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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Peterson v. State, Dept. of Natural Resources (7/2/2010) sp-6489

Peterson v. State, Dept. of Natural Resources (7/2/2010) sp-6489, 236 P3d 355

     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

ALLEN PETERSON, )
) Supreme Court No. S- 13376
Appellant, )
) Superior Court No. 3AN-07-09654 CI
v. )
) O P I N I O N
STATE OF ALASKA, )
DEPARTMENT OF NATURAL ) No. 6489 July 2, 2010
RESOURCES, )
)
Appellee. )
)

          Appeal  from the Superior Court of the  State
          of    Alaska,    Third   Judicial   District,
          Anchorage, Jack Smith, Judge.

          Appearances: Kenneth P. Jacobus,  Kenneth  P.
          Jacobus,   P.C.,  Anchorage,  for  Appellant.
          David  T.  Jones, Assistant Attorney General,
          Anchorage,  and Daniel S. Sullivan,  Attorney
          General, Juneau, for Appellee.

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

          FABE, Justice.


I.   INTRODUCTION
          Allen  Peterson, a seasonal forester formerly  employed
by  the Alaska Department of Natural Resources (DNR), Division of
Forestry  (the  Division), appeals the grant of summary  judgment
entered  against  him.   Petersons claims concern  the  Divisions
removal  of his firefighting qualifications following an incident
in  2005,  the Divisions failure to hire or transfer him  into  a
full-time forester position, the Divisions reduction of his  work
time,  and  his  perception  that the  Divisions  employees  have
harassed  him  and created a hostile work environment.   Peterson
argues  that  the  Divisions actions constituted  age,  sex,  and
disability discrimination; that the Division breached the implied
covenant  of  good faith and fair dealing; and that the  Division
violated   state   and  national  standards   in   removing   his
firefighting qualifications.  The superior court granted  summary
judgment as to all claims.
          Following  the superior courts entry of final judgment,
Peterson  moved  for relief from judgment based on  Alaska  Civil
Rule  60(b).   In  support of that motion, Peterson  submitted  a
number  of documents that now appear in the record but  were  not
before  the  superior  court  when it granted  summary  judgment.
Petersons  Rule 60(b) motion was denied, but he does  not  appeal
that  ruling.   Peterson  appeals the superior  courts  grant  of
summary judgment and argues that we may consider the whole record
and are not limited to those facts and arguments that were before
the  superior  court  when it ruled on  the  motion  for  summary
judgment.  We disagree and instead consider only the record  that
was  before  the superior court at the time summary judgment  was
granted.
          Based  on  that  record, we affirm the superior  courts
grant of summary judgment, holding that Peterson has presented no
evidence raising genuine issues of material fact and that DNR  is
entitled to judgment as a matter of law.
II.  FACTS1
          The  State  of Alaska, Department of Natural  Resources
(DNR),  Division  of  Forestry  (the  Division)  employed   Allen
Peterson  in various forest management jobs beginning in  October
1990.  Peterson assumed his most recent position  as  a  regional
stewardship  forester for the Kenai-Kodiak  region  in  1999  and
worked   out   of   an  office  in  Soldotna.    Petersons   main
responsibility in that job involved the administration of  timber
sales   ensuring  that harvesting units are  in  compliance  with
existing state contracts.
          There  are  two  programs offered by the Division:  one
focusing  on the management of forest resources and one dedicated
to  wildland fire management. Resources employees are  encouraged
to obtain firefighting qualifications, certified on red cards, so
that  they  are  qualified for fire assignment but employees  are
neither  required to perform firefighting duties,  nor  are  they
guaranteed  to  participate  in  firefighting.   Peterson  was  a
seasonal employee in the resources program but had obtained  such
red card firefighting qualifications.
          Petersons    claims    focus   on   several    distinct
circumstances  concerning his employment with the  Division:  the
suspension  of his firefighting qualifications; the  increase  in
his   unpaid  seasonal  layoff  period;  the  failure  to  either
laterally  transfer him into a full-time position or  select  him
for  one  of  several full-time openings; and  several  workplace
incidents  that Peterson claims were harassing in  nature  and/or
created a hostile work environment.  In our consideration of  the
relevant   facts  of  each  situation,  we  draw  all  reasonable
          inferences in favor of Peterson.2
     A.   The Removal Of Petersons Firefighting Qualifications
          In  May 2005 Peterson responded to a fire emergency  in
Homer  known as Fire 072.  While Peterson claims that his actions
at  this  fire  were the result of following direct orders,  Matt
James,  the incident commander at Fire 072, submitted a  negative
evaluation   of   Petersons   performance.    Jamess   evaluation
identified several areas where Petersons performance did not meet
expectations,  including  Petersons knowledge  of  the  job,  his
attitude, his ability to make decisions under stress, his ability
to   work  safely  by  understanding  the  fuel  type,  and   his
willingness  to  immediately follow orders. According  to  Jamess
report, Petersons failure to properly extinguish a portion of the
fire  caused  the fire to jump[] the line behind the  nozzle  and
destroy some booster line and one-inch fire hose.
          Following the Fire 072 incident, the area forester  for
the  Kenai-Kodiak  region, James Peterson (no relation  to  Allen
Peterson),  reviewed  the  circumstances  surrounding  the  fire.
Based on the reports of Al Petersons conduct at the 072 fire,  in
particular, his lack of situational awareness, failure to respond
appropriately to the changing fire conditions, and his failure to
follow the instructions of the Incident Commander, James Peterson
suspended two of Allen Petersons firefighting qualifications  and
returned him to trainee status for those positions.
          Peterson  requested review of this decision,  but  both
Regional  Fire Management Officer John See and Chief of Fire  and
Aviation Lynn Wilcock upheld the removal of these qualifications.
At  about  the  same  time  in 2006, Wilcock  reviewed  Petersons
overall   participation  in  the  fire  management  program   and
concluded that Peterson represented a potential liability to  the
program.    After  considering  reports  of  Petersons  behavior,
Wilcock  identified three examples of problematic conduct leading
to his decision: Petersons actions at Fire 072, an incident at  a
2004  fire that resulted in property damage and a complaint about
Petersons  people  skills,  and  a  2006  office  incident  where
Peterson  reportedly  had a violent and unprofessional  outburst.
Petersons  firefighting qualifications for participation  in  the
fire management program were withdrawn following this review.
     B.   The Increase In Petersons Seasonal Layoff Period
          In  1999, shortly before Peterson transferred into  the
Forest  Stewardship  program, his position  was  reclassified  as
seasonal.    Most  of  the  Divisions  employees  are   seasonal.
Seasonal  status means that the Division has full  discretion  to
determine  the  period of employment that a  particular  employee
will  work  each  year.   In  its official  memorandum  notifying
Peterson  of this change, the Division explained that the  change
in position status was not performance-related but was solely due
to  a  lack  of  funding.  The Divisions Stewardship  program  is
entirely  funded  by  federal  grants.   As  a  result  of   this
reclassification,  Peterson  was  eligible  for   non-competitive
layoff  recall  to  full-time  positions  for  three  years,  but
Peterson  did not exercise these rights for available  positions.
Although Peterson was technically a seasonal employee and had not
been  returned  to full-time status, he was provided  with  year-
          round employment for several years following the reclassification
of  his  position because of available funds in the budget.   But
each  year the Division sent Peterson a memorandum reminding  him
that he remained subject to seasonal layoffs.
          In November 2005 the Division informed Peterson that he
would  be subject to a seasonable layoff from January 16  to  31,
2006   a  period of just over two weeks. Petersons layoff  period
was  increased to one month for the 2007 fiscal year.  In support
of  its  motion for summary judgment, DNR provided  an  affidavit
from  the  forestry resources program manager,  Martha  Welbourn-
Freeman,  stating that the increase in layoff time was due  to  a
decrease  in  the  level of federal funding for  the  Stewardship
program  and that Petersons layoff was extended to six months  in
2008.
     C.   The  Divisions  Failure  To Offer  Peterson  A  Lateral
          Transfer   Or  Select  Him  For  A  Full-Time  Forester
          Position
          
          In  September  2004  the Division received  legislative
approval to hire a full-time forester for the Kenai-Kodiak  area.
After  a  competitive recruitment process, a woman  named  Ashley
Reed  was  hired for the position.  In August 2005 Reed left  the
position  to  pursue  other  opportunities.   According  to   the
Divisions forest stewardship coordinator, the opening created  by
Reeds  departure  was not advertised for competitive  recruitment
until October 2006 because of a decline in federal funding.
          Beginning   in  October  2006  the  Division   held   a
competitive  recruitment for the full-time forester  position  in
the  Kenai-Kodiak  area.   Nine applicants,  including  Reed  and
Peterson, were interviewed by the hiring committee.  DNR provided
affidavits from two of the three committee members explaining the
evaluation  process  and stating that Reed had  been  unanimously
selected  for  the  position.  When Reed declined  the  position,
another  applicant was selected to fill the position  in  October
2007 on the basis of her overall qualifications.
          Peterson  claimed  in his briefs and at  oral  argument
that he also twice requested transfer to a full time position  in
both  2004 and 2006, but there is little in the record to support
this  claim.   The collective bargaining agreement that  Peterson
was  subject  to  authorized such a transfer to be  made  without
recruitment  or  application, if the State so  chooses.   A  non-
competitive lateral transfer was not provided to Peterson.
          In   2007   the   Division  held  another   competitive
recruitment  for an operations forester position  in  the  Kenai-
Kodiak  area.   Five applicants with the requisite qualifications
were  interviewed,  including Peterson  and  John  Winters.   The
committee unanimously selected Winters for the position based  on
work   experience,  references,  attitude,  ability   to   accept
supervision, level of trust and confidence we could place in  the
employee, and performance in the interview.
     D.   Workplace Incidents That Peterson Claims Were Harassing
          In Nature And/Or Created A Hostile Work Environment
          
          In   addition  to  the  events  previously  summarized,
Peterson  identifies several other incidents as events  which  he
contends  were  either harassing in nature or created  a  hostile
work   environment,   including   Matt   Jamess   evaluation,   a
conversation with his supervisor, and a conversation with  a  co-
worker.
          In  his  deposition  testimony,  Peterson  described  a
conversation  with his supervisor, Jeff Graham, in  which  Graham
indicated  that  his superiors want[ed Peterson] out.   Petersons
response  to DNRs interrogatories stated that Graham  also  said,
[w]hen youre looking for your next job theyll have to come to me.
Grahams  affidavit  stated that he did not  recall  making  these
comments  to Peterson, but we will assume that Petersons  version
of the events is correct for the purposes of our review.3
          Petersons   deposition  testimony   and   interrogatory
responses  also identified a conversation with Regional  Forester
Mike Curran as a suspect interaction.  Peterson explained that he
was  riding  in an elevator with Curran and commented on  Currans
jacket which said Curran Consultant Forestry on it.  In response,
Curran   answered,  Maybe  its  trying  to  tell  you  something.
Peterson felt that this comment was demeaning and interpreted  it
to  mean that he (Peterson) should consider consulting because he
did not have a future in the Division.
          Peterson   also   identified   Matt   Jamess   negative
evaluation  of  his  performance  at  Fire  072  as   a   suspect
interaction that created or reflected a hostile work environment.
Peterson  explained that James commented in a telephonic Division
meeting between Ric Plate, James, and Peterson that Peterson  was
not safe.  Peterson stated that the comments were demeaning.
III. PROCEEDINGS
          In  August 2007 Peterson filed a complaint in  superior
court  asserting  six claims against DNR: (1) that  the  Division
created  a  hostile work environment which constituted sex,  age,
and  disability harassment; (2) that the reduction  in  Petersons
work  time  constituted sex, age, and disability  discrimination;
(3)  that the  reduction in his work time was a violation of  the
implied  covenant of good faith and fair dealing;  (4)  that  the
withdrawal  of  his  firefighting  qualifications  was   not   in
accordance with state procedures and violated applicable national
standards;  (5) that the hiring of Reed constituted age  and  sex
discrimination;  and (6) that the selection  of  Winters  as  the
operations  forester was a violation of the implied  covenant  of
good  faith and fair dealing.  In July 2008 DNR moved for summary
judgment on all claims.
          On  August  28,  2008, the superior court  granted  the
motion  for  summary  judgment, along with a statement  that  the
court  finds  [DNRs] arguments persuasive as to all issues.   The
superior court entered final judgment on November 19, 2008.
          On December 7, 2008, Peterson moved to be relieved from
the order of summary judgment and the final judgment pursuant  to
Rule  60(b).  In support of this motion, Peterson filed a thirty-
two  page  memorandum  and  a  short  affidavit  and  attached  a
significant number of documents and exhibits that were not before
the  superior  court prior to the entry of final  judgment.   DNR
opposed  the Rule 60(b) motion.  In the meantime, Peterson  filed
          the current appeal, but it was stayed pending the resolution of
the  Rule  60(b) motion.  Shortly thereafter, the superior  court
denied Petersons Rule 60(b) motion, stating that Peterson did not
establish grounds for relief under Civil Rule 60(b).
          The  stay  in the current appeal was lifted in  January
2009.   Peterson  does not appeal the denial of  his  Rule  60(b)
motion.
IV.  STANDARD OF REVIEW
          We review the superior courts grant of summary judgment
de  novo and draw all factual inferences in favor of and view the
facts  in the light most favorable to the non-prevailing  party.4
We  affirm a grant of summary judgment when there are no  genuine
issues  of  material fact, and the prevailing party .  .  .  [is]
entitled to judgment as a matter of law.5
V.   DISCUSSION
     A.   Petersons    Rule  60(b)  Motion  And  Its   Supporting
          Documentation Are Not Part Of The Record  For  Purposes
          Of Reviewing The Grant Of Summary Judgment.
          
          After   the  superior  court  entered  final  judgment,
Peterson  moved for relief under Rule 60(b).  In support  of  the
motion, he submitted substantial additional evidence that was not
before the superior court when it granted summary judgment.   The
court  denied  the  motion, but Peterson  does  not  appeal  this
ruling.   Nonetheless, Peterson argues that  we  should  consider
this  additional  evidence in our review of the  superior  courts
summary judgment ruling.
          We  addressed a similar argument in Schmitz  v.  Yukon-
Koyukuk School District.6  In Schmitz, after summary judgment was
entered against him, the plaintiff moved for reconsideration  and
provided  the  superior  court with  additional  evidence.7   The
superior court found that the new evidence had been withheld  for
tactical  reasons  and  was untimely, and therefore  declined  to
consider  it.8   Because the superior court  did  not  abuse  its
discretion in so ruling, we too declined to consider the evidence
on  appeal.9  Other courts have stated explicitly what we implied
in  Schmitz: that appellate review of a grant of summary judgment
is  limited  to  the evidence that was before the superior  court
when  its  rendered its decision.10  DNR maintains  that  [i]f  a
plaintiff  who loses on summary judgment could use a  Rule  60(b)
motion  to  supplement the record on appeal  with  documents  and
arguments he inexcusably failed to present in opposition  to  the
summary  judgment  motion,  the summary  judgment  process  would
become a virtually meaningless exercise.  We agree.
          If  Peterson wished us to review whether the additional
evidence  warranted  relief from the grant  of  summary  judgment
because  of mistake, inadvertence, surprise or excusable  neglect
or  newly discovered evidence, he had the option of appealing the
denial  of  his  Rule  60(b) motion.   But  he  did  not  do  so,
apparently  for  tactical reasons.  We review grants  of  summary
judgment de novo but review a ruling on a Rule 60(b) motion under
the more deferential abuse of discretion standard.11  As Petersons
counsel  candidly explained at oral argument, he did not consider
an  appeal  of  the  denial of the Rule 60(b)  motion  to  be  in
          Petersons best interest because the review [of a summary judgment
ruling]  is  de novo [and] we dont want to convert  the  case  to
abuse  of  discretion.   That doesnt  make  any  sense  from  Mr.
Petersons  point of view.  We agree that Peterson is entitled  to
de  novo  review of the grant of summary judgment  based  on  the
record  that was before the superior court at the time it  issued
its  ruling.12   But  because  Peterson  declined,  for  tactical
reasons, to appeal the Rule 60(b) motion, we do not consider  the
additional evidence submitted in support of that motion  as  part
of our review of the grant of summary judgment.
     B.   The  Superior  Court  Did Not Err In  Granting  Summary
          Judgment On Petersons Claims.
          
          1.   The superior court did not err in granting summary
               judgment on Petersons discrimination claims.
               
          Of  the  six  claims for relief contained in  Petersons
complaint, three of them allege discrimination: (1) that  he  was
harassed  and subjected to a hostile work environment because  of
his  sex,  age, and alleged disability;13 (2) that  his  employer
reduced  his  work  time  because of his sex,  age,  and  alleged
disability; and (3) that he was passed over for several full-time
positions  because  of his sex and age.  We  will  consider  each
claim in turn.
               a.   The  superior court did not err  in  granting
                    summary   judgment   on  the   hostile   work
                    environment claims.
                    
          Alaska Statute 18.80.220 provides employees with  broad
protection against discriminatory treatment by making it unlawful
for  employers  to discriminate against a person because  of  the
persons race, religion, color, or national origin, or because  of
the  persons  age,  physical or mental disability,  sex,  marital
status, changes in marital status, pregnancy, or parenthood  when
the reasonable demands of the position do not require distinction
on [that] basis.
          Peterson  alleges  that  he was  subjected  to  several
incidents that amounted to harassment sufficient to constitute  a
hostile work environment: that Jeff Graham told Peterson that the
people  above  Graham  wanted  Peterson  out;  that  Mike  Curran
commented  to  Peterson that Currans consulting jacket  might  be
trying  to  tell  [Peterson]  something;  that  the  removal   of
Petersons  firefighting qualifications was harassment because  it
was  without  justification; that hiring  Winters  for  the  2007
operations forester position was retaliatory in nature;14 and that
Matt Jamess description of Fire 072 demeaned Peterson.15
          DNR counters that Peterson failed to offer any evidence
that  his sex, age, or alleged disability played any role in  any
of those incidents.  DNR offered affidavits to the superior court
in  support of its position that unlawful discrimination was  not
involved in the incidents to which Peterson points.  For example,
DNR provided an affidavit from Graham where Graham states that he
does  not  recall  telling Peterson that  the  people  above  him
(Graham) wanted Peterson gone, but that if he had, it could  only
have  been in the context of a supervisory conversation  intended
          to encourage Mr. Peterson to improve his work performance by
alerting  him to concerns expressed about his work by  others  in
the  division.  DNR also points out that Peterson admitted in his
deposition that he did not know why Curran made the comment about
the   jacket  and  that  he  thought  that  the  removal  of  his
firefighting  qualifications  was connected  to  James  Petersons
personal  dislike of Allen Peterson, not sex, age, or  disability
discrimination.16    Finally,  Peterson  does   not   offer   any
explanation of how Winterss selection for the operations forester
position  is  connected to his age, sex, or  disability,  and  he
offers  no  evidence  to show that Winters is  not  in  the  same
protected  class as himself,17 except to point out  that  he  and
Winters  had  different job classifications  before  Winters  was
selected for the operations forester position.  The only evidence
that  Peterson  presented to the superior court in opposition  to
the  motion  for  summary judgment that  connects  any  of  these
incidents  to Petersons age, sex, or disability was  Matt  Jamess
statement  in  his report that Peterson appears  to  have  issues
working  for  people  younger or lower  on  the  org  chart  than
himself.
          In assessing a claim that an employees work environment
violates  Alaska law, we consider federal precedent for guidance,
and   after   reviewing  Title  VII  cases  we   concluded   that
discriminatory behavior sufficiently severe or pervasive to alter
the  conditions  of  the  victims  employment  and  to  create  a
discriminatory hostile work environment violates AS  18.80.220.18
We also considered federal precedent in deciding what conduct was
actionable  in the hostile work environment context  and  adopted
the  Harris  v. Forklift Systems, Inc.19 rule that the challenged
conduct  must  be  severe  or  pervasive  enough  to  create   an
objectively  hostile or abusive work environment  an  environment
that  a reasonable person would find hostile or abusive.  20   In
Harris, the Supreme Court of the United States further elaborated
that,  [w]hether  an environment is hostile  or  abusive  can  be
determined  only by looking at all the circumstances,  which  may
include   the  frequency  of  the  discriminatory  conduct;   its
severity; whether it is physically threatening or humiliating, or
a   mere   offensive  utterance;  and  whether  it   unreasonably
interferes with an employees work performance.21 The United States
Supreme  Court  has  also  held  that   simple  teasing,  offhand
comments, and isolated incidents (unless extremely serious)  will
not  amount to discriminatory changes in the terms and conditions
of employment  and that anti-discrimination laws are not intended
to be a general civility code.22
          Even  viewing the facts in the light most favorable  to
Peterson,  we conclude that he has not established the  existence
of a hostile or abusive work environment.   Currans comments were
offhand  and  cryptic; even though Peterson may have  interpreted
them  to  mean  that he did not have a future with the  Division,
they   were  not  objectively  threatening.   Similarly,  Grahams
comments,  made  on a single occasion, even if interpreted  as  a
veiled  threat  to Petersons job or future employment  prospects,
constituted  an  isolated incident that  was  not  sufficient  to
demonstrate  a  change in the terms and conditions  of  Petersons
          employment.
          Petersons  other claim centers around  the  Matt  James
report  and the removal of Petersons firefighting qualifications.
Peterson implies that the removal of these qualifications changed
the  terms  and  conditions  of his employment  to  some  extent.
Peterson presents the loss of his firefighting qualifications  as
an  example of the hostile work environment actions taken by  the
Division  against him.  However, this claim is more appropriately
considered  as  an independent claim that the Division  subjected
him  to  an adverse employment action for discriminatory reasons.
We  therefore  consider whether the Divisions actions  to  remove
Petersons  firefighting qualifications, including the Matt  James
evaluation, were based on impermissible factors that include sex,
age, or disability in violation of AS 18.80.220.
          Because  it  is usually impossible for an  employee  to
prove  that  the  actions  of  an  employer  were  motivated   by
discriminatory  intent,23 we have adopted the three-part  pretext
analysis that involves a series of shifting burdens24 for  claims
of employment discrimination where there is no direct evidence of
discriminatory  intent,  known as the McDonnell  Douglas  test.25
First,  the  employee  bears the burden of establishing  a  prima
facie   case   of  disparate  treatment  by  showing  intentional
discrimination.26  The prima facie case serves to  eliminate  the
most common nondiscriminatory reasons for the adverse action  and
raises  an  inference of discrimination only because  we  presume
that  these acts, if otherwise unexplained, are more likely  than
not  based  on  the  consideration  of  impermissible  factors.27
Second,  the burden shifts to the employer to offer a legitimate,
nondiscriminatory reason for its actions.28  Third, the  employee
bears the final burden of demonstrating that the employers stated
reason for the action was pretextual.29
          As  a  matter  of law, Peterson failed to  establish  a
prima  facie  case  that either the removal of  his  firefighting
qualifications or Matt Jamess negative evaluation was the  result
of  discrimination.  As discussed earlier, DNR  points  out  that
Peterson  failed  to offer any evidence that  his  sex,  age,  or
alleged  disability  played any role  in  the  Divisions  actions
toward  Peterson.   In his opposition to the motion  for  summary
judgment,  Peterson  offered nothing to  show  that  his  sex  or
disability  were  implicated  in  the  decision  to  remove   his
firefighting qualifications, nor is there any evidence suggesting
that  he was treated less favorably than other Division resources
employees.  The  only  evidence Peterson offered  was  that  Matt
Jamess  evaluation stated that Peterson appear[ed] to have issues
working  for people younger . . . than himself.  This  statement,
in  context, was referring to Petersons interpersonal skills  and
does  not  suggest that Peterson was given a negative  evaluation
because  of his age.  There was no further evidence to show  that
Petersons  age  was even taken into account in  the  decision  to
remove  his firefighting qualifications or in the two reviews  of
the  decision.   We  therefore conclude that Peterson  failed  to
raise  a  reasonable  inference that his age was  the  underlying
reason that his qualifications were taken away.
          Even  if  Peterson had established a prima facie  case,
          DNR met its burden at the second step of the McDonnell Douglas
test  by  offering evidence showing legitimate, nondiscriminatory
reasons  for  withdrawing Petersons firefighting  qualifications.
Peterson  makes  no further attempt to argue  that  any  of  DNRs
justifications were pretextual, thus also failing the third prong
of the McDonnell Douglas test.
               b.   The  superior court did not err  in  granting
                    summary judgment on Petersons claim that  the
                    reduction of his work time was the result  of
                    unlawful discrimination.
                    
          Peterson  also claims that the diminution of  his  work
time  from  permanent full time to permanent seasonal in  October
2006  was  a  discriminatory decision.   Petersons  brief  simply
asserts  that the decision to reduce his position to  six  months
was  a discriminatory decision, and a pretext to give the job  to
Ashley Reed, a young female, but Peterson offered no evidence  to
connect  the  reduction in his work time  to  his  age,  sex,  or
alleged disability.  For example, he produced no evidence showing
that  other  individuals  outside of  his  protected  class  were
treated more favorably by receiving shorter layoff periods.30  We
conclude that Peterson failed to establish a prima facie case  of
discrimination with regard to his reduced work time.
               c.   The  superior court did not err  in  granting
                    summary  judgment  on  Petersons  claims   of
                    hiring discrimination.
                    
          Peterson claims that the Division discriminated against
him  on the basis of age and sex when it selected Ashley Reed for
the  stewardship forester position in February 2007 and  when  he
did not receive a lateral transfer into a full-time position.  He
also  asserts  that  several  of  the  Divisions  practices  were
discriminatory,  including  the delay  in  advertising  the  2007
stewardship  forester  position for  competitive  recruitment  to
coincide  with  Reeds return to Alaska, the high  evaluations  of
Reeds  job  performance,  and  the  early  termination  of  Reeds
probationary period during her first period of employment.
          Peterson also makes the unsupported claim that he twice
requested transfer to a full-time position in both 2004 and 2006.
Peterson  argues that the Division had the right  to  permit  his
transfer  into the full-time position that Reed occupied  without
competitive recruitment.31  However, as DNR points out, it was not
required  to permit such a transfer.32  Peterson has  offered  no
admissible  evidence  to demonstrate that  he  requested  such  a
transfer, and his brief does not explain how the decision to  put
the  job  up for competitive recruitment constituted age  or  sex
discrimination.
          Petersons  hiring  discrimination claims  are  analyzed
under  the  same  three-part  McDonnell  Douglas  test  discussed
previously.33  For purposes of summary judgment, DNR expressed its
willingness to assume that Peterson had established a prima facie
case  of sex and age discrimination with regard to the hiring  of
Reed.34  DNR then fulfilled its burden at the second prong of the
McDonnell  Douglas test by offering affidavits from  two  of  the
          three members of the hiring committee that selected Reed. Both
hiring committee members explained the interview process and  how
the  interviewees answers were scored.  They stated  that  Ashley
Reed  was  the top candidate for the position after the interview
scores, education, experience, writing samples, evaluations,  and
references were considered.
          After DNR met its burden, Peterson was required to make
a  showing  that  this  explanation was pretextual.35    Peterson
argues  that  Reeds evaluations were only higher because  of  the
discrimination which was occurring in the workplace, but provides
no  factual  support  for  this  argument.   In  his  deposition,
Peterson  explained  that  he thought that  the  influential  and
powerful people in the Division were female and at least  one  of
them had a definite preference toward females over the years.  He
also  asserted that he thought that his age was a factor  because
he  was  at a higher paygrade than Ashley Reed and thus would  be
more expensive to hire.
          A  claimant  must offer something more than unsupported
assumptions  and  speculation   to demonstrate  that  the  reason
articulated by the employer is a pretext, and [s]ummary  judgment
is  appropriate when a plaintiff presents nothing more  than  his
own  subjective belief that the employers asserted  ground  is  a
pretext.36 Peterson offered no solid evidence or factual  details
to substantiate his perception that Reed was selected because she
was  younger  and  a  woman,  but  instead  relies  entirely   on
subjective, after-the-fact impressions.37  Because DNR  supported
its  summary  judgment  motion with  ample  evidence  that  Reeds
selection  was  based on legitimate, non-discriminatory  criteria
and  because  Peterson only presented his own  subjective  belief
that  DNRs asserted grounds were a pretext, we hold that  summary
judgment was appropriate.
          Petersons   other  arguments,  that  Reed   was   given
preferential  treatment in her probationary employment  and  that
leaving  the  position open until October 2006 was a  pretext  to
ensure  that she got the job, were not raised below in opposition
to  summary judgment.  The evidence that Peterson uses to support
this  argument was not presented to the superior court before  it
ruled  on  the  summary judgment motion, as it was added  to  the
record  as  part of the Rule 60(b) motion.  We therefore  do  not
consider it.
          2.   The superior court did not err in granting summary
               judgment  on  Petersons  breach  of  the   implied
               covenant of good faith and fair dealing claims.
               
          Peterson argues that the Division violated the  implied
covenant of good faith and fair dealing by reducing his work time
through  increasing his seasonal layoff period, by hiring Winters
for the operations forester position in 2007, and by removing his
firefighting qualifications.
          All  employment contracts in Alaska include an  implied
covenant  of  good faith and fair dealing.38  A  breach  of  this
covenant may be either subjective  where the employer acts with a
bad faith purpose, such as to deprive an employee of a benefit of
the contract  or objective  where the employer does not act in  a
          manner which a reasonable person would regard as fair.39  The
purpose   of   the  covenant  is  to  effectuate  the  reasonable
expectations of the parties, not to alter or to add terms to  the
contract.40
          As  previously discussed, Peterson was neither entitled
by  contract  to  receive  a lateral transfer  to  the  full-time
operations forester position for which Winters was selected,  nor
was Peterson entitled to anything more than six months of work as
a  seasonal employee.  DNR provided evidence that its reasons for
both  increasing Petersons seasonal layoff period  and  selecting
Winters were not motivated by bad faith.41  Peterson only  offers
unsupported  assertions: that the Winters hire  was  retaliatory,
that James Peterson had groomed Winters for the job, and that the
reduction in Petersons work time may have been a way for  DNR  to
save  money.  However,  in  order  to  defeat  summary  judgment,
Peterson  was required to produce admissible evidence tending  to
dispute  DNRs evidence  an adverse party may not rest  upon  mere
allegations, but must set forth specific facts showing that there
is a genuine issue of material fact.42  Peterson was unable to do
so with regard to the subjective prong of the breach analysis.
          Petersons   argument  with  respect  to  the  objective
element  of the covenant suffers from the same fatal flaw:  there
is a lack of evidence to substantiate his allegations.   Peterson
claims that Winters was working outside of his job classification
responsibility, that James Peterson assisted Winters  in  getting
the  position, that Winters faced a smaller panel of interviewers
than  Peterson  faced,  that Peterson outscored  Winters  in  the
interview, and that Winters had the added advantage of being  the
last  interviewee  after being able to hear the other  interviews
being  conducted.   Peterson cites to his amended  opposition  to
summary  judgment in support of these allegations  but  does  not
point  to any actual evidence.  Because [a]ssertions of  fact  in
pleadings and memoranda are not admissib[le] evidence and  cannot
be relied upon for the purposes of summary judgment,43 we conclude
that  Peterson has not provided sufficient evidence to show  that
there  is  an issue of material fact that would require trial  on
these claims.44
          Peterson also argues that the Divisions removal of  his
firefighting qualifications constituted a breach of  the  implied
covenant  of  good faith and fair dealing because  the  Divisions
action  violated state and national policies. At his  deposition,
Peterson  explained his central contention  that he wasnt  guilty
of  anything that would qualify for the decertification under the
National   Wildland   Coordinating  Groups  Wildland   Fire   and
Prescribed Fire Qualifications System Guide, known as PMS  310-1.
Peterson  contends  that the facts of Fire 072  are  central  and
critical  because they led to [the] devastation of Mr.  Petersons
career  with  the Division.  DNR counters that any dispute  about
the  underlying facts is not material because firefighting is not
a  duty that is required for Petersons job, that Peterson has  no
valid   legal   claim   regarding   the   withdrawal   of   these
qualifications, and that even if Peterson had such a claim,  DNRs
good faith reliance on the reports of Petersons conduct warranted
the withdrawal of his qualifications.
          As  discussed  previously, for  the  Division  to  have
violated the implied covenant of good faith and fair dealing,  it
must  have breached either the subjective or objective  prong  of
the  covenant.45  Peterson does not argue that the  Division  was
subjectively seeking to deny him the benefits of his contract  in
bad  faith,  but  instead focuses his discussion on  whether  the
removal  of  his firefighting qualifications and the  process  by
which  the  removal  occurred was objectively  unfair.   Peterson
points  to  national standards found in PMS 310-1 to support  his
contention  that his conduct was not sufficiently problematic  to
justify  the removal of his qualifications.  But PMS 310-1  makes
it  clear  that the decision to allow an individual to engage  in
firefighting activities is ultimately a subjective determination:
[a]  key  component  in  the  certification  or  re-certification
process  is  the subjective evaluation by the appropriate  agency
official  of  an  individuals capability to perform  a  position.
Completion of required training and experience requirements alone
does not guarantee that an individual is qualified to perform  in
a position. (Emphasis in original.)
          Matt    Jamess   negative   evaluation   of   Petersons
performance  at  Fire  072  in combination  with  the  two  other
incidents  cited  in  Wilcocks  review  gave  ample  reason   for
Petersons  superiors to question his ability to  perform  in  the
type  of  high  pressure  situations  presented  by  firefighting
activities.   The  Division  was empowered  to  reject  Petersons
version of the events that Wilcock cited in favor of the accounts
offered  by other witnesses.  Our past precedent makes  it  clear
that, [i]f the employer makes a determination in good faith  that
[]  misconduct  occurred,  there is  no  breach  of  the  implied
covenant  of  good faith and fair dealing, even if  the  employee
could  subsequently prove that the factual finding of  misconduct
was a mistake.46  Thus, even if Peterson could now prove that Matt
Jamess  report was inaccurate, DNRs good faith reliance on Jamess
evaluation  of  Petersons performance at Fire 072,  for  example,
would still not constitute a breach of the implied covenant.
          We therefore conclude that the superior courts grant of
summary  judgment  on Petersons claims that the  removal  of  his
firefighting qualifications was a breach of the implied  covenant
of good faith and fair dealing was not error.
VI.  CONCLUSION
          For  these reasons we AFFIRM the superior courts  grant
of summary judgment as to all claims.
_______________________________
     1     These facts and characterizations of Petersons  claims
are  taken from the record that was before the superior court  at
the  time  that it granted summary judgment on August  28,  2008.
Assertions  of  fact  that  appear  only  in  the  pleadings   or
supporting memoranda are not admissible evidence, and accordingly
we  do  not  rely  upon them for the purposes of  our  review  of
summary judgment.  Brock v. Rogers & Babler, Inc., 536 P.2d  778,
783 (Alaska 1975).

     2     Ellis  v.  City of Valdez, 686 P.2d 700,  702  (Alaska
1984).

     3    Ellis, 686 P.2d at 702.

     4    Rockstad v. Erikson, 113 P.3d 1215, 1219 (Alaska 2005).

     5    Id.

     6    147 P.3d 720, 727-28 (Alaska 2006).

     7    Id. at 727.

     8    Id.

     9    Id. at 727-28.

     10     See, e.g., MacGlashing v. Dunlop Equip. Co., 89  F.3d
932, 936 (1st Cir. 1996); Guillory v. Domtar Indus. Inc., 95 F.3d
1320,  1327  (5th Cir. 1996); Yanowitz v. LOreal USA,  Inc.,  116
P.3d  1123,  1127 (Cal. 2005); see also 5 Am. Jur.  2d  Appellate
Review  649 (2009).

     11     Compare  Rockstad v. Erickson, 113  P.3d  1215,  1219
(Alaska  2005) (grant of summary judgment reviewed de novo)  with
Ghete  v.  Anchorage, 948 P.2d 973, 975 (Alaska 1997) (denial  of
Rule 60(b) motion reviewed for abuse of discretion).

     12     If  Peterson  believed  he  lacked  the  evidence  to
successfully oppose DNRs summary judgment motion, he  could  have
made  a  Rule  56(f) request seeking additional  time  to  gather
evidence   before  filing  an  opposition.   Such  requests   are
liberally  granted.   See Hymes v. DeRamus,  119  P.3d  963,  965
(Alaska  2005).  He failed to do so.  DNR contends that  Peterson
had  adequate  opportunity  to  oppose  the  motion  for  summary
judgment  and  made  no  showing that the evidence  submitted  in
support of his Rule 60(b) motion could not have been presented to
the  superior court at the time he filed his opposition  to  DNRs
motion for summary judgment.

     13    Although Peterson claims disability discrimination, the
details  of his alleged disability are unclear.  His response  to
DNRs discovery request states: Mr. Peterson injured his left foot
in  1992-1993 and has symptoms until the present.  He injured his
right  foot  in  2002-2003, as a direct result of his  left  foot
injury.  Surgery on the left foot was conducted November, 2007.

     14    While Peterson described the hiring of John Winters as
retaliatory in the facts section of his opening brief, the hiring
was  not  raised  as  a  separate claim of retaliation  under  AS
18.80.220(a)(4)  in Petersons complaint or in his  opposition  to
summary  judgment.  Because the allegations of  retaliation  were
not  raised below, we hold them to be waived as a separate  claim
and  consider them only in the context of Petersons claims  of  a
hostile work environment and breach of the covenant of good faith
and  fair dealing.  See Baseden v. State, 174 P.3d 233, 239  n.17
(Alaska 2008).

     15      Petersons  reply  brief  also  argues  that  he  was
humiliated  by  the  display of the burned  fire  hose  that  was
destroyed  in Fire 072, but the record before the superior  court
at  the  time  summary judgment was granted did not  provide  any
support  for this allegation, as it was first raised in Petersons
memorandum in support of his Rule 60(b) motion.  We also  do  not
rely  on unsupported assertions of fact in memoranda for purposes
of  our  review of summary judgment.  Brock v. Rogers  &  Babler,
Inc.,  536  P.2d  778, 783 (Alaska 1975).  We  therefore  do  not
consider this assertion.

     16     While  there  may be some minor dispute  between  the
parties about James Petersons actions toward Allen Peterson  when
Allen  Petersons  firefighting qualifications  were  taken  away,
Allen Peterson neither alleges that James Petersons actions  were
motivated  by  age, sex, or disability, nor does he  present  any
evidence showing such discrimination.

     17     Peterson and Winters are both men, and Peterson  does
not argue that Winters is a member of a different age group.

     18     French v. Jadon,  911 P.2d 20, 28 (Alaska 1996);  see
also  Alaska State Commn for Human Rights v. Yellow Cab, 611 P.2d
487, 490 (Alaska 1980) (using Title VII decisions for guidance in
interpreting Alaska anti-discrimination law).

     19    510 U.S. 17, 21-23 (1993) (elaborating on the standard
first enunciated in Meritor Savings Bank, FSB v. Vinson, 477 U.S.
57, 67 (1986)).

     20     French, 911 P.2d at 28 (quoting Harris, 510  U.S.  at
21).

     21    510 U.S. at 23.

     22     Faragher  v. City of Boca Raton, 524  U.S.  775,  788
(1998) (internal citations omitted).

     23     Miller  v. Safeway, Inc., 102 P.3d 282,  290  (Alaska
2004).

     24     Raad v. Alaska State Commn for Human Rights, 86  P.3d
899, 904 (Alaska 2004).

     25     Brown  v.  Wood,  575  P.2d 760,  770  (Alaska  1978)
(adopting the test named for the United States Supreme Court case
where  it was articulated: McDonnell Douglas Corp. v. Green,  411
U.S. 792, 802 (1973)), modified, 592 P.2d 1250 (Alaska 1979); see
also Raad, 86 P.3d at 904; VECO, Inc. v. Rosebrock, 970 P.2d 906,
918-19 (Alaska 1999);  Haroldsen v. Omni Enters., Inc., 901  P.2d
426, 430 (Alaska 1995).

     26    To establish that the Division removed his firefighting
qualifications  with intent to discriminate,  Peterson  needs  to
show  that  (1)  he is a member of a protected  class  under  the
statute;  (2) he was qualified for the position; (3) he  suffered
adverse employment action, despite these qualifications; and  (4)
the  employer  treated  him less favorably than  other  qualified
persons.  Miller, 102 P.3d at 291.

     27     Texas Dept of Cmty. Affairs v. Burdine, 450 U.S. 248,
254-55  (1981) (quoting Furnco Constr. Corp. v. Waters, 438  U.S.
567, 577 (1978)); see also State, Dept of Fish & Game, Sport Fish
Div.  v.  Meyer, 906 P.2d 1365, 1374 (Alaska 1995) (In the  first
stage,   the  employee  claiming  discrimination  must  introduce
evidence   raising   an  inference  of  employer   discriminatory
intent.); 45C Am. Jur. 2d Job Discrimination  2460 (This consists
of  evidence  that, under the circumstances, raises  at  least  a
reasonable  inference that the action taken by the  employer,  if
otherwise   unexplained,  was  based  on  impermissible   factors
. . . .).

     28    Miller, 102 P.3d at 291.

     29    Id.

     30     Petersons  argument  that John  Winters  was  treated
differently  is unclear.  Although Peterson asserts that  Winters
was  not  in  Petersons  protected  class  because  Winterss  job
classification differed from Petersons, this argument is  without
merit.   Job  classification is not a protected class within  the
meaning of AS 18.80.220(a).  Further, no evidence was provided to
the  superior court showing that Winters was treated  differently
with regard to seasonal leave or layoff time.

     31     The  referenced provision, 11.07, of  the  collective
bargaining  agreement  governing transfer of  General  Government
Bargaining  Unit  employees  like Peterson  reads,  An  employee,
except  a  provisional employee, may apply for and be transferred
to  a  position  in the same class, or to a parallel  or  closely
related job class at the same pay range in State service.

     32     Provision  11.07(E) specifically  states  that  [t]he
voluntary  transfer of an employee within an  agency  or  between
agencies  may  be  made  at  the  discretion  of  the  appointing
authority(ies).

     33     McDonnell Douglas Corp. v. Green, 411 U.S.  792,  802
(1973); Brown v. Wood, 575 P.2d 760, 770 (Alaska 1978); see  also
Raad  v.  Alaska State Commn for Human Rights, 86 P.3d  899,  904
(Alaska  2004);  VECO, Inc. v. Rosebrock, 970  P.2d  906,  918-19
(Alaska 1999); Haroldsen v. Omni Enters., Inc., 901 P.2d 426, 430
(Alaska 1995).  As discussed previously, the three steps  of  the
test  require  the  employee  to  bear  the  initial  burden   of
establishing  a prima facie case; then the burden shifts  to  the
employer to offer a legitimate, nondiscriminatory reason for  its
actions;  and  lastly, the employee bears  the  final  burden  of
demonstrating that the employers stated reason for the action was
pretextual.

     34     Because DNR does not contest this, we assume  that  a
prima  facie  case has been established.  A prima  facie  showing
would have required Peterson to demonstrate that (1) [he] belongs
to a protected class; (2) [that he] applied for and was qualified
for  a  job for which the employer was seeking applications;  (3)
[that  he]  was  rejected despite [his] qualifications;  and  (4)
[that]  after [he was rejected], the position remained  open  and
the  employer  continued seeking applications from  persons  with
[his]  qualifications. Raad, 86 P.3d at 904 (citing Alaska  State
Commn  for Human Rights v. Yellow Cab, 611 P.2d 487, 490  (Alaska
1980)).

     35    See Raad, 86 P.3d at 904.

     36     Perkins v. Doyon Universal Servs., LLC, 151 P.3d 413,
416  (Alaska 2006)  (quoting Mahan v. Arctic Catering, Inc.,  133
P.3d 655, 661 (Alaska 2006)).

     37     Mahan,  133  P.3d at 661 (requiring the  claimant  to
produce  admissible evidence, beyond speculation and  unsupported
assumptions, sufficient to raise a genuine issue of material fact
that the reasons given by the employer were pretextual).

     38     Willard  v.  Khotol Servs. Corp., 171 P.3d  108,  113
(Alaska 2007).

     39     Pitka v. Interior Regl Hous. Auth., 54 P.3d 785,  789
(Alaska 2002) (internal quotation marks omitted); see also Miller
v. Safeway, Inc., 170 P.3d 655, 658-59 (Alaska 2007).

     40    Miller, 170 P.3d at 659.

     41      Petersons   suggestion  that   DNRs   budget-related
explanation was inaccurate or pretextual is not supported by  the
record that was before the superior court when it granted summary
judgment.

     42     Cikan v. ARCO Alaska, Inc., 125 P.3d 335, 339 (Alaska
2005).

     43     Brock  v.  Rogers & Babler, Inc., 536 P.2d  778,  783
(Alaska 1975).

     44    Peterson includes a section in his brief entitled, The
State  Violated Various Statutes and Regulations. Within  it,  he
sets  out  a  number of constitutional, statutory, and regulatory
citations, arguing that they are relevant.  But the relevance  of
some  of these authorities to his argument is not entirely clear.
For  example,  he begins by citing the oath that he  took  before
assuming  his forester position.  It appears that the main  point
of  Petersons  argument  is that the Divisions  hiring  decisions
violated  the principles of merit selection, which are  enshrined
in article XII, section 6 of the Alaska Constitution.  But nearly
all  of  the  factual assertions in support of this argument  are
based on portions of the record that were not before the superior
court  at  the  time it granted summary judgment.  As  previously
discussed, we do not consider this evidence as part of our review
of  the summary judgment decision.  In any event, the analysis of
Petersons merit selection claim is subsumed within our discussion
of   Petersons  other  claims  concerning  the  hiring   process,
including  his claims of discrimination and his claims concerning
the implied covenant of good faith and fair dealing.

     45     See Pitka v. Interior Regl Hous. Auth., 54 P.3d  785,
789 (Alaska 2002).

     46    Holland v. Union Oil Co. of Cal., Inc., 993 P.2d 1026,
1035  (Alaska 1999) (quoting Burton v. Sec. Pac. Natl  Bank,  243
Cal. Rptr. 277, 281 (Cal. App. 1988)).

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