Cameron v. Beard
| Decision Date | 03 December 1993 |
| Docket Number | No. S-5152,S-5152 |
| Citation | 864 P.2d 538 |
| Parties | 145 L.R.R.M. (BNA) 2553 Harold A. CAMERON, Sharon McLeod, William B. McMullen, and Caroline Venusti, individually and as employees of the State of Alaska; and the State of Alaska, Appellants, v. Burle B. BEARD, Appellee. |
| Court | Alaska Supreme Court |
Randy M. Olsen, Asst. Atty. Gen., Fairbanks, and Charles E. Cole, Atty. Gen., Juneau, for appellants.
Thomas R. Wickwire, Fairbanks, for appellee.
Before MOORE, C.J., and RABINOWITZ, BURKE, MATTHEWS and COMPTON, JJ.
In this appeal, the State and four individual defendant supervisors challenge the jury's verdict in favor of Burle Beard, a former Department of Transportation employee, on his claims of constructive discharge and intentional infliction of emotional distress (IIED).
The State maintains that the superior court erred in interpreting this court's decision in Beard v. Baum, 796 P.2d 1344 (Alaska 1990), as conclusively establishing that Beard was excused from exhausting the administrative remedies provided under his collective bargaining agreement. The State also asserts that Beard's constructive discharge claim was barred by an earlier workers' compensation Compromise and Release. In the alternative, the State argues that the superior court erred in denying its motion for directed verdict/judgment n.o.v. on the constructive discharge claim.
The individual defendants argue that the court erred in denying their motions for directed verdict/judgment n.o.v. on the IIED claims. Alternatively, they argue that the court erred in denying their motion for summary judgment on the ground that they were immune from suit as officials of the state. Finally, both the State and the individual defendants appeal the court's denial of their motions for a new trial and remittitur.
Except for a one-year interruption due to injury, Burle Beard worked for the state Department of Transportation (DOT) from 1966 until he retired in 1986. After 1975, Beard worked in DOT's Right of Way section in Fairbanks. In all of Beard's job performance evaluations from 1966 to 1985, his performance was rated as either acceptable, high acceptable or outstanding.
In April 1985 Beard became the Alaska Public Employees Association (APEA) building representative. Believing that some of his supervisors and co-workers were violating DOT personnel rules, Beard began an informal investigation into departmental abuses. Beard looked for evidence to back up his suspicions that DOT personnel routinely falsified time sheets and leave slips and misused state time and property. He reported his findings to a number of state and federal agencies.
In June 1985, Caroline Venusti, the DOT personnel director, learned of Beard's allegations from a labor relations expert in the Department of Administration. Venusti met with Beard the same day. Venusti also arranged a meeting between Beard and William McMullen, the DOT regional director. At this meeting, Beard outlined his allegations to McMullen, and McMullen told Beard that he was going to appoint an investigator to review the situation. McMullen then asked DOT's Internal Review Section to investigate Beard's claims.
Beard claims that once his allegations of misconduct became known, his supervisors began a purposeful campaign to force him off the job. The day following his meeting with McMullen, an unidentified APEA member asked for a new election for building representative. Beard was subsequently voted out of the position. Later that month, Sharon McLeod, a Right of Way supervisor, completed Beard's annual job performance evaluation and rated his performance as "low-acceptable." She noted that Beard spent too much time attending to unassigned and non-job related tasks and improperly copied the time sheets of another employee. McLeod also observed that the Federal Highway Administration had not rescinded its refusal to accept Beard's appraisals. McLeod's evaluation indicated that Beard would be re-evaluated quarterly and suggested strictly controlling his work assignments to ensure that he followed his supervisor's instructions. Beard grieved this evaluation.
In August, McMullen met with Beard and gave him a copy of Internal Review's final report concerning Beard's allegations of departmental abuses. The report concluded that only two of the twenty-one allegations which Beard had made were substantiated. Beard expressed his dissatisfaction with these findings and went public with his allegations.
A month later, Beard met with McMullen, Venusti and APEA representatives to discuss Beard's continuing campaign to have his allegations investigated by non-DOT personnel. At the close of the meeting, Beard agreed only to discuss his allegations with those individuals or agencies which he had previously contacted. However he told McMullen that he would still send a letter concerning his charges to the Fairbanks District Attorney because he had already drafted it.
McMullen later discovered that Beard had a DOT secretary type this letter. When confronted with this discovery, Beard initially lied to McMullen and told him that his girlfriend had typed the letter. McMullen suspended Beard for thirty days for lying about the incident. Beard grieved this suspension, and it was subsequently reduced to seven days through a settlement between the APEA and the State. Beard received three weeks back pay as a result of the settlement.
In October McLeod performed a quarterly evaluation of Beard and rated his performance as "low-acceptable." McLeod based her negative evaluation on Beard's suspension, his failure to follow directions when doing appraisals and his need to develop a "teamwork job attitude." However she also noted that Beard had fulfilled some of the goals set out in his previous evaluation. She no longer required Beard to fill out hourly time sheets but suggested that he be re-evaluated in three months. Beard grieved this evaluation.
In February 1986 Stephen Sisk, who temporarily replaced McMullen as acting regional director, gave Beard a written warning that he would face severe disciplinary action unless he stopped harassing his co-workers with his continuing allegations of departmental corruption. 1 Beard grieved the warning memo and requested copies of the underlying complaints.
Also in February, the Division of Personnel concluded its grievance review of McLeod's July evaluation of Beard. It ordered DOT to have Beard's evaluation redone by Richard Kendall, Beard's supervisor in Engineering, because McLeod had only been Beard's supervisor for 16 days of the annual evaluation period. Kendall completed the evaluation in March and rated Beard's performance as acceptable in all categories. Both McLeod and McMullen added critical comments to the evaluation.
In March McLeod completed her third evaluation of Beard and rated his job performance as "acceptable" but rated his interpersonal relationships with co-workers as "unacceptable." McLeod cited continued disruptive behavior by Beard, referring to the February warning letter and new employee complaints. 2 Beard again grieved the evaluation.
McMullen issued Beard a final warning about "disruptive behavior" in May. The warning cited a memo by visiting DOT director, Milt Lentz, which stated that Beard had initiated a discussion of the office situation with Lentz and had told him that he planned to sue the state and buy a sailboat with the settlement. Also in May, McLeod required Beard to supply a doctor's certificate to justify his use of sick leave. This was the first time Beard had ever been asked to provide such a certificate.
Beard resigned from DOT in August 1986. According to Beard, his current supervisor, Jerry Apple, told him that McMullen was in the process of preparing a termination letter and suggested that Beard take action to protect himself. Beard immediately wrote out his resignation and submitted it the next day. Following Beard's retirement, Apple completed a final evaluation of Beard which again critically rated his performance.
Beard filed a workers' compensation claim several days after his resignation. The basis for his claim was "persistent mental stress with acute and chronic back and neck pain" caused by "continuous on-the-job harassment."
While this workers' compensation claim was pending, Beard filed a complaint against McMullen, alleging misrepresentation, defamation and IIED. McMullen moved to dismiss the IIED count on the ground that Beard had not exhausted his administrative remedies under the collective bargaining agreement. In May 1987, the superior court granted McMullen's motion and struck this count after Beard failed to file a timely opposition. Beard filed an opposition one day later which included an affidavit from Beard's union representative, stating that he had told Beard that his supervisors' attempt to "harass him by using work assignments, apportioning the workload and otherwise structuring his work environment so as to make it as uncomfortable as possible" was not a grievable matter.
A lengthy exchange of motions between the parties ensued. Ultimately, the court permitted Beard to add Cameron, McLeod, Venusti, and the State as defendants. In his amended complaint, Beard also added claims for, inter alia, constructive discharge and denial of freedom of speech. The court, however, rejected the constructive discharge and IIED claims, concluding that Beard failed to exhaust his administrative remedies.
Beard appealed to this court on this issue and others. See Beard v. Baum, 796 P.2d 1344 (Alaska 1990) (Beard I ). In July 1990, while this first appeal was pending, Beard endorsed a Compromise and Release (C & R) of his workers' compensation claim and received $13,000 in settlement. A month later, this court issued Beard I. We reversed the superior court's dismissal of Beard's constructive discharge and IIED...
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