pub. Facilities,
107 P.3d 871, 874 n.5 (Alaska 2005) (internal citations omitted).

     17    Id. at 874 n.5 (quoting Lincoln v. Interior Regl Hous.
Auth., 30 P.3d 582, 586 (Alaska 2001)).

     18    See id.

     19    The superior court also dismissed Okpiks argument that
AS  39.90.110(c) exempts her from the Acts reporting requirement.
This  statute applies when an employers personnel policy requires
an  employee  to  report up the internal chain of command  before
blowing the whistle and reporting outside the organization.   Cf.
Alaska  Hous. Fin. Corp. v. Salvucci, 950 P.2d 1116, 1122 (Alaska
1997) (The legislative history indicates only that the purpose of
AS  39.90.110(c)  was  to  give the employer  an  opportunity  to
correct  any problems identified by the employee.).  The  statute
exempts  the  employee from the requirement of reporting  up  the
chain  of command when the employers supervisor is the wrongdoer.
AS  39.90.110(c).  The superior court correctly found  that  this
provision did not apply to Okpik because Barrows personnel policy
had  no  reporting  up requirement.  We agree;  nothing  in  this
statute exempts Okpik from the requirement that she actually make
a report in order to receive the protection of AS 39.90.100.

     20     Charles v. Interior Regl Hous. Auth., 55 P.3d 57,  59
(Alaska 2002) (citing Starzynski v. Capital Pub. Radio, Inc., 105
Cal. Rptr.2d 525, 530 (Cal. App. 2001)).

     21     City  of  Fairbanks v. Rice, 20 P.3d 1097,  1102  n.7
(Alaska 2000).

     22    See Era Aviation, Inc. v. Seekins, 973 P.2d 1137, 1139
(Alaska  1999) (Employees hired on an at-will basis can be  fired
for any reason that does not violate the implied covenant of good
faith and fair dealing.).

     23      Barrow   argues  on  appeal  that  Okpik   was   not
constructively discharged, but Barrow did not file a cross-appeal
on  this  issue.  At oral argument before our court, Barrow  took
the  position  that the superior court reversed  itself  on  both
prongs  of the wrongful termination analysis.  Our review of  the
record convinces us that the only issue before the superior court
on  reconsideration  was  the breach  of  implied  covenant;  the
superior  court  reversed  its previous  ruling  denying  summary
judgment  on that ground alone.  In the absence of a cross-appeal
by   Barrow,   we  cannot  consider  the  issue  of  constructive
discharge.   See Peterson v. Ek, 93 P.3d 458, 467  (Alaska  2004)
([F]ailure  to  file a cross-appeal waives the right  to  contest
rulings below.).

     24     Pitka v. Interior Regl Hous. Auth., 54 P.3d 785,  789
(Alaska  2002)  (citing Luedtke v. Nabors Alaska Drilling,  Inc.,
768 P.2d 1123, 1131 (Alaska 1989)).

     25     Witt  v.  State, Dept of Corr., 75  P.3d  1030,  1034
(Alaska  2003).   Okpik did not address the issue  of  subjective
breach  before  the superior court, and makes only  one   passing
reference in her brief on appeal; therefore, we address only  the
issue of objective breach.  See Harvey v. Cook, 172 P.3d 794, 802
(Alaska  2007) (Ordinarily, a party seeking to raise an issue  on
appeal must have raised it . . . in the trial court.).

     26    Witt, 75 P.3d at 1034 (citing Charles v. Interior Regl
Hous. Auth., 55 P.3d 57, 62 (Alaska 2002)).

     27    We focus on Okpiks demotion because the record does not
support  the  conclusion that placing her  on  acting  status  or
giving  Lyn  budget  preparation duties were  adverse  employment
actions  taken in retaliation for Okpiks knowledge of the  salary
problem.  Two other employees were placed on acting status at the
same time as Okpik in 2004, and Okpik remained satisfied with her
job even after Lyn gained budget preparation duties.

     28     The  undisputed evidence shows Olemaun told Okpik  he
intended  to  replace and reassign her on April 14, and  that  he
signed the personnel action form returning his rate of pay to the
authorized  level  on April 29.  It is unclear  how  signing  the
personnel  form  after Okpik resigned could raise  the  inference
that  Olemaun  decided to demote her to blame her  for  receiving
excessive  pay.   Okpik does not explain what she  believes  this
evidence shows.

     29     The  undisputed evidence is that Olemaun knew by  his
first  or  second paycheck he was getting overpaid.  The  parties
dispute  whether  he acted to fix it.  But this  dispute  is  not
material.   Even assuming Olemaun did nothing to fix  the  salary
problem between October 2004 and March 2005, this evidence  still
does  not  raise  the inference that he decided  to  replace  and
reassign Okpik because of the improper payments he received.

     30     See French v. Jadon, Inc., 911 P.2d 20, 24-25 (Alaska
1996).

     31     Hammond  v. State, Dept of Transp. & Pub. Facilities,
107  P.3d  871,  881  (Alaska 2005) (internal citations  omitted)
(reversing summary judgment for employer where employee presented
sufficient evidence that his firing was retaliatory to  meet  the
low  summary judgment threshold); see also Cameron v. Beard,  864
P.2d  538, 548 (Alaska 1993) (Although recognizing some  of  [the
employees]  allegations are pure speculation,  we  conclude  that
there  is  sufficient evidence in the record to support the  jury
verdict on [the issue of constructive discharge].).

     32    Witt, 75 P.3d at 1034 (citing Holland v. Union Oil Co.
of Cal., 993 P.2d 1026, 1032-33 (Alaska 1999)).  But see Holland,
993  P.2d at 1032-33 (clarifying this court has not held  .  .  .
that  [it]  could  never conclude that as  a  matter  of  law  an
employer  did not breach the implied covenant of good  faith  and
fair  dealing when [the employer] demoted an employee); see  also
Pitka  v.  Interior Regl Hous. Auth., 54 P.3d  785,  789  (Alaska
2002) (concluding employer did not breach the implied covenant as
a matter of law).

     33    The independent investigator similarly recognized that
Olemaun  was  the official responsible for the final approval  of
the personnel action form that led to his overpayment.

     34    911 P.2d 20 (Alaska 1996).

     35    75 P.3d 1030 (Alaska 2003).

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