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Nyberg v. University of Alaska (3/20/98), 954 P 2d 1376
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.
THE SUPREME COURT OF THE STATE OF ALASKA
ADRIANA NYBERG, a/k/a )
MICKEY NYBERG, ) Supreme Court No. S-7734
Appellant, ) Superior Court No.
) 4FA-94-2383 CI
) O P I N I O N
UNIVERSITY OF ALASKA, )
) [No. 4957 - March 20, 1998]
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Jay Hodges, Judge.
Appearances: James M. Hackett, Law Offices of
James M. Hackett, Inc., Fairbanks, for Appellant. Mark E. Ashburn,
Ashburn & Mason, Anchorage, for Appellee.
Before: Compton, Chief Justice, Matthews,
Eastaugh, Fabe, and Bryner, Justices.
The University of Alaska terminated Adriana "Mickey"
Nyberg from employment for insubordination. Following a hearing,
the Statewide Grievance Council found that Nyberg was insubordinate
and recommended to University President Jerome Komisar that
Nyberg's termination grievance be dismissed. President Komisar
accepted the Grievance Council's recommendation. On appeal, the
superior court upheld the University's decision. We conclude that
the Grievance Council improperly found that Nyberg was
insubordinate and reverse.
II. FACTS AND PROCEEDINGS
Nyberg was director of Payroll and Benefit Accounting at
the University under the supervision of the executive director of
Human Resources, Patty Kastelic. Soon after the University moved
the payroll office to the offices of Human Resources in 1993,
friction developed between Nyberg and Kastelic. In May 1993
Kastelic sought to address the problems she was experiencing with
Nyberg by holding a meeting with her and requesting that Randy
Weaver, the director of Statewide Internal Audit, review the
matter. In a confidential memorandum to Kastelic, Weaver concluded
that Nyberg "[did] not appear to be effective at providing
guidance, support and supervision"to her staff. He also indicated
that tension existed between Nyberg and the staff and that the
staff felt caught in the middle of a conflict between Nyberg and
Kastelic. Kastelic and Nyberg discussed Weaver's report, and
Kastelic was initially encouraged that the situation was improving.
The friction between Nyberg and Kastelic, however, did
not abate. On Monday, August 30, 1993, Kastelic delivered a
memorandum to Nyberg that discussed problems with Nyberg's
performance and behavior. [Fn. 1] In the memorandum, Kastelic
informed Nyberg that they would write a plan together that day and
meet with others in the office over the next few days to discuss
ways to improve the work environment. Kastelic concluded the
memorandum by stating that "[p]rogress toward identified goals will
be documented in writing on a weekly basis until the current work
related difficulties are behind us."
Pursuant to the memorandum, Kastelic and Nyberg met with
members of the department on August 30 and 31 to discuss the
workplace problems. Nyberg became upset and did not report to work
the next day, September 1.
On Thursday, September 2, Kastelic delivered a second
memorandum to Nyberg. [Fn. 2] In this memorandum she recounted the
recent history of workplace problems and efforts to resolve them.
She explained that Nyberg was not "performing at an acceptable
level" and that Nyberg had three months to improve her
If your performance does not improve
consistently and demonstrably during the next three months I will
be required to take whatever action is necessary to assure that the
work of your department is accomplished in a timely and
It is my clear intention by the writing of
this memo to offer you a constructive opportunity to perform the
duties and re[s]ponsibilities of your position.
Kastelic further informed Nyberg that she would be placing the
memorandum, related memoranda, and a formal written evaluation in
Nyberg's personnel file.
Later that day, Kastelic approached Nyberg to discuss the
issues raised in Kastelic's second memorandum. Nyberg told
Kastelic that the memorandum was inaccurate and that she had turned
it over to her attorney. Nyberg explained that she would be filing
a grievance and that she "preferred not to discuss the issues
involved in the grievance until it was formalized." Kastelic
replied that Nyberg was required to discuss the issues contained in
the memorandum and that she should be prepared to do so the
On the morning of Friday, September 3, Kastelic again
approached Nyberg to discuss the issues Kastelic had raised earlier
in the week. The parties' recollections of their conversation
differ slightly but significantly. Kastelic claims that Nyberg
refused to discuss any workplace issues, and that Nyberg stated
that on advice of her attorney she would no longer communicate
directly with Kastelic. Nyberg maintains, however, that she merely
told Kastelic that discussion of her grievance should proceed
through her attorney. She denies stating that she would no longer
communicate directly with Kastelic. In a September 7 letter to
Kastelic, Nyberg distinguished between discussing her grievance and
discussing other matters:
Finally, I respectfully submit that I never
advised you on September 3, 1993 that my attorney told me not to
communicate directly with you. I simply informed you that I was
seeking legal assistance to help me prepare a grievance and that
any communications about that grievance (which is now two separate
grievances) should go through my attorney.
Following the September 3 conversation, Kastelic drafted
a memorandum stating her intention to discharge Nyberg from
employment "because you are not competent to carry out the
essential duties of your position and you have [been] in the past
and are today insubordinate to me, your direct supervisor."
Kastelic placed Nyberg on administrative leave without pay
effective immediately, and scheduled a pre-termination hearing for
September 7. Later that day, Kastelic received two grievance
letters from Nyberg. The letters grieved, among other things,
Kastelic's creation of a hostile work environment, Kastelic's
issuance of "accusatory, conclusory, and inaccurate"memoranda, and
Kastelic's placement of Nyberg on administrative leave.
A pre-termination hearing was held on September 7.
Nyberg appeared with her attorney to deliver a letter in which she
disputed the charges against her. Ten days later, Kastelic
formally discharged Nyberg based upon her "acts of
insubordination,"including Nyberg's "statements that you would not
communicate with me on issues related to your grievance, the
content of which was unknown to me at the time."
Nyberg then filed her third grievance letter. This
grievance addressed the decision to terminate her employment. The
Grievance Council reviewed all three of Nyberg's grievances and
recommended that they be dismissed without a hearing.
President Komisar nonetheless directed the Grievance
Council to conduct a hearing to hear Nyberg's termination
grievance. The hearing included thirty-three hours of testimony
from eighteen witnesses. Following the hearing, the Grievance
Council again recommended the dismissal of Nyberg's termination
grievance. President Komisar accepted the recommendation.
Nyberg appealed to the superior court, which issued a
memorandum decision affirming Nyberg's dismissal for
insubordination. Nyberg appeals.
A. Standard of Review
We independently review the merits of administrative
determinations, giving no deference to the decision of the superior
court as the intermediate court of appeal. See Handley v. State,
Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992). We review
questions of fact, such as whether the University properly found
Nyberg insubordinate, under the substantial evidence test. See id.
We review questions of law not involving agency expertise under the
substitution of judgment test. See id.
B. The Record Does Not Contain Substantial Evidence That
Nyberg Was Insubordinate.
An employee's willful refusal to obey an employer's
reasonable instructions is a ground for discharge. See Helmuth v.
Univ. of Alaska Fairbanks, 908 P.2d 1017, 1021 (Alaska 1995)
(citing Central Alaska Broad. v. Bracale, 637 P.2d 711, 713 (Alaska
1981)). We have upheld a finding of insubordination where there
was substantial evidence that an employee intentionally refused to
comply with reasonable written and oral directives issued by the
supervisor. See Helmuth, 908 P.2d at 1020 n.7, 1023-24. In this
case, we must determine whether Kastelic's instructions to Nyberg
were both reasonable and sufficiently clear to enable Nyberg to
understand what was required by her employer. See id.; Bishop v.
Municipality of Anchorage, 899 P.2d 149, 155 (Alaska 1995)
(affirming a finding of insubordination where an employee refused
to obey an order after being given "clear notice of what was
required of him"). If we conclude that the instructions were
reasonable and sufficiently clear, we must then determine whether
Nyberg willfully refused to obey them.
In this case, the Grievance Council found that Nyberg's
"refusal to consider, respond to, and discuss the issues raised in
[Kastelic's] memos"constituted insubordination. As an initial
matter, we examine whether Nyberg refused to consider and respond
to Kastelic's three memoranda. We consider each memorandum in
First, Kastelic's August 30 memorandum identified
workplace problems and required Nyberg to meet with staff members
"to improve this situation."[Fn. 3] Nyberg complied with this
directive by meeting with Kastelic and other staff members on
August 30 and 31 to discuss workplace problems. Second, Kastelic's
September 2 memorandum offered Nyberg "a constructive opportunity
to perform the duties and responsibilities of [her] position."
While the memorandum required Nyberg to provide "a response in
writing concerning [her] intentions,"it also stated that Nyberg
had three months to improve her performance and gave no deadline
for her written response. Nyberg provided a written response to
Kastelic's memorandum in the form of her first grievance letter
which she filed the next day. The grievance letter alleged that
the memorandum was inaccurate and "designed to further degrade our
working relationship." Finally, Kastelic's September 3 memorandum
placed Nyberg on administrative leave effective immediately and
required no response. Nyberg nonetheless responded by filing her
second grievance letter, which she delivered to Kastelic's office
the same day.
In sum, Nyberg considered and responded in writing to
each of Kastelic's memoranda. We conclude that the record does not
support the Grievance Council's finding that Nyberg was
insubordinate for refusing to consider and respond to the issues
raised in Kastelic's three memoranda.
The question of whether Nyberg was insubordinate
therefore turns on her alleged refusal to discuss workplace
problems with Kastelic pursuant to Kastelic's oral directives on
September 2 and 3. [Fn. 4] We consider whether Kastelic's oral
directives were both reasonable and sufficiently clear to enable
Nyberg to understand what was required of her. See Helmuth, 908
P.2d at 1021; Bishop, 899 P.2d at 155.
The University contends that on September 2 Kastelic
ordered Nyberg to be prepared the next day to discuss the issues
contained in the September 2 memorandum. [Fn. 5] The following
day, when Kastelic insisted that they needed to discuss the issues,
Nyberg responded, "I have nothing more to say to you about those
issues or any issues relating to my grievance."[Fn. 6]
The University contends that Nyberg also told Kastelic
that, on the advice of counsel, she would no longer communicate
directly with Kastelic. Nyberg maintains that she never refused to
talk directly to Kastelic, and in a letter delivered at her
termination hearing Nyberg stated that she had "simply informed
[Kastelic] that [she] was seeking legal assistance to help 
prepare a grievance and that any communications about that
grievance . . . should go through [her] attorney."[Fn. 7]
The University concedes that Nyberg was "entitled to
state that communications about a grievance which might be filed in
the future should be directed to her attorney." It argues,
however, that Nyberg was not entitled "to refuse to communicate
altogether with her supervisor about performance problems in the
workplace." We agree that Nyberg was not entitled to refuse
entirely to communicate with Kastelic about workplace problems.
Where an employee has filed a grievance relating to her
supervisor's conduct, however, she cannot be found insubordinate
for her refusal to obey the supervisor's order to discuss the very
problems she has raised in the grievance. To hold otherwise would
be to vitiate the grievance process. Cf. Meritor Sav. Bank, FSB v.
Vinson, 477 U.S. 57, 73 (1986) (observing that where a grievance
procedure required an employee to complain to her supervisor whose
conduct was the subject of the grievance, the grievance procedure
did not encourage victims of harassment to come forward).
Regardless of Kastelic's intentions, she neither clarified that
Nyberg was not required to discuss the grievance issues nor
specified the non-grievance issues she sought to discuss with
Nyberg. In the absence of such clarification, Nyberg could have
reasonably construed Kastelic's orders to discuss workplace
problems as orders to discuss the issues raised in her grievance.
We conclude that if Kastelic was ordering Nyberg to
discuss matters contained in the grievance against Kastelic, the
order was not reasonable. If, on the other hand, Kastelic simply
wished to discuss workplace issues that fell outside the scope of
the grievance, then she was required to say so clearly and
unambiguously, in order to prevent Nyberg from construing her
request as a demand to discuss the matters contained in the
grievance. Because Kastelic failed to do this, her oral directives
to Nyberg were not sufficiently clear to support a finding of
insubordination. [Fn. 8] See, e.g., Bishop, 899 P.2d at 155.
We conclude that substantial evidence does not support
the Grievance Council's finding that Nyberg was insubordinate.
Accordingly, we REVERSE President Komisar's acceptance of the
Grievance Council's determination that Nyberg was insubordinate and
that her termination was justified. [Fn. 9]
Although the memorandum was delivered to Nyberg on August 30,
it is dated August 27.
Although Kastelic completed and delivered the memorandum to
Nyberg on September 2, it is dated September 1.
In the August 30 memorandum, Kastelic also stated that "[w]e
will write a plan together today." In the September 2 memorandum,
she stated "we will jointly develop a written work plan." It is
unclear from the record whether such a plan was ever written.
In fact, although the Grievance Council based its finding of
insubordination in part on Nyberg's failure to consider and respond
in writing to Kastelic's memoranda, the University bases its
argument on its contention that Nyberg refused to obey Kastelic's
reasonable oral orders to discuss workplace problems.
The University characterizes these issues as workplace
problems and efforts to resolve them.
Kastelic's testimony at the pre-termination hearing included
the following exchange with the University's counsel:
Q: And [did] you have contact with Ms.
Nyberg the morning of September 3rd?
A: Yes, I [did].
Q: And do you recall approximately when that
A: Sometime between eight and nine, I went
into her office and said, "Well, we need to sit down and discuss
the issues that I raised all this week." And she said, "I have
been told that I do not have to discuss those issues with you."
Q: And how did you respond to that?
A: "We -- we cannot work that way. I cannot
supervise you through your attorney. We need to talk about those
Q: And [did] you then discuss those issues?
Q: Why not?
A: She refuse[d] to. She said, "I have
nothing more to say to you about those issues or any issues
relating to my grievance." And I said, "I don't even know what's
in your grievance. You have got to talk to me about the issues
relating to your supervision, your interaction with other staff.
You cannot prevent us from having performance-related discussions."
Kastelic's September 17 letter formally terminating Nyberg's
employment is consistent with Nyberg's version of events. It cites
Nyberg's "statements that you would not communicate with me on
issues related to your grievance"as "acts of insubordination."
Given our conclusion that Kastelic failed to give a reasonable
order that was sufficiently clear to Nyberg, we need not address
whether Nyberg willfully refused to obey Kastelic's orders.
Nyberg also argues that the University denied her due process
by not providing an impartial tribunal to hear her grievance,
violated its own regulations and her implied contract by not
placing her on disciplinary probation prior to dismissing her, and
violated the implied covenant of good faith and fair dealing.
Because we dispose of the case on the insubordination issue, we
need not reach these arguments.