*1 538 rule, make
Under this the defendant must prima showing CAMERON, a of the constitutional McLeod, Harold A. Sharon facie infirmity prior Upon McMullen, of a conviction. such William B. and Caroline showing, prose- Venusti, individually a the burden shifts to employees and as prove prior Alaska; cution to conviction’svalidi- of the and the State of ty by preponderance Alaska, Appellants, a of the evidence. Cowden, 1089, City v. 111 P.2d Laramie v. Shaver, (Wyo.1989); People v. 630 BEARD, Appellee. Burle B. 600, (Colo.1981).
P.2d 605-06 No. S-5152. adopt decline a such rule. Instead, we hold that where seeks to DPS Supreme Court of Alaska. prior foreign use a conviction to enhance a revocation, prove by pre license it must 3, Dec. 1993. ponderance prior of the evidence that the 18, Rehearing Denied Jan. 1994. conviction occurred and that the statutes substantially similar. See AS 28.15.- 181(c). alleges prior If the defendant
conviction was void due to a constitutional
infirmity, allegation this is an affirmative prove by
defense which the defendant must preponderance of the evidence.8 Morrow Homes, Inc., 279,
v. New Moon 548 P.2d (Alaska 1976) (“The party raising generally
affirmative defense bears the issue.”).9 proof
burden of as to that
D. Laches argues challenge
DPS also that Fann’s prior Wyoming conviction is barred equitable doctrine of laches. Because
DPS did not raise this claim before the
superior court, we will not it consider here. Co., Alyeska Pipeline
Williams v. Serv.
REVERSED and REMANDED. proving (4th Cir.1989); Davenport, the state had the burden of the convic- F.2d constitutionally Dickens, Contrary (8th tion was sound. United States v. 879 F.2d assertion, Cir.1989). Fann’s counsel's this court did not by preponder- This burden is met "explicitly state” that the state would be re- Phylis ance of the evidence. See 1 Skloot Bam- quired justify integrity the constitutional Gottlieb, berger & David J. Practice Under the foreign proper showing conviction if a of infir- Guidelines, 3[C][1], Sentencing Federal § 3-15 mity were made. (1993). ap- 8. Our conclusion is consistent with the argues finding DPS court erred in proach Sentencing taken under the Federal present Wyoming at the advise- Fann was not relating pun- Guidelines to the enhancement of legal rights proceedings and that Crimi- ment by prior challenged ishment convictions as un- Rule 11 was Because we are re- Sentencing nal violated. constitutional. See Federal Guide- (1993). manding proceedings ap- further under the guidelines, lines § 4A1 Under the propriate proof, establishing burdens of we need not review defendant bears the burden of invalidity prior of the conviction. United States contentions at this time. *2 exhausting
that Beard was excused from provided administrative remedies under bargaining agreement. his collective State also asserts that Beard’s constructive claim was an earlier barred *3 compensation Compromise workers’ alternative, Release. In the ar- State gues superior in deny- court erred ing verdict/judg- its motion for directed ment n.o.v. on the constructive claim. argue
The individual defendants that the in denying court erred their motions for verdict/judgment directed n.o.v. on the Alternatively, they argue IIED claims. denying in court erred their motion ground for on the they were immune from suit as officials of Finally, the state. both the State and the appeal individual defendants the court’s de- nial of their motions for a new trial and remittitur. Proceedings Facts and
II. Except one-year interruption for a due to injury, Burle Beard for the state worked (DOT) Department Transportation from Olsen, Gen., Fair- Randy Atty. M. Asst. 1966 until he retired in 1986. After Gen., banks, Cole, Atty. E. and Charles Right Way in sec- Beard worked DOT’s Juneau, appellants. job tion in In all of Beard’s Fairbanks. Wickwire, Fairbanks, ap- Thomas R. performance evaluations from 1966 to pellee. performance was rated as either his high acceptable outstanding. acceptable, MOORE, C.J., Before BURKE, April 1985 Beard became the Alaska WITZ, RABINO MATTHEWS (APEA) COMPTON, Employees Association Public JJ. building representative. Believing that supervisors some of his and co-workers OPINION rules, violating personnel Beard DOT MOORE, Chief Justice. began investigation an informal into de- Introduction I. for evi- partmental Beard looked abuses. up suspicions his that DOT dence to back and four individ- appeal, In this the State time sheets personnel routinely falsified challenge supervisors ual defendant time and slips and misused state and leave Beard, Burle jury’s verdict favor of findings reported his property. He Transportation em- Department of former agencies. federal of state and number of constructive dis- ployee, on his claims of emotion- charge and intentional infliction Venusti, the DOT In June Caroline (IIED). al distress director, alle- learned of Beard’s personnel expert gations from a labor relations maintains that Administration. Venusti Department of interpreting this court’s deci- court erred day. Baum, same Venusti met with Beard the sion in Beard v. P.2d 1344 meeting Beard arranged a between (Alaska 1990), conclusively establishing also McMullen, previously he regional which had contacted. How- the DOT and William ever he told McMullen that he would still outlined meeting, Beard At this director. concerning charges a letter send his to the McMullen, McMullen allegations his Attorney Fairbanks District because he appoint an going that he was told Beard already had drafted it. situation. investigator to review Internal Re- then asked DOT’s McMullen McMullen later discovered that Beard investigate Beard’s claims. Section to view secretary type had a this letter. DOT discovery, When confronted with this allegations of claims that once his initially lied to McMullen and told known, supervisors misconduct became girlfriend typed him that his the letter. him purposeful campaign to force began á suspended thirty days Beard for McMullen day meeting job. following off the *4 lying grieved the incident. Beard about McMullen, APEA an unidentified with suspension, subsequently this and it was a election for build- member asked for new days through a reduced to seven settle- subsequent- representative. Beard was ing the APEA ment between and State. position. out of the Later that ly voted pay Beard received three weeks back as McLeod, month, Right Way of Sharon result of the settlement. job supervisor, completed Beard’s annual per- and rated his evaluation performance performed quarter- In McLeod October “low-acceptable.” noted formance as She ly perfor- Beard and rated his evaluation of attending much time spent that Beard too “low-acceptable.” mance as McLeod based unassigned non-job and related tasks to negative suspen- her evaluation on Beard’s of improperly copied the time sheets sion, his failure to follow directions when also observed employee. another McLeod doing appraisals develop and his need to Highway Administration that the Federal job “teamwork attitude.” However she accept not rescinded its refusal also noted that Beard had fulfilled some of appraisals. McLeod’s evaluation Beard’s goals previous in his set out evaluation. re-evaluated indicated that Beard would be longer required Beard to fill out She no suggested strictly controlling quarterly and hourly suggested time but that he sheets assignments to ensure that he his work re-evaluated in three months. Beard be supervisor’s his instructions. followed grieved this evaluation. evaluation. grieved Beard this Sisk, February Stephen In who tem- Beard August, In McMullen met with acting porarily replaced McMullen as re- copy Internal gave director, him a of Review’s gional gave Beard a written warn- allegations report concerning final Beard’s disciplinary ing that he would face severe report departmental abuses. The con- harassing stopped he his co- action unless twenty-one only two of the cluded that continuing allegations of workers with his had made allegations which Beard corruption.1 grieved Beard departmental expressed Beard his dissat- substantiated. warning requested copies memo and findings pub- and went isfaction with these complaints. underlying allegations. lic with his February, the Division of Person- Also later, grievance review of with McMul- nel concluded its A month Beard met It len, July evaluation of Beard. or- representatives APEA to McLeod’s Yenusti and evaluation re- continuing campaign dered DOT to have Beard’s Beard’s discuss Kendall, supervi- by by Richard Beard’s allegations investigated non- done have his McLeod had Engineering, because personnel. At the close of the meet- sor DOT supervisor days Beard’s agreed only to discuss his alle- been ing, Beard period. Kendall com- agencies annual evaluation individuals or gations with those McLeod’sevaluations would warning that his rebuttals to this was a series of 1. The basis for during gath- personnel placed made an after work file. McMullen remarks Beard ering be in her bar. Beard told several DOT requested at a local memos learned these remarks successfully grieved employees that he had detailing employees these comments. three from expressed hope day suspension. He also pleted ground the evaluation in March and rated that Beard had not exhausted his performance acceptable as in all administrative remedies under the collec- bargaining agreement. tive categories. May Both McLeod and McMullen granted court McMullen’smo- added critical comments the evaluation. tion and struck this count after Beard completed In March her McLeod third timely opposition. failed to file a Beard job per- evaluation of Beard rated his opposition day filed an one later in- which “acceptable” in- formance as but rated his cluded an affidavit from rep- Beard’s union terpersonal relationships with co-workers resentative, stating that he had told Beard “unacceptable.” as McLeod cited contin- supervisors’ attempt that his to “harass Beard, disruptive referring ued behavior by using assignments, him apportion- work February warning letter and new ing structuring the workload and otherwise complaints.2 again his work environment so as it to make grieved the evaluation. possible” uncomfortable as was not a warning McMullen issued a final grievable matter. “disruptive May. behavior” in about A lengthy exchange of motions between warning by visiting cited a memo DOT parties Ultimately, ensued. the court director, Lentz, Milt which stated that Cameron, permitted McLeod, Beard to add Beard had initiated a discussion of- Venusti, and the *5 as In defendants. fice situation Lentz and had told him with complaint, his amended Beard also added planned buy that he to sue the state and for, alia, claims inter dis- constructive in May, sailboat with the settlement. Also charge speech. and denial of freedom of required supply McLeod Beard to a doc- court, however, rejected the construc- justify tor’s certificate to his use of sick claims, discharge concluding tive and IIED leave. This was the first time Beard had that Beard failed to exhaust his administra- provide ever asked to such a certifi- been tive remedies. cate. appealed Beard to this court on this issue resigned August Beard from DOT Baum, and others. Beard v. 796 P.2d See Beard, According his current su- (Alaska 1990) I). July {Beard pervisor, Jerry Apple, him told that McMul- 1990, appeal pending, while this first was process preparing len was in the a termi- Compromise Beard endorsed a and Release suggested nation letter and that Beard (C R) compensation & of his workers’ claim protect take action to himself. Beard im- $13,000 and received in settlement. A mediately resignation wrote out his later, month this court issued Beard I. We day. it the next Following submitted reversed the court’s dismissal of retirement, completed Apple a final discharge Beard’s constructive IIED again critically evaluation of Beard which claims and remanded the case for further performance. rated his proceedings. 1348-50, Id. at 1353-54. compensation Beard filed a workers’ remand, On the individual defendants days resignation. claim several after his summary judgment, arguing moved for “persistent The basis for his claim was prima that Beard had failed to make out mental stress with acute and chronic back IIED against facie claims them. In the pain” by and neck caused “continuous on- alternative, they contended that their sta- the-job harassment.” tus as state officials shielded them from compensation liability Aspen While this workers’ claim Exploration Corp. under pending, complaint was Sheffield, filed McMullen,
against alleging misrepresenta- State also moved for tion, claim, IIED. defamation and McMullen on Beard’s constructive asserting moved to dismiss the IIED count on the that Beard had failed to establish employee complaints by 2. McLeod cites six of "dis- recount various comments made ruption” in the March evaluation. These mem- grievance about his successful settlement. os, herself, including briefly one McLeod argued “disruption” that the mental in early It also 1986 in prima facie case. order past, pres- pretext R had settled all July firing 1990 C & to create a him. Beard ent, compensation claims for be- or future contended that McMullen solicited memos arising and Beard out tween the State employees concerning from DOT his com- retire- harassment and forced his claims of ments about office situation and his argued Finally the State that ment. grievance settlement and used these mem- discharge claim was Beard’s constructive February os as the basis for the 1986warn- he had failed to exhaust his because barred ing speculated letter. He also remedies under the collec- administrative May warning handwritten draft of the final bargaining agreement.3 tive letter circulated in March between McMul- len, Venusti and a expert labor relations Hodges summary Judge denied all motions, Department stating generally that Administration indicates judgment they planning engineer to be resolved.” “there are factual issues fur- However, agree argu- “disruptive to hear ther the court did incidents” which would ment on the exhaustion administrative eventually lead to his termination. Beard ultimately pre- remedies issue if Beard suggests that the Lentz memo was the vailed at trial. product plan.4 of such a length At trial Beard testified at about Both McMullen and Venusti admitted at supervisors activities of his after his they trial that solicited memos from vari- allegations corruption public. became employees concerning ous Beard. Venusti driving Beard identified McMullen as the activity characterized this “preparing job. of the effort to force him off the force employee” case denied but rejected He testified that after he the In- it keeping constituted a “secret file” on “whitewash,” report ternal Review as a Beard in personnel violation of DOT rules him going McMullen told that “this is *6 According and the APEA contract.5 to anyone’s look awful bad on evaluation who Venusti, she resisted Beard’s efforts to see proceeds any brings further than this or protect these memos in order to the confi- Beard, up any way.” According in this to dentiality employees. of the other Both manipulated lying McMullen then him into she and McMullen declined to on comment typed who letter the about to Fairbanks subsequent of Personnel’s Division de- Attorney. District He also that testified that the disruption termination evidence of McMullen told him he when returned to underlying warnings the evaluations and suspension after this that he work would mostly was unfounded.6 promoted years.” “in a never be thousand McLeod, supervi- supervisor Beard further contended that his Sharon Beard’s dur- began collecting depart- ing period, evidence of sors most of the relevant testified February requires supervi- 3. The State based this on the and a motion hibited contents of deposition representative, of Beard’s union performance logs sor’s be with to shared em- Senkow, allegedly Bruce in which Senkow con- ployees regular a basis. on tradicts his earlier affidavit. 6.In the Division of Personnel October 1986 Beard, According completely Milt Lentz 4. completed February review the Sisk its misrepresented this conversation with Beard. warning refer- memo recommended that all meeting Beard claims that after a "closed-door” underlying ences to the memo and the com- McLeod, approached with Cameron and Lentz plaints from be removed Beard’s file. Janu- immediately his desk and asked him about the ary investigator a of Personnel 1987 Division telling office situation. Beard denied Lentz he removing paragraph citing planned recommended to sue the state. He also testified that here, people super- disruptive Lentz told him that "the Beard’s behavior from McLeod's getting (1) visors here are a little bit grounds worried about March 1986 evaluation on the that might actually the situation because someone investigate (2) warning it was based the Sisk that on just it. Well be real careful complaints the other were inconclusive. He up you someone doesn’t come you away.” behind and blow the deletion of comments also recommended indicating negative effect that Beard had a on productivity of the section. expressly APEA The contract states that the keeping pro- of a secret file on an job coming my over to office unannounced of Beard’s critical assessments that her files, product go through my go through of her own my performance complaints voiced oth- notes, go through my observations calculations. And that she employees. She testified er DOT said, just what kind he “We’ll see man- or her not discuss her evaluations did supervisor you are.” It was kind of a Venusti or techniques with either agement thought. threat I Cameron, the chief Harold Cameron. agent at the Fairbanks of- Right Way
fice, he did not take active testified that very things made it clear ... ... [H]e process. role in the evaluation go very smoothly going weren’t evaluation, gave good If I me. Burle -Kendall, Richard testimony everything then that meant I did Engineering, corrobo- supervisor Beard’s story prolonged point going effort to from that on was to be scru- rates Beard’s job. According to Ken- possible force him off the tinized and there would be disci- dall, him into his office McMullen called plinary against action me.
January and told him to write state- Kendall, According McMullen told him activities were indicating ment that Beard’s going that “Burle’s ass is down road.” disrupting Engineering section. Ken- despite unwillingness dall testified that that, Kendall further testified in re- comply, McMullen insisted that he write sponse complaints to his about McMullen’s leaving McMullen’s the statement before tactics, pressure supervisor, another DOT After he was directed to redo office. Jerry Apple, told him that Cameron evaluation, Kendall testi- July Beard’s job” asked him to do a “hatchet on Beard. him that McMullen met with four or fied chief, him At the of Beard’s case in pressured five times and to write close Beard. Kendall tes- negative evaluation of moved for a directed verdict on that, meetings, tified at one of Beard’s claims the State and the uncompleted placed defendants, McMullen eval- again arguing individual griev- pending uation form and Kendall’s present Beard had failed to sufficient evi- supervisor pay side-by-side on a ance Judge Hodges dence. denied this motion. desk, indirectly suggesting griev- that his jury returned a verdict favor of ance affected if he did not write a would be Beard, $696,571 awarding him in lost *7 negative provided evaluation. Kendall the wages and for the of his benefits breach following meeting: account of one McMullen, employment contract. Venusti pretty intimidating to- was $1,000 in
[McMullen] and Cameron were each assessed pound wards me. He would his fist on (no damages IIED compensatory com- know, and, you the desk stare at me for damages against pensatory were assessed any- long periods saying of time without McLeod). jury compensa- The no awarded thing. get up And then he would tory damages on Beard’s first amendment room, know, you around the walk claim, commenting money could not plaques go look at his on the wall and compensate Beard for the loss of his free- stare out the window with his hands be- speech. jury dom of The also awarded and kind of hind his back rock back punitive damages Beard follows: heels, forth on his and then ask me what $45,000; $70,000; Venusti — McMullen — going say my I was to evaluation $1,000. $45,000; McLeod — Cameron — was, again. say you And all I could subsequently judg- The moved for State know, already you going “I’ve told I’m n.o.v., trial and for remitti- ment for a new give him a favorable evaluation.” And Hodges each of Judge tur. also denied he said that’s not what he wanted to see these motions. The court also ruled -well, something he said about that — I rendered Beard this court’s decision my ability supervise if I and that did a judica- res the exhaustion of remedies issue good going evaluation that he was to see just good supervisor how I was ta.
545 III. and the State Discussion never had an opportunity to presented rebut the evidence in Beard’s A. Exhaustion Administrative opposition. The judicata doctrine of res Remedies apply party does not when one has not had repeatedly have held that “an opportunity litigate an an issue. See employee must first exhaust his contractu Ferguson Dep’t Corrections, v. State remedies, al or administrative or show that 134, 816 P.2d We there so, doing he was excused from before he superior fore remand this issue to the court may pursue judicial against action direct evidentiary for an hearing. employer.” City v. Fair Casey 1133, (Alaska 1983), banks, 670 P.2d Compromise B. and Release I, P.2d at 1348. In quoted in Beard State July contends that The I, superior reversed the court’s Beard we compensation workers’ C & R bars decision to strike Beard’s constructive dis constructive claim and IIED charge and claims because Beard had Judge Hodges denying thus erred in suggesting un presented evidence that his summary the State’s judgment.9 motion for representative grieve ion had refused to reviewing When the denial of a motion for I, these matters.7 P.2d at Beard 1349. summary judgment, we determine whether superior erroneously in court genuine there are issues of material fact terpreted our decision in I as conclu moving party and whether the deserves sively deciding the exhaustion issue. Our judgment as a matter of law. Criterion merely ruling decision reversed the court’s Velthauser, (Alas Ins. Co. v. 751 P.2d in favor of the and did not State constitute 1986). ka a final determination that Beard was ex pursuing interpreted cused from his remedies under A release is See, bargaining agreement. any the collective same manner as other contract. e.g., Baily, 837 P.2d Lashley, Schmidt v. 204 n. 7 Pedersen-Szafran (Alaska 1992).8 1981). bar, plain 126-28 Beard never In the case at sought summary judgment language signed by oh this issue of the C & R original upheld grant summary The State’s motion to dismiss on the court’s- 7. actually judgment ground pleadings previous functioned as a motion for on the that our deci- conclusively employ- incorporated did not determine the because it sion right bring independent pleadings. ee’s an action. See number of exhibits outside the See 12(c). id. at Alaska R.Civ.P. 128. argues 9.The State also that Beard's exclusive Pedersen, original filed an remedy against injury the State for and lost alleging breach action of her wages Compensation Act. is under the Workers’ employment complaint contract. Her included argument unpersuasive. purpose This that she statement had exhausted the adminis- Compensation compen Act the Workers’ is to provided applicable *8 trative remedies in the col- injuries sate a victim of work-related for the bargaining agreement. lective Id. at 126. The future economic losses which the worker will State moved to dismiss the action for failure to injury. WienAir Alaska suffer as a result of the subject jurisdiction establish matter on the Arant, 352, 1979), P.2d over 592 357 ground employee only appeal that the could the grounds by on other Fairbanks North Star ruled superior the administrative decision to court. 770, Crider, Borough Sch. Dist. v. 775. Although employee op- filed affidavit in discharge his In constructive position, stating pursued that she had adminis- action, wages recover the and seeks to grievance procedure trative remedies but that a employ benefits lost due to the breach of her, been afforded not court ment contract. See also Pichon v. Gas & Pacific reversed, holding dismissed her case. We Co., Cal.Rptr. Cal.App.3d Elec. employee’s affidavit was sufficient to with- exclusivity pro (Cal.App.1989) (holding that the stand the State’s motion to dismiss. Id. compensation visions of California’s workers’ remand, raising employee a civil claim On filed an amended act bar an from arising complaint ‘injury’ course and which conceded that she had been for "an within the hearing. scope employment,” an administrative The not a claim for ”[e]co- afforded of damages independent incurred then obtained on the ex- nomic contract appeal, any disability”). haustion issue. Id. at 126-27. On of prejudice employee’s scope to Beard’s dismissal with of the consistently limits its Compensation rights retaliatory under the Workers’ and misconduct arguably Only arising two sentences even Act.10 claims under the Labor California general release of all claims: read like a Code. Id. employ- of this release the By execution granted summary judg- The trial court acknowledges his intent to release the ee employer finding ment in favor of the compensation employer and its workers’ employee’s the release barred the claims. any and all liabili- insurance carrier from Cal.Rptr. at id. 260 680. Califor- See any way ty arising out of or connected Appeals nia of reversed: Court injury with the work-related referred it was error We conclude that ... to hold any yet and known or as undiscov- above law, that, as a matter of the release of disabilities, injuries or other dam- ered any “all and of action claims causes ages injury. with said This associated injury” as a result of said included ... Compromise and Release shall be effec- employee’s] wrongful claims for ter- [the discharging employer tive in and its summary adju- which survived mination compensation carrier of all lia- workers’ terms, By the release was dication. its past, bility of whatsoever nature for all to claims that arose as a result directed compensa- present and future workers’ release, i.e., injury in the of the described relating to the tion benefits above-refer- physical injuries and mental em- [the injury. enced ployee] suffered as a result of harass- Appeals recently The California Court job ment on the and the termination of interpretation rejected a broad of a similar employment. have concluded We compensation release. Pi workers’ See that the claims which survived sum- Co., 212 Cal. chon v. Gas & Elec. Pacific mary adjudication employee’s] and [the (1989). App.3d Cal.Rptr. any damages, non-economic waiver Pichón, discharged employee brought damages are limited to economic not employer, alleging, suit his former by injuries employee’s] caused [the alia, express implied inter breach of psyche. We have also concluded that year IIED. A employment contract of employee] would not be entitled to [the terminated, he after he was filed work any wages any period lost recover compensation injuries claim to his ers’ Thus, the time that he was disabled. heart, “psyche, system” nervous re [and] remaining claims cannot be described as workplace. sulting from harassment in the arising any compen- as a result of claims compensation approved
The workers’
board
employee’s] psyche.
injuries
sable
to [the
$42,000.
of his claim for
Id. 260
release
least,
At
there is an issue of fact as
Cal.Rptr. stated:
release
parties
intended the re-
whether
employee releases and forever dis-
[S]aid
type
lease to cover the
of claims [the
charges
employer
said
and insurance car-
employee]
asserting.
is now
action,
rier
all
from claims
causes
Cal.Rptr. at 687.
Id. 260
ascertained,
whether now known or
may
develop
which
hereafter arise or
reasoning of the
agree
with the
Cali
injury.
a result of said
Appeals
and conclude that
fornia Court
Judge Hodges
denying
Cal.Rptr.
typewritten
Id. 260
at 686. A
was correct
summary judgment.11
printed
addendum to the
form included a
motion for
State’s
*9
reserved,
Odgen
explicitly
a
10.
Martech Constr. Co. v.
Envtl.
not
were settled as matter
Cf.
Servs., Inc.,
(Alaska 1993). In
at
547
Driscoll,
76,
Huyen
v.
employee
is
479
81
an
not enti
N.W.2d
emphasize that
(Minn.App.1991).
employee
However the
wages
a breach of
to recover lost
tled
not
the
prove
employer
need
that
acted
any period of time that
action for
contract
causing
the
intent of
specific
with
the em
employee was disabled
received
the
Hammond
Katy
v.
In
ployee
resign.
to
disability.
for the
compensation benefits
Dist.,
(Tex.
Pichon,
dep.
Sch.
174,
at 687.
821 S.W.2d
177
Cal.Rptr.
260
See
County
v. Kanawha
App.1991);
Slack
Auth.,
Hous.
144,
& Redev.
188
423
W.Va.
Discharge
C. Constructive
547,
(1992).
S.E.2d
558
that, as a
contends
matter of
law,
evidence in the
there is insufficient
generally
Courts have
that crit
held
support
jury’s verdict on
record to
the
job
of
performance
manage
icism
other
discharge
claim.12
Beard’s constructive
not,
alone,
do
standing
ment decisions
cre
I,
cause of
recognized
action
conditions. See
working
ate intolerable
discharge:
constructive
for
Huyen,
(holding
N.W.2d at 81
that
479
working
an
makes
employer
[W]here
job performance
criticism of
insufficient
is
the employ-
so
conditions
intolerable
conditions);
working
to establish intolerable
involuntary resigna-
is forced into an
ee
Reihmann,
(holding
N.W.2d at
375
683-84
tion,
any
as liable
employer
the
person
that a
would not feel
reasonable
illegal conduct
therein as if it
involved
compelled
merely
resign
to
because his em
formally discharged
employee.
in a
ployer decided to relocate his office
1350;
Klondike
see also
Indus.
town). However,
neighboring
a number of
Gibson,
1161,
Corp. v.
P.2d
1166 n. 5
741
discharge
upheld
courts have
constructive
I,
1987).
observed As we
employer
an
judgments
pursues
where
by creating
“Beard’s claim is that
condi-
campaign against
employee.
sustained
an
him
to force
re-
tions so intolerable as
to
Drug,
Oxford,
Inc. v.
Sterling
See
294
duty
sign, the state
its
under Arti-
violated
239,
380,
(1988)
Ark.
743 S.W.2d
382-85
5(c)
bargaining agree-
of the
cle
[collective
(upholding
judg
discharge
constructive
discharge
just
to
him
ment]
engaged
corporate employer
ment
where
13 796
cause.”
P.2d at 1350.
campaign
in a
to
an em
continuous
force
ployee
resign
period
to
an 18
discharge,
To establish constructive
over
month
showing
employee reported pricing
after the
viola
employee
an
has the burden
see also
employee’s
governmental agency);
in the
tions to a
person
that a reasonable
(9th
v.
835,
Alfaro,
Ford
compelled
re
785 F.2d
841-42
position
would have felt
See,
Cir.1986)
e.g.,
v. San Miguel
(holding
employee pre
that an
Christie
sign.
779,
(Colo.
prima
claim of
County Sch.
P.2d
783
sented a
facie
constructive
759
Dist.
Foerstner,
employer
App.1989); Reihmann v.
discharge
accused
375
where
677,
1985);
see
(Iowa
conspiring
complaint
also
employee
file a
N.W.2d
683-84
1065,
Schmidt,
(Alaska 1978);
creating
exception
also
have
an
P.2d
1069
see
relied on
Only
employee
may
P.2d at 204.
then does
burden
general
627
be
that an
at will
rule
to "show clear and con-
shift to
releasor
cause).
discharged
good
While most
without
vincing evidence
the release should
set
be
jurisdictions
recognized
have
such
which
Witt,
with the
suggested
U.S.
fired and
that he take immediate
employer
“get
told her he would
even” and
220,
action.
Knight,
Sheets v.
308 Or.
Cf.
that he did
her
1000,
not want
to work for him
(1989)
779 P.2d
(holding
1005 & n. 5
any longer).
employer
that where an
tells an
resign
fired,
or be
a court can find the
Taking
presented
the evidence
resignation
discharge).
to be a constructive
Beard,
light
trial
most favorable to
(1)
the record indicates that
an unidentified
D. Intentional
Emotion-
Infliction of
person requested
building representative
al Distress
shortly
began
election
after
making
IIED,
To state a cause of action for
allegations at DOT and that this election
(1)
plaintiff
must establish
that the defen
ultimately
being
led to Beard
voted out of
dant's conduct was extreme and outra
(2)
representative;
office as union
Beard’s
(2)
geous,
that the conduct was intentional
job performance
following
evaluations
reckless, (3)
or
that this conduct caused
investigation
consistently negative
al
plaintiff
distress,
(4)
emotional
that the
though
previous
evaluations had been
distress was severe.
positive; (3)
Teamsters Local 959
many
alleged
of the
incidents
Wells,
349,
v.
749 P.2d
357
forming
negative
basis
evalua
The individual defendants contend that
tions
disproved
explained by
were later
there is insufficient
support
evidence to
independent
panel; (4)
review
McMullen
jury’s IIED verdicts as a matter of law.
told
promot
Beard that “he would never be
1,000
(5)
years;”
ed in
McMullen solicited
adopted
We have
the definition of ex-
memos from other DOT workers concern
treme
outrageous
conduct set forth in
ing Beard’s comments
about
office situ
(Second)
the Restatement
of Torts. Beard
ation
grievance
and his
settlement and then
I,
court refused to infer that two defendants
nature of the
conduct). McLeod,
conspired together
plaintiff’s
to force
unlike McMullen and
Venusti,
expel
nothing
relocation and
him from the business
did
more than what her
job required
no evidence connected the actions
supervise
because
her to
and eval
do—
beyond
conduct,
their
performance.
of each of the defendants
uate Beard’s
Her
ties).
motive,
personal
regardless
close
and
simply
business
of her
is
insuffi
therefore conclude that the
court
cient to sustain an IIED verdict.
Reih
See
mann,
denying
its discretion in
the motion
(suggesting
abused
the was in jury’s award We the individual defendants’ conduct. COMPTON, J., part. in dissents the IIED therefore affirm awards COMPTON, Justice, dissenting part. in and Venusti. McMullen I because the issue of exhaustion dissent (2) discharge award The constructive remand- of contract remedies should not be evidentiary hearing. for an This issue ed Hodges Judge The contends that State appeal. in the prior was resolved- Thus refusing grant on the erred remittitur remanding no for the issue there is basis discharge judgment against it. constructive redetermination. for posi- authority The offers no for its State excessive, judgment tion that the was The court states: merely asserting appropriate that more erroneously inter- superior court judgment limit the award to the would decision in I as conclu- preted our Beard wages/benefits Beard have earned would deciding issue. sively the exhaustion until 1991 resignation from the time of his merely the reversed court’s Our decision presumes when he would have the State in favor of and did not ruling the State presented, the age 55. On record retired final determination that constitute Judge Hodges not did conclude pursuing excused from Beard was denying his discretion State’s abuse bargaining under collective remedies motion. agreement. Although suggests the court Op. at 545. IV. Conclusion 12(b) Rule reviewing a Civil that we summarize, there is To we conclude that I, not we did so motion to dismiss Beard supporting jury’s sufficient evidence issue: limit discussion of the our discharge judgment against constructive con- grieving his is excused from Beard superior court’s and affirm the State inflic- discharge intentional structive judgment for denial of the State’s motion under claims tion of emotional distress determi- n.o.v. We also affirm the court’s Senkow, rep- union because the CBA compensation re- that the workers’ nation resentative, grievance file a refused to dis- lease not bar Beard’s constructive does un- allegations of harassment for Beard’s However, supe- charge claim. because behalf. on Beard’s derlying those claims erroneously interpreted rior our deci- court deciding conclusively sion in I as Beard Following I, comply
... Beard could not with the our decision in procedures grievance deposed established State Senkow. In its view Sen- representative deposition because his union re- CBA kow’s he would showed that represent Any asked, such at- grievance fused him. have filed had Beard tempt would have been futile. Under but Beard not. Thus earlier Senkow’s circumstances, we hold was either affidavit incorrect or inaccurate exhausting excused his reme- deposi- as to certain claims. Based on that from tion, under the his claims of dies CBA for State concluded that this court in- constructive and intentional had misconceived a material fact. fliction of emotional distress. promptly filed a belated Petition Rehearing, as well as a for Late Motion Since court erred in con- Rehearing. Petition Filing of cluding that not Beard was excused *14 motion, granted ultimately the but denied exhausting his reme- contractual from petition. the claims, as to each of dies must superior reverse the decision court’s petition solely The State’s was directed striking they the claims unless are not at the issue of exhaustion of contractual legally viable. The remedies. State asserted that the is- Baum, (Alas v. P.2d futility sue of had not below: been raised 1990) added). (emphasis We then ka con scrutiny “There had been no facts of of the cluded that the claim for constructive dis relationship repre- Beard’s with his union charge legally was at viable. Id. 1350. As appeal.” sentative at the trial level before IIED, claim of to the we noted that “[s]ince been appeal: nor had it raised on “Howev- presented Beard has evidence of harass er, found, [supreme] the court also sua distress, ment and of emotional his claim sponte, that Beard was from excused for intentional infliction of emotional dis grieving dispute grounds on the that viable_ may legally be tress On re Senkow, representative, Beard’s union re- mand, the court this evi should evaluate represent fused to Beard.” The State to determine is dence whether it sufficient court asked this to “rehear on its decision support to Beard’s claim.” Id. did not futility the of Beard’s exercise of his con- similarly instruct superior the court to de tractual remedies.” We do so. declined to termine whether Beard was excused from correct, If State the was this court exhausting his contractual remedies. granted should have the petition State’s for surprising superior It is not that rehearing appropriate afforded relief question read settling court Beard I as at that time. And it should now admit its from whether was excused ex- However, the remedy error. is not now to hausting his contractual remedies. We did grant long ago away in effect the and far “merely not reverse” the court’s petition rehearing. for Such a resolution proceed- decision and remand for further begs disappointed litigants to continue the ings. We unqualifiedly unconditionally fray hope in the that at in the point some that Beard held was excused from exhaust- they prevail, though future will even ing his contractual remedies. long issue has since Fur- been decided. Bruce Senkow was the former APEA ther, it erodes the confidence trial courts Representative Field whose affidavit was in effectuating have should decisions by Beard in opposition used the State’s to If our this court. decision and resolution mistitled Motion to In that affi- Dismiss. correct, petition rehearing of the for were davit, Senkow that stated essence he had was, justification as I it there no believe is grieve refused to because Beard’s claims remanding for this issue for redetermina- they grievable not under contract. tion. present any The State did not evidence to issue, statement, Regarding procedural that that it explain rebut or might opportu- have argues been incorrect or inaccurate as that it never had an State presented far certain nity claims were concerned. to rebut evidence Op. punitive damages. I dis- claim and opposition. 545. The answer Beard’s *15 10, 1989), (Alaska, May only was based on that she was not afford Szafran’s affidavit Pederson, grievance rights. 837 P.2d at
ed “ The court stated ‘[t]he in
superior court therefore erred dismiss complaint subject matter ing the for lack ” (quoting Mem.
jurisdiction.’ Szafran, Id. remand, 452). Following
Op. No. Sza- & J. complaint conceding an
fran filed amended
that she received administrative “[Gjiven
hearing. Id. at 128. Szafran’s in complaint amended
concession her procedure was afforded
grievance fact
her, ... we conclude grant summary to the judgment
court’s with was not inconsistent Szafran
Id. presented
In this case the new evidence Senkow, deposition by
by the State is a may affidavit.
which contradict earlier
However, preclude differences in context a conclusion on this record. This
such grievant has
not a situation which changed position. or his or her
recanted
Certainly Beard has not.
Furthermore, practical matter it useless remand the of ex-
seems issue superi- remedies
haustion contract deter- court. court will be asked to appeal if an to Beard’s
mine administrative have been futile. These
supervisors would jury supervisors the same whom the
are
already engaged has found to have “out- IIED
rageous” justifying behavior notes the State’s seems obvious. agree. court actually motion for to was motion dismiss summary judgment. Op. at n. 8. op- acknowledges that “there were State to defend the dis- the state portunities missal, ap- reconsideration and on both at only argument peal, ...” The State’s discovery it did not have the benefit of However, the factual determinations. BOZIEL, Shay Appellant, J. brought motion dismiss exhaust, respond failed yet failure v. from evidence that he was excused Alaska, Appellee. STATE of exhaustion. A-4730. No. Baily, v. P.2d Pederson-Szafran 1992), controlling. is not Peder of Appeals Court of Alaska. the court noted decision son Dec. State, Mem.Op. No. 452 & J. Szafran