Belgrove v. North Slope Borough Power, Light, and Public Works

Filing 96

ORDER denying 46 Motion for Partial Summary Judgment; granting 61 Motion for Summary Judgment. Signed by Judge John W. Sedwick on 11/14/13. (NKD, COURT STAFF)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF ALASKA 10 11 12 13 14 15 16 17 BRYAN BELGROVE, ) ) Plaintiff, ) ) vs. ) ) NORTH SLOPE BOROUGH POWER, ) LIGHT, AND PUBLIC WORKS ) ) ) Defendant. ) ) 3:12-CV-00178 JWS ORDER AND OPINION [Re: Motions at docket 46, 61] 18 19 20 I. MOTIONS PRESENTED At docket 46, Plaintiff Bryan Belgrove (“Belgrove”) filed a motion for partial 21 summary judgment as to his state law claim for wrongful discharge in breach of the 22 covenant of good faith and fair dealing. Defendant North Slope Borough Power, Light, 23 and Public Works (“the Borough” or “Public Works”) responded at docket 60 and 24 crossed moved for summary judgment as to all of Belgrove’s claims at docket 61. Its 25 memorandum and evidence in support is at docket 62. Belgrove’s reply is at docket 88, 26 and his response in opposition to the Borough’s cross-motion is at docket 89. The 27 Borough’s reply is at docket 90. Belgrove filed an additional reply at docket 91. Oral 28 argument was heard on October 2, 2013. -1- 1 2 II. BACKGROUND Belgrove was hired as an apprentice lineman for Public Works in January 2011. 3 He had probationary status during the first six months of his employment.1 As an 4 apprentice lineman, Belgrove worked under the supervision of a journeyman lineman.2 5 A critical aspect of his position as an apprentice lineman was to take direction from 6 more senior linemen.3 During the initial months on the job, Belgrove’s supervisor, Clark 7 Williams, developed concerns about Belgrove’s job performance, including his ability to 8 get along with others and listen to directions.4 During his probationary period, Belgrove 9 had a verbal altercation with another lineman, Perry Welch, while working in Point Hope 10 Alaska, causing a disturbance in the community.5 Belgrove reported to his supervisors 11 and Public Works management that Welch had threatened him.6 On April 19, 2011, the 12 Borough released both Belgrove and Welch from their probationary employment based 13 on inadequate performance and poor attitude.7 14 Shortly after Belgrove’s release, the Borough learned that an administrative 15 mistake had been made so that Belgrove and another apprentice lineman hired in 16 January of 2011 had not been properly registered as apprentices with the state. In light 17 of the mistakes, the Borough decided to reinstate Belgrove to his former position 18 starting in the beginning of May with back pay for all days missed.8 Shortly after 19 20 1 Ex. C. 21 2 22 Belgrove depo. at pp. 33-34; Ex. E. 3 23 Ahgeak aff. at ¶ 5; Bagienski dec. at ¶ 2. 4 24 25 Williams aff. at ¶¶ 2-3; Exs. G, H. 5 Grinage aff. at ¶ 3. 26 6 27 7 28 8 Grinage aff. at ¶ 3. Grinage aff.; Ex. J. Grinage aff. at ¶ 4. -2- 1 Belgrove’s return to the job, Jason Bagienski became lead lineman and Belgrove’s 2 immediate supervisor.9 3 Belgrove continued to have problems with his performance. His coworkers 4 expressed concerns about working with him. They complained that he talked on the 5 phone too much.10 They complained that he was argumentative and could not follow 6 the proper chain of command or instructions.11 For example, an electrician for Public 7 Works, Doug Aldred, stated that Belgrove refused to work through lunch during an 8 emergency power outage in dereliction of his duties.12 Aldred had such a difficult time 9 working with Belgrove, he informed Bagienski that he would no longer work with him.13 10 Belgrove’s coworkers said that Belgrove made threats against them and was overly 11 argumentative.14 For example, one coworker, Kris Kolodziej reported that he witnessed 12 Belgrove becoming upset with the other apprentice lineman over dishes at mealtime, 13 and later that night Belgrove told Kolodziej that he knew people who could beat up the 14 other apprentice when they went to California for apprentice training.15 In light of these 15 complaints, on July 20, 2011, Bagienski went to the Borough’s human resources 16 department to discuss how to address Belgrove’s performance problems.16 He drafted 17 18 19 20 9 Bagienski dec. at ¶ 2. 21 10 22 11 23 Bagienski dec. at ¶ 3 ; Kolodziej aff. at ¶ 5; Aldred aff. at ¶ 2; Exs. L M, Q. Bagienski dec. at ¶¶ 6-7; Williams aff. at ¶¶ 7-8; Kolodziej aff. at ¶¶ 2, 4; Aldred aff. at ¶ 2.; Exs. L, M, N. 12 24 25 Aldred aff. at ¶ 3; Ex. E. 13 Aldred aff. at ¶ 4. 26 14 27 15 28 16 Williams aff. at ¶ 8; Kolodziej aff. at ¶¶ 3, 7. Kolodziej aff. at ¶ 2. Bagienski aff. at ¶ 9. -3- 1 an evaluation of Belgrove, documenting the complaints and concerns Belgrove’s 2 coworkers had about working with him.17 3 During the training course in California, Belgrove had performance problems. 4 Belgrove did not pass two of his academic courses and failed to turn in homework.18 5 His instructor determined that he needed to improve his practical skills and also said 6 that he seemed to have his mind somewhere else and did not adequately study.19 The 7 instructor’s behavioral assessment concluded that Belgrove’s attitude did not meet 8 expectations.20 9 Shortly after Belgrove’s return from training, on August 10, 2011, Belgrove 10 brought a gun to work to sell to a coworker. This upset some of the lineman given the 11 past concerns they had about Belgrove being argumentative and making threats.21 On 12 that day Bagienski had a meeting with the Public Works management at that time: 13 Assistant Deputy Director Chris Dunbar, Deputy Director Harold Snowball, and Director 14 Ken Grinage.22 The management team decided to place Belgrove on investigative 15 leave from August 12 to August 26.23 The Borough then issued Belgrove a notice of 16 contemplated discharge, setting forth its basis for termination.24 Belgrove and 17 Bagienski met to discuss the contemplated discharge and to allow Belgrove to respond 18 19 20 17 Ex. N. 21 18 22 Ex. P at p. 2. 19 23 Ex. P at pp. 2-3. 20 24 25 Ex. P. at p. 5. 21 Bagienski dec. at ¶ 12. 26 22 27 23 28 24 Bagienski dec. at ¶ 12; Dunbar aff. at ¶ 4; Ex. R. Dunbar aff. at ¶ 4; Grinage aff. at ¶ 5.; Exs. R, T. Ex. V. -4- 1 to the allegations against him.25 After the meeting, Bagienski recommended that 2 management discharge Belgrove based on personality conflicts and job performance.26 3 Belgrove was informed that a pre-disciplinary hearing with the then-director of Public 4 Works, Grinage, was scheduled for August 26 where Belgrove would be able to present 5 evidence in his defense.27 Grinage conducted the meeting and Dunbar, the assistant 6 deputy director at that time, was also present.28 At the meeting, Belgrove generally 7 denied all the of the allegations against him, but he did not provide an explanation 8 regarding any of the specific allegations or provide evidence in his defense.29 He 9 alleged that his coworkers were aligning to get him fired, but he did not mention any 10 incidents of discrimination.30 Grinage determined that termination was appropriate, and 11 discharged Belgrove from service on August 29.31 Belgrove was informed he could 12 appeal. Belgrove did not, but instead filed complaints with both the Alaska State 13 Commission for Human Rights (“the Human Rights Commission”) and the Equal 14 Employment Opportunity Commission (“the EEOC”). He later discharged his Human 15 Rights Commission complaint.32 As for his EEOC complaint, the EEOC determined that 16 17 18 19 20 25 Ex. W; Bagienski dec. at ¶ 12. 21 26 22 Ex. W; Bagienski dec. at ¶¶ 12, 13. 27 23 Ex. X; Grinage aff. at ¶ 6. 28 24 25 Grinage aff. at ¶ 6; Dunbar aff. at ¶ 5. 29 Grinage aff. at ¶¶ 6, 7; Ex. Y. 26 30 27 31 28 32 Belgrove depo. at pp. 105-09, 117-18. Grinage aff. at ¶ 7; Dunbar aff. at ¶ 5; Ex. Z. Belgrove depo. at pp. 110-13. -5- 1 there were insufficient facts to establish a civil rights violation.33 As of July 2013, the 2 Borough had not hired another apprentice lineman to replace Belgrove.34 3 Belgrove filed his complaint in state court for “the irregular and wrongful 4 termination of a permanent employee based on cultural discrimination and racial 5 profiling.” His complaint raises three claims: 1) a discriminatory termination claim under 6 Title VII of the Civil Rights Act of 1964 and the Alaska Human Rights Act alleging race, 7 religion, and national origin discrimination; 2) a hostile work environment claim under 8 Title VII; and 3) a breach of the covenant of good faith and fair dealing under state law. 9 The Borough removed the action to federal court based upon the Title VII claims. The 10 court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1367. Belgrove moved for 11 summary judgment as to his state law claim. The Borough moved for summary 12 judgment as to all three claims. 13 14 III. STANDARD OF REVIEW Summary judgment is appropriate where “there is no genuine dispute as to any 15 material fact and the movant is entitled to judgment as a matter of law.”35 The 16 materiality requirement ensures that “only disputes over facts that might affect the 17 outcome of the suit under the governing law will properly preclude the entry of summary 18 judgment.”36 Ultimately, “summary judgment will not lie if the . . . evidence is such that 19 a reasonable jury could return a verdict for the nonmoving party.”37 In resolving a 20 motion for summary judgment, a court must view the evidence in the light most 21 22 23 33 24 25 Belgrove depo. at pp. 111-12. 34 Bagienski dec. at ¶ 15; Belgrove depo. at p. 115. 26 35 27 36 28 37 Fed. R. Civ. P. 56(a). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Id. -6- 1 favorable to the non-moving party.38 The reviewing court may not weigh evidence or 2 assess the credibility of witnesses.39 3 The moving party has the burden of showing that there is no genuine dispute as 4 to any material fact.40 The moving party need not present evidence; it need only point 5 out the lack of any genuine dispute as to material fact.41 Once the moving party has 6 met this burden, the non-moving party must set forth evidence of specific facts showing 7 the existence of a genuine issue for trial.42 All evidence presented by the non-movant 8 must be believed for purposes of summary judgment and all justifiable inferences must 9 be drawn in favor of the non-movant.43 However, the non-moving party may not rest 10 upon mere allegations or denials, but must show that there is sufficient evidence 11 supporting the claimed factual dispute to require a fact-finder to resolve the parties’ 12 differing versions of the truth at trial.44 13 14 15 IV. DISCUSSION A. Discriminatory Discharge One of Belgrove’s claims for relief is that the Borough terminated him because of 16 his race and national origin in violation of Title VII and the Alaska Human Rights Act. 17 The borough moved for summary judgment on this claim, arguing there is no evidence 18 to establish that Belgrove’s termination was based on anything but inadequate 19 performance as a lineman. To defeat a motion for summary judgment on both his state 20 21 38 22 Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). 39 23 Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027, 1036 (9th Cir. 2005). 40 24 25 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 41 Id. at 323-25. 26 42 27 43 28 44 Anderson, 477 U.S. at 248-49. Id. at 255. Id. at 248-49. -7- 1 and federal employment discrimination claims,45 “a plaintiff may produce direct or 2 circumstantial evidence demonstrating that a discriminatory reason more likely than not 3 motivated the defendant’s [adverse employment] decision.”46 Alternatively a plaintiff 4 may proceed under the McDonnell Douglas47 burden-shifting framework.48 5 Under the McDonnell Douglas framework, the plaintiff bears the burden of 6 establishing a prima facie case of discrimination.49 If he succeeds in doing so, the 7 burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for 8 the termination.50 If the employer is successful, “the burden then shifts back to the 9 plaintiff to raise a triable issue of fact that the defendant’s proffered reason was a 10 pretext for unlawful discrimination.”51 11 Belgrove did not present any evidence or point to any evidence in the record to 12 show that discrimination was more likely than not the reason for his termination. While 13 Belgrove’s briefing and complaint are rife with allegations of discrimination based on his 14 race and national origin, under the summary judgment standards, Belgrove must show 15 that there is sufficient evidence supporting the claimed factual dispute and cannot rest 16 upon mere allegations.52 17 18 19 20 45 The Alaska Supreme Court looks to federal law in interpreting Alaska’s antidiscrimination laws and endorses the federal approach when analyzing such claims. Era Aviation, Inc. v. Lindfors, 17 P.3d 40, 43-44 (Alaska 2000). 21 46 22 Dominguez-Curry, 424 F.3d at 1037. 47 23 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). 48 24 25 Dominguez-Curry, 424 F.3d at 1037. 49 Vasquez v. Cnty. of L.A., 349 F.3d 634, 640 (9th Cir. 2004). 26 50 27 51 28 52 Id. Noyes v. Kelly Servs., 488 F.3d 1163, 1168 (9th Cir. 2007). Anderson, 477 U.S. at 248-49. -8- 1 The Borough, however, submitted Belgrove’s deposition in support of its motion 2 for summary judgment, which provides some relevant evidence to consider. During his 3 deposition Belgrove described a few specific instances where his coworkers made 4 racist and derogatory comments. He stated that both Williams and Welch called him a 5 “stupid nigger” sometime before April 19, 2011, and that Williams told him to “speak 6 English.”53 These discriminatory comments, while racist and derogatory, are not direct 7 evidence that the Borough more likely than not terminated Belgrove for discriminatory 8 reasons, because neither Williams nor Welch were involved in the decision to terminate 9 Belgrove in August of 2011 and there is no evidence linking these discriminatory 10 remarks to that decision. While these comments are circumstantial evidence that 11 Belgrove experienced discrimination in the workplace, they do not amount to substantial 12 evidence of discriminatory motive on the part of the Public Works director who actually 13 fired Belgrove. 54 14 Unlike discriminatory animus exhibited by coworkers who were uninvolved in the 15 decision to terminate an employee, evidence that a supervisor who exhibited 16 discriminatory animus and who influenced or participated in the termination process is 17 sufficient to show a triable issue of fact for the jury regarding discriminatory motive for 18 termination.55 Here, Belgrove stated in his deposition that Bagienski, his supervisor 19 who influenced the decision to terminate him, asked about Belgrove’s dreadlocks with 20 an offensive expression and asked him why he did not cut off his dreadlocks.56 He also 21 said that Bagienski would joke about his accent in an “offhanded” way and twice told 22 23 53 24 25 26 Belgrove depo. at pp. 35-37, 57-59, 71-72. 54 Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090, 1095 (9th Cir. 2005) (“[W]hen the plaintiff relies on circumstantial evidence, that evidence must be specific and substantial to defeat the employer’s motion for summary judgment.” (internal quotations omitted)). 27 55 28 56 Dominguez-Curry, 424 F.3d at 1039-40. Belgrove depo. at pp. 79-81. -9- 1 him to speak English.57 Bagienski’s comments are not direct evidence of Begienski’s 2 discriminatory animus towards Belgrove. Direct evidence is “evidence which, if 3 believed, proves the fact [of discriminatory animus] without inference of presumption.”58 4 Begienski’s comment about Belgrove’s dreadlocks is not unambiguously discriminatory. 5 His comments about Belgrove’s accent and speaking English, while certainly offensive, 6 are better characterized as stray comments.59 Indeed, Belgrove alleges in his 7 deposition that these comments were made in an “offhanded” and joking way. 8 Bagienski’s comments were not alleged to have been made in context of Belgrove’s job 9 performance or his termination and there is no other evidence linking such comments to 10 Belgrove’s termination.60 While the comments are circumstantial evidence that 11 Bagienski could have harbored discriminatory animus toward Belgrove, taken together 12 they do not amount to substantial evidence of such animus or that Bagienski more likely 13 than not initiated disciplinary proceedings against Belgrove for discriminatory reasons. 14 This conclusion is substantially bolstered by the long history of problems with 15 Belgrove’s performance. 16 Belgrove does not fare better under the McDonnell Douglas burden shifting 17 framework because he failed to present evidence to meet his prima facie burden. To 18 establish a prima facie case of discrimination, a plaintiff must show: 1) he belongs to a 19 20 21 22 23 24 57 Id. at pp. 83-85. 58 Goodwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998) (internal quotations omitted). 59 Merrick v. Farmers Ins. Grp., 892 F.2d 1434, 1438 (9th Cir. 1990) (“[S]tray remarks are insufficient to establish discrimination.”). 60 25 26 27 28 See Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir. 1993) (holding that a supervisor’s comment that the company does not like grey hair was not direct evidence of age discrimination but rather was merely a stray comment because it was uttered in an ambivalent manner and was not tied to the plaintiff’s termination); Marques v. Bank of Am., 59 F. Supp. 2d 1005, 1019 (N.D. Cal. 1999) (noting that a relevant consideration when determining whether a comment was a stray remark is whether it was “related in time and subject matter to the decisional process”). -10- 1 protected class; 2) he was performing according to the Borough’s legitimate 2 expectations; 3) he suffered an adverse employment action; and 4) that other 3 employees with qualifications similar to his own outside of his protected class were 4 treated more favorably or that his position was filled by someone outside of the 5 protected class.61 Belgrove did not provide affidavits or depositions from coworkers, 6 performance evaluations, or any other evidence to show he was performing according 7 to the Borough’s expectations. Instead, the only evidence on record regarding 8 Belgrove’s job performance was submitted by the Borough and that evidence confirms 9 that Belgrove was not meeting expectations. Belgrove also did not meet his burden to 10 establish a prima facie case because he failed to present evidence that other 11 employees with qualifications similar to his own outside of his protected class were 12 treated more favorably or that his position was filled by someone outside of the 13 protected class. Indeed, the undisputed evidence submitted by the Borough shows that 14 Belgrove’s position was not filled after his termination.62 15 Even if Belgrove were to establish a prima facie case of discrimination, the 16 Borough met its burden of demonstrating a legitimate, nondiscriminatory reason for 17 terminating Belgrove. His supervisors consistently rated Belgrove’s performance as 18 poor and said that he had an argumentative attitude, inappropriately used his cell 19 phone, required constant supervision, and posed a safety risk.63 His coworkers echoed 20 these concerns.64 Belgrove did not adequately perform at lineman training camp in 21 California in July of 2011.65 The burden shifts to Belgrove to show that the Borough’s 22 23 24 25 61 Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002); Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006). 62 Bagienski dec. at ¶ 15. 26 63 27 64 28 65 See, e.g., Bagienski dec. at ¶¶ 2,3,7; Williams aff. at ¶¶ 2,5. See, e.g., Aldred aff. ¶¶ 2,3 ; Kolodziej aff. ¶¶ 3,4. Ex. P. -11- 1 stated reason is merely pretext for intentional discrimination. To the extent Belgrove 2 generally alleges in his briefing that he was subjected to constant discrimination, such 3 allegations are not enough to defeat a motion for summary judgment. Belgrove does 4 not present any evidence to suggest a discriminatory motive behind his firing. The only 5 specific evidence that raises an issue of discrimination is in Belgrove’s deposition, 6 submitted by the Borough, where Belgrove identified a few discriminatory comments 7 that were made against him. As explained above, those comments are not direct 8 evidence of discriminatory termination and do not amount to substantial circumstantial 9 evidence of discriminatory termination. 10 11 B. Hostile Work Environment Belgrove also claims that he was subjected to a hostile work environment under 12 Title VII. To prevail on a hostile work environment claim, Belgrove must raise a triable 13 issue of fact as to whether: (1) “he was subjected to verbal or physical conduct of a 14 racial or sexual nature”; (2) “ the conduct was unwelcome”; and (3) “the conduct was 15 sufficiently severe or pervasive to alter the conditions of [his] employment and create an 16 abusive work environment.”66 He must show that the work environment was both 17 subjectively hostile and objectively hostile.67 The borough moved for summary 18 judgment on this claim, arguing that Belgrove cannot show severe or pervasive 19 harassment. 20 To determine whether the conduct complained of was sufficiently severe or 21 pervasive, the court looks to “all the circumstances, including the frequency of the 22 discriminatory conduct; its severity; whether it is physically threatening or humiliating, or 23 a mere offensive utterance; and whether it unreasonably interferes with an employee’s 24 25 26 27 66 28 67 Vasquez, 349 F.3d at 642. Dominguez-Curry, 424 F.3d at 1034. -12- 1 work performance.”68 Title VII, “is not a ‘general civility code.”69 Consequently, “teasing, 2 offhand comments, and isolated incidents (unless extremely serious) will not amount to 3 discriminatory changes in the terms and conditions of employment.”70 4 Belgrove said in his deposition that he was subjected to “constant humiliation” 5 and racist attitudes, but he only described a few specific incidents of harassment in any 6 detail.71 As noted above, he described an incident where his coworker Welch called 7 him a “stupid nigger.”72 He said that Williams also directed this racist term at him one 8 time.73 He said that on one occasion Williams yelled at him and told him to speak 9 English while on the job.74 He said that Bagienski once asked about his dreadlocks with 10 an expression Belgrove described as offensive and asked why he did not cut them.75 11 He also said that Bagienski would joke about his accent and twice asked him to speak 12 English.76 He did not describe any further insults or incidents of humiliation. 13 While Belgrove asserted in his deposition that he believed he was subjected to 14 racist attitudes in the workplace, there is not enough evidence on the record to 15 demonstrate that Belgrove’s work environment was objectively hostile. That is, there is 16 not enough evidence to show that the discriminatory insults directed toward him were 17 sufficiently severe, frequent, or pervasive to alter the conditions of Belgrove’s 18 19 20 68 Vasquez, 349 F.3d at 642. 69 Faraghar v. City of Boca Raton, 524 U.S. 775, 788 (1998) (internal quotations omitted). 21 70 22 Manatt v. Bank of Am., 339 F.3d 792, 798 (9th Cir. 2003) (internal quotations omitted). 71 23 Belgrove depo. at pp. 85-86. 72 24 25 Id. at pp. 58-59. 73 Id. at pp. 35-37. 26 74 27 75 28 76 Id. at pp. 71-72. Id. at pp. 79-81. Id. at pp. 83-84. -13- 1 employment. In McGinest v. GTE Serv. Corp.,77 the plaintiff was also called a “stupid 2 nigger.” However, in that case there was additional evidence of discriminatory and 3 hostile conduct. White workers received overtime pay, but the plaintiff did not; the 4 plaintiff was subjected to comments such as “I’ll retire before I work for a black man;” 5 the plaintiff was told that only drug dealers could afford gold chains like the one the 6 plaintiff wore; African American employees were referred to as “mammy” and “Aunt 7 Jemima” in front of plaintiff; and racist graffiti was written on the walls.78 Here, the 8 conduct Belgrove complains about does not approach the severity, frequency, or 9 pervasiveness of the conduct asserted in McGinest. 10 In Mannett v. Bank of America, the Ninth Circuit held that there was no hostile 11 work environment where the plaintiff, an employee of Chinese descent, on several 12 occasions overheard coworkers tell jokes using the phrase “China man” and refer to 13 Chinese people as “communists from Beijing,” and where the plaintiff’s coworkers on 14 one occasion mocked her accent in front of her and called her “China woman” and on 15 another occasion pulled their eyes back with their fingers in an attempt to mock 16 plaintiff’s Asian appearance.79 In Vasquez v. County of Los Angeles, the Ninth Circuit 17 found that there was no hostile work environment where the employee was told that he 18 had a “typical Hispanic Macho attitude” and that he should start working in the field 19 because “Hispanics do good in the field.”80 The allegations in these cases are at least 20 as severe and frequent as in this case but were nonetheless insufficiently severe or 21 pervasive to create a hostile work environment. While “[t]here is no doubt that the term 22 ”nigger” is an invidious, demeaning, and unacceptable racial slur[,] . . . [i]t is recognized 23 that isolated and sporadic instances in which offensive language is used, including 24 25 77 360 F.3d 1103 (9th Cir. 2004). 26 78 27 79 28 80 Id. at 1107-11. 339 F.3d at 795. 349 F.3d at 643. -14- 1 racial epithets, are themselves insufficient to constitute a racially hostile work 2 environment.”81 Thus, Belgrove’s claim cannot survive summary judgment. 3 C. Breach of the Covenant of Good Faith and Fair Dealing 4 Belgrove’s third claim against the Borough is a state law claim for the breach of 5 the covenant of good faith and fair dealing. Both Belgrove and the Borough move for 6 summary judgment on this claim. 7 Employment contracts in Alaska include an implied covenant of good faith and 8 fair dealing.82 “‘The covenant has both a subjective and an objective component.’”83 An 9 employer violates the subjective component and is in breach of the covenant when it 10 acts with an improper motive, such as when it “discharges an employee for the 11 purpose of depriving him or her of one of the benefits of the contract.”84 The employee 12 cannot rely on his personal feelings about the employer’s motive but rather he must 13 present evidence that the employer’s decision to terminate was in bad faith.85 14 Belgrove failed to present evidence raising a genuine issue of material fact about 15 the Borough’s subjective motive for terminating him. The evidence, even viewed in the 16 light most favorable to Belgrove, shows that the Borough terminated Belgrove for poor 17 performance, including his inability to work with other lineman, and not for improper 18 subjective motives such as depriving him of an employee benefit. 19 20 An employer violates the objective component if it treats an employee in a manner that a reasonable person would deem unfair.86 It is objectively unfair, and a 21 22 81 23 82 24 83 25 Cooper v. Cate, No. 1:10-cv-899, 2012 WL 1669353, at *6 (E.D. Cal. May 11, 2012). Smith v. Dep’t of Transp., 253 P.3d 1233, 1238 (Alaska 2011). Smith v. Anchorage Sch. Dist., 240 P.3d 834, 844 (Alaska 2010) (quoting Mitchell v. Teck Cominco Alaska, Inc., 193 P.3d 751, 760 (Alaska 2008)). 26 84 27 85 28 86 Smith, 240 P.3d at 844. Id. Id. -15- 1 breach of the covenant of good faith and fair dealing, to treat similarly situated 2 employees differently or to terminate an employee for unconstitutional reasons or for 3 reasons that violate public policy.87 It is also objectively unfair to terminate an employee 4 without proper or fair procedures.88 5 Belgrove failed to present evidence raising a genuine issue of material fact as to 6 the objective fairness of his termination. “Although the question of what a reasonable 7 person would find to be unfair is usually a question for the trier of fact, this does not 8 relieve [Belgrove] of the burden of presenting admissible evidence to successfully 9 oppose a motion for summary judgment.”89 As discussed above, Belgrove did not 10 provide any evidence to show that the Borough terminated him for discriminatory 11 reasons or for other objectively unfair and unlawful reasons. There is no evidence that 12 the Borough treated Belgrove differently from other employees similarly situated. 13 Belgrove argues that the Borough terminated him unfairly because it based his 14 termination upon incidents that occurred during his probationary period of employment 15 and for which the Borough did not have proper documentation to support. He argues 16 that once his six-month probationary period expired, the Borough could only terminate 17 him for incidents that occurred during his time as a permanent employee. Belgrove 18 does not provide any support for his assertion that any problematic behavior or job 19 performance must be disregarded once the probationary period expires and the 20 Borough’s policies do not support such an assertion. The difference between a 21 probational and permanent employee is that a permanent employee can only be 22 terminated for cause. 90 Moreover, the record shows that Belgrove had performance 23 problems and conflicts with coworkers after his probationary period ended. 24 25 87 Id. 26 88 27 89 28 90 Holland v. Union Oil Co. of Cal., Inc., 993 P.2d 1026, 1032 (Alaska 1999). Smith, 240 P.3d at 845. Ex. D. at p. 16. -16- 1 Belgrove also asserts that the Borough failed to follow proper procedures before 2 terminating him. The court disagrees. As for Belgrove’s assertion that the Borough 3 failed to implement progressive discipline as required by its own policies, the Borough’s 4 written policies clearly indicate that while employees are subjected to progressive 5 discipline, “the imposition of one level of discipline shall not be construed to be a 6 prerequisite for the imposition of any other level of discipline.”91 Discharge by the 7 director Public Works is an appropriate level of discipline for “serious infractions” of 8 rules governing job performance or “continued unwillingness or inability on the part of 9 the employee to correct unacceptable actions or job performance.”92 Here, the Borough 10 put Belgrove on investigative leave in compliance with written policies.93 The Borough 11 followed its written procedures for termination, providing Belgrove written notices of 12 discharge and disciplinary hearings.94 He had the opportunity to respond to the notices 13 and present evidence in his defense but did not avail himself of that opportunity. 14 Nothing about Belgrove’s termination process was unfair. 15 Belgrove suggests in his complaint that he was terminated in bad faith because 16 the Borough fired him in retaliation for him contacting the Department of Labor in April 17 2011 about the Borough’s apprenticeship program. Assuming Belgrove was the reason 18 the registration error was brought to light, Belgrove must then show a causal connection 19 between his act of reporting and his termination.95 The record shows that the Borough 20 voluntarily reinstated Belgrove.96 Belgrove does not present any evidence to dispute 21 22 91 23 92 24 93 25 94 26 27 28 Ex. D at pp. 46-47 (§ 4.01.2). Ex. D. at p. 48 (§ 4.01.4(G)). Ex. D. at p. 47 (§ 4.01.3). Ex. D. at pp. 52-53 (§ 4.01.9). 95 Derendinger v. Kiewit Constr. Co., 272 F. Supp. 2d 850, 854-60 (D. Alaska 2003) (granting employer’s motion for summary judgment on a retaliatory discharge claim). 96 Grinage aff. at ¶ 4. -17- 1 this fact or to prove that the Department of Labor forced the Borough to reinstate 2 Belgrove. To argue that the Borough voluntarily hired Belgrove back after Belgrove 3 reported the apprenticeship program to the Department of Labor only to fire him four 4 months later in retaliation is an untenable position. Belgrove presents no other 5 evidence to suggest his termination was linked to the fact that he brought to light the 6 Borough’s registration error. 7 8 9 10 V. CONCLUSION Based on the preceding discussion, Belgrove’s motion for partial summary judgment at docket 46 is DENIED and the Borough’s motion for summary judgment at docket 61 is GRANTED. 11 12 DATED this 14th day of November, 2013. 13 /s/ JOHN W. SEDWICK UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -18-

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