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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Morrison v. NANA WorleyParsons, LLC (12/13/2013) sp-6851

Morrison v. NANA WorleyParsons, LLC (12/13/2013) sp-6851

         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,  

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JIM MORRISON,                                          )  

                                                       )         Supreme Court No. S-14783  

                            Appellant,                 )  

                                                       )         Superior Court No. 3AN-10-07423 CI  

         v.                                            )  

                                                       )         O P I N I O N  

NANA WORLEYPARSONS, LLC,                               )  

                                                       )         No. 6851 - December 13, 2013  

                            Appellee.                  )  


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


                   Judicial District, Anchorage, Patrick J. McKay, Judge.  

                   Appearances:    Joe  P.  Josephson,  Joe  P.  Josephson  Law  

                   Office,  Anchorage,  for  Appellant.                  Thomas  M.  Daniel,  


                   Perkins Coie LLP, Anchorage, for Appellee.   

                   Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  


                   Bolger, Justices.   

                   BOLGER,  Justice.  


                   An at-will employee was placed on probation and subsequently terminated  

for making an inappropriate comment at a work party. The employee sued the employer  


for breach of contract and breach of the implied covenant of good faith and fair dealing.  


The superior court granted summary judgment on both counts.  We affirm the superior  


court's judgment because the employee was an at-will employee, his termination was not  


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

a breach of his employment contract, and he failed to present a genuine issue that the  

employer acted in bad faith.  


                   Jim Morrison began working for NANA WorleyParsons, LLC (NANA) in  

2006.  His offer letter stated that he was an at-will employee.  NANA's administrative  


procedures manual also stated that all employees serve at will.  Morrison served in a  


piping design position at a remote work site on the North Slope.  

                   Morrison  was  demoted  from  his  lead  design  position  in  2009.    His  


supervisor notified Morrison that he was overstepping his authority by attempting to  

intervene in conflicts between co-workers, and Morrison indicated that he understood  


the reason for the demotion.  

                   A few months later, Morrison's co-worker sent a long letter to Morrison's  


supervisor complaining that Morrison was neglecting his duties. The supervisor decided  


to place Morrison on a performance improvement plan (PIP), which was outlined in a  

letter  signed  by  both  parties.    One  of  the  PIP's  complaints  states,  "[Y]ou  were  the  


agitator between employees; . . . [you had] unnecessary involvement in issues of no  


concern to you, . . . [and] you have not focused on your design duties.  Rather, you have  


contributed to the friction in the group and uneasiness that exists to this day."  

                   The PIP listed six conditions that Morrison must follow to maintain his  



                   A.        Effective  immediately,  you  will  not  dispose  of  any  


                   material in a place not clearly identified as  the acceptable  


                   receptacle.        You  will  comply,  without  deviation,  with  all  

                   environmental and safety policies and practices of BP and  


                                                            -2-                                                      6851

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

                   B.       Effective  immediately,  you  will  inform  me  or  Jeff  

                   when you arrive on the slope for your hitch and when you depart.  

                   C.       You will document accurate billable hours worked .  

                   D.        [Y]ou will attend each client morning meeting at 6:00  

                   a.m.  I will call your lead to verify timely attendance.  

                   E.       From today forward, you will report to your lead when  


                   you arrive at your work station each morning and leave each  


                   F.       At the end of each  hitch,  change out notes must be  


                   provided in a comprehensive, accurate, and timely manner.  

                   Additionally, provide me or Jeff a copy of your change out  


                   notes on your change out (off) day.  

                   Four days after signing the PIP, Morrison attended a going-away party for   

a co-worker, Pat Mogford.   Morrison was sitting at a table with four women and another   

man.    Two  of  the  women   were  discussing  the  excessive  amount  of  male-oriented  

television programming.  Morrison mentioned a television show and commented that it                

discussed certain rude subjects, which he specifically described.  Mogford complained  


to Morrison's supervisor that she had been offended, and NANA decided to terminate  

Morrison's employment.  

                   Morrison sued NANA, alleging two theories:  breach of contract and breach  

of the implied covenant of good faith and fair dealing.  Following discovery, NANA  


moved for summary judgment on both theories, and the superior court granted NANA's  

motion.  Morrison now appeals.  

          1        Emphasis in original.  

                                                            -3-                                                        6851  

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                     We review a grant of summary judgment de novo, "reading the record in  


the light most favorable to the non-moving party and making all reasonable inferences  



in its favor."   "Summary judgment is only appropriate when there is no genuine issue  



of material fact, and the moving party is entitled to judgment as a matter of law." 


party opposing summary judgment must set forth specific facts showing genuine issues  

and cannot rest on mere allegations; moreover, such facts must arise from admissible  


evidence."     "To  determine  whether  the  nonmoving  party  can  produce  admissible  


evidence creating a genuine factual dispute, we will consider the affidavits, depositions,  

admissions, answers to interrogatories and similar material."5  


          A.	        The Performance Improvement Plan Did Not Change Morrison's At- 


                     Will Employment Status.  

                     Ordinarily, an at-will employee may be fired for any reason that does not  


violate the covenant of good faith and fair dealing.6 

                                                                                Before the superior court, Morrison  

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

Spindle v. Sisters of Providence in Wash., 61 P.3d 431, 436 (Alaska 2002)).  

           3	        Alaska Civil Liberties Union v. State                   , 122 P.3d 781, 785 (citing                Odsather  

v. Richardson , 96 P.3d 521, 523 n.2 (Alaska 2004)).  

           4         Witt, 75 P.3d at 1033 (quoting Braun v. Alaska Commercial Fishing &  


Agric. Bank , 816 P.2d 140, 144 (Alaska 1991) (internal quotation marks omitted); Brady  


v. State, 965 P.2d 1, 8 (Alaska 1998)).  



                     Schug v. Moore, 233 P.3d 1114, 1116 (Alaska 2010) (quoting Charles v.  

Interior Reg'l Hous. Auth. , 55 P.3d 57, 59 (Alaska 2002)).  



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


Luedtke v. Nabors Alaska Drilling, Inc ., 768 P.2d 1123, 1130-31 (Alaska 1989)) (citing  


                                                                 -4-	                                                         6851

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

claimed  that  he  was  no  longer  an  at-will  employee  because  the  PIP  altered  his  

employment status through promissory estoppel.  A promissory estoppel claim requires  


proof of four elements:  

                    (1) an actual promise that induced action or forbearance; (2)  


                    the  action  induced  was  actually  foreseen  or  reasonably  

                    foreseeable; (3) the action amounted to a substantial change  


                    in position; and (4) enforcement of the promise is necessary  


                    in the interest of justice.  



                    Morrison relied on a 1985 Ohio case, Mers v. Dispatch Printing Co.                                     But  

the superior court reasoned that Mers was distinguishable because the employer in that  

case  expressly  promised  reinstatement  to  an  employee  if  his  criminal  charges  were  

favorably resolved, whereas NANA made no similar promise to Morrison.  The court  

explained that there was no indication that Morrison should reasonably have expected  

that the PIP, which placed him on probation, would somehow elevate his employment  



                    The superior court also noted that NANA's written Code of Conduct states,  


"All  employment  with  NANA  .  .  .  is  'at-will.'  .  .  .    No  statement  or  promise  by  a  


Supervisor, Department Head, Manager, or Human Resource  Representative can be  

interpreted as a change in policy nor constitute an agreement with an employee."  The  


court concluded that the PIP did not alter Morrison's at-will status.  

          6         (...continued)  

Eales v. Tanana Valley Medical-Surgical Grp., Inc ., 663 P.2d 958, 959 (Alaska 1983)).  




                    Sea Hawk Seafoods, Inc. v. City of Valdez, 282 P.3d 359, 366 (Alaska  

2012) (internal quotation marks omitted).  

          8         483 N.E.2d 150 (Ohio 1985).  

                                                              -5-                                                        6851

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

                       On appeal, Morrison argues that the PIP modified his at-will status because                            

its stated purpose was "to provide [him] the opportunity to correct [his] behavior," and       

because  it  expressed  optimism  that  Morrison  would  be  able  to  meet  the  conditions.  

Thus, Morrison contends that the PIP was an implied promise of continued employment  


for a reasonable period of time to determine if he could meet the conditions and that  

NANA breached this promise by firing him so quickly after it issued this plan.  Morrison  


also argues that he reasonably relied on this implied promise by continuing to work for  


NANA despite his power to terminate the employment relationship at will.  

                       We conclude that the PIP did not alter Morrison's at-will status.  The PIP  

did not contain any express promise of continued employment.  As NANA points out,  


Carlson decided to give Morrison "one more chance" and "[i]nstead of firing Morrison  


. . . decided to place him on a performance improvement plan."  As NANA maintains,  


it "merely informed Morrison that his failure to abide by the warnings in the PIP might  

result in further disciplinary action, including discharge."  The PIP listed seven areas that  


needed correction, ranging from eliminating late arrivals and inflation of billable hours  


to "stop[ping his] contribution to friction in the group."  This last area of correction  

included the specific clarification to Morrison that through his "unnecessary involvement  

in issues [of co-workers] that were of no concern to [him]," Morrison had "contributed     

to the friction of the group and uneasiness that exists to this day."  

                       Morrison testified in his deposition that he understood Carlson to be telling  


him that he was "stirring the pot" among the employees and that "he needed  to  be  


cautious about what he said to his co-workers."  Yet four days after Morrison received  


the PIP, and its warning of the need for correction in various areas, Morrison concedes  


that he brought up in a conversation with female co-workers the topic of a television  


show called "Manswers," describing it to his co-workers as "a male-oriented show that  

                                                                        -6-                                                                 6851

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

purported to answer questions of interest to men, stupid questions like, how many beers   

does it take to kill a guy, or how large [do] a woman's breasts need to be to crush a beer   

can . . . ."   The women at Morrison's table reported to Carlson that they were "offended"                        

by Morrison's comments and "made to feel very uncomfortable" by them.  

                       Moreover, recognizing the PIP as an enforceable promise of continued  

employment  would  also  be  inconsistent  with  NANA's  procedures  manual,  which  


specifically stated that ordinary supervisors could not alter an employee's at-will status.  


We conclude that Morrison was an at-will employee who could be terminated for any  

reason, unless NANA violated the implied covenant of good faith and fair dealing.  

            B.	        Morrison's Termination Did Not Breach The Implied Covenant Of  

                       Good Faith And Fair Dealing.  


                       "All at-will employment contracts are subject to the covenant of good faith  

                              9                                                                                                                    1 

and fair dealing."   This covenant contains both objective and subjective components.  

The objective component requires employers to "act in a manner that a reasonable person  


would regard as fair," including fair treatment for employees who are similarly situated.11  

An employer violates the subjective component when it "discharges an employee for the  


purpose of depriving him or her of one of the benefits of the contract."12  

                       Before the superior court, Morrison argued that another employee, Sherry  


Berry, was allowed to complete her normal shift following her termination, but Morrison  


was required to leave the Slope immediately.  On this issue, the superior court concluded  

            9          Hoendermis  v.  Advanced  Physical  Therapy,  Inc. ,  251  P.3d  346,  356  

(Alaska 2011).  

            10         Id.

        Id. (quoting Charles, 55 P.3d at 62) (internal quotation marks omitted).  

            12         Id. (internal quotation marks omitted).  

                                                                         -7-	                                                                6851

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

that Morrison had failed to show that:                   (1) Berry was a NANA employee; (2) Berry and   

Morrison were similarly situated; and (3) the reason for Berry's termination was similar  

to  the  reason  for  Morrison's  termination.    The  court  distinguished  Hoendermis  v.  


Advanced Physical Therapy, Inc. , where the employee made a sworn statement that she  

was terminated unfairly because other similarly situated employees who engaged in more  


severe conduct were not terminated.                      The court concluded that Morrison failed to raise  

a  genuine  issue  of  material  fact  regarding  any  unfairness  in  the  allegedly  disparate  

treatment of Morrison and Berry.  


                    On appeal, Morrison raises a somewhat different argument. He argues that  


NANA's failure to investigate the allegations against him breached the covenant of good  


faith and fair dealing.   Morrison cites Mitchell v. Teck Cominco Alaska Inc. for the  

                                                                                                                          14  In  


proposition that an investigation of employee misconduct must be conducted fairly. 

response, NANA contends that this court has rejected failure to investigate claims in  


                                            15                                                                   16 

Ramsey v. City of Sand Point                   and Belluomini v. Fred Meyer of Alaska, Inc.  

          In  Mitchell,  the  employer's  personnel  policies  required  it  to  investigate  any  


allegations of misconduct before terminating the employee.                                We accordingly concluded  

that the employer may have violated the covenant of good faith and fair dealing by  

failing to conduct a fair investigation.18  


          13        251 P.3d at 352.

          14        193 P.3d 751, 761 (Alaska 2008).

       936 P.2d 126, 133 (Alaska 1997).  

          16        993 P.2d 1009, 1013 (Alaska 1999).  

          17        193 P.3d at 761.  

          18        Id.  

                                                              -8-                                                        6851

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                   In Ramsey , however, the employment contract expressly authorized the  


employer  to  terminate  an  employee  without  cause.                            We  accordingly   held   that  the  

employee had no entitlement to an investigation that was protected by the covenant of  


good faith and fair dealing.              Likewise, in Belluomini , the employer's personnel policies  


requiring an investigation of sexual harassment claims did not apply to the employee's  

termination  for  insubordination,  non-sexual  harassment,  and  intimidation.21                                      We  

accordingly  affirmed  a  trial  court  order  dismissing  the  employee's  claim  that  the  


covenant required an investigation.                    


                   In this case, NANA's policies and procedures did not require it to  conduct  

an investigation before terminating an at-will employee.  We conclude that this case is  


more similar to Ramsey and Belluomini , where investigations were not required, than to  

Mitchell , where the employer's policies explicitly required an investigation.  


                   On appeal, Morrison does not argue that NANA violated the covenant of  


good faith and fair dealing by treating  him differently than other employees or that  


NANA committed any other violation of public policy.  We conclude that the superior  

court properly granted summary judgment in favor of NANA on this issue.  

V.        CONCLUSION  


                   Morrison's termination did not violate his at-will employment contract or  


the covenant of good faith and fair dealing.  We therefore AFFIRM the superior court's  

order granting summary judgment.  

          19       936 P.2d at 133.  

          20       Id.  

          21       993 P.2d at 1013-14.  

          22       Id. at 1014.  

                                                            -9-                                                      6851

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