Wilson v. Municipality of Anchorage

• Decision Date: 30 April 1999
• Docket Number: No. S-7406,S-7406
• Citation: 977 P.2d 713
• Parties: 161 L.R.R.M. (BNA) 2285 Tawana WILSON, Personal Representative of the Estate of Jesse Wilson, Deceased, Appellant, v. MUNICIPALITY OF ANCHORAGE, Anchorage Fire Department, and International Association of Fire Fighters, LOCAL 1264, Appellees.
• Court: Alaska Supreme Court

Page 713

977 P.2d 713

161 L.R.R.M. (BNA) 2285

Tawana WILSON, Personal Representative of the Estate of Jesse Wilson, Deceased, Appellant, v. MUNICIPALITY OF ANCHORAGE, Anchorage Fire Department, and International Association of Fire Fighters, LOCAL 1264, Appellees.

No. S-7406.

Supreme Court of Alaska.

April 30, 1999.

M. Ashley Dickerson, Dickerson & Gibbons, Inc., Anchorage, for Appellant.

Leslie K. Schumacher, Assistant Municipal Attorney, and Mary K. Hughes, Municipal Attorney, Anchorage, for Appellees Municipality of Anchorage and Anchorage Fire Department.

Charles A. Dunnagan, Jermain, Dunnagan & Owens, P.C., Anchorage, for Appellee International Association of Fire Fighters, Local 1264.

Before COMPTON, Chief Justice, MATTHEWS, EASTAUGH, and BRYNER, Justices.

OPINION

EASTAUGH, Justice.

I. INTRODUCTION

Fire Inspector Jesse Wilson resigned his Municipality of Anchorage (MOA)employment in July 1989. Per the terms of a November 13, 1989 MOA letter approved by Wilson's union president, MOA rehired Wilson, but as a Firefighter III, a lower position, and did not promote him to his original position. The union grieved (unsuccessfully) MOA's failure to promote Wilson, but did not grieve MOA's failure to rehire him as an inspector. Wilson sued MOA and his union. The superior court granted MOA and the union complete summary judgment, dismissing Wilson's fair representation claims against the union, his breach of contract claims against MOA, and his racial discrimination claims against both defendants. Because the union did not establish the absence of genuine fact disputes, we reverse the summary judgment on the fair representation claims. We affirm the dismissal of the claims against MOA and the racial discrimination claims against the union. We vacate the union's attorney's fees award and reverse MOA's attorney's fees award against Wilson's counsel.

II. FACTS AND PROCEEDINGS

The Anchorage Fire Department (AFD) hired Jesse Wilson as a firefighter in 1974. ¹ It promoted him in 1981 to Fire Inspector, a position he held until he resigned July 7, 1989. Wilson's resignation letter stated, "I am terminating my employment with the Anchorage Fire Department because of a nonoccupational, medical disability (hypertension)."

Shortly before resigning, Wilson filed a claim with MOA's Police and Fire Retirement Board (Board) for benefits for "permanent occupational disability." He amended his claim to assert "permanent nonoccupational" disability. He also sought workers' compensation benefits for his hypertension. The Board denied Wilson's claim for permanent non-occupational disability benefits in August. He appealed the denial, but in early November withdrew his application for non-occupational disability benefits and sought re-employment with AFD. Wilson affied that at about this time he spoke to Anchorage Fire Chief Larry Langston, and understood that he could return as a Fire Inspector and that there were Fire Inspector positions open.

In a November 13, 1989 letter, Chief Langston informed Wilson that he could request rehire as a Firefighter III, a position lower in rank and pay than that of Fire Inspector. The letter stated that Langston had discussed Wilson's rehire with Tim Cornelius, President of the International Association of Firefighters (IAFF), Local 1264. It also summarized the pertinent discussions: Wilson's seniority date would be his new date of hire; Wilson had to pass the firefighter physical ability test; and Wilson would be "eligible to compete" for an inspector position after becoming a member of AFD. Beneath the notation "CONCUR:", Cornelius signed the letter as president of the union.

In February 1990 Wilson wrote Chief Langston "requesting rehire ... in accordance with your November 13, 1989, letter." In response, Chief Langston advised Wilson of the steps required before Wilson could be rehired as a Firefighter III. Wilson's letter, another he wrote that month to Chief Langston, and Chief Langston's written response said nothing of a Fire Inspector position.

Wilson satisfied the requirements, and AFD rehired him as a Firefighter III on May 24, 1990. Two days before Wilson's rehire, Chief Langston notified all AFD personnel that two AFD employees had been promoted to Fire Inspector positions. Chief Langston later affied that the two employees had been selected on May 18, 1990.

In June Wilson asked to be promoted to the next available Fire Inspector position. On July 5 Chief Langston responded that he and Cornelius agreed that Wilson could not "leap frog" ahead of department members on the current Fire Inspector promotional list and that he could compete for a Fire Inspector position in the next promotional period, per the November 13, 1989, "rehire agreement." ² Wilson approached the union in July and September 1990 to discuss AFD's failure to rehire him as a Fire Inspector. At an October meeting, Wilson told the union that he had previously terminated his employment due to a non-occupational illness. The union's attorney then wrote Cornelius analyzing Wilson's reemployment and promotion rights under the collective bargaining agreement (CBA) and MOA's Personnel Rules. ³ The attorney assumed that Wilson was covered under Article 10.1.3 of the CBA because Wilson had told him during their meeting that he had terminated his employment due to a non-occupational illness. ⁴ The letter stated that, because Wilson had terminated his employment based on a "non-occupational illness," he should have been rehired as a Fire Inspector. The attorney noted that Wilson could potentially claim that the union breached its duty of fair representation because it had "signed off" on the November 13 rehire letter which allowed Wilson to return only as a Firefighter III. Based on this information, the union asked Chief Langston to give Wilson preferential promotion to the first available Fire Inspector position. It did not ask that he be immediately rehired as a Fire Inspector.

Chief Langston denied the union's request for a preferential promotion in November, and stated that under the CBA, Wilson would have to wait two years until compilation of the next promotional list before he could be eligible for promotion. ⁵ In late October the union's attorney also retracted his recommendation for preferential promotion after discovering that MOA regarded Wilson's termination as voluntary rather than non-occupational. The union's attorney also recommended that Wilson be asked to provide any information showing that his termination was based upon a treating physician's medical advice.

Wilson continued to seek promotion to Fire Inspector, and continued to ask the union to assist him. In March 1991 a member of the union's executive board assisted Wilson in corresponding with AFD to find out what parts of the CBA and MOA's personnel rules applied to Wilson's rehire.

With this assistance and reasoning that his termination was for non-occupational illness, in April 1991 Wilson asked the union to grieve AFD's failure to rehire him as a Fire Inspector pursuant to CBA Article 10.1.3. The union's attorney opined that if the union did file the grievance, an arbitrator would probably find it to be time-barred. ⁶

The union soon acknowledged that when Wilson was rehired, he should have been placed on the promotional list for Fire Inspectors as an "unranked eligible" pursuant to MOA Personnel Rule 5.2.b. ⁷

Citing Article 10.1.1.3, the union filed Wilson's grievance on July 23, 1991, after AFD passed him over for promotion to the first Fire Inspector position available following his rehire. MOA denied the grievance, and the union took Wilson's case to arbitration.

The union presented two issues for arbitration: (1) "Was [Jesse] Wilson's separation from the Fire Department on July 7, 1989, a termination due to illness? (Contract § 10.1.3)" and (2) "If so, did the City violate his preferential promotion rights by passing him over for promotion in July of 1991? (Contract § 10.1.1.3)." MOA described the main issue as follows: "Did the Municipality of Anchorage violate Article 10.1.1.3 of the current IAFF agreement when it did not promote grievant into the next available fire inspector position?"

The arbitrator found on the first issue that Article 10.1.3 of the CBA applied to Wilson's termination because he quit due in part to non-occupational illness. But the arbitrator stated that he could not resolve a claim for rehire preference because no such claim had not been presented in the original grievance. The arbitrator found against Wilson on the second issue, ruling that preferential promotion rights addressed in Article 10.1.1.3 of the CBA were available only to employees who suffered occupational illnesses or injuries.

Although neither party submitted the issue to arbitration, the arbitrator also found that Wilson should have filed a grievance when MOA refused to rehire him as a Fire Inspector, but that the time for filing that grievance could not be extended beyond December 30, 1990, and that his July 23, 1991, grievance was untimely. The union refused to appeal the arbitrator's decision.

In 1992 Wilson filed suit in superior court. His amended complaint alleged that the union and MOA had racially discriminated against him in violation of AS 18.80.210 and AS 18.80.220, Alaska Constitution article I, section 1, and the Fourteenth Amendment to the United States Constitution. He alleged that MOA breached the CBA in failing to reinstate him as Fire Inspector. He alleged that the union breached its duty of fair representation and violated his civil rights. He also sued the union's attorneys, claiming that they failed to represent him properly.

MOA removed the matter to the United States District Court for the District of Alaska. Possessing federal question jurisdiction over Wilson's 42 U.S.C. § 1983 claims, that court exercised supplemental jurisdiction over Wilson's related state law claims. All parties moved for summary...