WINFREE, Justice.
In 2008 a city promoted a police officer to police chief. The city's hiring determination and the officer's subsequent conduct led four police department employees to sue the police chief and the city. The employees asserted several claims including wrongful termination, sexual harassment, and negligent hiring. The superior court entered summary judgment in favor of the police chief and the city on all claims.
The employees appeal several of the superior court's summary judgment rulings, its denial of sanctions for evidence spoliation, and an attorney's fees award in the city's favor. Because there are no genuine issues of material fact barring judgment, we affirm the superior court's dismissal of both the employees' hostile work environment sexual harassment claims against the police chief and the employees' negligent hiring claim against the city. Because the superior court did not abuse its discretion in denying discovery sanctions, we affirm that ruling as well. But because genuine issues of material fact preclude summary judgment as to the employees' claims against the city for wrongful termination and sexual harassment, we reverse those rulings, vacate the attorney's fees award, and remand for further proceedings.
In 2006 the City of Hoonah (the City) hired Jefferson Hankla as a patrol officer with the Hoonah Police Department. In early 2008 Hankla applied for an open position as police chief. The city council appointed Hankla as police chief in February, but later was informed by Hankla's colleague, Lieutenant William Mills, that Hankla did not meet the eligibility requirements for the position, making the appointment a violation of city code. The mayor rescinded the appointment; the city council then amended the city code to allow Hankla to qualify and re-opened the position. Lt. Mills had not applied for the position when it was first advertised, but he applied when the position re-opened. In April, the city council again appointed Hankla as police chief.
Following Chief Hankla's second appointment, relations between Chief Hankla and Lt. Mills broke down. According to the employees, tension developed within the police department between those who supported Chief Hankla and those who did not. Lt. Mills and Chief Hankla avoided each other at work. Lt. Mills claimed Chief Hankla filed false reports concerning Lt. Mills's work and foreshadowed a termination by talking about "an opening" in the department. When the police department hired a new officer, Chief Hankla trained the new employee even though Lt. Mills was the department's training officer. Lt. Mills claimed Chief Hankla favored others within the department in various ways, including having personal driveways plowed by the city, allowing an employee to come to work drunk, allotting more overtime work, and arranging rent-free city housing. Lt. Mills claimed those disfavored by Chief Hankla "were subjected to humiliation and high-handedness, intended to drive [them] away."
In late April, three weeks after Chief Hankla's appointment, someone contacted Lt. Mills about an opening with the Craig Police Department. Lt. Mills applied, was offered the position, and accepted the next day. Lt. Mills gave three weeks notice of his resignation and left Hoonah in late May.
Carole Welsh was hired as the Hoonah Police Department's dispatcher in 2006. Welsh claimed that throughout her employment before Chief Hankla's appointment, then-patrol-officer Hankla repeatedly asked to see her breasts, and that she always refused. She claimed that these requests were only made when the two were alone, and that she never told anyone. Shortly after Chief Hankla's appointment, Welsh's husband accepted a job in Washington and the family relocated. On her final day of work, "as
Karen Mills and Annette McLaughlin were dispatchers with the Hoonah Police Department while Chief Hankla was in charge. Both Mills and McLaughlin claimed they observed Chief Hankla behave inappropriately or make sexual comments. They claimed Chief Hankla reduced their hours and altered their time cards to deny them overtime pay. They also claimed Chief Hankla sent sexually inappropriate emails to members of the police department.
McLaughlin claimed that while she was working, Chief Hankla once saw her accidentally open an email containing pictures of topless women. She claimed Chief Hankla told her "if [she] wanted to [she] could take some pictures of [her]self topless and send them to his email." McLaughlin also described arriving late for a party at Chief Hankla's house and explaining that she came directly from the shower — she claimed that he replied, "If you're naked, come on in." McLaughlin further claimed Chief Hankla commented on the clothes she wore to work and she was aware of crude comments Chief Hankla made to other employees.
Mills described several instances that she claimed "show a pattern of sexual harassment." Mills claimed after Chief Hankla returned to the police station following a fire call near another female dispatcher's home, Chief Hankla told the dispatcher, in Mills's presence, that "he had looked over to [the dispatcher's] house, hoping to see her standing in her front window wearing something `small and see-through.'" She claimed she heard Chief Hankla joke that he was going to purchase new dispatcher uniforms from Victoria's Secret. She also described one occasion when Chief Hankla approached her from behind to get a stapler and put his hand on her back.
Lt. Mills and dispatchers Mills, McLaughlin, and Welsh sued Chief Hankla and the City on several theories. The scope of the employees' amended complaint caused some contention between the parties, with confusion about the actual claims pleaded. The following claims are specifically enumerated in the employees' amended complaint and are the subject of this appeal.
Lt. Mills claimed that Chief Hankla, and therefore the City, constructively discharged Lt. Mills through "harassment and unprofessional treatment," thereby breaching the covenant of good faith and fair dealing. Lt. Mills claimed that the City improperly refused to consider other candidates and hired Chief Hankla in violation of the city code, and further that Chief Hankla and the City violated public policy by retaliating against Lt. Mills for competing with Chief Hankla for the police chief position. The three dispatchers claimed Chief Hankla and the City maintained a hostile work environment through sexual harassment and discrimination in violation of AS 18.80.220(a).
The employees moved for sanctions against Chief Hankla and the City for spoliation of evidence. The employees alleged Chief Hankla and the City failed to turn over two pieces of evidence: Chief Hankla's police department personnel file and former Hoonah Mayor Alf Skaflestad's citizen complaints file. The employees pointed to testimony from the previous police chief describing Chief Hankla's personnel file, including performance
Chief Hankla and the City moved to exclude Welsh's and Lt. Mills's expert testimony and reports on economic damages and to exclude evidence relating to claims not pleaded, including Welsh's wrongful termination and retaliation claims. Chief Hankla and the City argued that the expert testimony and reports were prejudicially late and that the deadline to amend pleadings had passed.
The employees responded that both sides had caused the delay in submitting expert testimony and reports. Welsh also argued that her claim for economic damages was based on (1) being compelled, as a result of Chief Hankla's harassment, to leave her position at the police department and (2) a later poor performance review from Chief Hankla that prevented her from acquiring new work. Welsh argued that Chief Hankla and the City were aware that she sought economic damages and that although the amended complaint did not specifically reference constructive termination or retaliation, Chief Hankla and the City "ha[d] done discovery and litigated with knowledge of [the claims]."
The superior court granted the motion to exclude Welsh's wrongful constructive discharge and retaliation claims and to preclude Welsh's and Lt. Mills's expert testimony. The court recognized a plaintiff does not have to plead a separate cause of action for constructive discharge to receive economic damages, but found Welsh had not indicated she was pursuing economic damages until the last day of discovery and did not itemize her damages until two weeks before trial. The court further concluded it was not clear from the pleadings that Welsh was asserting a retaliation claim.
Chief Hankla and the City moved for summary judgment on all of the employees' claims. The superior court granted summary judgment in favor of Chief Hankla and the City on all but one claim, concluding that only Welsh's sexual harassment claim presented a genuine issue of material fact. The court explained that an issue of fact existed whether Welsh was still employed by the City when Chief Hankla allegedly made his final request to see Welsh's breasts, the only alleged request made while he was police chief. The court also concluded that if the City could be liable, then Chief Hankla could be personally liable under the aiding and abetting provision of AS 18.80.260.
As to Lt. Mills's wrongful constructive discharge claim, the court noted that Lt. Mills did not appear to contest summary judgment. The court explained that Chief Hankla and the City had made a prima facie showing that there was no material issue of fact as to the constructive discharge element of the claim, and entered summary judgment in their favor without considering whether there was sufficient evidence to support a claim for breach of the covenant of good faith and fair dealing. As to Lt. Mills's claim of retaliation against public policy for exercising his right to seek public employment, the court entered summary judgment because "[Lt. Mills] provid[ed] no authority whatsoever for the existence of the tort ... nor [was]
As to Mills's and McLaughlin's sexual harassment claims, the court concluded Chief Hankla's alleged conduct was not "sufficiently severe or pervasive to alter the conditions of the victim[s'] employment," and could not amount to a hostile work environment in violation of AS 18.80.220. Additionally, as to Mills's and McLaughlin's claims against the City for denial of overtime wages, the court explained that the Alaska Wage and Hour Act
As to the negligent hiring, training, and retention claims against the City, the court concluded the claims were precluded by discretionary function immunity under AS 09.65.070.
Chief Hankla and the City moved for reconsideration of the denial of summary judgment on Welsh's sexual harassment claim. They pointed to portions of Welsh's affidavit, deposition testimony, and interrogatory responses which they asserted showed that Chief Hankla's only alleged request to see her breasts while he was police chief occurred after Welsh had left the City's employment. At a status hearing, the court granted the reconsideration motion and entered summary judgment against Welsh on this final claim. Welsh protested the ruling, concerned that it precluded a common law claim for intentional infliction of emotional distress. The court responded that Welsh had not pleaded intentional infliction of emotional distress.
Shortly before discovery closed, Chief Hankla and the City tendered Alaska Civil Rule 68 offers of judgment of $2,000 each to Lt. Mills and dispatchers Mills and McLaughlin, and $4,000 to dispatcher Welsh. The employees did not accept these offers, and following dismissal of all of the employees' claims by way of summary judgment, Chief Hankla and the City moved for Rule 68 attorney's fees. The employees opposed, arguing that the Rule 68 offers were invalid because they would have left the employees with no net recovery. The superior court rejected the employees' argument and granted the motion in full, holding the employees jointly and severally liable for Rule 68 fees and costs in excess of $100,000.
On appeal the employees challenge the superior court's denial of discovery sanctions, grant of summary judgment, and entry of attorney's fees.
The employees argue that the superior court erred in denying their request for discovery sanctions for spoliation of evidence.
The employees claim that the City withheld documents from Chief Hankla's personnel file, including a psychological evaluation, performance evaluations, medical files, a file of citizen complaints, and a disciplinary record. They note that the previous police chief referred to those documents as part of Chief Hankla's personnel file. The employees also argue that the City withheld former Mayor Skaflestad's file of complaints until shortly before the then-scheduled trial.
As to Chief Hankla's personnel file, the superior court recognized that the previous police chief referred to documents not in the personnel file turned over to the employees, but the court concluded that the discrepancy was not sufficient to establish spoliation and that it was not clear the documents were relevant. City Clerk Marlene Duvall stated that the entirety of Chief Hankla's file was turned over to the City's attorney. She noted that personnel files were under her supervision and control and that city policy provided no employees, including the police chief, were to keep separate personnel files. She also stated that psychological evaluations were not kept in the personnel files. Given the lack of evidence indicating destruction or withholding, we conclude that it was not clearly erroneous to find no spoliation and that it was not an abuse of discretion for the superior court to deny sanctions regarding Chief Hankla's personnel file.
As to Skaflestad's complaints file, early in the litigation the City obtained Skaflestad's files and turned over all non-privileged documents to the employees. Skaflestad later stated that he had continued to add to his file. Upon learning of these additions, the City requested a copy of the expanded file and subsequently gave a copy to the employees. The City's attorney stated that she did not know about Skaflestad's late additions until the spoliation claim arose, and the employees presented no evidence showing otherwise. The superior court's finding that there was no spoliation was not clearly erroneous, and in light of that finding it did not abuse its discretion in denying sanctions regarding Skaflestad's file.
We review a grant of summary judgment de novo
Lt. Mills challenges the superior court's entry of summary judgment on his wrongful termination claim. To prevail on a wrongful termination claim, an employee must prove (1) the employee was terminated by his or her employer and (2) the employer breached a contract or committed a tort in connection with the termination.
Viewing the facts of this case in totality and in the light most favorable to Lt. Mills, there is a genuine issue of material fact whether Chief Hankla and the City engaged in a sustained campaign of harassment, leaving Lt. Mills no reasonable choice but to leave. Although we agree with Chief Hankla and the City that merely believing one's supervisor is critical or incompetent does not create intolerable working conditions,
The fact that Lt. Mills left the police department for another job does not preclude a constructive discharge claim. Lt. Mills asserted he did not plan on leaving the department and explained, "I would not have left Hoonah if I thought I had a choice." In the light most favorable to Lt. Mills, the fact that his departure was for a position elsewhere does not require us to conclude he did not reasonably feel compelled to leave.
As to the second element of a wrongful termination claim — a tort or breach of contract connected with the termination — we conclude that Lt. Mills raised a genuine issue of material fact concerning a breach of the implied covenant of good faith and fair dealing.
In Finch, where there was sufficient evidence to support a claim of constructive discharge through a sustained campaign of harassment, we explained that it "follow[ed] that [there was] sufficient evidence to overcome summary judgment on [the] breach of covenant."
Chief Hankla and the City argue that Lt. Mills did not address his wrongful termination claim in the opposition to summary judgment. Although the employees' group opposition had Lt. Mills's affidavit attached, the opposition's only assertion supporting Lt. Mills's claim is the broad statement that "it is evident that there is substantial evidence to support the allegations in the complaint, and that the defenses raised by the defendants are not adequate to defeat the claims as a matter of law."
Rule 56(e) provides that a party opposing summary judgment "may not rest upon the mere allegations or denials of the adverse party's pleading," but must "set forth facts showing that there is a genuine issue for trial." For this claim the facts were set forth but not well presented to the superior court — nonetheless, because there is sufficient evidence to raise a genuine issue of material fact as to Lt. Mills's wrongful termination claim, summary judgment is not appropriate.
We affirm the superior court's grant of summary judgment dismissing Lt. Mills's claim against the City for retaliation against public policy for exercising his right to seek public employment. The superior court correctly noted that Lt. Mills "provid[ed] no authority whatsoever for the existence of the tort of retaliation for unsuccessfully applying for public employment." Lt. Mills attempts to substantiate the claim on appeal. Lt. Mills argues that Chief Hankla retaliated against him for speaking out against Chief Hankla's candidacy and competing for the position. Lt. Mills now asserts that the retaliation was a violation of both the federal and state constitutions. But Lt. Mills did not raise either theory before the superior court. We therefore do not address the merits of the constitutional arguments on appeal.
Dispatchers Welsh, Mills, and McLaughlin challenge the superior court's grant of summary judgment dismissing their sexual harassment claims against the City. They argue that the City can be liable under AS 18.20.220(a),
In granting summary judgment dismissing Welsh's claim, the superior court concluded that the City could not be liable under the AHRA for Chief Hankla's conduct. The court reasoned that an employer's liability is limited to acts of supervisors, not coworkers, and that Chief Hankla was not Welsh's supervisor during the alleged acts of sexual harassment. Although we agree that the law limits employer liability to the acts of supervisors, we disagree with the court's determination that there was no genuine issue of material fact regarding Chief Hankla's status as a supervisor. We therefore reverse the summary judgment dismissal of Welsh's AHRA claim against the City.
An employee must establish two elements to hold an employer liable for a hostile work environment: (1) the employee experienced "discriminatory behavior sufficiently severe or pervasive to alter the conditions of the victim's employment";
The City does not dispute that a genuine issue of material fact exists with respect to the discriminatory nature of Chief Hankla's behavior. The City contends, however, that Chief Hankla was never Welsh's supervisor when the objectionable behavior occurred. According to the City, then-patrol-officer Hankla was merely Welsh's coworker, and the single incident of harassment while he was police chief occurred when Welsh was no longer an employee. There are genuine issues of material fact as to both propositions.
In VECO, Inc. v. Rosebrock we concluded that an individual with the power to fire, discipline, sanction, and affect the terms or conditions of an employee's employment was a supervisor.
We find the broader view persuasive. In VECO we explained that "vicarious liability may ... be imposed based on apparent authority or where an employee is aided in accomplishing a tort by the employee's position with the employer."
For example, the Second Circuit applied this broader view in Mack v. Otis Elevator Co.
Here, there is a genuine issue of material fact whether Chief Hankla had that dominance when he was a patrol officer. Though as a patrol officer Hankla could not unilaterally hire, fire, promote, or discipline Welsh, Welsh presented two pieces of evidence demonstrating that she reasonably believed he had the authority to materially affect her employment. First, Welsh stated the former police chief solicited input from the patrol officers for Welsh's performance evaluations
There also is a genuine issue of material fact whether Welsh was still employed by the City when Chief Hankla asked to see her breasts while he was acting as police chief. It is unclear from Welsh's affidavit whether she actually had ended her employment with the City before Chief Hankla made his remark — her statements indicate she entered Chief Hankla's office "as [her] shift ended" to have Chief Hankla sign her timecard. Drawing all reasonable inferences in Welsh's favor, there is a genuine issue of material fact whether getting Chief Hankla's signature on her time card at the end of her final work day was part of her duties as an employee.
We next consider whether the superior court erred in granting summary judgment dismissing Mills's and McLaughlin's sexual harassment claims. While it is undisputed that Chief Hankla was their supervisor when the alleged objectionable behavior occurred, the City argues that Chief Hankla's behavior did not create a hostile work environment. In French v. Jadon, Inc. we held 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."
Although it is a close call, there is a genuine issue of material fact whether Chief Hankla's behavior towards dispatchers Mills and McLaughlin created a hostile work environment. Both asserted they witnessed and were victims of inappropriate jokes and overtly sexual statements. McLaughlin stated that after Chief Hankla saw her accidentally open an email at work containing pictures of topless women, he told her "if [she] wanted to [she] could take some pictures of [her]self topless and send them to his email." McLaughlin also claimed that when she arrived late for a party at Chief Hankla's house, she apologized, stating that she had come directly from the shower, to which he replied, "If you're naked, come on in." Mills alleged she overheard Chief Hankla make several inappropriate sexual jokes about the dispatchers, such as that he was planning to purchase new dispatcher uniforms from Victoria's Secret and that he had looked towards another dispatcher's house while responding to a nearby fire call hoping to "see her standing in her front window wearing something `small and see-through.'" Mills also claimed that on one occasion when Chief Hankla approached her from behind to get a stapler from her desk, he put his hand on her back. Both dispatchers were aware that Chief Hankla emailed some members of the department "pornographic and off-color photos." From these assertions, a reasonable jury could conclude that Chief Hankla's harassing behavior created a hostile work environment,
Some jurisdictions have precluded vicarious liability for supervisor harassment when the employer exercised reasonable care to prevent and promptly correct harassing behavior and the victim unreasonably failed to take advantage of any preventive or corrective opportunities or to otherwise avoid harm.
Welsh, Mills, and McLaughlin challenge the superior court's entry of summary judgment dismissing their sexual harassment claims against Chief Hankla. In their amended complaint the dispatchers alleged that Chief Hankla's behavior created a hostile environment "constitut[ing] sexual harassment and discrimination, causing pain, humiliation, suffering, and physical and emotional loss ... in violation of [AS] 18.80.220(a)." The superior court read the complaint to allege only a claim under the AHRA. Although the court concluded Chief Hankla could be liable under the AHRA for aiding and abetting hostile environment sexual discrimination by the City, the court ultimately dismissed the AHRA claims against the City, precluding aiding and abetting liability. On appeal, the dispatchers argue that the AHRA allows a claim against the harassing employee and further argue that their claims survive on theories of public policy tort and intentional infliction of emotional distress.
The employees argue that AS 18.80.270 allows individual employees to be liable for hostile work environment sexual discrimination. We disagree. Subsection.270 creates liability for persons who willfully engage in "an unlawful discriminatory practice prohibited by this chapter." The statute prohibits "persons" from committing a variety of acts,
The statute also does not evince any intention to create employee liability for hostile work environment sexual harassment. Subsection.200 provides that "it is the policy of the state and the purpose of this chapter to eliminate and prevent discrimination in employment." To effectuate this purpose, the AHRA prohibits certain forms of discrimination by employers, employment agencies, and unions,
We note too that an employee may not be liable under the AHRA for aiding and abetting an employer when the discriminating employee's own conduct is what gives rise to the employer's liability. In Ellison v. Plumbers & Steam Fitters Union Local 375, we explained that under AS 18.80.260 "aiding and abetting liability occurs when the actor `knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other.'"
The dispatchers argue that even if Chief Hankla cannot be liable under the AHRA, he still can be liable for sexual harrassment under common law theories of public policy tort or intentional infliction of emotional distress. But the record is not clear that the dispatchers raised these theories before the superior court.
The dispatchers did not expressly mention these theories in their amended complaint, which alleged "sexual harassment and discrimination, causing pain, humiliation, suffering, and physical and emotional loss ... in violation of [AS] 18.80.220(a)." The dispatchers only referenced the theories in their opposition to summary judgment to rebut an argument that the AHRA shields the harassing employee. The dispatchers asserted that harassing employees are not protected both because of the language of the AHRA and because "[s]exual harassment is a well-recognized common law tort ... [that] may take the form of a common law claim based on assault, on intentional infliction of emotional distress, on interference with contract ..., and as a public policy tort" (emphasis omitted). But they did not argue that they relied on those theories in their claims against Chief Hankla. Welsh expressly asserted an intentional infliction of emotional distress claim, but only at a status hearing three days before the scheduled trial date. The superior court concluded that Welsh's intentional infliction of emotional distress claim had not been pleaded and declined to allow trial to proceed on that claim.
We have explained that "as a general rule, appellate review is precluded where questions which appellants denominate as triable issues of fact were not presented to the [trial court]."
The employees challenge the superior court's entry of summary judgment dismissing their negligent hiring claim against the City.
Alaska Statute 09.65.070(d)(2) immunizes municipalities from civil liability for claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty by a municipality or its agents ... whether or not the discretion involved is abused." We have explained that this statute "expresses a type of official immunity," protecting municipalities from liability for discretionary actions.
The City's decision appointing Chief Hankla was a discretionary action immunized by AS 09.65.070(d)(2). The employees concede that "selecting a person for a particular municipal post involves discretion." But they argue that investigating candidates before hiring — by, for example, conducting a background check — is such a "basic step[] that any responsible municipality would take before making a decision," that it cannot be considered a discretionary act. We do not find the distinction persuasive. The evaluation of potential employees, the factors relied on in that evaluation, and the decision to hire a particular individual from an applicant pool all require the City to act with "deliberation, decision and judgment."
Although official immunity for discretionary functions is qualified,
The employees had the burden of demonstrating the existence of a genuine issue of material fact on that question,
The employees supported their argument with affidavit testimony from Lt. Mills that he knew "for a fact that the council wanted Hankla as chief ... so as to be easier on themselves." Lt. Mills asserted that he had arrested a council member, that he had been present at the arrest of another, and that the department arrested several relatives of council members, while Chief Hankla "made only one arrest during his entire time in Hoonah and generally had a `get along' attitude that the council members preferred." We "do not weigh evidence or witness credibility on summary judgment,"
The employees raise several theories on appeal that they did not clearly raise before the superior court, including breach of the covenant of good faith and fair dealing as to dispatchers Welsh, Mills, and McLaughlin; retaliation as to Mills and McLaughlin; wrongful constructive termination and retaliation as to Welsh; and intentional infliction of emotional distress as to all the employees.
Because it is not clear from the record that these claims were raised before the superior court, and because the superior court did not rule on them, we decline to consider their merits. And because we are reversing the entry of summary judgment denying other
Because we remand several claims for further proceedings, including possible pleading amendments for additional claims, prevailing party status is undetermined and we vacate the superior court's judgment awarding attorney's fees against the employees. We do not need to determine at this time whether Chief Hankla and the City's offer of judgment was valid under Rule 68.
In Hughes v. Foster Wheeler Co., 932 P.2d 784 (Alaska 1997) we recognized that parties could be made jointly and severally liable where "the same issue [is] involved in each claim." In Hughes, 30 merchant mariners filed similar complaints against shipowners and asbestos manufacturers alleging personal injury and wrongful death claims.
The same is not true here. Of the eight counts in the amended complaint, only two counts applied to all four of the employees. (The two counts are misuse of public property and negligent hiring, retention, and training. Only the negligent hiring count is at issue on appeal.) It was therefore error to hold the employees jointly and severally liable for fees. If after remand the superior court awards attorney's fees to Chief Hankla and the City, it should make findings allocating the fees among the employees.
We REVERSE the summary judgment ruling dismissing Welsh's, Mills's, and McLaughlin's hostile work environment sexual harassment claims against the City and dismissing Lt. Mills's wrongful discharge claim against the City and REMAND for further proceedings. We VACATE the judgment and its award of costs and attorney's fees. The superior court's decision is otherwise AFFIRMED.
FABE, Justice, not participating.
