Beard v. Baum

• Decision Date: 03 August 1990
• Docket Number: No. S-3229,S-3229
• Citation: 796 P.2d 1344
• Parties: Burle B. BEARD, Appellant, v. Dan BAUM, Harold A. Cameron, Sharon McLeod, William B. McMullen, Stephen C. Sisk, and Caroline C. Venusti, individually and as employees of the State of Alaska: and The State of Alaska, Appellees.
• Court: Alaska Supreme Court

Page 1344

796 P.2d 1344

Burle B. BEARD, Appellant, v. Dan BAUM, Harold A. Cameron, Sharon McLeod, William B McMullen, Stephen C. Sisk, and Caroline C Venusti, individually and as employees of the State of Alaska: and The State of Alaska Appellees.

No. S-3229.

Supreme Court of Alaska.

Aug. 3, 1990.

Thomas R. Wickwire, Law Office of Thomas R. Wickwire, Fairbanks, for appellant.

Raymond Funk, Asst. Atty. Gen., Fairbanks, and Douglas B. Baily, Atty. Gen., Juneau, for appellees.

Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON and MOORE, JJ.

OPINION

MOORE, Justice.

Burle Beard, a State Department of Transportation ("DOT") employee, claims that after he made public allegations of corruption at DOT, his supervisors engaged in a pattern of harassment tactics to force him to resign. Beard filed a complaint in superior court against the state and several individual supervisors alleging various causes of action including: (1) wrongful constructive discharge, (2) intentional infliction of emotional distress, (3) denial of due process, (4) violation of 42 U.S.C. § 1983, and (5) defamation. The superior court struck the first three of these claims from Beard's complaint on the ground that he did not exhaust his remedies under his union's collective bargaining agreement ("CBA"). The superior court granted summary judgment against Beard on the other two claims. Beard appeals each of these rulings. We affirm in part, reverse in part, and remand for further proceedings.

I. Facts and Proceedings

Burle Beard worked for the Right of Way section of DOT from 1975 until he resigned on August 22, 1986. The terms of Beard's employment were governed by the CBA between the state and the Alaska Public Employees Association ("APEA"). In April 1985, Beard became the APEA building representative. At that time, Beard believed that several of his co-workers and supervisors were violating DOT personnel rules. Beard alleged that they falsified timesheets and leave slips and misused state time and property. The Fairbanks Internal Review Office of DOT investigated Beard's charges. In its final report of August 21, 1985, it concluded that only two of the twenty-one allegations were substantiated. The Office recommended that management prevent these practices in the future.

On August 27, 1985, William McMullen, Director of Design and Construction for the DOT Northern Region, met with Beard and gave him a copy of the report. Beard was disappointed with the findings and referred to the report as a "whitewash" and a "cover-up." After McMullen told Beard that he assumed the internal review was conducted in good faith, Beard said that he would not let the issue drop and intended to go to the media. McMullen responded that DOT would not tolerate any further activities that would have a disruptive effect.

Beard alleges that several of the individuals he charged with wrongdoing engaged in a series of retaliatory "pressure tactics" against him. Beard alleges that two supervisors, Harold Cameron and Sharon McLeod, voted him out as building representative for APEA. In July 1985, McLeod rated Beard's performance "low acceptable" citing complaints that Beard wasted time and copied other workers' timesheets. ¹ Beard also alleges that his supervisors: (1) reduced his workload to mundane busy-work assignments, (2) unfairly scrutinized details of his performance, (3) transferred him frequently among different sections of DOT, and (4) falsely accused him of stealing a typewriter.

Bruce Senkow, the APEA field representative, testified by affidavit that Beard complained to him that his supervisors were harassing him at work by apportioning work assignments and structuring his work environment to make it as uncomfortable as possible. Senkow told Beard that these claims were not grievable since they were "not provable by the correspondence and personnel file documents" and because the matters were left to "management prerogative" under Article 5 of the CBA. Beard did not file a grievance making any of these allegations.

Beard alleges that the harassment he endured on the job produced a considerable amount of stress. On February 24, 1986, Beard saw Dr. James R. Simmons at the Virginia Mason Clinic in Seattle on account of back and neck pain. Over the next several days, Dr. Simmons conducted a series of tests to determine the cause of the pain. The tests revealed no adequate physical explanation. On June 5, 1986, Beard related to Dr. Simmons that he was under a considerable amount of stress because of the situation at work. At that time Dr. Simmons opined that Beard's muscle tension and pain stemmed from his "conflicts at work." On his doctor's advice and the advice of Jerry Apple, his acting supervisor, that he would be fired, Beard resigned on August 22, 1986.

On February 26, 1987, Beard filed a complaint in superior court against McMullen alleging misrepresentation, defamation, and intentional infliction of emotional distress. The court dismissed the intentional infliction of emotional distress claim on McMullen's motion on May 9, 1987. McMullen filed a motion for summary judgment on the other two counts. Beard moved to amend his complaint to assert additional claims and join additional defendants including the State of Alaska. Beard alleged the following counts:

I. Intentional, and/or Negligent Misrepresentation

II. Defamation

III. Intentional Infliction of Emotional Distress

IV. Breach of Implied Covenant of Good Faith and Fair Dealing

V. Wrongful Constructive Termination

VI. Denial of Due Process

VII. Denial of Equal Protection of the Laws

VIII. Denial of Freedom of Speech

IX. Violation of 42 U.S.C. § 1983

The court granted Beard's motion to amend but struck counts III, V, and VI from the complaint. Beard moved for reconsideration of the dismissal of the intentional infliction of emotional distress claim of the original complaint as well as the striking of counts III, V, and VI of the amended complaint.

After a series of motions to dismiss and motions for summary judgment, the court issued a Memorandum Decision on November 1, 1988. The court concluded that its original actions were correct on the ground that "Beard's remedy is through the grievance procedure as set forth in the union agreement." The court then granted the state's motion for summary judgment on the rest of the counts. The court granted final judgment against Beard on January 25, 1989 and awarded the state attorney's fees and costs. Beard appeals the court's dismissal of his claims for wrongful constructive termination, intentional infliction of emotional distress, and denial of due process and the court's entry of summary judgment against him on his claims for violation of 42 U.S.C. § 1983 and defamation.

II. Exhaustion of Contractual Remedies

The superior court struck Beard's claims for constructive discharge, intentional infliction of emotional distress, and denial of due process on the ground that he failed to exhaust the grievance procedures specified in the CBA. We have held that "an employee must first exhaust his contractual or administrative remedies, or show that he was excused from doing so, before he may pursue a direct judicial action against his employer." ² If we determine that Beard is excused from exhausting his contractual remedies, we still may affirm the superior court's decision to strike the claim from the amended complaint if there is another legal basis for doing so. See Walt v. State, 751 P.2d 1345, 1351 n. 6 (Alaska 1988).

Under the CBA, Beard was required to submit any dispute with management to the grievance procedures. ³ Beard is excused from grieving his constructive discharge and intentional infliction of emotional distress claims under the CBA because Senkow, his union representative, refused to file a grievance for Beard's allegations of harassment underlying these claims on Beard's behalf.

Under the collective bargaining agreement at issue in Casey v. City of Fairbanks, 670 P.2d 1133 (Alaska 1983), Casey could not pursue his grievance without the cooperation of his shop steward. 670 P.2d at 1135 n. 1. The evidence showed that Casey initially discussed his termination with his shop steward and reported his grievance directly to the union business agent after he was terminated. 670 P.2d at 1135. We held that Casey was excused from exhausting his remedies under a collective bargaining agreement because he made a good faith effort to grieve his termination claim through his union and his union refused to represent him. 670 P.2d at 1136-37.

In this case, Senkow testified that Beard complained to him that his supervisors were harassing him to make his work environment intolerable. Senkow told Beard that he could not pursue the grievance because the actions Beard complained of fell under management's prerogative under Article 5 of the CBA. Under the CBA grievance procedures, Beard could not pursue his grievance past the initial steps without the cooperation of an APEA representative. ⁴ Like Casey, Beard could not comply with the grievance procedures established by the CBA because his union representative refused to represent him. Any such attempt would have been futile. Under these circumstances, we hold that Beard is excused from exhausting his remedies under the CBA for his claims of constructive discharge and intentional infliction of emotional distress.

Since the superior court erred in concluding that Beard was not excused from exhausting his contractual remedies as to each of these claims, we must reverse the superior court's decision striking the claims unless they are not legally viable. See Alaska R.Civ.P. 12(b), (f). Beard's claim for constructive discharge is legally viable. Federal courts unanimously have recognized a claim for constructive discharge to prevent employers from avoiding their legal obligations with respect to a formal discharge when they create working conditions so intolerable as to force an employee...