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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Boyko v. Anchorage School District (1/27/2012) sp-6649

Boyko v. Anchorage School District (1/27/2012) sp-6649

        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, email 
        corrections@appellate.courts.state.ak.us. 

                 THE SUPREME COURT OF THE STATE OF ALASKA 

CHANA BOYKO,                                    ) 
                                                )       Supreme Court No. S-13468 
                Appellant,                      ) 
                                                )       Superior Court No. 3AN-07-06499 CI 
        v.                                      ) 
                                                )       O P I N I O N 
ANCHORAGE SCHOOL                                ) 
DISTRICT,                                       )       No. 6649 - January 27, 2012 
                                                ) 
                Appellee.                       ) 
                                                ) 

                Appeal from the Superior Court of the State of Alaska, Third 
                Judicial District, Anchorage, Peter A. Michalski, Judge. 

                Appearances:   Charles   W.   Coe,   Law   Office   of   Charles   W. 
                Coe,   Anchorage,   for   Appellant.      Howard   S.   Trickey   and 
                Cheryl     Mandala,      Jermain     Dunnagan      &    Owens,     P.C., 
                Anchorage, for Appellee. 

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

                STOWERS, Justice. 
                WINFREE, Justice, concurring. 

----------------------- Page 2-----------------------

I.      INTRODUCTION 

               Chana Boyko is a teacher who resigned in lieu of termination from the 

Anchorage School District after violating a "last chance agreement."             She alleges the 

School District breached a resignation agreement in which it promised not to release 

negative information about her to prospective employers. Boyko sued, claiming that she 

was terminated as a result of disability discrimination and that the School District's 

comments made in violation of the resignation agreement breached the covenant of good 

faith and fair dealing and interfered with   her prospective contractual relations.  The 

superior court granted the School District summary judgment on all claims, concluding 

that the District had nondiscriminatory reasons for termination and that its comments 

were protected by statutory immunity. Boyko appeals. We reverse the grant of summary 

judgment on the claims of statutory immunity, breach of the covenant of good faith and 

fair dealing, and interference with prospective contractual relations, because there are 

genuine issues of material fact regarding these claims. We affirm summary judgment on 

the discrimination claim. 

II.     FACTS AND PROCEEDINGS 

               In the fall of 2004 Chana Boyko was employed as a teacher at Goldenview 

Middle School in the Anchorage School District. One morning she arrived at school late 

and   appeared to be intoxicated.      The school's principal, Julie Maker, sent Boyko to 

Providence   Breakthrough   Program   for   an   assessment   and   alcohol   testing.   A   blood 

alcohol   content   (BAC)   test   revealed   that   Boyko's   BAC   was   0.155   percent. Boyko 

consequently completed an out-of-state treatment program and returned to Providence 

Breakthrough for continuing treatment. 

               The School District had Boyko sign a "last chance agreement," which the 

School District uniformly required of employees who reported to work intoxicated.  The 

agreement      conditioned    Boyko's    continued    employment      upon   several   provisions, 

                                                -2-                                          6649
 

----------------------- Page 3-----------------------

including committing to remain free of alcohol, completing treatment with Providence 

Breakthrough, keeping the School District apprised of her progress in treatment, and 

meeting all other terms and conditions of the last chance agreement. 

                Soon after, Boyko limited the School District's access to her treatment 

records and neglected to tell the School District about missed treatment appointments. 

Boyko also took a BAC test that registered her BAC at .007.                Boyko did not attend a 

partial hospitalization program that Providence Breakthrough recommended after her 

positive BAC test and was discharged from the program.                  Providence Breakthrough 

informed the School District that Boyko had not complied with the conditions of her 

program, that she tested positive for alcohol, that she refused to attend the hospitalization 

treatment     program,    and   that   she  was  discharged    from    Providence     Breakthrough's 

program against medical advice. 

                As   a   result   of   Boyko's   discharge   from   Providence   Breakthrough,   the 

School District placed her on administrative leave and she received a notice of proposed 

dismissal   and    pre-termination   hearing.      Upon   advice   from     a   representative   of   the 

teacher's union, Boyko resigned so that she would not be terminated. 

                Before turning in her letter of resignation, Boyko spoke on the phone with 

Eric Tollefsen, the executive director of human resources for the School District.  Boyko 

secretly recorded the phone conversation.          The following exchange occurred: 

                MS. BOYKO: . . . If I resign, then, at least I preserve my 
                right to go to work someplace else? 

                MR. TOLLEFSEN: Absolutely.  And there is nothing in the 
                record, and there would be nothing that . . . we would release 
                to anybody else.  That's true. . . .   I would have a record of it 
                here . . . 

                MS. BOYKO: Uh-huh (affirmative). 

                                                  -3-                                            6649
 

----------------------- Page 4-----------------------

                 MR.   TOLLEFSEN:   .   .   .   and,   you   know,   you   wouldn't   be 
                 eligible    for  -  for  rehire   in  this  district,  but   you    would 
                 certainly     be  eligible   for   -  I  mean,    you   wouldn't     have 
                 anything     negative    on   your   record    if  you   were   to  apply 
                 somewhere else.[1] 

Boyko   testified   in   her   deposition   that   when   she   handed   in   her   letter   of   resignation, 

Tollefsen told her that she would not have any problems finding work in another school 

district and that "no information would be given to anyone that would prevent [her] from 

being considered for a position." 

                 After   she   resigned,   Boyko   applied   for   a   position   with   the   Matanuska- 

Susitna (Mat-Su) Borough School District.               She alleged that, when contacted as a job 

reference, "the [Anchorage School] District failed to represent [her] qualifications and 

failed to represent positive performance evaluations over the years."                    Carol Comeau, 

superintendent of the Anchorage School District, declined to provide a recommendation 

at Boyko's request to the Mat-Su School District because she did not directly supervise 

Boyko and because of the "circumstances leading up to the termination of [Boyko's] 

employment relationship with the District." 

                 Boyko      then   applied    for  a  position    with   the   Alaska    Military    Youth 

Academy.       Boyko   alleged   that   the   School   District   reported       negatively   on   her   job 

performance by telling the Military Youth Academy that she was not eligible for future 

employment with the School District.               Irene Lee, the deputy director of the Military 

Youth Academy at the time of Boyko's application, stated in an affidavit that "Boyko's 

last supervisor/principal at the Anchorage School District . . . advised [us] that she would 

not recommend that [the Military Youth Academy] hire Ms. Boyko as a teacher."  James 

Jones, the principal of the Military Youth Academy at the time, stated in an affidavit that 

        1        This    conversation     will   be  referred    to  throughout     as  the   "resignation 

agreement." 

                                                    -4-                                                 6649 

----------------------- Page 5-----------------------

Boyko's last principal told him that she would not rehire Boyko.                Nevertheless, the 

Military Youth Academy hired Boyko.  Boyko later attempted to rescind her resignation 

letter to the School District. 

               In April 2007 Boyko filed a four-count complaint in superior court alleging 

that the School District (I) discriminated against her based on disability; (II) breached 

the covenant of good faith and fair dealing by breaching the resignation agreement; 

(III)  breached    her  collective   bargaining    agreement;    and   (IV)  interfered   with  her 

prospective contractual relations by breaching the resignation agreement. 

               The School District filed a motion for summary judgment, arguing Boyko 

was not disabled, the School District had a non-discriminatory reason for termination, 

Boyko's failure to exhaust her administrative remedies barred her from claiming a breach 

of the covenant of good faith and fair dealing, and the School District did not lie to any 

potential future employers. 

               The   superior   court   granted   the   School   District   summary   judgment   on 

Counts I, III, and IV.     The court granted the School District summary judgment for 

failure to exhaust administrative remedies on Count II to the extent that the claim related 

to Boyko's employment agreement, but denied summary judgment "without prejudice 

as to possible rebriefing" to the extent that it related to Boyko's resignation agreement. 

               Both parties moved for reconsideration. Boyko argued that the court should 

reconsider     its  decision  to  grant  summary      judgment    on   Count   IV,   her  claim   of 

interference with prospective contractual relations.  The School District argued that no 

claims could arise from Maker's statements because AS 09.65.160 provides employers 

who disclose job performance information with immunity.  The court agreed and granted 

the School District summary judgment on Count II.  The court found that, regardless of 

any promises the School District made not to release negative information about Boyko, 

the School District was statutorily immune from civil liability for any disclosures.  The 

                                                -5-                                           6649
 

----------------------- Page 6-----------------------

court did not reconsider its decision on Count IV.              Boyko filed another motion   for 

reconsideration of the court's full summary judgment on Count II.  The court affirmed 

its previous grant of summary judgment and issued a final judgment. 

                Boyko appeals, arguing that the superior court erred in granting the School 

District immunity under AS 09.65.160. She also argues that the School District breached 

her resignation agreement and as a result breached the covenant of good faith and fair 

dealing and interfered with her prospective contractual relations.            She also argues that 

the superior court erred in dismissing her claim of disability discrimination. 

III.    DISCUSSION 

        A.      Standard Of Review 
                We review a superior court's grant of summary judgment de novo.2              In our 

review,   we   must   determine   "whether   any   genuine   issue   of   material   fact   exists   and 

whether on the established facts the moving party is entitled to judgment as a matter of 
law."3   We draw all factual inferences in favor of, and view the facts in the light most 

favorable to, the party against whom summary judgment was granted.4 

                We interpret the meaning   of a statute using our independent judgment, 

"interpreting the statute according to reason, practicality, and common sense, considering 
the meaning of the statute's language, its legislative history, and its purpose."5 

        2      Nielson v. Benton, 903 P.2d 1049, 1052 (Alaska 1995) (citing  Tongass 

Sport Fishing Ass'n v. State, 866 P.2d 1314, 1317 (Alaska 1994)). 

        3      Id. at 1051-52 (citing  Wright v. State, 824 P.2d 718, 720 (Alaska 1992)). 

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

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

        5      Lot 04B & 5C, Block 83 Townsite v. Fairbanks N. Star Borough, 208 P.3d 

188, 191 (Alaska 2009) (internal quotations omitted). 

                                                 -6-                                           6649
 

----------------------- Page 7-----------------------

        B.	    There   Is   A   Genuine   Issue   Of   Material   Fact   Whether   The   School 
               District Breached The Resignation Agreement. 

                Boyko argues that Principal Maker's comments to the Alaska Military 

Youth Academy and Superintendent Comeau's refusal to give her a recommendation 

breached the resignation agreement. The School District argues that there was no breach 

because it did not make any negative or derogatory statements about Boyko. 

               To   overcome   summary   judgment,   Boyko   must   set   forth   specific   facts 

arising from admissible evidence showing that there is a genuine issue of material fact 
whether the School District breached the agreement.6  Because this matter comes to us 

on an appeal of a grant of summary judgment against Boyko, we take all inferences in 

her favor and assume the resignation agreement was a quid pro quo contract for her 

resignation. 

               Boyko included with her opposition to summary judgment the affidavit of 

Irene Lee, the deputy director of the Alaska Military Youth Academy.   Lee stated in her 

affidavit that "[w]hen Ms. Boyko's last supervisor/principal at the Anchorage School 

District was contacted we were advised that she would not recommend that we hire 

Ms. Boyko as a teacher for our program." 

               Boyko attached the affidavit of James Jones, the principal at the Military 

Youth Academy, to her first motion for reconsideration, filed in response to the superior 

court's invitation for additional briefing.      He stated that Maker "stated she would not 

rehire Ms. Boyko if she reapplied." 

               The School District contends that neither statement by Maker was a release 

of   negative   information   because   her   statements   were   not   "information"   but   rather 

        6      See Witt v. State, Dep't of Corr., 75 P.3d 1030, 1033 (Alaska 2003). 

                                                -7-                                             6649 

----------------------- Page 8-----------------------

opinions and they did not provide any details about Boyko's separation from the School 

District. 

                Not providing details about the separation does not necessarily establish 

that the School District did not violate the resignation agreement.            Tollefsen's promise 

in the resignation agreement was not limited to details about the separation:              it covered 

"anything   negative."      The   promise   was   also   not   limited   to   negative   "information." 

Tollefsen told Boyko that she would not have "anything negative" on her record and 

Boyko alleged that he told her that there would be no "negative or derogatory statements 

made" about her.       Maker's recommendation that the Military Youth Academy not hire 

Boyko and her assertion that she would not rehire Boyko, even if only opinions, are 

arguably also negative statements about Boyko.  By producing these sworn statements, 

Boyko successfully raised a genuine issue of material fact regarding whether Maker's 

comments violated the resignation agreement. 

                Superintendent Comeau's refusal to provide a recommendation for Boyko, 

however, did not violate the resignation agreement.            The School District promised not 

to make negative statements about Boyko, but it did not promise to provide positive 

statements or recommendations. 

                We reverse the grant of summary judgment and remand to the superior 

court for trial on the issue of whether Maker's alleged comments violated the resignation 
agreement.7    Among the jury issues at trial will be whether the resignation agreement was 

        7       The    School    District  argues    that  Boyko    waived    her  rights  under    the 

resignation agreement by later signing a release allowing the School District to provide 
job   performance   information.      This   waiver   has   no   bearing   on   the   issues   on   appeal 
because the release form that Boyko signed only authorized the School District to share 
information with the Mat-Su School District.   Boyko bases her appeal on the statements 
that Maker allegedly made to the Alaska Military Youth Academy, which is not operated 
                                                                                      (continued...) 

                                                  -8-                                           6649
 

----------------------- Page 9-----------------------

in fact a contract and, if so, what performance was called for on the part of the School 

District. 

        C.	     There   Is   A   Genuine   Issue   Of   Material   Fact   Whether   The   School 
                District Waived Immunity. 

                Alaska Statute AS 09.65.160 provides: 

                An     employer     who    discloses    information     about   the   job 
                performance       of  an   employee      or  former    employee     to  a 
                prospective employer of the employee or former employee at 
                the request of the prospective employer or the employee or 
                former employee is presumed to be acting in good faith and, 
                unless lack of good faith is shown by a preponderance of the 
                evidence,   may   not   be   held   liable   for   the   disclosure   or   its 
                consequences.  For purposes of this section, the presumption 
                of good faith is rebutted upon a showing that the employer or 
                former employer 

                (1)   recklessly,    knowingly,     or   with   a  malicious    purpose 
                disclosed false or deliberately misleading information; or 

                (2) disclosed information in violation of a civil right of the 
                employee       or  former     employee     that   is  protected    under 
                AS 18.80 or under comparable federal law. 

                The superior court found that the School District was entitled to immunity 

under this statute and as a result granted the School District summary judgment on the 

claim of interference with prospective contractual relations and the claim of breach of 

the covenant of good faith and fair dealing. 

                Boyko      argues   that   AS  09.65.160     does   not  apply    because    the  parties 
negotiated around it in the resignation agreement.8           She raised this argument for the first 

        7       (...continued) 

by the Mat-Su School District. 

        8       Boyko also argues that Maker's comments to the Military Youth Academy 

                                                                                         (continued...) 

                                                   -9-	                                              6649 

----------------------- Page 10-----------------------

time in her second motion for reconsideration.             Normally we do not consider issues 
raised for the first time in a motion for reconsideration.9        But we have held that a motion 

for reconsideration "permissibly raised new arguments and new facts" when the superior 

court "denied [the] original motion 'without prejudice' and expressly invited a second 
motion."10     We may consider the arguments in Boyko's motions for reconsideration 

because the superior court, in its first order on the School District's motion for summary 

judgment,      partially  denied    summary     judgment     "without    prejudice    as  to  possible 

rebriefing." Although the argument came in Boyko's second motion for reconsideration, 

the   court's   invitation   for   rebriefing   was   apparently   not   limited   to   the   party's   first 

responses.   Boyko's second motion for reconsideration therefore sufficiently raised her 

argument for consideration on appeal. 
                "[S]tatutorily   created   rights   can   generally   be   waived."11  A   party   may 

impliedly waive a legal right if there is "direct, unequivocal conduct indicating a purpose 
to abandon or waive the legal right."12          "Whether a waiver occurred is a question of 

        8       (...continued) 

were outside the scope of AS 09.65.160 because the comments were not about Boyko's 
"job    performance."      Maker's      statements,   however,     were   within   the  scope    of  the 
immunity statute. 

        9       Clemensen v. Providence Alaska Med. Ctr., 203 P.3d 1148, 1155 (Alaska 

2009). 

        10      Shea v. State, Dep't of Admin., Div. of Ret. & Benefits, 204 P.3d 1023, 1029 

n.29 (Alaska 2009). 

        11      Deptula v. Simpson, 164 P.3d 640, 645 (Alaska 2007). 

        12      Blood v. Kenneth Murray Ins., Inc., 68 P.3d 1251, 1255 (Alaska 2003) 

(quoting Powers v. United Servs. Auto. Ass'n, 6 P.3d 294, 298-99 (Alaska 2000)). 

                                                 -10-                                            6649
 

----------------------- Page 11-----------------------

fact."13   In   this   case,   there   is   a   genuine   issue   of   material   fact   whether   Tollefsen's 

statements in the resignation agreement waived the School District's protection under 

AS 09.65.160.  According to Boyko's deposition testimony, Tollefsen stated to Boyko 

when she resigned that "there is nothing in the record, and there would be nothing that 

. . . we would release to anybody else." He allegedly stated further that Boyko "wouldn't 

be eligible for . . . rehire in this district, but . . . [she] wouldn't have anything negative 

on [her] record if [she] were to apply somewhere else."                 Boyko testified that Tollefsen 

also   told   her   that   "no   one   in   the   school   district   would   make   any   kind   of   negative 

comment about [her] or about [her] employment."                   Viewing this evidence in the light 

most favorable to Boyko, Tollefsen's alleged statements could be considered an implied 

waiver   of   the   School   District's   right   to   "disclose   information   about   [Boyko's]   job 
performance" without fear of liability.14           Boyko has raised a genuine issue of material 

fact   on   whether   the   parties'   resignation   agreement   included         an   implicit   waiver   of 

statutory immunity. 

                 We reverse the superior court's determination that the School District was 

protected by AS 09.65.160 immunity.                We remand on the issue whether Tollefsen's 

statements impliedly waived the School District's rights under AS 09.65.160.  Because 

there   are   genuine   issues   of   material   fact   whether   the   School   District   breached   the 

resignation agreement and whether the School District waived its statutory immunity, it 

was error for the superior court to grant summary judgment on Boyko's claims of breach 

of   the   covenant     of  good    faith  and   fair  dealing    and   interference    with   prospective 

contractual relations.      We reverse summary judgment as to those claims as well. 

         13      Id. at 1254. 

         14      AS 09.65.160. 

                                                    -11-                                                 6649 

----------------------- Page 12-----------------------

        D.	     The Superior Court Properly Granted Summary Judgment On The 
                Disability Discrimination Claim. 

                Boyko claims that the superior court erred in granting the School District 

summary   judgment   on   her   disability   discrimination   claim   under   the   Alaska   Human 

Rights Act (AHRA).   She specifically argues that the School District terminated her for 

being an alcoholic. 

                The AHRA, specifically AS 18.80.220(a), provides that "it is unlawful for 

. . . an employer to . . . bar a person from employment . . . because of the person's . . . 

physical or mental disability . . . when the reasonable demands of the position do not 

require distinction on the basis of . . . physical or mental disability." 

                We       use    a   three-part     analytical     framework       for    claims     under 

AS 18.80.220(a): 

                First, the employee carries the initial burden under the statute 
                of establishing a prima facie case of . . . discrimination.  The 
                burden      then   shifts  to   the  employer      to  articulate   some 
                legitimate, nondiscriminatory reason why the employee was 
                discharged.     Finally, the burden shifts back to the employee 
                to show that the employer's stated reason for discharging the 
                employee was in fact pretext.[15] 

                The     parties  do   not  dispute    that  Boyko     raised   a  prima   facie   case  of 

discrimination and that the School District presented a legitimate, nondiscriminatory 

reason   for   Boyko's   discharge.   We   will   assume   that   Boyko   had   a   disability   for   the 
purpose of this case,16 and focus on whether Boyko raised a genuine issue of material 

fact that the reason for discharge was pretextual. 

        15      Haroldsen       v.   OMNI    Enters.,   Inc.,   901  P.2d   426,   430   (Alaska    1995) 

(internal citations and alterations omitted). 

        16      Boyko   argues   that   alcoholism   is   a   disability.  We   have   not   previously 

addressed this issue, and we do not decide it here. 

                                                  -12-	                                               6649 

----------------------- Page 13-----------------------

                To raise a genuine issue of material fact, Boyko must present more than 
"unsupported assumptions and speculation."17             We will affirm summary judgment if the 

plaintiff "presents nothing more than [her] own subjective belief that the employer's 
asserted ground is a pretext."18        We must determine whether Boyko "raised sufficient 

doubts regarding the [School District's] stated justifications to permit a reasonable jury 
to infer that the reasons given [were] pretextual."19 

                Boyko   presents   three   arguments   to   support   her   claim   that   the   School 

District's stated reason for terminating her - that she violated the last chance agreement 

-    was    pretext:   (1)   Tollefsen    promised     her  that   she  would   not   receive   negative 

employment references, but he did not intend to keep that promise; (2) when she signed 

her last chance agreement, Tollefsen said that she would fail and that she was going to 

die; and (3) she was not allowed to explain herself after she was accused of violating the 

last chance agreement. 

                Boyko's first argument, that Tollefsen did not intend to keep his promise 

that   she   would   not   receive   negative   references,   is   not   supported   by   any   admissible 

evidence and presents only unsupported speculation. 

                Boyko's next argument, that the School District "wrote [her] off the minute 

they found out she was an alcoholic" and forced her to resign, is also conclusory and 

speculative.  She points to Tollefsen's alleged statements to her when she signed the last 

chance agreement that she was a liar, that she was going to die, and that she would fail 

and probably be terminated. However, the School District did not immediately terminate 

        17      Perkins v. Doyon Universal Servs., LLC, 151 P.3d 413, 416 (Alaska 2006) 

(internal quotations omitted). 

        18      Id. (internal quotations and alterations omitted). 

        19      Haroldsen, 901 P.2d at 431-32. 

                                                  -13-                                             6649
 

----------------------- Page 14-----------------------

her upon learning of her alcoholism, but instead made several attempts to assist her in 

rehabilitation by sending her to Providence Breakthrough and providing her with the last 

chance agreement.        It only began the termination process after Boyko violated her last 
chance agreement, which provided a permissible reason for termination.20                  The District 

alleged that Boyko violated her last chance agreement three ways:  (1) by changing the 

agreed-upon authorization allowing Providence Breakthrough to release information to 

the District; (2) by testing positive for alcohol at Providence Breakthrough; and (3) by 

not adhering to Hazeldon's conditions for release, which included continued sobriety. 

Boyko herself admitted that disability discrimination did not cause her to lose her job. 

Boyko's      argument   that   Tollefsen's     statements    indicated   that   the  School   District's 

proffered reason was pretextual is not supported by any evidence. 

                Finally,   Boyko   argues      that   she   was   not   allowed   to   explain   at   a   pre- 

termination      meeting    Providence     Breakthrough's      decision    to  discharge    her.   It  is 

undisputed that Boyko's last chance agreement conditioned her continued employment 

on    successfully    completing     "the   approved     plan   of  continued     rehabilitation   from 

Providence Breakthrough," that her continuation of employment was "contingent upon 

[Boyko] satisfactorily meeting all of the terms" of the last chance agreement, and that her 

failure to do so would "subject [Boyko] to immediate discipline up to and including 

termination."      Providence      Breakthrough      discharged     Boyko    from    its  rehabilitation 

program because it found that she had tested positive for alcohol and refused to attend 

a recommended hospitalization treatment program.  Boyko's argument is that the School 

        20      See Longen v. Waterous Co.,   347 F.3d 685, 689 n.4 (8th Cir. 2003); Brock 

v. Lucky Stores, Inc., 23 Fed. App'x. 709, 711-12 (9th Cir. 2001); Mararri v. WCI Steel, 
Inc., 130 F.3d 1180, 1182-83 (6th Cir. 1997); McKey v. Occidental Chem. Corp ., 956 
F. Supp. 1313, 1319 (S.D. Tex. 1997);  Golson-El v. Runyon, 812 F. Supp. 558, 561 
(E.D. Pa. 1993); Rhodes v. URM Stores, Inc., 977 P.2d 651, 654 (Wash. App. 1999). 

                                                  -14-                                            6649
 

----------------------- Page 15-----------------------

District did not give her an opportunity to explain Providence Breakthrough's decision. 

Implicit in her argument is that there may have been extenuating circumstances or that 

Providence Breakthrough's decision was invalid.  There may have been arguments she 

could have made to Providence Breakthrough, but the School District was entitled to rely 

on    Providence   Breakthrough's     determination.    After   Providence    Breakthrough 

communicated to the School District its decision to discharge Boyko, the School District 

acted within the scope of the last chance agreement in terminating her.      Boyko has not 

raised a genuine issue of material fact on whether the School District's decision to follow 

the terms of the last chance agreement was pretextual. 

              Boyko raised no genuine issues of material fact on whether the School 

District's reason for termination was pretextual.  We affirm the superior court's grant of 

summary judgment on the discrimination claim. 

IV.    CONCLUSION 

              We REVERSE the grants of summary judgment on the claims of breach of 

the covenant of good faith and fair dealing and interference with prospective contractual 

relations and REMAND for trial.      Among the jury issues at trial will be whether the 

agreement was in fact a contract and, if so, what performance was called for on the part 

of the School District and whether the District is statutorily immune.  We AFFIRM the 

grant of summary judgment on the discrimination claim. 

                                            -15-                                      6649
 

----------------------- Page 16-----------------------

WINFREE, Justice, concurring. 

                 I  agree    with   the  court's    resolution    of  the   summary      judgment     issues 

presented in this appeal.       I write separately only to express my view that if Boyko and 

the School District actually entered into a resignation agreement as Boyko alleged, that 

agreement       itself  is  a  waiver     of  the   School    District's    statutory    immunity      under 

AS 09.65.160.  In the absence of an express reservation of its statutory immunity rights 

as a part of a resignation agreement, an employer cannot enter into an agreement limiting 

what the employer can say about the resigning employee and then rely on the statute to 

immunize itself from damages arising from its breach of the agreement: 

                 A waiver can be accomplished either expressly or implicitly. 
                 An    implied     waiver    arises   where    the   course    of  conduct 
                 pursued      evidences     an  intention    to   waive    a  right,  or   is 
                 inconsistent with any other intention than a waiver, or where 
                 neglect to insist upon the right results in prejudice to another 
                        [1] 
                party . 

                 To the extent the court suggests otherwise, by stating there is a genuine 

issue of material fact on whether the resignation agreement, if it exists, "included an 

implicit waiver of statutory immunity," (emphasis added) I disagree. 

         1       Milne v. Anderson, 576 P.2d 109, 112 (Alaska 1978) (emphasis added). 

                                                    -16-                                                 6649 
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