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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lentine v. State (7/27/2012) sp-6700

Lentine v. State (7/27/2012) sp-6700

        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 



CINDY LENTINE,                                  ) 

                                                )       Supreme Court No. S-14091 

                        Appellant,              ) 

                                                )       Superior Court No. 3AN-08-09525 CI 

        v.	                                     ) 

                                                )       O P I N I O N 

STATE OF ALASKA,                                ) 

                                                )       No. 6700 - July 27, 2012 

                        Appellee.	              )
 

                                                )
 



                Appeal from the Superior Court of the State of Alaska, Third 

                Judicial District, Anchorage, Eric A. Aarseth, Judge. 



                Appearances:        Kenneth      W.    Legacki,      Anchorage,      for 

                Appellant.     Brenda   B.   Page,   Assistant   Attorney   General, 

                Anchorage, and John J. Burns, Attorney General, Juneau, for 

                Appellee. 



                Before:      Carpeneti,     Chief   Justice,    Fabe,   Winfree,     and 

                Stowers, Justices. 



                FABE, Justice. 



I.       INTRODUCTION 



                The State of Alaska dismissed an employee based upon the charge that the 



employee submitted a falsified timesheet and claimed full pay for a week when she was 



not working.     The employee argues that her dismissal violated the implied covenant of 



good     faith  and   fair  dealing  because     a  biased    supervisor    was   involved    with   the 



termination   decision,   because   the   State's   investigation   was   conducted   unfairly,   and 


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

because she was treated differently from similarly situated employees.                We affirm the 



superior court's decision that there was insufficient evidence to show a breach of the 



implied covenant on any of these grounds.            We also affirm the superior court's ruling 



that   the   employee's   unfair   labor   practice   claim   was   untimely   and   therefore   waived. 



Finally, we affirm the superior court's award of attorney's fees to the State. 



II.     FACTS AND PROCEEDINGS 



        A.      Facts 



                Cindy Lentine worked for seven years as an administrative manager at the 



Alaska Division of Wildlife Conservation, which is part of the Department of Fish and 



Game. Her position originally involved supervising other administrators and addressing 



human resources and budgeting matters.   In 2001, one of Lentine's supervisees, Sandra 

Robinson, filed a grievance against her.1          Robinson believed that Lentine had falsely 



accused her of "fudging" employee timesheets.              The conflict was resolved by splitting 



Lentine's   duties   between   herself   and   Robinson:      Lentine   retained   responsibility   for 



budget     and   accounting,     and   Robinson      gained    responsibility    for  personnel     and 



timekeeping   matters.      Over   time,   Lentine   regained   responsibility   for   some   matters 



involving employee timesheets. 



                Lentine experienced communications problems with another employee, 



David Thomson, in 2007.          Thomson served as the Wildlife Division's administrative 



manager      in  Juneau.     Lentine    sent   her  supervisor,    Grant    Hilderbrand,     an  email 



complaining about Thomson's behavior.              The final email is not in the record, but in a 



draft, Lentine wrote:   "I am asking you to tell David, in your nice way, to back off.  We 



all have a lot of work to do and I do not have the time to tread water around David." 



Hilderbrand testified that he received an email from Lentine that was "similar" to the 



        1       A pseudonym has been used to protect her privacy. 



                                                  -2-                                              6700 


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draft in the record. It was "fairly clear" to Hilderbrand that Lentine and Thomson "didn't 



really enjoy each other's company," but Hilderbrand "didn't view it as a major problem." 



Instead, Hilderbrand saw it as a situation where "folks that don't typically like each other 



do have to work together [and] get things done." 



                Lentine's colleague, Robinson, was diagnosed with breast cancer in 2007. 



That September, Lentine - who is a breast cancer survivor - agreed to accompany 



Robinson to the Mayo Clinic in Rochester, Minnesota for treatment.                  Before the trip, 



Lentine filled out a request for one week of leave and had it signed by Fish and Game's 



acting supervisor, Earl Becker.  (Hilderbrand, the regional supervisor, was on vacation 



at the time.)  The request indicated that Lentine would take a full week - 37.5 hours - 



of personal leave; under "explanation," Lentine wrote "Mayo Clinic." 



                Lentine and Robinson arrived in Minnesota on Monday, September 24, 



2007.  Lentine testified that she spent most of the week in the lobby of the Mayo Clinic 



while Robinson attended appointments.           On Wednesday, Lentine's mother, who lived 



about   150   miles   away,   came   to   Rochester   to   join   them. On   Friday,   Lentine   and 



Robinson drove Lentine's mother home in the afternoon, and they returned to Anchorage 



that weekend. 



                The next week, Robinson left a timesheet for the week of September 24 on 



Lentine's office chair. The timesheet, signed by Hilderbrand, indicated that Lentine had 



worked the full week.  Hilderbrand testified that he was not aware of any inconsistencies 



with the timesheets because his practice was to sign timesheets without reviewing them 



first.  Having just returned from vacation himself, "it didn't surprise [him] at all" that he 



did not notice that Lentine and Robinson had been absent the previous week.  Although 



Robinson told Lentine that she had informed Hilderbrand that Lentine had worked a full 



week   in   Minnesota,   Hilderbrand   did   not   recall   such   a   conversation. Robinson   also 



changed Lentine's record from leave time to work time on the office's computerized time 



                                                 -3-                                           6700
 


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

management system.         Robinson explained her actions in an email to Lentine:              "[Y]ou 



were working while we were in Rochester so I deleted the leave from your timesheet and 



entered it as time worked.       I hope that is okay with you." 



                That Friday, Robinson came to Lentine's office and told Lentine she had 



"done   [Lentine]   a   favor"   by   arranging   for   Hilderbrand   to   sign   the   new   timesheet. 



According to an investigatory interview, Lentine expressed to a colleague that she was 



uncomfortable   with   Robinson's   actions,   that   she   had   not   worked   the   full   week   in 



Minnesota, and that she planned to have Robinson change the timesheet back to leave 



time.  Nonetheless, Lentine did initial the new timesheet.  She forgot to add the date, so 



another employee backdated her signature to October 1 while the timesheet was being 



processed. 



                Before and during the Minnesota trip, Lentine exchanged emails with a 



former colleague, Lauri Ritter, who had since retired.  Lentine told Ritter that she would 



be "checking emails and voice mail" while in Minnesota, and after she returned, she 



reported that she and Robinson "had some fun by sightseeing, eating and shopping." 



Ritter apparently became suspicious of Lentine's intentions, and she wrote to Thomson 



with her concerns:  "It kind of sounds like [Lentine and Robinson] are going to pretend 



that they are still in communication via the email and voice mail as if they aren't even 



gone."   Two days later, Ritter wrote: "[I]t will be interesting to see what their timesheets 



show."    After Lentine submitted her amended timesheet, Ritter wrote to Thomson:  "I 



CANNOT believe the nerve!"           Thomson replied:  "This is not the way to do business." 



                After learning that Lentine submitted a timesheet showing that she had 



worked a full week in Minnesota, Thomson conveyed his concerns to the Division of 



Personnel.    That division assigned an investigator, Pam Keane, to look into the matter. 



Keane spoke with Thomson, and Thomson forwarded Ritter's email messages to Keane. 



                                                  -4-                                            6700
 


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According to Keane, Thomson remained involved "[a] little bit" in the investigation, 



although she did not indicate the exact nature of his involvement. 



                Keane started her investigation by speaking with Hilderbrand and with 



Robinson's supervisor. Keane and Hilderbrand discussed Fish and Game's timekeeping 



practices.   Keane then interviewed Lentine.  Hilderbrand's memo to Lentine scheduling 



this interview described Lentine's alleged misconduct as "misrepresent[ing] actual hours 



worked on your timesheet for pay period   ending September 30, 2007."                     The memo 



informed Lentine that "these allegations in and of themselves[] may result in discipline 



up   to   and   including   dismissal."   According   to   the   memo,   the   interview   would   be 



Lentine's "only opportunity . . . to rebut these allegations, provide explanation or offer 



mitigating circumstances." 



                Keane,      Lentine,    Hilderbrand,     and    Steve    Porter,    Lentine's    union 



representative, attended the interview.         Lentine told Keane that she had initialed the 



amended timesheet because Robinson had pressured her to do so.   She expressed strong 



remorse,   explaining   that   she   was   "caught   up   in   the   emotion   and   trying   to   build   a 



relationship with [Robinson]."         Lentine stated that she checked emails on the trip and 



talked to Robinson about work; she told Keane:              "I can understand where [Robinson] 



really sincerely thought that we were working during that time by our discussions.  But 



I feel bad - that was not my intent.           I clearly had intended to take leave."         Lentine 



explained Hilderbrand's signature on the amended timesheet by noting that Hilderbrand 



"just trusts his people and just signs away on [timesheets]." 



                Keane      then    interviewed     Robinson.        Robinson       was    accused     of 



misrepresenting her own work hours and of falsely entering information on Lentine's 



timesheet.   Responding to the first charge, Robinson maintained that she worked about 



two hours a day in Minnesota, as she reported on her time sheet.                 Responding to the 



second charge, Robinson stated that she did believe Lentine had worked full time, or 7.5 



                                                  -5-                                            6700
 


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

hours per day, in Minnesota.         She said that while in the Mayo Clinic lobby, Lentine 



"would always be on her computer working." 



                During   the   course of the investigation, Lentine sent a memorandum to 



Porter, her union representative. The memo expressed Lentine's desire to file grievances 



against Hilderbrand for signing her amended timesheet before Lentine herself had signed 



it, against another employee who had certified the timesheet, and "most of all" against 



Robinson      for  "fudging"     her  timesheet   without   her    approval   and   then   "pressuring 



[Lentine] into initialing the timesheet . . . by convincing [her] that [they] both were 



'working' at the Mayo Clinic." 



                Keane held a second investigative interview with Lentine to clarify the 



discrepancies between Lentine's and Robinson's accounts.   Keane's handwritten notes 



from that interview indicate that Lentine repeated her account from the first interview: 



She   had   checked   and   responded   to   work   email   while   in   Minnesota   and   talked   with 



Robinson about work, but she did not "really consider that [to be] working."  According 



to Keane's notes, Lentine reiterated that she had a lapse in judgment and questioned 



Robinson's integrity on timekeeping matters. 



                Following the investigation, Keane, in consultation with her supervisors 



Stacie Bentley and Personnel Division Director Nicki Neal, decided to terminate Lentine 



for falsely claiming a week of pay for time not worked.             Robinson was also terminated 

for   changing    Lentine's   timesheet.2     Keane   gave   her   recommendation         to   Lentine's 



supervisors, Hilderbrand and Wildlife Division Director Doug Larsen, who "ultimately 



agreed"   to   the   decision   to   dismiss   Lentine.   Keane   testified   that   Thomson   did   not 



        2       Robinson was not disciplined for marking that she had worked two hours 



a day in Minnesota, because she had advance approval from her supervisor for that 

arrangement. 



                                                  -6-                                               6700 


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

participate   in   the   dismissal   decision.    Larsen   testified   that   he   could   not   remember 



whether Thomson attended the meeting in which the dismissal decision was made. 



                 Hilderbrand   sent   Lentine   a   memo   informing   her   of   her   termination   on 



December 3, 2007.  The memo emphasized that Lentine's position as an administrative 



manager meant she was "held to a higher standard than other staff on administrative 



issues" and explained the reason for the dismissal as Lentine's "intentionally sign[ing]" 



a timesheet that misrepresented her actual hours worked. 



                 The next day, Lentine wrote to Larsen, asking him to speak on her behalf 



against   the   termination   decision.     She   described   signing   the   amended   timesheet   as 



"totally out of character" and a "lapse of judgment" caused by pressure from  Robinson. 



Lentine   suggested   that   mitigating   circumstances   -          her   record   of   honesty   and   the 



financial hardship of potential future breast cancer treatment - warranted probation 



rather    than   dismissal.     Larsen     replied    that  he   was    "informed     about    all  of  the 



circumstances   surrounding   the   dismissal"   and   "involved   in   the   final   decision."         He 



recommended she address further concerns to her union representative. 



                 Lentine proceeded to file a Step 2 grievance, represented again by Porter. 



The grievance asserted that Wildlife Division supervisors routinely allowed employees 



to file inaccurate timesheets under an unofficial "comp time" policy and that Lentine had 



been unfairly singled out. According to the grievance, Lentine did not bring up the comp 



time   policy   as   a   defense   to   investigators   because   she   did   not   want   to   implicate   her 



colleagues in any wrongdoing or "alienate their support." 



                 After the grievance was filed, Thomson wrote a memo to Keane supporting 



Lentine's dismissal.       Thomson wrote that "[t]he Division has no un-stated comp time 



policy."   He also argued that regardless of any such policy, Lentine "was fully prepared 



to take personal leave for the week . . . she was prepared to not use any 'comp time' she 



feels she had accrued." 



                                                    -7-                                              6700
 


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

                Lentine's grievance was denied, in part because Lentine never obtained 



permission to use "comp time" to claim her week in Minnesota as time worked.  Keane 



drafted the denial; it was signed by the Commissioner of the Department of Fish and 



Game. 



                Lentine then filed a Step 3 grievance, which noted that Hilderbrand himself 



worked   irregular   hours   but   nonetheless   recorded   a   routine   8   to   5   workday   on   his 



timesheets.     That   grievance   was   also   denied.    A   labor   relations   analyst   drafted   the 



response,   and     Personnel    Division    Director    Nicki   Neal   signed    it   on  behalf  of  the 



Commissioner of the Department of Administration. 



                Porter   recommended   that   the   union   not   pursue   Lentine's   grievance   to 



arbitration.   In his memo to the union's grievance committee, Porter noted that even if 



an unofficial comp time policy existed, Lentine "never approached Grant Hilderbrand 



with a request for comp time." Lentine appealed the union's decision, and the grievance 



committee again chose not to pursue arbitration. 



        B.      Proceedings 



                Lentine filed a complaint against the State in August 2008. She alleged that 



the State violated the implied covenant of good faith and fair dealing by dismissing her 



for actions "for which no one else was disciplined."  The trial court denied both parties' 



motions for summary judgment and held a five-day bench trial in June 2010.  Witnesses 



included   Lentine,   two   of   her   former   supervisors,   State   investigator   Keane,   a   union 



official, Wildlife Division Director Larsen, and Personnel Division Director Neal. 



                In addition to her claim of disparate treatment, Lentine argued at trial that 



she had worked a full week in Minnesota and was not given the opportunity to prove her 



work   schedule   during   the   investigation.     She   also   argued   that   the   investigation   was 



compromised by the alleged bias of Thomson.                During cross-examination of a witness, 



Lentine's counsel raised the claim for the first time that the State committed an unfair 



                                                   -8-                                             6700
 


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labor practice by not following the Collective Bargaining Agreement's (CBA) procedural 



requirements during the grievance process. 



                The superior court ruled in favor of the State in an oral decision issued in 



September 2010.       The superior court found that Lentine worked at most "one to two 



hours per day" in Minnesota and that had she worked more than that, she would have 



produced supporting evidence during the investigation. The superior court further found 



that although Fish and Game allowed for flexible work hours, Lentine did not show 



disparate treatment because there was "insufficient evidence" to prove that supervisors 



knowingly permitted other employees to claim work hours for leave time.  On the claim 



of Thomson's bias, the superior court found no "overt act" by Thomson that interfered 



with Lentine's right to a fair hearing and no evidence of "bad motive" on Thomson's 



part.  Finally, the superior court found that Lentine's unfair labor practice claim was 



untimely and therefore waived, but nonetheless ruled that a change in the grievance 



process   would     not   have  altered   the  result   because   Lentine    did  not   have  a  viable 



underlying claim.  The trial court awarded $50,586.14 in attorney's fees and costs to the 



State, representing 30% of the State's actual reasonable fees and costs. 



III.    STANDARD OF REVIEW 



                "Whether an employer's action breached the covenant of good faith and fair 

dealing is a question for the trier of fact."3        We review that factual finding "for clear 



error, and will reverse only if we have a definite and firm conviction on the entire record 

that a mistake has been made, although there may be evidence to support the finding."4 



        3       Crowley   v.   State,   Dep't   of   Health   &  Soc.   Servs., 253   P.3d   1226,   1229 



(Alaska 2011) (citing Luedtke v. Nabors Alaska Drilling, Inc. , 834 P.2d 1220, 1223 

(Alaska 1992)). 



        4       Id. (quoting Fletcher v. Trademark Constr., Inc. , 80 P.3d 725, 729 (Alaska 



                                                                                       (continued...) 



                                                  -9-                                            6700
 


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

"[I]t is the function of the trial court, not of this court, to judge witnesses' credibility and 

to weigh conflicting evidence."5 



                A superior court's procedural decisions are reviewed under an abuse of 

discretion standard.6    We also review awards of attorney's fees for abuse of discretion.7 



"We will reverse a ruling for abuse of discretion only when we are left with a definite 

and firm conviction, after reviewing the entire record, that the trial court erred."8 



IV.	    DISCUSSION 



        A.	     The State Did Not Breach The Implied Covenant Of Good Faith And 

                Fair Dealing. 



                The implied covenant of good faith and fair dealing covers all employment 

contracts   in   Alaska.9   It   has   both   a   subjective   and   an   objective   component.1 The 



subjective component prohibits an employer from "acting with a subjectively improper 

motive";11    the   objective   component   "prohibits   the   employer   from   dealing   with   the 



        4(...continued) 



2003)) (internal quotation marks omitted). 



        5	      In re Adoption of A.F.M. , 15 P.3d 258, 262 (Alaska 2001) (quoting Knutson 



v. Knutson , 973 P.2d 596, 599-600 (Alaska 1999)). 



        6	      Rockstad v. Erikson , 113 P.3d 1215, 1219-20 (Alaska 2005). 



        7	      Hallam v. Alaska Airlines, Inc. , 91 P.3d 279, 283 (Alaska 2004). 



        8       Willoya v. State, Dep't of Corr., 53 P.3d 1115, 1119 (Alaska 2002) (citing 



Dougan v. Aurora Elec. Inc. , 50 P.3d 789, 793 (Alaska 2002)). 



        9       Smith v. Anchorage Sch. Dist., 240 P.3d 834, 844 (Alaska 2010) (citing 



Mitchell v. Teck Cominco Alaska, Inc. , 193 P.3d 751, 760 (Alaska 2008)). 



        10      Id. (citing Mitchell , 193 P.3d at 761). 



        11      Pitka v. Interior Reg'l Hous. Auth. , 54 P.3d 785, 789 (Alaska 2002) (citing 



                                                                                      (continued...) 



                                                 -10-	                                          6700
 


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

employee in a manner that a reasonable person would regard as unfair."12  Lentine argues 



that her dismissal violated both aspects of the implied covenant of good faith and fair 



dealing. 



                1.	    The superior court did not err in finding that Lentine did not 

                       prove a subjective breach of the implied covenant. 



                The subjective component of the implied covenant "prohibits an employer 



from    terminating    an  employee     for  the  purpose   of  depriving   the  employee     of  the 

contract's   benefits."13   Lentine   contends   that   her   dismissal   violated   this   component 



through     the  alleged  bad   faith  of  Thomson,    who    oversaw    the  Wildlife   Division's 



administrative functions from its Juneau headquarters.          Lentine argues that Thomson's 



actions should be analyzed under the "cat's paw" doctrine, recently discussed by the 

United States Supreme Court in Staub v. Proctor Hospital.14              That doctrine holds an 



employer "liable for the animus of a supervisor who was not charged with making the 

ultimate   employment   decision."15      But   courts   have   generally   applied   the   cat's   paw 



doctrine to cases arising under federal anti-discrimination statutes, rather than cases 

involving solely personal animus.16        Here, Lentine does not allege any discriminatory 



        11(...continued) 



Era Aviation, Inc. v. Seekins , 973 P.2d 1137, 1139 (Alaska 1999)). 



        12     Mitchell , 193 P.3d at 761 (quoting Belluomini v. Fred Meyer of Alaska, 



Inc. , 993 P.2d 1009, 1013 (Alaska 1999)) (internal quotation marks omitted). 



        13	    Id. (quoting Belluomini , 993 P.2d at 1013). 



        14      131 S. Ct. 1186 (2011). 



        15     Id. at 1190. 



        16     Id. (applying cat's paw doctrine to Uniformed Services Employment and 



Reemployment Rights Act); Poland v. Chertoff , 494 F.3d 1174, 1182 (9th Cir. 2007) 

                                                                                     (continued...) 



                                                -11-	                                         6700
 


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

motive; instead, she argues that Thomson's alleged bad faith is the result of a complaint 



she made about Thomson's communication style. 



                In Crowley v. State, Department of Health & Social Services, we articulated 



the standard for showing a subjective breach of the implied covenant:                   The employee 



"must prove that the employer's termination decision was 'actually . . . motivated by an 



improper or impermissible objective' - that the decision 'was actually made in bad 

faith.'   "17  In  Crowley,   we   concluded   that   an   employer   would   not   be   liable   for   a 



supervisor's alleged bias where the supervisor "did not fire" the plaintiff even though she 

"played a tangential role in the events leading up to the firing."18           The fired employee in 



Crowley  testified   that,   in   response   to   her   request   not   to   work   under   her   supervisor 



        16(...continued) 



(holding that cat's paw applies in Age Discrimination in Employment Act cases and 

other cases involving "a plaintiff's protected activity," including cases arising under 

Title VII of the Civil Rights Act); Laxton v. Gap Inc. , 333 F.3d 572, 584 (5th Cir. 2003) 

(applying cat's paw to Pregnancy Discrimination Act); Santiago-Ramos v. Centennial 

P.R. Wireless Corp., 217 F.3d 46, 55 (1st Cir. 2000) ("One method [of proving dismissal 

was a pretext] is to show that discriminatory comments were made by . . . those in a 

position   to   influence the decisionmaker" in   a Title VII   case); Griffin v. Washington 

Convention   Ctr.,   142   F.3d   1308,   1311-12   (D.C.   Cir.   1998)   (applying   cat's   paw   to 

Title VII case);  Willis v. Marion Cnty. Auditor's Office, 118 F.3d 542, 547 (7th Cir. 

1997) (applying cat's paw to Title VII case and citing previous decisions applying the 

doctrine to age discrimination and cases of "discriminatory motive"); Stacks v. Sw. Bell 

Yellow Pages, Inc., 27 F.3d 1316, 1323 (8th Cir. 1994) ("[a]n employer cannot escape 

responsibility for [ ] discrimination . . . , when the facts on which the reviewers rely have 

been filtered by a manager determined to purge the labor force of [a protected class of 

workers]") (internal quotation marks omitted). 



        17      253 P.3d 1226, 1230 (Alaska 2011) (quoting Era Aviation, Inc. v. Seekins , 



973 P.2d 1137, 1141 (Alaska 1999)). 



        18      Id. at 1232. 



                                                  -12-                                             6700
 


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

anymore, the supervisor became upset and told the employee she "will be sorry."19                   The 



supervisor sent a letter to a department manager citing her concerns about the employee's 

behavior.20     The   employee   was   fired   following   an   independent   investigation.21        We 



concluded that the supervisor's actions were too attenuated to the termination decision 

to hold the employer liable for the supervisor's alleged bad faith.22 



                The facts in  Crowley are analogous to this case.             First, Lentine has not 



shown that Thomson was actually motivated by bad faith.                    Lentine testified that she 



wrote to Hilderbrand, her supervisor, complaining about Thomson's communication 



style.  While Hilderbrand testified that he received such an email from Lentine, he did 



not remember if he transmitted Lentine's concerns directly to Thomson.  Instead, he had 



"discussions" with the parties involved about "the importance [of] communications." 



Hilderbrand "never had the sense" that Thomson was "out to get" Lentine and, in fact, 



he   noted   that   early   in   Hilderbrand's   tenure   Thomson   had   lobbied   "pretty   hard"   to 



restructure the office so Lentine would supervise Robinson. Although the fact that Ritter 



approached Thomson, who was not Lentine's supervisor, regarding Lentine's personal 



emails could raise   a   question, Thomson's replies to Ritter do not themselves reflect 



personal   animus   against   Lentine.       And   it   is   the   superior   court's   function   to   weigh 

conflicting evidence.23       We cannot conclude that the superior court erred in finding 



inadequate evidence to show that Thomson acted in bad faith against Lentine. 



        19      Id. at 1231.
 



        20      Id. at 1228.
 



        21
     Id. at 1228-29. 



        22      Id. at 1232. 



        23      In re Adoption of A.F.M. , 15 P.3d 258, 262 (Alaska 2001) (quoting Knutson 



v. Knutson , 973 P.2d 596, 599-600 (Alaska 1999)). 



                                                  -13-                                             6700
 


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

                Second, Lentine has not shown that Thomson played a significant role in 



the   decision   to   dismiss   her. As   in  Crowley,   Thomson's   email   to   the   Division   of 



Personnel started the investigatory process.           But the decision to terminate was based 



upon several interviews with Lentine and others, at which Thomson was not present.  At 



the meeting in which it was decided that Lentine should be dismissed, Wildlife Division 



Director Larsen could not recall whether Thomson spoke and was "not even positive that 



[he] was there."     Keane testified that Thomson "didn't have a say on what the decision 



was as far as dismissal."       And Hilderbrand testified that while Thomson was present 



when he told Lentine she would be dismissed, Thomson did not say anything and was 



only there as an administrative representative because Keane was unavailable. 



                After Lentine was terminated and had filed her second grievance, Thomson 



wrote to Keane in support of the dismissal decision. Thomson stated that Fish and Game 



did not have an informal "comp time" policy.  The denial that Keane drafted, however, 



did not conclude that Fish and Game did not have a comp time policy, but instead was 



based on the fact that Lentine did not speak to her supervisor about using such a policy 



for   her   Minnesota   trip.  In   addition,   Lentine's   second   grievance   was   denied   by   an 



independent labor analyst who presumably was not in contact with Thomson.  Lentine's 



union representative also recognized that even if an unofficial comp time policy existed, 



Lentine "never approached Grant Hilderbrand with a request for comp time."  The trial 



court   did   not   err  in  finding  inadequate    evidence    to  support   Lentine's   claims    that 



Thomson acted in bad faith toward Lentine and was a significant factor in causing her 



dismissal. 



                                                 -14-                                            6700
 


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

                2.	     The superior court did not err in finding that Lentine did not 

                        prove an objective breach of the implied covenant. 



                        a.	     Lentine did not prove that the State's investigation was 

                                conducted unfairly. 



                An investigation's fairness or reasonableness "is a fact-dependent question 

and may depend  on the strength of the evidence of the underlying infraction."24              Lentine 



argues that the State's investigation was unfair for two related reasons.              First, Lentine 



contends that she did not present evidence of her work in Minnesota because she never 



believed the investigation was about whether or how much she worked in Minnesota. 



Instead, she thought the reason for the investigation was that she submitted a timesheet 



showing work time instead of leave time while she was not physically at the office. 



Further, she claims that Keane did not understand that Lentine could have completed 



work outside of the office. But the trial court found that the charges against Lentine 



focused on "whether or not [Lentine] accurately reported the time worked while she was 



in Minnesota," and that if Lentine believed she had worked a full week in Minnesota, 



"she would have presented that evidence." 



                The trial court did not err in finding that the focus of the investigation was 



"never realistically a point of confusion."  Hilderbrand's memo to Lentine at the start of 



the investigation described the charge as "misrepresent[ing] actual hours worked on your 



timesheet" and advised her that the investigative interview would be Lentine's "only 



opportunity   .   .   .   to   rebut   these   allegations,   provide   explanation   or   offer   mitigating 



circumstances."     Nonetheless, Lentine told Keane that she did not complete substantial 



work in Minnesota.       After Robinson told Keane she believed Lentine did work a full 



week in   Minnesota, Keane arranged a second interview with Lentine to explore this 



        24      Mitchell v. Teck Cominco Alaska, Inc. , 193 P.3d 751, 761 n.32 (Alaska 



2008). 



                                                 -15-	                                             6700 


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

discrepancy.      Lentine repeated that although she had checked and responded to work 



email while in Minnesota, she did not "really consider that working." 



                In both interviews, Lentine repeatedly expressed remorse for submitting the 



amended timesheet.   She was asked directly about her activity in Minnesota, and as the 



trial court found,  "she would have produced evidence" of her work in Minnesota "if she 



had actually done [that work]."   Lentine points to Keane's testimony that activities such 



as checking email would count as work if performed in the office, but that alone does not 



support Lentine's claim that she worked a full week in Minnesota, and the trial court did 



not err in finding that Lentine worked "at best" one to two hours per day. 



                Second, Lentine argues that Keane failed to reveal certain facts to the other 



decision-makers, causing them to miss the "full story" of Lentine's actions.   Lentine has 



not   shown   how   knowledge   of   these   facts   would   have   affected   the   outcome   of   the 

investigation.25     We     agree   with   the  trial  court   that  any   potential   defects   in  the 



investigative process were cured by "the fact that [Lentine] . . . did not, in fact, work the 



37 1/2 hours while in Minnesota." The trial court did not err in finding insufficient 



evidence that the investigation was conducted unfairly. 



                        b.      Lentine did not prove disparate treatment. 



                Lentine argues that her termination was objectively unfair because another 



employee allegedly committed a similar infraction but was not punished in a similar 



        25      Lentine alleges that Larsen was not told that Lentine initially submitted a 



leave slip and that Robinson had prepared the amended timesheet, which Hilderbrand 

approved.  But Hilderbrand testified that he signed the amended timesheet unthinkingly 

and never had a discussion with Robinson about the matter that would have indicated his 

approval. Lentine also claims the decision-makers did not realize that Robinson vouched 

for Lentine working a full week in Minnesota.   But the investigators were entitled to rely 

upon Lentine's own repeated statements that she did   not believe she had worked in 

Minnesota, let alone a full 37.5 hours. 



                                                 -16-                                            6700
 


----------------------- Page 17-----------------------

manner.     An   employer   must   "treat   like   employees   alike,"26   and   disparate   employee 



treatment can "violate the objective aspect of the implied covenant."27             Like employees, 



in the context of the implied covenant, are "those who are members of the same class, 

as defined by job position and the nature of the alleged misconduct."28               The trial court 



found insufficient evidence that Fish and Game supervisors "knowingly permitted" other 



employees to "work less than 37.5 hours and not take leave for the difference between 



time actually worked and the 37.5 hours for which they were paid." 



                Lentine   argues   that   Fish   and   Game's   more   lenient   handling   of   another 



employee's amended timesheets is evidence of disparate treatment.                   But she has not 



shown   that   the   other   employee   committed   the   same   infraction   for   which   she   was 



dismissed:     intentionally    "falsifying    information     on  [a]  timesheet."     According     to 



Lentine's testimony, the employee went to Paris in October 2007 for a trip combining 



a work-related conference and vacation time.  A timesheet was submitted on his behalf 



that originally showed work time while the employee was in Paris; it was later changed 



to   leave   time.  But    the  employee     did   not  sign  the  timesheet;    he  was   marked     as 



"unavailable" on the signature line.         Hilderbrand testified that Anchorage staff often 



prepared standard timesheets for employees who were out of town as a "place holder," 



and those employees would modify the timesheets upon returning.                     Lentine did not 



        26      Luedtke   v.   Nabors   Alaska   Drilling,   Inc. , 834   P.2d   1220,   1224   (Alaska 



1992) (quoting Jones v. Central Peninsula Gen. Hosp. , 779 P.2d 783, 789 n.6 (Alaska 

1989)). 



        27      Pitka v. Interior Reg'l Hous. Auth. , 54 P.3d 785, 789 (Alaska 2002) (citing 



Era Aviation , Inc. v. Seekins , 973 P.2d 1137, 1139-40 (Alaska 1999)). 



        28      Hoendermis       v.   Advanced    Physical   Therapy,   Inc. ,   251  P.3d   346,   357 



(Alaska 2011) (citing Mitchell , 193 P.3d at 761). 



                                                 -17-                                            6700
 


----------------------- Page 18-----------------------

present evidence that the employee in question had arranged for the inaccurate timesheet 



to be submitted or that he intended to claim his vacation leave time in Paris as work time. 



                 Lentine also claims that Hilderbrand approved a week of "flex time" for the 



employee traveling to Paris, but while Hilderbrand agreed that Fish and Game allowed 



for flexibility in scheduling, he testified that "what was imperative was that you worked 



37   1/2   hours   a   week."   Lentine   did   not   establish   that   she   cleared   any   "flex   time" 



arrangement with Hilderbrand or another supervisor. 



                 The State also relies on the testimony of an employees' union negotiator, 



who maintained that in his experience, the State had "no threshhold for . . . timesheet 



fraud   matters"   and   "discharges   [had]   been   their   resolution."       Neal,   the   director   of 



personnel and labor relations, testified that in deciding to dismiss Lentine, she considered 



"how we've handled other cases" and noted at least one other case where an employee 



was terminated for reporting false overtime.  Robinson was also terminated for her role 



in   preparing   Lentine's   inaccurate   time   sheet.      Lentine   did   not   produce   evidence   of 



another employee who was disciplined differently for the same infraction. The trial court 



therefore did not err in finding that Lentine failed to prove disparate treatment. 



        B.	      The Superior Court Did Not Abuse Its Discretion In Finding Lentine's 

                 Unfair Labor Practice Claim To Be Untimely Raised. 



                 Lentine argues that the State committed an unfair labor practice by failing 



to follow certain provisions laid out in the collective bargaining agreement.                  The CBA 



provides that in Step 2 of the grievance process the commissioner of the grievant's 

department will "respond in writing to the employee."29                In this case, the response was 



        29      Bargaining Agreement Between the State of Alaska and the Alaska Public 



Employees Association Representing the Supervisory Unit, July 1, 2007 - June 30, 2010 , 

A L A S K A     P U B L I C   E M P L O Y E E S    A S S O C I A T I O N ,  2 3 ,   h t t p : / / s u . a p e a - 

aft.org/docs/2007SU%20Contract.pdf. We note that as the superior court found, Lentine 

                                                                                           (continued...) 



                                                   -18-	                                             6700
 


----------------------- Page 19-----------------------

drafted by investigator Keane but signed by the Commissioner of the Department of Fish 



and Game. The CBA provides that in Step 3 of the grievance process, the Commissioner 



of the Department of Administration (then Annette Kreitzer) is to "respond in writing to 

the employee."30      In this case, the Step 3 response was drafted by an independent labor 



relations analyst and signed by Neal, the director of personnel and labor relations within 



the Department of Administration. 



                Because Keane, the initial investigator, drafted the Step 2 response and 



because Kreitzer did not sign the Step 3 response, Lentine argues the State committed 



an unfair labor practice.      But Lentine did not raise this claim in her complaint, which 



only sought "damages for the [State's] violation of the covenant of good faith and fair 



dealing."  Lentine did not mention it in her trial brief, which again stated "the issue to be 



decided" as "whether the State terminated Cindy Lentine in violation of the covenant" 



when "others . . . submitted timesheets which did not reflect their exact location and the 



exact   hours   they   worked."   Lentine   raised   the   claim   for   the   first   time   during   cross- 



examination of Dennis Geary, a witness for the State.              The trial court allowed Lentine 



to cross-examine Geary on the grievance process for reasons of "judicial economy." 



After the parties submitted written closing arguments, the trial court ruled that the claim 



was untimely.      Lentine's claim of an unfair labor practice was based upon an alleged 

breach of contract, governed by AS 23.40.210,31 and not upon any breach of the implied 



        29(...continued) 



did not properly raise the unfair labor practice claim in her complaint.                  The relevant 

portion of the CBA was also not submitted to this court. 



        30      Id. 



        31      AS 23.40.210(a) provides: 



                        The     [collective   bargaining]     agreement     shall 

                                                                                         (continued...) 



                                                  -19-                                             6700
 


----------------------- Page 20-----------------------

covenant related to the termination decision itself.   The superior court did not abuse its 



discretion in ruling that Lentine's unfair labor practice claim was not raised in a timely 

manner and was therefore waived.32 



        C.	      The   Trial   Court's   Attorney's   Fee   Award   Was   Not   An             Abuse   Of 

                 Discretion. 



                 During the proceedings below, Lentine asked the superior court to abate the 



State's   attorney's   fee   award   under   AS   09.60.010(e),   which   applies   to   constitutional 



claims.    The court did not do so, instead ordering Lentine to pay 30% of the State's 

attorney's fees, or $50,586.14, under the provisions of Alaska Civil Rule 82(b).33                     On 



        31(...continued)
 



                         include a grievance procedure which shall have
 

                         binding arbitration as its final step.  Either party
 

                         to the agreement has a right of action to enforce
 

                         the agreement by petition to the labor relations
 

                         agency.
 



        32       In addition, any error in the post-termination process was cured by the 



superior   court's   review   of   Lentine's   termination.       Even   when   a   grievance   process 

involves   a   violation   of   bargained-for   procedures,   we   must   still   decide   whether   the 

violation "affected the correctness of the decision or had such a harmful or unfair effect 

as to vitiate the hearing."  Racine v. State, Dep't of Transp. & Pub. Facilities , 663 P.2d 

555, 557 (Alaska 1983).         In City of North Pole v. Zabek, we concluded that where an 

employee was terminated for a relatively minor offense, a post-termination "adversarial 

proceeding" in which she "had the benefit of counsel . . . . [and] was allowed to frame 

the issues that would be explored . . . . provided [the employee] with all the process due 

to her."    934 P.2d 1292, 1298-99 (Alaska 1997).              Although Lentine's termination was 

based on the serious charge of dishonesty, the five-day trial before the superior court 

afforded   her   a   full   independent   review   of   the   decision   to   terminate,   including   "the 

heightened procedural protection that the right to call witnesses brings."                   Id.  at 1298 

(citing Nichols v. Eckert, 504 P.2d 1359, 1365 (Alaska 1973)). 



        33       Alaska R. Civ. P. 82(b)(2) provides: "In cases in which the prevailing party 



recovers no money judgment, the court shall award the prevailing party in a case which 

                                                                                           (continued...) 



                                                   -20-	                                             6700
 


----------------------- Page 21-----------------------

appeal, Lentine argues that the superior court abused its discretion by declining to abate 



the award of attorney's fees based on the equitable factors laid out in AS 09.60.010(e) 



and Civil Rule 82(b)(3). 



                We will overturn an award of attorney's fees "only upon a showing of 

abuse    of  discretion  or  a  showing    that  the  award   is  manifestly   unreasonable."34 



"Questions as to the reasonableness of fees awarded under Civil Rule 82 are committed 

to the sound discretion of the trial court."35 



               Alaska Statute 09.60.010(c) sets out special provisions for attorney's fee 



awards     in  cases   involving    "the  establishment,    protection,   or  enforcement"     of 



constitutional rights.  An unsuccessful claimant is protected from paying the portion of 



the opposing party's attorney's fees devoted to the constitutional claim, unless the claim 



was frivolous or the claimant had "sufficient economic incentive to bring the action or 

appeal regardless of the constitutional claims involved."36      Under AS 09.60.010(e), the 



superior    court  may,   in  its  discretion,  abate  an  award   "otherwise   payable"    by  a 



constitutional claimant "if the court finds, based upon sworn affidavits or testimony, that 



       33(...continued) 



goes to trial 30 percent of the prevailing party's reasonable actual attorney's fees which 

were necessarily incurred." 



       34      Hallam v. Alaska Airlines, Inc. , 91 P.3d 279, 283 (Alaska 2004) (quoting 



Feichtinger v. Conant , 893 P.2d 1266, 1268 (Alaska 1995)). 



       35      Belluomini v. Fred Meyer of Alaska, Inc. , 993 P.2d 1009, 1016 (Alaska 



1999). 



       36      AS 09.60.010(c)(2). 



                                              -21-                                         6700
 


----------------------- Page 22-----------------------

the full imposition of the award would inflict a substantial and undue hardship upon the 

party ordered to pay the fees and costs."37 



                 Although Lentine submitted an affidavit claiming financial hardship under 



AS 09.60.010(e) and continues to seek an abatement under that provision, she has never 



briefed the threshold question:  whether she raised a constitutional claim sufficient to fall 



under AS 09.60.010(c).   We therefore cannot say that the superior court erred in failing 



to   consider   Lentine's   claims   under   that   provision.      Even   if   the   superior   court   had 



considered the issue, Lentine's complaint and the bulk of her witness examination and 



closing   arguments   were   devoted   to   her   primary   claim:       that   the   State   breached   the 



implied covenant of good faith and fair dealing.                She brought up the claim of a due 



process   violation   only   in   passing   in   her   closing   arguments.      And     Lentine   had   an 



economic incentive   to   bring her primary claim even without the due process claim. 



Thus, the superior court did not abuse its discretion by declining to abate the award of 



attorney's fees to the State under AS 09.60.010(e). 



                 Lentine contends that the equities of the case weigh in her favor because 



she was an "honest, ethical, hard-working employee and had no intention of defrauding 



the   State."   The   State   responds   that   its   fee   award   was   reasonable   and   there   is   "no 



authority for the proposition that a court must reduce a fee award based on a plaintiff's 



contention that she did nothing wrong."   Lentine also argues on appeal that the superior 



court   should   have   varied   its   award   under   Rule   82(b)(3),   which   allows   the   court   to 



consider factors including "the extent to which a given fee award may be so onerous to 



        37       AS 09.60.010(e). 



                                                   -22-                                                 6700 


----------------------- Page 23-----------------------

the non-prevailing party that it would deter similarly situated litigants from the voluntary 

use of the courts" and "other equitable factors deemed relevant."38 



                We   have   previously      expressed     concern    over   high   fee   awards   against 



dismissed employees, but our concern has arisen from the possibility that such an award 



would "impose[] an intolerable burden on a losing litigant which, in effect, denies the 

litigant's right of access to the courts."39      Lentine's characterization of her actions as an 



"innocent mistake" involves a question of fact that was litigated at trial, and the superior 



court's failure to consider it again in determining attorney's fees was not an abuse of 

discretion.40 



V.      CONCLUSION 



                For the foregoing reasons, we AFFIRM the judgment of the superior court. 



        38      Alaska R. Civ. P. 82(b)(3)(I), (K); see also Gold Country Estates Pres. 



Grp., Inc. v. Fairbanks N. Star Borough, 270 P.3d 787, 800 (Alaska 2012) (noting that 

"[t]rial courts remain free to reduce awards that would otherwise be so onerous to the 

losing   party   as   to   deter   similarly   situated   litigants   .   .   .   from   accessing   the   courts") 

(quoting State v. Native Vill. of Nunapitchuk, 156 P.3d 389, 406 (Alaska 2007)). 



        39      Peter v. Progressive Corp. , 986 P.2d 865, 873 (Alaska 1999) (quoting 



Bozarth v. Atl. Richfield Oil Co. , 833 P.2d 2, 6 (Alaska 1992) (Matthews, J., dissenting)). 



        40      We     note   that  Lentine   spent   considerable     time   at  trial  advancing    the 



argument that the amended timesheet was a fair reflection of her work in Minnesota. 



                                                  -23-                                               6700 

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