Reed v. Municipality of Anchorage
| Decision Date | 09 November 1989 |
| Docket Number | No. S-2901,S-2901 |
| Citation | 782 P.2d 1155 |
| Parties | 114 Lab.Cas. P 56,210, 4 IER Cases 1613, 14 O.S.H. Cas. (BNA) 1328, 1989 O.S.H.D. (CCH) P 28,730 George C. REED, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee. |
| Court | Alaska Supreme Court |
Richard P. Collins, Anchorage, for appellant.
James A. Crary, Asst. Mun. Atty., and Richard D. Kibby, Mun. Atty., Anchorage, for appellee.
Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON and MOORE, JJ.
The Municipality of Anchorage (Municipality) fired George C. Reed in retaliation for complaining to the state and the Mayor of Anchorage about allegedly unsafe working conditions. This appeal raises the issue of whether the remedies for retaliatory discharge under the state "whistle blowing" statute, AS 18.60.089, are exclusive. We hold that they are not.
Reed began working for the Municipality at the Anchorage Wastewater Treatment Plant on August 24, 1981. On or about March 1, 1982, he filed a job safety and health complaint with the Alaska Department of Labor, Division of Labor Standards and Safety (DOL), as a result of employee injuries. At the same time Reed filed a telephone complaint with the office of the Mayor of Anchorage. On or about March 31, 1982, the Municipality terminated Reed.
Reed then complained to the DOL that he had been terminated for "whistle blowing." DOL investigated Reed's complaint and determined that the Municipality had terminated Reed in violation of AS 18.60.089, the "whistle blower protection" statute. On September 30, 1982, DOL sued the Municipality under AS 18.60.089 for unlawfully discharging Reed. 2 Reed filed his own wrongful termination suit against the Municipality on April 2, 1984 (Reed I). 3 DOL and the Municipality later stipulated to a dismissal of the action between them with prejudice, stipulating also that such dismissal "in no way affects the status" of Reed I.
The superior court dismissed Reed I without any explanation or making any findings of fact or conclusions of law. Reed v. Municipality of Anchorage, 741 P.2d 1181, 1183 (Alaska 1987). We vacated the decision of the superior court and remanded the case, holding that:
[N]either the statute of limitations nor the doctrine of exhaustion of administrative remedies bars Reed's wage claim or wrongful termination claim. The Municipality's arguments that Count II [wrongful discharge] fails to state a claim for which relief may be granted, and that this count should be dismissed for failure to prosecute, are without merit.
On remand (Reed II), the Municipality moved for judgment on the pleadings under Alaska R.Civ.P. 12(b)(6) and (h)(2). The Municipality claimed that Alaska's Occupational Safety and Health Act (AK-OSHA), AS 18.60.010-18.60.105, controlled Reed II. According to the Municipality, AK-OSHA "both created the new cause of action of retaliatory discharge for safety complaints and also provides a statutory remedy for the cause of action which is exclusive." Therefore, argued the Municipality, the only remedy available to Reed is that set out in the statute and Reed has no private cause of action under AS 18.60.010-18.60.105.
The superior court dismissed Reed II for failure to state a claim for which relief may be granted. This appeal arises from that dismissal.
"The motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted." 5 C. Wright & A. Miller, Federal Practice and Procedure § 1357, at 598 (1969) (hereinafter cited as Wright & Miller). This is because courts are obliged to construe complaints liberally. Id. See 2A J. Moore, Moore's Federal Practice § 12.08 (1985).... In Linck v. Barokas & Martin, 667 P.2d 171, 173 (Alaska 1983) we said: "In determining the sufficiency of the stated claim it is enough that the complaint set forth allegations of fact consistent with and appropriate to some enforceable cause of action." (Emphasis added). Wright and Miller make a similar point: "[T]he court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible theory." Wright & Miller, supra, at 602 (emphasis added).
Knight v. American Guard & Alert, Inc., 714 P.2d 788, 791 (Alaska 1986).
I. DOES AS 18.60.089 PROVIDE THE EXCLUSIVE REMEDY FOR RETALIATORY DISCHARGE OF HEALTH AND SAFETY ISSUE WHISTLE BLOWERS?
Reed claims that AS 18.60.089 creates a private cause of action for individuals discharged in retaliation for complaining about violations of health and safety standards. This is incorrect.
Alaska Statute 18.60.089 reads in full: 4
Prohibition against retribution. (a) A person may not discharge or discriminate against an employee because the employee has filed a complaint or instituted or caused to be instituted a proceeding related to the enforcement of occupational safety and health standards, or has testified or is expected to testify in a proceeding relating to occupational safety and health or because an employee has exercised personally or on behalf of others a right afforded under AS 18.60.010-18.60.105.
(b) An employee who has been discharged or discriminated against by a person in violation of this section may, within 30 days after the violation occurs, file a complaint with the commissioner alleging the discrimination. Upon receipt of the complaint, the commissioner shall investigate the matter as the commissioner considers appropriate. If, upon investigation, the commissioner determines that this section has been violated, the commissioner shall request the attorney general to bring an action in the superior court against the violator. The superior court has jurisdiction to restrain violations of (a) of this section and to order all appropriate relief including rehiring or reinstatement of the employee to the employee's former position with back pay.
(c) Within 90 days of the receipt of a complaint filed under this section, the commissioner shall notify the complainant of the determination under (b) of this section.
Upon examination it can be seen clearly that AS 18.60.089 does not explicitly create a private cause of action to remedy a violation of AS 18.60.089. Nothing in the statutory language remotely suggests that it does. Nor have we found any case law, state or federal, holding to that effect.
Courts uniformly hold that health and safety legislation such as AS 18.60.089 does not create a private cause of action in the absence of explicit language to that effect. 5 Some states recognize a private cause of action under state OSHA statutes, but in every instance the statute itself explicitly provides for the private cause of action. 6 In summary, AS 18.60.089 creates neither an explicit nor an implied private cause of action.
Reed claims that Alaska common law recognizes a covenant of good faith and fair dealing that is implied in employment contracts. According to Reed, the Municipality breached this implied covenant by discharging him in retaliation for "whistle blowing." Therefore, Reed argues, a remedy for his retaliatory discharge exists at common law. Finally, Reed argues further that AS 18.60.089 did not abrogate this common law remedy.
We have previously recognized that "every contract imposes upon each party a duty of good faith and fair dealing in its performance or its enforcement." Mitford v. de Lasala, 666 P.2d 1000, 1006 (Alaska 1983), (quoting Restatement (Second) of Contracts § 205 (1981)). Further, we have recognized that this duty is implied in employment contracts and that the breach of this duty creates an enforceable cause of action. Id. at 1006 (). Finally, we have specifically recognized that a retaliatory discharge gives rise to a cause of action for breach of the duty of good faith and fair dealing that is implied in employment contracts. See Knight v. American Guard & Alert, Inc., 714 P.2d 788, 792 (Alaska 1986).
In Knight we held that a complaint which alleged retaliatory termination of employment stated an enforceable cause of action. Id. at 792. We reversed the trial court's determination that the complaint failed to state a claim for which relief could be granted. Id. In the case at bar, Reed alleges that the Municipality terminated him in retaliation for "whistle blowing" and that in doing so, the Municipality breached the covenant of good faith and fair dealing that is implied in employment contracts. We hold that Reed's allegation expresses a breach of contract theory which we have previously recognized as an enforceable cause of action at common law.
The Municipality claims that AS 18.60.089 creates a cause of action for retaliatory discharge for safety complaints. Further, the Municipality argues that AS 18.60.089 contains the exclusive remedy for such retaliatory discharge. Reed argues that this statute is cumulative to his common law rights and that the statutory remedy "is by no means 'exclusive.' "
As we discussed above, Reed's allegation expresses a valid common law breach of contract theory. Accordingly, AS 18.60.089 does not create the sole cause of action for retaliatory discharge for safety complaints. We now examine whether AS 18.60.089 preempts Reed's common law remedy.
On its face, AS 18.60.089 contains no such prohibition. Indeed, it seems to us that the statute does not preclude an employee from instituting an action in Alaska under a recognized tort or contract theory. Alaska Statute 18.60.089(b) states that an employee may file a complaint with the commissioner. 7 Such action is permissive and is required to initiate the remedial process specifically contained in the statute. This process consists of the commissioner's investigation of the employee's complaint. Howeve...
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