Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Erin Marston, Judge. Superior Court No. 3AN-12-05517 CI.
Kevin T. Fitzgerald, Ingaldson Fitzgerald, P.C., Anchorage, for Appellant.
Daniel W. Hickey, Gruenstein & Hickey, Anchorage, and Susan K. Stahlfeld, Miller Nash LLP, Seattle, Washington, for Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, and Bolger, Justices. Maassen, Justice, not participating.
Fred Becker V, a loss prevention manager employed by Fred Meyer Stores, Inc., was terminated in January 2012. He sued his former employer, alleging breach of contract, breach of the implied covenant of good faith and fair dealing, and wrongful termination. The superior court granted summary judgment in favor of Fred Meyer, concluding (1) that Fred Meyer's loss prevention policy manual did not create a contract between Becker and Fred Meyer and Becker's employment was terminable at will and (2) that Becker had presented no evidence that he was treated differently from similarly situated employees with respect to the good faith and fair dealing claim. But because the record presents genuine issues of material fact regarding both claims, we reverse the superior court's summary judgment ruling.
II. FACTS AND PROCEEDINGS
Becker was employed by Fred Meyer as a loss prevention manager for 17 years. From July 2011 until January 13, 2012, Becker was assigned to the Northern Lights Fred Meyer store in Anchorage.
On January 3, 2012, Becker was on duty when he observed a man enter the store. Becker watched him enter the photoelectronics department. Becker then went to the loss prevention office and continued to observe the man through a security camera. When Becker saw him remove a stereo system from the shelf, Becker returned to the sales floor and went to the photoelectronics department. There Becker watched the man carry the stereo system to the back aisle and remove its security wrap. The man then picked up the stereo system, left the department, and proceeded toward the store exit. As the man passed the last point of sale and the electronic security devices, Becker identified himself as a loss prevention employee and told the man to stop. The man dropped the stereo system and fled. Becker pursued
him even though he no longer had the stolen merchandise.
While the man was running, he tripped and fell in the Fred Meyer parking lot, dropping his cell phone. Becker, thinking he could use the phone for identification purposes, picked it up. The man got up and " came at" Becker, demanding that he return the phone. Becker then turned and threw the phone onto the roof of the Fred Meyer building. He later testified that he threw the phone " instinctively," out of fear of the man.
His phone now out of reach, the man ran into the parking lot and got into his car. Becker stepped off the sidewalk and followed him, noting the vehicle's license plate number as the man drove away.
Becker called the police, telling them about the theft and attempted arrest and providing descriptions of the man and his vehicle. Becker then went up to the store's roof, recovered the phone, and found photographs of the man on the phone. An Anchorage Police Department officer later arrived and made a report of the incident. The man was charged in connection with the theft later that month.
On January 13 Becker met with his supervisor, Devin Lilly, to discuss the January 3 incident. Lilly told Becker that he " should have handed the phone back to [the man]" rather than throwing it on the roof. He also claimed Becker had violated company policy by using a security camera to observe the man, by running on the sales floor, and by stepping off the sidewalk to pursue him. Lilly explained that, because of these violations and other past policy violations Becker had committed, Becker's employment was terminated effective immediately. According to Becker, he never received a verbal or written warning concerning any policy violation before he was terminated.
Becker appealed the termination decision to Scott Bringhurst, Fred Meyer's Director of Loss Prevention. Bringhurst considered Becker's appeal but concluded that " [t]he incident as a whole demonstrated extremely poor judgment on [Becker's] part" and " termination was . . . appropriate given the totality of the circumstances."
Becker filed a complaint in the Anchorage superior court, claiming breach of contract, breach of the implied covenant of good faith and fair dealing, and wrongful termination. He claimed that Fred Meyer's loss prevention policies and procedures were part of his employment contract and that Fred Meyer breached those contractual provisions when it terminated his employment without notice. Becker also alleged that Fred Meyer had treated him more harshly than other employees who committed policy violations similar to his own.
Fred Meyer moved for summary judgment. The company argued that its loss prevention policy manual was not a binding contract and that, even if it were, Fred Meyer's actions did not violate company policy. As to Becker's claim based on the covenant of good faith, Fred Meyer argued that Becker " cannot point to a single employee who . . . committed so many policy violations in a single stop, who was not immediately terminated."
The superior court agreed that Fred Meyer's policy manual was not a contract, and that Becker's employment was, therefore, terminable at will. The court also concluded that Becker had failed to " raise a genuine issue of material fact whether he was treated in a disparate manner than other similarly situated employees," and, therefore, could not maintain a claim under the implied covenant of good faith and fair dealing. Accordingly, the court granted the motion for summary judgment and dismissed Becker's claims. Becker now appeals from this ruling.
III. STANDARD OF REVIEW
We review a grant of summary judgment de novo. " In our ...