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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,  

         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  



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.  



I.       INTRODUCTION  



                   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.  



II.       FACTS AND PROCEEDINGS  



                   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  

                                                                                                           



employment:  



                   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  

                   [NANA].  



                                                            -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  

                   evening.  



                   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  

                                                                     [1]  

                   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  


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

III.	      STANDARD OF REVIEW  



                                                                                                                   

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



                                                                                                      

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



                    2  

                                                                                                             

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



                                                                                                                         3 

                                                                                                                            "[T]he  

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  



                 4  

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  



IV.	       DISCUSSION  



          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)).  



           5  

                                                                         

                     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)).  



           6  

                                                                   

                     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  

                                                                                                                 (continued...)  



                                                                 -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  

                                                        [7] 

                    in the interest of justice.  



                                                                                                                        8  

                                                                                        

                    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  

                                                                    



status.  



                    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)).  

                                                                                            



          7  

                                                                                                              

                    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.
  



            11
        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  



                                                     13  

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  



                                                                                     17  

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).
  



          15
       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
  


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

                   In Ramsey , however, the employment contract expressly authorized the  



                                                                            19  

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  



                                      20  

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  



                                                   22  

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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