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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Becker v. Fred Meyer Stores, Inc. (10/16/2014) sp-6962

Becker v. Fred Meyer Stores, Inc. (10/16/2014) sp-6962

         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  



FRED BECKER V,                                       )  

                                                     )        Supreme Court No. S-15314  

                          Appellant,                 )  

                                                     )        Superior Court No. 3AN-12-05517 CI  

         v.                                          )  

                                                     )        O P I N I O N  

FRED MEYER STORES, INC.,                             )  

                                                     )       No. 6962 - October 16, 2014  

                          Appellee.                  )  

                                                     )  



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

                                                                                

                  Judicial District, Anchorage, Erin Marston, Judge.  



                  Appearances:    Kevin  T.  Fitzgerald,  Ingaldson  Fitzgerald,  

                  P.C.,   Anchorage,   for   Appellant.      Daniel   W.   Hickey,  

                  Gruenstein & Hickey, Anchorage, and Susan K. Stahlfeld,  

                                                                  

                  Miller Nash LLP, Seattle, Washington, for Appellee.    



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

                                      

                  Justices. [Maassen, Justice, not participating.]  



                  BOLGER, Justice.  



I.       INTRODUCTION  



                  Fred Becker V, a loss prevention manager employed by Fred Meyer Stores,  



Inc., was terminated in January 2012.  He sued his former employer, alleging breach of  



contract, breach of the implied covenant of good faith and fair dealing, and wrongful  



termination.  The superior court granted summary judgment in favor of Fred Meyer,  



concluding (1) that Fred Meyer's loss prevention policy manual did not create a contract  


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

between Becker and Fred Meyer and Becker's employment was terminable at will and                                    



(2) that Becker had presented no evidence that he was treated differently from similarly                       



situated employees with respect to the good faith and fair dealing claim. But because the                          



record presents genuine issues of material fact regarding both claims, we reverse the  



superior court's summary judgment ruling.  



II.       FACTS AND PROCEEDINGS  



          A.        Facts  



                    Becker  was employed by Fred Meyer as a loss prevention manager for 17     



years.  From July 2011 until January 13, 2012, Becker was assigned to the Northern  



Lights Fred Meyer store in Anchorage.  



                                                                      

                    On January 3, 2012, Becker was on duty when he observed a man enter the  



                       

store.  Becker watched him enter the photoelectronics department.  Becker then went to  



                                        

the loss prevention office and continued to observe the man through a security camera.  



                              

When Becker saw him remove a stereo system from the shelf, Becker returned to the  



         

sales floor and went to the photoelectronics department.  There Becker watched the man  



                                                                      

carry the stereo system to the back aisle and remove its security wrap.  The man then  



                                             

picked up the stereo system, left the department, and proceeded toward the store exit.  



                                                          

As the man passed the last point of sale and the electronic security devices, Becker  



                                                                                           

identified himself as a loss prevention employee and told the man to stop. The man  



                                       1  

dropped the stereo system  and fled.  Becker pursued him even though he no longer had  



the stolen merchandise.  



                    While the man was running, he tripped and fell in the Fred Meyer parking  

                                                                     



lot, dropping his cell phone.  Becker, thinking he could use the phone for identification  

                                                          



          1         The parties dispute whether the stereo system was dropped inside or outside  



the door.  



                                                               -2-                                                             6962  


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

purposes, picked it up.  The man got up and "came at" Becker, demanding that he return  



                                                

the phone.  Becker then turned and threw the phone onto the roof of the Fred Meyer  



                                                                 

building. He later testified that he threw the phone "instinctively," out of fear of the man.  



                                                                                                                     

                    His phone now out of reach, the man ran into the parking lot and got into  



                                          

his car.  Becker stepped off the sidewalk and followed him, noting the vehicle's license  



plate number as the man drove away.  



                                                                            

                    Becker called the police, telling them about the theft and attempted arrest  



                                                                                                                       

and providing descriptions of the man and his vehicle.   Becker then went up to the  



                                                                   

store's roof, recovered the phone, and found photographs of the man on the phone.  An  



Anchorage Police Department officer later arrived and made a report of the incident.  



The man was charged in connection with the theft later that month.  



                                                                                          

                    On January 13 Becker met with his supervisor, Devin Lilly, to discuss the  



January 3 incident.  Lilly told Becker that he "should have handed the phone back to [the  



man]" rather than throwing it on the roof.  He also claimed Becker had violated company  



                                                                                                                  

policy by using a security camera to observe the man, by running on the sales floor, and  



by  stepping  off  the  sidewalk  to  pursue  him.    Lilly  explained  that,  because  of  these  



                                                                         

violations and other past policy violations Becker had committed, Becker's employment  



                                                           

was terminated effective immediately.  According to Becker, he never received a verbal  



or written warning concerning any policy violation before he was terminated.  



                    Becker appealed the termination decision to Scott Bringhurst, Fred Meyer's  



                                            

Director of Loss Prevention.  Bringhurst considered Becker's appeal but concluded that  



"[t]he incident as a whole demonstrated extremely poor judgment on [Becker's] part"  



and "termination was . . . appropriate given the totality of the circumstances."  



                                                              -3-                                                       6962
  


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

          B.       Proceedings  



                   Becker filed a complaint in the Anchorage superior court, claiming breach  



                                                                   

of contract, breach of the implied covenant of good faith and fair dealing, and wrongful  



                  2  

termination.   He claimed that Fred Meyer's loss prevention policies and procedures  



                                            

were part of his employment contract and that Fred Meyer breached those contractual  



                                                                    

provisions when it terminated his employment without notice.   Becker also alleged that  



Fred Meyer had treated him more harshly than other employees who committed policy  



violations similar to his own.  



                                                                                           

                   Fred Meyer moved for summary judgment.  The company argued that its  



                                                                                    

loss prevention policy manual was not a binding contract and that, even if it were, Fred  



Meyer's actions did not violate company policy.  As to Becker's claim based on the  



covenant  of  good  faith,  Fred  Meyer  argued  that  Becker  "cannot  point  to  a  single  



                        

employee who . . . committed so many policy violations in a single stop, who was not  



immediately terminated."  



                                        

                   The  superior  court  agreed  that  Fred  Meyer's  policy  manual  was  not  a  



                                                                 

contract, and that Becker's employment was, therefore, terminable at will.  The court also  



                                         

concluded that Becker had failed to "raise a genuine issue of material fact whether he  



was  treated  in  a  disparate  manner  than  other  similarly  situated  employees,"  and,  



therefore, could not maintain a claim under the implied covenant of good faith and fair  



dealing.  Accordingly, the court granted the motion for summary judgment and dismissed  



Becker's claims.  Becker now appeals from this ruling.  



          2        Becker  also  originally  claimed  that  Lilly  made  "false  and  defamatory"  



statements about him, but he later voluntarily dismissed his defamation claim.  



                                                             -4-                                                         6962  


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

III.      STANDARD OF REVIEW  



                                                                                          3  

                   We review a grant of summary judgment de novo.   "In our review, we  



                                                                  

must determine whether any genuine issue of material fact exists and whether on the  



                                                                                                        4 

                                                                                                           "Whether  

established facts the moving party is entitled to judgment as a matter of law." 

                                                                                                         5  and "[w]e  

                                                                                                            

the evidence presented a genuine issue of material fact is a question of law," 



draw all factual inferences in favor of, and view the facts in the light most favorable to,  

                                                                                                

the party against whom summary judgment was granted."6  



IV.      DISCUSSION  



         A.        Breach Of Contract  



                   "[E]mployee          policy      manuals        may       modify       at-will      employment  

                                                   

                        7  "The employer is bound by the representations in the manual when  

agreements . . . ."  

                                                  



the manual's provisions create the reasonable expectation that employees have been  



                                 8  

granted certain rights."   "Because it is generally . . . a question of fact whether the  



         3         Hoendermis  v.  Advanced  Physical  Therapy,  Inc. ,  251  P.3d  346,  351  



(Alaska 2011).  



         4         Id.  (quoting  Nielson  v.  Benton ,  903  P.2d  1049,  1052  (Alaska  1995))  



(internal quotation marks omitted).  



         5         Lockwood  v.  Geico  Gen.  Ins.  Co. ,  323  P.3d  691,  696  (Alaska  2014)  



(quoting Kalenka v. Jadon, Inc. , 305 P.3d 346, 349 (Alaska 2013)) (internal quotation  

                                                                   

marks omitted).  



         6         Hoendermis , 251 P.3d at 351.  



         7         Id. at 355 (quoting Holland v. Union Oil Co. of Cal. , 993 P.2d 1026, 1030  



(Alaska 1999)) (internal quotation marks omitted).  



         8  

                                                                                                               

                   Id. (quoting Parker v. Mat-Su Council on Prevention of Alcoholism & Drug  

Abuse , 813 P.2d 665, 666 (Alaska 1991)) (internal quotation marks omitted); see also  

Jones v. Cent. Peninsula Gen. Hosp. , 779 P.2d 783, 788 (Alaska 1989) ("Employers  

                                                                                                      (continued...)  



                                                          -5-                                                    6962
  


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

                                                                          9 

manual  did  modify  the  employment  agreement,"   we  will  answer  this  question  as  a  



                                                                                                                         10  

matter of law "[o]nly if reasonable minds could not differ in resolving this issue."                                         



                                                                                                 

                    Becker argues that the Fred Meyer loss prevention manual altered his at- 



will employment relationship.  In particular, he argues that a reasonable person would  



                                               

believe that a loss prevention employee could be terminated without notice only for  



                                

engaging  in  one  of  the  six  types  of  misconduct  listed  in  the  manual  as  a  cause  for  



immediate termination.  Fred Meyer responds that because the manual contains hedging  



language  suggesting  that  the  listed  grounds  for  termination  without  notice  are  non- 



                                    

exclusive,  the  manual  does  not  create  any  expectation  that  an  employee  will  be  



terminated only for the reasons listed in the manual.  



                    Section 201 of the loss prevention manual provides, in relevant part:  



                               

                    Every       member         of    the    Fred      Meyer       Loss      Prevention  

                    department   has   duties   and   responsibilities   that   require  

                    absolute  professionalism,  maturity  and  tact.    Many  Loss  

                    Prevention functions require a degree of flexibility and access  

                    to  controlled  areas  that  necessitate  a  strict  compliance  to  

                                                       

                    policy.  Every moment on duty you represent the department  

                                                                   

                    and company.  In fairness to all concerned, you need to know  

                                                                                         

                    and understand what is expected, what is not permitted and  

                                                                               

                    the  disciplinary  action  resulting  from  not  complying  with  

                    these  directives.    The  following  responsibilities  are  in  



          8(...continued)  



should not be allowed to instill . . . reasonable expectations of job security in employees,  

and then withdraw the basis for those expectations when the employee's performance is  

                                           

no longer desired." (alteration in original) (quoting Leikvold v. Valley View Cmty. Hosp. ,  

                                                                                                      

688 P.2d 170 (Ariz. 1984)) (internal quotation marks omitted)).  



          9  

                                                                                            

                    Holland , 993 P.2d at 1031 (alteration in original) (internal quotation marks  

omitted).  



          10        Id. at 1031 n.28 (internal quotation marks omitted).  



                                                              -6-                                                        6962
  


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

                   addition  to  the  "Fred  Meyer  Employee  Responsibilities"  

                   form, which applies to all employees of the company.  



                   CAUSES FOR IMMEDIATE TERMINATION WITHOUT  

                   PRIOR WARNING  



                   1.	      Discussing investigations or other confidential matters  

                            with anyone not required to be involved or authorized  

                            to receive the information.  



                   2. 	     Carrying or using any weapon on Fred Meyer property  

                                                                                           

                            on or off duty. . . .  



                   3.	      Use  of  excessive  force  (physical  or  verbal)  when  

                            making an arrest or while conducting an interview.  



                   4.	      Knowingly falsifying, omitting or misrepresenting any  

                            known       facts    (verbal     or    written)     concerning        an  

                            incident, audit, or crime with which you are directly or  

                                                              

                            indirectly involved.  



                   5.	      Failure  to  report  .  .  .  and  document  a  non-arrest  or  

                            non-policy stop . . . .  



                   6.	      Continued pursuit of a suspect when they have either  

                            displayed a lethal weapon, entered a vehicle or have  

                            left Fred Meyer property.  



Section 201 also lists 11 "causes for disciplinary action resulting in either suspension  

                   



without pay, or termination."  (Emphasis omitted.)  



                   The manual also includes "Disciplinary Guidelines" for "Non-Arrest and  

                                                        



Non-Policy Stops."  These guidelines define two categories of stops that do not comply  

                                       



with Fred Meyer policy: "non-arrest apprehensions" and "non-policy stops."  A non- 



arrest apprehension occurs when a customer is stopped but the customer does not have  

                                                                                    



stolen merchandise.  The manual distinguishes between non-arrest apprehensions that  

                                                                                



occur because of a failure to follow department procedures ("errors in judgment") and  

                                                                                    



apprehensions that occur "due to circumstances that [the employee was] not aware of at  

                                                                                                     



the time of the apprehension" ("errors in fact"), and sets out a different progressive  

                       



                                                          -7-	                                                   6962
  


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

                   

disciplinary  procedure  for  each  type  of  non-arrest  apprehension.    For  example,  an  



                                                                                                  

employee's first non-arrest apprehension resulting from an error in judgment will result  



        

in a "[w]ritten warning including suspension of employment without pay"; a second  



                                                        

violation within 24 months will result in discipline "[u]p to and including termination of  



employment."  



                   A  non-policy  stop  occurs  when  a  stop  does  lead  to  an  arrest  and  the  



                                                                  

recovery of stolen merchandise, but the loss prevention employee making the stop did  



not follow all applicable loss prevention apprehension procedures.  In particular, the  



                                                     

manual requires the loss prevention employee to ensure that five criteria are met before  



apprehending a suspect:  



                        

                   a.        You must observe the suspect enter the section.  



                                                                         

                   b.        You must observe the suspect remove the merchandise  

                             from the display and know exactly what that item is.  



                                                                                         

                   c.        If  the  item  is  concealed,  you  must observe that  

                             concealment and know exactly where it is.  



                   d.        You  must  maintain  continuous  observation  of  the  

                                                                                

                             suspect and merchandise, from the display until he/she  

                             exits the store.  Once concealed, observation of the  

                             concealment area, (where the item is on the person),  

                             must be continuously observed.  



                   e.        You   must,   for   purposes   of   safety,   have   another  

                                                                                 

                             employee  follow  you  out  of  the  store  to  act  as  a  

                             witness   and   to   provide   assistance,   if   necessary.  

                             (Emphasis omitted.)  



Non-policy stops are, according to the manual, less serious than either type of non-arrest  



                                                                                                           

apprehension.  Accordingly, a non-policy stop "will be reviewed by the District Loss  



                                                                                                           

Prevention Manager . . . and will result in a verbal or written warning."  However, all  



"[n]on-policy apprehensions must be verbally reported to [the] District Loss Prevention  



                                                             -8-                                                      6962
  


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

Manager  immediately  after  the  arrest[;]  failure  to  report  can  and  will  result  in  

                                                



termination."  



                   The disciplinary guidelines further provide that:  



                                                                          

                   [A]ny  of  the  following  actions  will  result  in  immediate  

                   termination of employment:  



                   A.	      The  [f]ailure  to  report  any  non-arrest  apprehension  

                            within 1 hour of its occurrence.  



                   B.	      Any  non-arrest  apprehension  made  before  the  Loss  

                            Prevention  person  has  been  released  from  Phase  2  

                            training.  



                   C.	      Any arrest made by a member of Loss Prevention who  

                                            

                            has not been released from Phase two where another  

                            qualified      member        of    Loss     Prevention        was     not  

                            physically present.  



                   D.	      Any gross disregard of Policy and or any grave lack of  

                                            

                            judgment that causes a non-arrest apprehension.  



                   E.	      Any continued or uncorrected lack of judgment / lack  

                                                                                                

                            of fact which persists after re-training and education  

                            have     been     documented          from      previous      incident.  

                            (Emphasis omitted.)  



                   Fred Meyer argues that, notwithstanding the detailed procedures described  

                                                     



above, "no employee could believe that they would always be entitled to progressive  

                                                          



discipline" because the manual contains "hedging terms."  For example, the manual  

                                   



provides that "termination of employment is always an option when the judgment of the  

                                                            



individuals involved and their actions are so grievous and severe, that it places Fred  



Meyer at increased risk [of] civil liability."  The manual also provides that the listed  

                                    



grounds for termination are "in addition to [those listed in] the 'Fred Meyer Employee  



Responsibilities' form."  Fred Meyer argues that this language makes it clear that the  

                                            



company retains discretion to terminate employment without cause.  



                                                           -9-	                                                   6962
  


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

                   In Hoendermis  v. Advanced Physical Therapy, Inc., we concluded that a  



policy manual did not give an  employee a right to progressive discipline where the  



manual  explicitly  provided  that  the  employer  retained  discretion  not  to  follow  the  



                                             11  

manual's discipline procedures.                  That manual also "expressly provided that all . . .  

                                                                                                        12  Similarly,  

employees were employed at will and could be discharged for any reason." 



we concluded in Holland v. Union Oil Co. of California that a one-page memorandum,  



which included a non-exclusive list of prohibited conduct and provided that progressive  



                                                                                                

discipline would be provided "[i]n most instances," did not create a right to progressive  

discipline.13  



                                         

                   In contrast, we held in Jones v. Central Peninsula General Hospital that a  



                                     

policy manual setting out "fifteen non-exclusive categories of acts or omissions that may  



                                                                             

result in termination for cause" was, as a matter of law, incorporated into an employment  



            14  

                Despite a one-sentence disclaimer stating that the manual "is not a contract  

contract.                                                                                         

of employment nor  is  it incorporated in any contract of employment,"15 the manual  



"create[d]  the  impression  .  .  .  that  employees  are  to  be  provided  with  certain  job  



                  16  

                      And in Parker v. Mat-Su Council on Prevention of Alcoholism and Drug  

protections."                                                        



Abuse , we concluded that an employer's "personnel manual which outline[d] various  



          11       251 P.3d at 355-56.
  



          12       Id. at 355.
  



          13
      993 P.2d at 1032.  



          14       779 P.2d 783, 788-89 (Alaska 1989).  



          15       Id. at 787.  



          16       Id. at 788.  



                                                          -10-                                                    6962
  


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

disciplinary polices and procedures and provide[d] that involuntary termination will  

occur only for cause" modified an employment agreement.14  



                                                                                                       

                     This case falls somewhere between these precedents.  Fred Meyer's policy  



manual does not include language indicating that it may decline to follow its disciplinary  



                                       

procedures as it pleases.  Although it is true that the manual provides that "termination  



                                        

of employment is always an option when the judgment of the individuals involved and  



                                                                                                      

their actions are so grievous and severe, that it places Fred Meyer at increased risk [of]  



                                                                                               

civil liability," that language merely creates an exception to progressive discipline in  



                                                                                                    

cases where an employee's actions have exposed Fred Meyer to a risk of liability; it does  



not render the disciplinary procedures discretionary in all instances.  And given the sheer  



                                                                                                          

level of detail contained in the manual, any language suggesting that Fred Meyer policy  

is not legally binding would need to be very prominent to be effective.15  



                                     

                     It  is  also  true,  as  Fred  Meyer  points  out,  that  the  list  of  "causes  for  



immediate  termination  without  prior  warning"  is  "in  addition  to  the  'Fred  Meyer  



Employee Responsibilities' form." (Emphasis omitted.)   But that language does not  



                                                                                                                               16  

                                                                                                                                   It  

suggest that Fred Meyer may terminate employment without notice for any reason. 



merely emphasizes that another Fred Meyer policy form, which also applies to loss  



prevention employees, lists other reasons for termination without warning.  



          14         813 P.2d 665, 666-67  (Alaska 1991).  



          15        See  Jones , 779 P.2d at 788 ("[A] one-sentence disclaimer, followed by 85     



pages of detailed text covering policies, rules, regulations, and definitions, does not   

unambiguously and conspicuously inform the employee that the manual is not part of the                                 

employee's contract of employment.").  



          16  

                                                            

                     Cf. Holland, 993 P.2d at 1032 (explaining that a one-page memorandum,  

which included a non-exclusive list of prohibited conduct and provided that progressive  

discipline would be provided "[i]n most instances," did not create a right to progressive  

                                                                                            

discipline).  



                                                               -11-                                                          6962
  


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

                        Therefore, there is a triable question of fact whether a reasonable person  



would believe that the provisions of the loss prevention policy manual are binding.  



                                                                                                                                    

                        Fred  Meyer  argues  that,  even  if  the  policy  manual  does  give  Becker  



enforceable contract rights, its decision to terminate Becker's employment without notice  



                                                                                     

was justified by Becker's alleged misconduct.  But the superior court did not reach this  



                                                                                        17  

                                                                                             We conclude that this issue should  

question in its order granting summary judgment. 



first be addressed by the superior court.  



            B.          Implied Covenant Of Good Faith And Fair Dealing  



                                                                                                                           

                        All employment contracts - even those terminable at will - are subject  



                                                                                                  18  

                                                                                                      "The covenant contains both  

to an implied covenant of good faith and fair dealing. 



                                                                     19  

objective and subjective components."                                    The objective component "requires employers  



                                                                                                                        20  

                                                                                                                            For example, an  

to act in a manner that a reasonable person would regard as fair." 

employer may not treat similarly situated employees differently.21  An employer breaches  



            17          The superior court wrote: "Because the Court finds that the Manual did not            



constitute a contract altering Becker's at-will employment relationship, the Court does                   

not need to address the issue of whether [Fred Meyer] complied with its disciplinary     

procedures."  



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



(Alaska 2011).  



            19          Id.  



            20  

                                                                                                                   

                        Id. (quoting Charles v. Interior Reg'l Hous. Auth., 55 P.3d 57, 62 (Alaska  

2002)) (internal quotation marks omitted).  



            21  

                                                                                         

                        Id.  Employees are similarly situated if they are "members of the same class,  

as defined by job position and the nature of the alleged misconduct."  Id. at 357.  



                                                                          -12-                                                                    6962
  


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

                                                                                                                                          22  

                                                                                                            

the  subjective  component,  on  the  other  hand,  if  it  acts  with  a  bad-faith  purpose. 



                                                                                                                                          23  

                                                                                        

"[G]enerally whether the covenant has been breached is a question for the trier of fact." 



                      Becker argues that Fred Meyer violated the objective component of the  



covenant.  He alleges that several employees who committed similar or more serious  



                      

violations of the loss prevention manual were not terminated without notice but received  



                                                          

less severe discipline.  Fred Meyer responds that Becker presented "no evidence of any  



employee . . . who did anything remotely like what Becker did on January 3."  



                      To support his allegation that Fred Meyer treated him differently from  



                                                                                        

other, similarly situated employees, Becker notes that during discovery he identified 29  



                                                                  

Fred Meyer employees who committed similar violations but were not terminated.  He  



                                                                                                          

also notes that he testified about some of those employees during his deposition and that  



                                                                           

Devin Lilly maintained in an affidavit that "on numerous occasions there have been Loss  



                    

Prevention employees committing non-apprehension arrests, which are considered far  



                                                      

more egregious than non-policy stops, who were not terminated without prior notice."  



                      The superior court concluded that this evidence was not sufficient to defeat  



                                                                                                              

summary judgment.  Although the court acknowledged that Becker had identified other  



employees who, he alleged, were similarly situated, "he did not describe in any detail  



                                               

how these other employees' conduct correlated to his own alleged conduct or that there  



                               

was any disparate treatment between Fred Meyer's disciplinary action against him and  



these other employees."  



           22         Willard v. Khotol Servs. Corp., 171 P.3d 108, 113-14 (Alaska 2007).  



           23         Mills v. Hankla , 297 P.3d 158, 167 (Alaska 2013) (alteration in original)   



(quoting Okpik v. City of Barrow, 230 P.3d 672, 681 (Alaska 2010)) (internal quotation   

marks omitted).  



                                                                   -13-                                                                  6962  


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

                   In Hoendermis , an employee "was terminated for allegedly failing to get  



                                            24  

                                                  We  concluded  that  Hoendermis's  affidavit,  which  

along  with  other  employees." 



alleged  that  several  other  employees  had  engaged   in   various  forms  of  misconduct  



without their employment being terminated, was sufficient to raise an issue of material  

fact whether she was treated differently from similarly situated employees.25  



                   The superior court concluded that Becker's case was distinguishable from  

                                                                                              



Hoendermis because Becker did not describe in detail the misconduct committed by the  

                                                                 



other employees or identify an employee who "committed a non-policy stop approaching  



the sheer number of violations that he is alleged to have committed." But in Hoendermis ,  



                                                                           

we did not suggest that a certain level of detail about other employees' misconduct was  

required to defeat summary judgment.26  



                                               

                   Moreover, Becker did describe in detail misconduct committed by two  



other loss prevention employees, and the discipline to which each of them was subjected.  



Becker alleged that one employee was not terminated after a non-arrest apprehension,  



                                                          

which, according to the policy manual, is more serious than a non-policy stop.  And  



                                                                                                           

Becker alleged that a second employee was not terminated after committing a non-arrest  



apprehension;  rather,  the  employee  was  suspended  and  transferred  out  of  the  loss  



                 

prevention department.  Therefore, the record reflects that Becker did provide evidence  



about the specific circumstances of some of the other employees he identified.  



                    Nor does Hoendermis require, as Fred Meyer suggests, that an employee  



                                                    

claiming disparate treatment show  that another employee with exactly the same job  



          24       251 P.3d at 357.  



          25       Id.  



          26       See id.  



                                                          -14-                                                        6962  


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

description was treated differently after committing exactly the same misconduct.27                                               To  



the contrary, the evidence in Hoendermis indicated that employees in varying positions  



                                                                                                     

had committed a wide range of misconduct, from engaging in a romantic relationship  

                                                                                 28  We found that Hoendermis, who  

with a patient to assaulting another employee at work. 

was discharged for failing to "get along with other individuals employed in the clinic,"26  

                                                                                                                

had been treated differently and that this was sufficient to prevent summary judgment.27  

                                                                                          



We concluded that "whether Hoendermis was similarly situated to any of these other  



                                                                                         28  

employees is a question of fact" to be determined at trial.                                  Therefore, Becker was not  



required to identify an employee who committed precisely the same misconduct as he  

                                                     



did in order to withstand summary judgment.  



                     And while it is true that Fred Meyer presented evidence indicating that  



                                                          

some employees were terminated for committing policy violations, that evidence merely  



                                                                                    

points to the existence of a factual dispute; it does not establish that summary judgment  



was warranted.  



                                                                                         

                     For these reasons, we conclude that Becker has raised a material question  



                                            

of fact whether Fred Meyer breached the objective component of the implied covenant  

of good faith and fair dealing.29  



          27         Id . at 356-57.
  



          28         Id. at 357.
  



          26         Id. at 350.
  



          27         Id. at 357.
  



          28         Id.
  



          29
        Becker also argues that the court should not have dismissed his wrongful   



termination claim.  The superior court dismissed the claim as "premised on his first two   

                                                                                                                 (continued...)  



                                                                -15-                                                          6962
  


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

V.       CONCLUSION  



                                              

                 The judgment of the superior court is REVERSED and REMANDED for  



further proceedings consistent with this opinion.  



         29(...continued)  



causes of action: breach of contract and breach of the covenant of good faith and fair  

                                                                         

dealing."  Because a genuine issue of material fact exists for both of these underlying  

claims, however, Becker's wrongful termination claim remains unresolved.  



                                                      -16-                                                   6962  

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