SUBMISSIONS
on, the details of his alleged disability are unclear. His response to DNR's discovery request states: "Mr. Peterson injured his left foot in 1992-1993 and has symptoms until the present. He injured his right foot in 2002-2003, as a direct result of his left foot injury. Surgery on the left foot was conducted November, 2007."
a. The superior court did not err in granting summary judgment on the hostile work environment claims.
Alaska Statute 18.80.220 provides employees with broad protection against discriminatory treatment by making it unlawful for employers to discriminate against a person "because of the person's race, religion, color, or national origin, or because of the person's age, physical or mental disability, sex, marital status, changes in marital status, pregnancy, or parenthood when the reasonable demands of the position do not require distinction on [that] basis."
Peterson alleges that he was subjected to several incidents that amounted to harassment sufficient to constitute a hostile work environment: that Jeff Graham told Peterson that the people above Graham wanted Peterson out; that Mike Curran commented to Peterson that Curran's consulting jacket might be "trying to tell [Peterson] something"; that the removal of Peterson's firefighting qualifications was harassment because it was without justification; that hiring Winters for the 2007 operations forester position was retaliatory in nature; and that Matt James's description of Fire 072 demeaned Peterson.
While Peterson described the hiring of John Winters as "retaliatory" in the facts section of his opening brief, the hiring was not raised as a separate claim of retaliation under AS 18.80.220(a)(4) in Peterson's complaint or in his opposition to summary judgment. Because the allegations of retaliation were not raised below, we hold them to be waived as a separate claim and consider them only in the context of Peterson's claims of a hostile work environment and breach of the covenant of good faith and fair dealing. See Baseden v. State, 174 P.3d 233, 239 n. 17 (Alaska 2008).
Peterson's reply brief also argues that he was humiliated by the display of the burned fire hose that was destroyed in Fire 072, but the record before the superior court at the time summary judgment was granted did not provide any support for this allegation, as it was first raised in Peterson's memorandum in support of his Rule 60(b) motion. We also do not rely on unsupported assertions of fact in memoranda for purposes of our review of summary judgment. Brock v. Rogers Babler, Inc., 536 P.2d 778, 783 (Alaska 1975). We therefore do not consider this assertion.
DNR counters that Peterson "failed to offer any evidence that his sex, age, or alleged disability played any role in any of those incidents." DNR offered affidavits to the superior court in support of its position that unlawful discrimination was not involved in the incidents to which Peterson points. For example, DNR provided an affidavit from Graham where Graham states that he does not recall telling Peterson that the people above him (Graham) wanted Peterson gone, but that if he had, "it could only have been in the context of a supervisory conversation intended to encourage Mr. Peterson to improve his work performance by alerting him to concerns expressed about his work by others in the division." DNR also points out that Peterson admitted in his deposition that he did not know why Curran made the comment about the jacket and that he thought that the removal of his firefighting qualifications was connected to James Peterson's personal dislike of Allen Peterson, not sex, age, or disability discrimination. Finally, Peterson does not offer any explanation of how Winters's selection for the operations forester position is connected to his age, sex, or disability, and he offers no evidence to show that Winters is not in the same protected class as himself, except to point out that he and Winters had different job classifications before Winters was selected for the operations forester position. The only evidence that Peterson presented to the superior court in opposition to the motion for summary judgment that connects any of these incidents to Peterson's age, sex, or disability was Matt James's statement in his report that Peterson "appears to have issues working for people younger or lower on the `org chart' than himself."
While there may be some minor dispute between the parties about James Peterson's actions toward Allen Peterson when Allen Peterson's firefighting qualifications were taken away, Allen Peterson neither alleges that James Peterson's actions were motivated by age, sex, or disability, nor does he present any evidence showing such discrimination.
Peterson and Winters are both men, and Peterson does not argue that Winters is a member of a different age group.
In assessing a claim that an employee's work environment violates Alaska law, we "consider federal precedent for guidance," and after reviewing Title VII cases we concluded that "discriminatory behavior sufficiently severe or pervasive to alter the conditions of the victim's employment and to create a discriminatory hostile work environment violates AS 18.80.220." We also considered federal precedent in deciding what conduct was actionable in the hostile work environment context and adopted the Harris v. Forklift Systems, Inc. rule that "the challenged conduct must be severe or pervasive `enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive.`" In Harris, the Supreme Court of the United States further elaborated that, "[w]hether an environment is `hostile' or `abusive' can be determined only by looking at all the circumstances, which may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." The United States Supreme Court has also held that "`simple teasing,' offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the `terms and conditions of employment'" and that anti-discrimination laws are not intended to be a "general civility code."
French v. Jadon, 911 P.2d 20, 28 (Alaska 1996); see also Alaska State Comm'n for Human Rights v. Yellow Cab, 611 P.2d 487, 490 (Alaska 1980) (using Title VII decisions for guidance in interpreting Alaska anti-discrimination law).
510 U.S. 17, 21-23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (elaborating on the standard first enunciated in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)).
French, 911 P.2d at 28 (quoting Harris, 510 U.S. at 21, 114 S.Ct. 367).
510 U.S.at 23, 114 S.Ct. 367.
Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (internal citations omitted).
Even viewing the facts in the light most favorable to Peterson, we conclude that he has not established the existence of a hostile or abusive work environment. Curran's comments were offhand and cryptic; even though Peterson may have interpreted them to mean that he did not have a future with the Division, they were not objectively threatening. Similarly, Graham's comments, made on a single occasion, even if interpreted as a veiled threat to Peterson's job or future employment prospects, constituted an isolated incident that was not sufficient to demonstrate a change in the terms and conditions of Peterson's employment.
Peterson's other claim centers around the Matt James report and the removal of Peterson's firefighting qualifications. Peterson implies that the removal of these qualifications changed the terms and conditions of his employment to some extent. Peterson presents the loss of his firefighting qualifications as an example of the hostile work environment actions taken by the Division against him. However, this claim is more appropriately considered as an independent claim that the Division subjected him to an adverse employment action for discriminatory reasons. We therefore consider whether the Division's actions to remove Peterson's fire-fighting qualifications, including the Matt James evaluation, were based on impermissible factors that include sex, age, or disability in violation of AS 18.80.220.
Because it is "usually impossible" for an employee to prove that the actions of an employer were motivated by discriminatory intent, we have adopted the three-part pretext analysis that "involves a series of shifting burdens" for claims of employment discrimination where there is no direct evidence of discriminatory intent, known as the McDonnell Douglas test. First, the employee bears the burden of establishing a prima facie case of disparate treatment by showing intentional discrimination. The prima facie case serves to eliminate "the most common nondiscriminatory reasons" for the adverse action and "raises an inference of discrimination only because we presume that these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Second, the burden shifts to the employer to offer a legitimate, nondiscriminatory reason for its actions. Third, the employee bears the final burden of demonstrating that the employer's stated reason for the action was pretextual.
Miller v. Safeway, Inc., 102 P.3d 282, 290 (Alaska 2004).
Raad v. Alaska State Comm'n for Human Rights, 86 P.3d 899, 904 (Alaska 2004).
Brown v. Wood, 575 P.2d 760, 770 (Alaska 1978) (adopting the test named for the United States Supreme Court case where it was articulated: McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)), modified, 592 P.2d 1250 (Alaska 1979); see also Raad, 86 P.3d at 904; VECO, Inc. v. Rosebrock, 970 P.2d 906, 918-19 (Alaska 1999); Haroldsen v. Omni Enters., Inc., 901 P.2d 426, 430 (Alaska 1995).
To establish that the Division removed his firefighting qualifications with intent to discriminate, Peterson needs to show that "(1) he is a member of a protected class under the statute; (2) he was qualified for the position; (3) he suffered adverse employment action, despite these qualifications; and (4) the employer treated him less favorably than other qualified persons." Miller, 102 P.3d at 291.
Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978)); see also State, Dep't of Fish Game, Sport Fish Div. v. Meyer, 906 P.2d 1365, 1374 (Alaska 1995) ("In the first stage, the employee claiming discrimination must introduce evidence raising an inference of employer discriminatory intent."); 45C AM. JUR. 2D Job Discrimination § 2460 ("This consists of evidence that, under the circumstances, raises at least a reasonable inference that the action taken by the employer, if otherwise unexplained, was based on impermissible factors. . . .").
Miller, 102 P.3d at 291.
Id.
As a matter of law, Peterson failed to establish a prima facie case that either the removal of his firefighting qualifications or Matt James's negative evaluation was the result of discrimination. As discussed earlier, DNR points out that Peterson "failed to offer any evidence that his sex, age, or alleged disability played any role" in the Division's actions toward Peterson. In his opposition to the motion for summary judgment, Peterson offered nothing to show that his sex or disability were implicated in the decision to remove his firefighting qualifications, nor is there any evidence suggesting that he was treated less favorably than other Division resources employees. The only evidence Peterson offered was that Matt James's evaluation stated that Peterson "appear[ed] to have issues working for people younger . . . than himself." This statement, in context, was referring to Peterson's interpersonal skills and does not suggest that Peterson was given a negative evaluation because of his age. There was no further evidence to show that Peterson's age was even taken into account in the decision to remove his firefighting qualifications or in the two reviews of the decision. We therefore conclude that Peterson failed to raise a reasonable inference that his age was the underlying reason that his qualifications were taken away.
Even if Peterson had established a prima facie case, DNR met its burden at the second step of the McDonnell Douglas test by offering evidence showing legitimate, nondiscriminatory reasons for withdrawing Peterson's firefighting qualifications. Peterson makes no further attempt to argue that any of DNR's justifications were pretextual, thus also failing the third prong of the McDonnell Douglas test.
b. The superior court did not err in granting summary judgment on Peterson's claim that the reduction of his work time was the result of unlawful discrimination.
Peterson also claims that the diminution of his work time from permanent full time to permanent seasonal in October 2006 was a discriminatory decision. Peterson's brief simply asserts that the decision to reduce his position to six months was "a discriminatory decision, and a pretext to give the job to Ashley Reed, a young female," but Peterson offered no evidence to connect the reduction in his work time to his age, sex, or alleged disability. For example, he produced no evidence showing that other individuals outside of his protected class were treated more favorably by receiving shorter layoff periods. We conclude that Peterson failed to establish a prima facie case of discrimination with regard to his reduced work time.
c. The superior court did not err in granting summary judgment on Peterson's claims of hiring discrimination.
Peterson's argument that John Winters was treated differently is unclear. Although Peterson asserts that Winters was not in Peterson's protected class because Winters's job classification differed from Peterson's, this argument is without merit. Job classification is not a protected class within the meaning of AS 18.80.220(a). Further, no evidence was provided to the superior court showing that Winters was treated differently with regard to seasonal leave or layoff time.
Peterson claims that the Division discriminated against him on the basis of age and sex when it selected Ashley Reed for the stewardship forester position in February 2007 and when he did not receive a lateral transfer into a full-time position. He also asserts that several of the Division's practices were discriminatory, including the delay in advertising the 2007 stewardship forester position for competitive recruitment to coincide with Reed's return to Alaska, the high evaluations of Reed's job performance, and the early termination of Reed's probationary period during her first period of employment.
Peterson also makes the unsupported claim that he "twice requested transfer to a full-time position in both 2004 and 2006." Peterson argues that the Division had the right to permit his transfer into the full-time position that Reed occupied without competitive recruitment. However, as DNR points out, it was not required to permit such a transfer. Peterson has offered no admissible evidence to demonstrate that he requested such a transfer, and his brief does not explain how the decision to put the job up for competitive recruitment constituted age or sex discrimination.
The referenced provision, 11.07, of the collective bargaining agreement governing transfer of General Government Bargaining Unit employees like Peterson reads, "An employee, except a provisional employee, may apply for and be transferred to a position in the same class, or to a `parallel' or closely related job class at the same pay range in State service."
Provision 11.07(E) specifically states that "[t]he voluntary transfer of an employee within an agency or between agencies may be made at the discretion of the appointing authority(ies)."
Peterson's hiring discrimination claims are analyzed under the same three-part McDonnell Douglas test discussed previously. For purposes of summary judgment, DNR expressed its willingness to assume that Peterson had established a prima facie case of sex and age discrimination with regard to the hiring of Reed. DNR then fulfilled its burden at the second prong of the McDonnell Douglas test by offering affidavits from two of the three members of the hiring committee that selected Reed. Both hiring committee members explained the interview process and how the interviewees' answers were scored. They stated that Ashley Reed was the top candidate for the position after the "interview scores, education, experience, writing samples, evaluations, and references" were considered.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Brown v. Wood, 575 P.2d 760, 770 (Alaska 1978); see also Raad v. Alaska State Comm'n for Human Rights, 86 P.3d 899, 904 (Alaska 2004); VECO, Inc. v. Rosebrock, 970 P.2d 906, 918-19 (Alaska 1999); Haroldsen v. Omni Enters., Inc., 901 P.2d 426, 430 (Alaska 1995). As discussed previously, the three steps of the test require the employee to bear the initial burden of establishing a prima facie case; then the burden shifts to the employer to offer a legitimate, nondiscriminatory reason for its actions; and lastly, the employee bears the final burden of demonstrating that the employer's stated reason for the action was pretextual.
Because DNR does not contest this, we assume that a prima facie case has been established. A prima facie showing would have required Peterson to demonstrate that "(1) [he] belongs to a protected class; (2) [that he] applied for and was qualified for a job for which the employer was seeking applications; (3) [that he] was rejected despite [his] qualifications; and (4) [that] after [he was rejected], the position remained open and the employer continued seeking applications from persons with [his] qualifications." Raad, 86 P.3d at 904 (citing Alaska State Comm'n for Human Rights v. Yellow Cab, 611 P.2d 487, 490 (Alaska 1980)).
After DNR met its burden, Peterson was required to make a showing that this explanation was pretextual. Peterson argues that Reed's evaluations were only higher because of "the discrimination which was occurring in the workplace," but provides no factual support for this argument. In his deposition, Peterson explained that he thought that the influential and powerful people in the Division were female and at least one of them "had a definite preference toward females over the years." He also asserted that he thought that his age was a factor because he was at a higher paygrade than Ashley Reed and thus would be more expensive to hire.
See Raad, 86 P.3d at 904.
A claimant must "offer something more than `unsupported assumptions and speculation'" to demonstrate that the reason articulated by the employer is a pretext, and "[s]ummary judgment is appropriate when a plaintiff presents `nothing more than his own subjective belief that the employer's asserted ground' is a pretext." Peterson offered no solid evidence or factual details to substantiate his perception that Reed was selected because she was younger and a woman, but instead relies entirely on "subjective, after-the-fact impressions." Because DNR supported its summary judgment motion with ample evidence that Reed's selection was based on legitimate, non-discriminatory criteria and because Peterson only presented his own subjective belief that DNR's asserted grounds were a pretext, we hold that summary judgment was appropriate.
Perkins v. Doyon Universal Servs., LLC, 151 P.3d 413. 416 (Alaska 2006) (quoting Mohan v. Arctic Catering, Inc., 133 P.3d 655, 661 (Alaska 2006)).
Mahan, 133 P.3d at 661 (requiring the claimant to produce admissible evidence, beyond speculation and unsupported assumptions, sufficient to raise a genuine issue of material fact that the reasons given by the employer were pretextual).
Peterson's other arguments, that Reed was given preferential treatment in her probationary employment and that leaving the position open until October 2006 was a pretext to ensure that she got the job, were not raised below in opposition to summary judgment. The evidence that Peterson uses to support this argument was not presented to the superior court before it ruled on the summary judgment motion, as it was added to the record as part of the Rule 60(b) motion. We therefore do not consider it.
2. The superior court did not err in granting summary judgment on Peterson's breach of the implied covenant of good faith and fair dealing claims.
Peterson argues that the Division violated the implied covenant of good faith and fair dealing by reducing his work time through increasing his seasonal layoff period, by hiring Winters for the operations forester position in 2007, and by removing his fire-fighting qualifications.
All employment contracts in Alaska include an implied covenant of good faith and fair dealing. A breach of this covenant may be either subjective — where the employer acts with a bad faith purpose, such as to deprive an employee of a benefit of the contract — or objective — "where the employer does not act in a manner which a reasonable person would regard as fair." "The purpose of the covenant is to effectuate the reasonable expectations of the parties, not to alter or to add terms to the contract."
Willard v. Khotol Servs. Corp., 171 P.3d 108, 113 (Alaska 2007).
Pitka v. Interior Reg'l Hous. Auth., 54 P.3d 785, 789 (Alaska 2002) (internal quotation marks omitted); see also Miller v. Safeway, Inc., 170 P.3d 655, 658-59 (Alaska 2007).
Miller, 170 P.3d at 659.
As previously discussed, Peterson was neither entitled by contract to receive a lateral transfer to the full-time operations forester position for which Winters was selected, nor was Peterson entitled to anything more than six months of work as a seasonal employee. DNR provided evidence that its reasons for both increasing Peterson's seasonal layoff period and selecting Winters were not motivated by bad faith. Peterson only offers unsupported assertions: that the Winters hire was retaliatory, that James Peterson had "groomed" Winters for the job, and that the reduction in Peterson's work time may have been a way for DNR to save money. However, in order to defeat summary judgment, Peterson was required to produce admissible evidence tending to dispute DNR's evidence — "an adverse party may not rest upon mere allegations, but must set forth specific facts showing that there is a genuine issue of material fact." Peterson was unable to do so with regard to the subjective prong of the breach analysis.
Peterson's suggestion that DNR's budget-related explanation was inaccurate or pretextual is not supported by the record that was before the superior court when it granted summary judgment.
Cikan v. ARCO Alaska, Inc., 125 P.3d 335, 339 (Alaska 2005).
Peterson's argument with respect to the objective element of the covenant suffers from the same fatal flaw: there is a lack of evidence to substantiate his allegations. Peterson claims that Winters was working outside of his job classification responsibility, that James Peterson assisted Winters in getting the position, that Winters faced a smaller panel of interviewers than Peterson faced, that Peterson outscored Winters in the interview, and that Winters had the added advantage of being the last interviewee after being able to hear the other interviews being conducted. Peterson cites to his amended opposition to summary judgment in support of these allegations but does not point to any actual evidence. Because "[assertions of fact in pleadings and memoranda are not admissible] evidence and cannot be relied upon for the purposes of summary judgment," we conclude that Peterson has not provided sufficient evidence to show that there is an issue of material fact that would require trial on these claims.
Brock v. Rogers Babler, Inc., 536 P.2d 778, 783 (Alaska 1975).
Peterson includes a section in his brief entitled, "The State Violated Various Statutes and Regulations." Within it, he sets out a number of constitutional, statutory, and regulatory citations, arguing that they "are relevant." But the relevance of some of these authorities to his argument is not entirely clear. For example, he begins by citing the oath that he took before assuming his forester position. It appears that the main point of Peterson's argument is that the Division's hiring decisions violated the principles of merit selection, which are enshrined in article XII, section 6 of the Alaska Constitution. But nearly all of the factual assertions in support of this argument are based on portions of the record that were not before the superior court at the time it granted summary judgment. As previously discussed, we do not consider this evidence as part of our review of the summary judgment decision. In any event, the analysis of Peterson's merit selection claim is subsumed within our discussion of Peterson's other claims concerning the hiring process, including his claims of discrimination and his claims concerning the implied covenant of good faith and fair dealing.
Peterson also argues that the Division's removal of his firefighting qualifications constituted a breach of the implied covenant of good faith and fair dealing because the Division's action violated state and national policies. At his deposition, Peterson explained his central contention — that he "wasn't guilty of anything that would qualify for the decertification" under the National Wildland Coordinating Group's "Wildland Fire and Prescribed Fire Qualifications Systerm Guide," known as PMS 310-1. Peterson contends that the facts of Fire 072 are "central and critical" because they "led to [the] devastation of Mr. Peterson's career with the Division." DNR counters that any dispute about the underlying facts is not material because firefighting is not a duty that is required for Peterson's job, that Peterson has no valid legal claim regarding the withdrawal of these qualifications, and that even if Peterson had such a claim, DNR's good faith reliance on the reports of Peterson's conduct warranted the withdrawal of his qualifications.
As discussed previously, for the Division to have violated the implied covenant of good faith and fair dealing, it must have breached either the subjective or objective prong of the covenant. Peterson does not argue that the Division was subjectively seeking to deny him the benefits of his contract in bad faith, but instead focuses his discussion on whether the removal of his firefighting qualifications and the process by which the removal occurred was objectively unfair. Peterson points to national standards found in PMS 310-1 to support his contention that his conduct was not sufficiently problematic to justify the removal of his qualifications. But PMS 310-1 makes it clear that the decision to allow an individual to engage in firefighting activities is ultimately a subjective determination: "[a] key component in the certification or re-certification process is the subjective evaluation by the appropriate agency official of an individual's capability to perform a position. Completion of required training and experience requirements alone does not guarantee that an individual is qualified to perform in a position." (Emphasis in original.)
See Pitka v. Interior Reg'l Hous. Auth., 54 P.3d 785, 789 (Alaska 2002).
Matt James's negative evaluation of Peterson's performance at Fire 072 in combination with the two other incidents cited in Wilcock's review gave ample reason for Peterson's superiors to question his ability to perform in the type of high pressure situations presented by firefighting activities. The Division was empowered to reject Peterson's version of the events that Wilcock cited in favor of the accounts offered by other witnesses. Our past precedent makes it clear that, "[i]f the employer makes a determination in good faith that [] misconduct occurred, there is no breach of the implied covenant of good faith and fair dealing, even if the employee could subsequently prove that the factual finding of misconduct was a mistake." Thus, even if Peterson could now prove that Matt James's report was inaccurate, DNR's good faith reliance on James's evaluation of Peterson's performance at Fire 072, for example, would still not constitute a breach of the implied covenant.
Holland v. Union Oil Co. of Cal. Inc., 993 P.2d 1026, 1035 (Alaska 1999).(quoting Burton v. Sec. Pac. Nat'l Bank, Cal.App.3d 972, 243 Cal.Rptr. 277, 281 (1988)).
We therefore conclude that the superior court's grant of summary judgment on Peterson's claims that the removal of his firefighting qualifications was a breach of the implied covenant of good faith and fair dealing was not error.
VI. CONCLUSION
For these reasons we AFFIRM the superior court's grant of summary judgment as to all claims.
CARPENETI, Chief Justice, not participating.