from the Superior Court of the State of Alaska Superior Court
No. 3AN-10-10515 CI, Third Judicial District, Anchorage, Eric
A. Aarseth, Judge.
Frank Thomas, pro se, Eden, New York, Appellant.
Margaret Paton Walsh and Aesha Pallesen, Assistant Attorneys
General, Anchorage, and Craig W. Richards, Attorney General,
Juneau, for Appellee.
Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and
stateagency terminated the employment of a seafood inspector
following a contentious airport inspection that resulted in
complaints by a seafood processor and an airline. The
inspector contends that his termination was actually in
retaliation for an ethics complaint he had filed over a year
earlier against the agency's director. The superior court
decided most of the inspector's claims against him on
summary judgment but allowed one claim, alleging a violation
of his free speech rights, to go to trial. The jury found
that the ethics complaint was not a substantial or motivating
factor in the inspector's termination, and the superior
court entered final judgment for the agency.
appeal, the inspector argues that the superior court erred in
granting summary judgment, in denying his motion for a new
trial based on allegations of jury misconduct, and in
awarding attorney's fees to the agency. Finding no error,
FACTS AND PROCEEDINGS
Thomas's Discipline History And His Ethics
Thomas was employed by the Alaska Department of Environmental
Conservation (the Department or the State) as a seafood
inspector for more than 20 years. Though he had previous
instances of discipline, the principal storyline of his
lawsuit began on February 12, 2008. Thomas spoke that day
with an unknown member of the public about new seafood
regulations. Thomas's acting supervisor, Duane McIntire,
asked Thomas to find the person's name for follow-up.
After several reminders, Thomas sent McIntire a "menu of
telephone numbers that perhaps are the correct person, "
along with the advice "happy hunting." McIntire
asked human resources specialists in the Department for help
in responding to Thomas's email. Based on their
recommendations, he ultimately emailed Thomas: "My
expectation is that you politely and professionally make
the calls to track down who you spoke to." Thomas
responded, and included in his lengthy email was this:
"Your patronizing message is not appreciated. . . . I
believed you to be a person of some principle and now see
after today that I was wrong. Please do not allow your new
found acting supervisory position to swell your head too much
. . . ."
Department initiated an investigation of Thomas's
behavior in the exchange, serving him with a notice of
investigatory hearing in the early afternoon of February 14.
A few hours later Thomas sent an email to an assistant
attorney general, alleging that the Department's
director, Kristin Ryan, had committed an ethics violation.
Thomas alleged that he had recently discovered Ryan's
marriage to a seafood industry lobbyist, creating a conflict
of interest, and that she was unfairly punishing him for his
discovery. At the bottom of the email Thomas asserted:
"This is my formal complaint to commence an
investigation: This is my formal request for whistleblower
protections to be implemented for myself."
assistant attorney general sent Thomas a confidential reply
on February 20. She informed him that the information he had
provided did "not appear to allege a violation of the
Ethics Act by Ms. Ryan, " that his invocation of
whistleblower status was without effect, and that if he
believed he was the subject of retaliation he should pursue
the grievance procedures available through his collective
February 25 Thomas received a written reprimand from the
Department for his "inappropriate and unprofessional
behavior" in the course of his email exchange with
McIntire. Over the next year he was disciplined several more
times for disrespectful and argumentative emails, derogatory
remarks about coworkers, and ignoring the chain of command.
The complaints against him prompted three more investigatory
hearings and resulted in three suspensions without pay (one
for three days and two for five), as well as written
admonitions. A May 2009 letter to Thomas from his new
supervisor, Robert Pressley, outlined Thomas's history of
discipline since early 2008 and warned him "that any
further violations may result in further discipline up to and
The Cordova Incident And Thomas's
August 25, 2009, Thomas traveled to Cordova to conduct
inspections at area seafood facilities. The next day a
representative of Ocean Beauty Seafoods sent an email to
Pressley and Ryan enclosing a report of an incident at the
Cordova airport. According to the report, when Thomas got off
the plane in Cordova he approached the gate counter,
"asked for the [Alaska Airlines] manager[, ] . . .
confronted her in an abusive manner[, ] and complain[ed] that
the fish on the tarmac . . . had been sitting too long in
60[-]degree weather and he was going to do something about
it." The manager asked Thomas for
identification, but he could not comply because it was in his
checked luggage; he instead gave her a business card. When
the manager pressed him for an official identification,
Thomas engaged in "another round of complaints and
general abuse" until his luggage arrived, when "he
finally produced [a] very old and tattered [Department]
email described it, the Alaska Airlines manager informed
Thomas that "all the cases had already been TSA screened
and that Ocean Beauty was part of the screened facility
program." The email said that Thomas"then threw
another tantrum and insisted on removing a case of [Ocean
Beauty] fish from the tarmac." The manager contacted her
cargo supervisor, who spoke to Thomas on the phone,
describing this conversation later as a "loud,
unpleasant and non-productive communication." Local
police at the airport contacted state troopers, who
authorized Thomas's inspection.
to Ocean Beauty's report, "Thomas had produced a
simple thermometer early on in [the] confrontation and walked
around with it, took it to the bathroom and later laid it on
the ticket counter; no attempt was made to sanitize it in any
way." When the case of fish was produced for his
inspection, he opened it, "plunge[d] his hands into the
fish cavities without gloves, " and "claimed the
flesh temperature registered 40 degrees." Alaska Airlines
repackaged the box of fish, but after the inspection Ocean
Beauty could no longer attest to its quality and therefore
instructed its customer to destroy it. According to Ocean
Beauty's report, this entire process delayed the
aircraft's departure by 25 minutes.
receipt of Ocean Beauty's report - and a corroborating
complaint from Alaska Airlines - Ronald Klein, manager of the
Department's Food Safety and Sanitation Program, asked
for investigative assistance from the Environmental Crimes
Unit. The Unit was given the Department's inspection
protocols and interviewed six witnesses, though not Thomas.
It submitted a report to the Department in early September
2009, which largely substantiated Ocean Beauty's
description of the incident.
an investigatory hearing on September 18, the Department
terminated Thomas's employment because of the Cordova
incident. The September 23 termination letter advised Thomas
that he had shown poor judgment, failed to follow established
protocols, displayed highly inappropriate behavior, and
communicated unprofessionally. The letter took note of
Thomas's history of warnings and discipline for similar
behavior and concluded that he should have known "what
management's expectations [were] regarding . . .
appropriate communication." The day after he received
this letter Thomas tendered his resignation.
filed a complaint against the State in September 2010,
alleging nine causes of action. An amended complaint trimmed
away all non-employment-related claims, leaving his
assertions that the State (1) breached the covenant of good
faith and fair dealing; (2) violated his First Amendment
rights; (3) deprived him of due process in the disciplinary
proceedings; (4) violated the Alaska Whistleblower Act; and
(5) wrongfully retaliated against him. The State moved for
summary judgment on all these claims on grounds that there
was no genuine dispute about the reasons for Thomas's
dismissal, and the superior court granted the motion.
moved for reconsideration, which the superior court granted
only as to his claim that he had been terminated for
exercising his First Amendment rights, i.e., bringing his
ethics complaint against the director. The claim was tried to
a jury. During ten days of trial the parties submitted
several hundred exhibits, and the jury heard from 14
witnesses. The jury deliberated for two hours before
returning a verdict for the State, answering "no"
to the question, "Was Ernest Thomas's filing of the
ethics complaint against Director Ryan a substantial or
motivating factor for the State of Alaska's termination
of his employment?"
superior court denied Thomas's motion for a new trial,
which was based largely on allegations of juror misconduct.
The court also awarded the State attorney's fees of $75,
000. Thomas appeals.
STANDARDS OF REVIEW
review a grant of summary judgment de novo to 'determine
whether any genuine issue of material fact exists and whether
the moving party is entitled to judgment on the law
applicable to the established facts.'
" " 'Whether the evidence presented
a genuine issue of material fact is a question of law, '
and '[w]e draw all factual inferences in favor of, and
view the facts in the light most favorable to, the party
against whom summary judgment was granted.'
standard of review applicable to a superior court's
denial of a motion for a new trial based upon alleged juror
misconduct is the abuse of discretion
standard.""This court 'will not disturb a
trial court's decision on [a motion for a new trial]
except in exceptional circumstances to prevent a miscarriage
of justice.' "
"[w]hether the superior court applied the appropriate
legal standard in its consideration of a fee petition
presents a question of law that we review de
novo."Once we have identified the appropriate
standard, "we review awards of attorney's fees for
an abuse of discretion." "Abuse exists if the
[superior] court's decision 'is arbitrary,
capricious, manifestly unreasonable, or the result of an
improper motive.' "
The Superior Court Did Not Err By Granting Summary
amended complaint asserted five causes of action against the
State; the superior court granted summary judgment on all of
them before reinstating Thomas's First Amendment claim on
reconsideration. Thomas contends that the grant of summary
judgment as to his other claims is reversible error. We do
Civil Rule 56 provides for judgment to be granted to a party
where 'there is no genuine issue as to any material
fact' and 'the moving party is entitled to judgment
as a matter of law.' " "[A] party seeking
summary judgment has the initial burden of proving, through
admissible evidence, that there are no disputed issues of
material fact and that the moving party is entitled to
judgment as a matter of law.""Once the moving
party has made that showing, the burden shifts to the
non-moving party 'to set forth specific facts showing
that he could produce evidence reasonably tending to dispute
or contradict the movant's evidence and thus demonstrate
that a material issue of fact
There was no genuine issue of material fact precluding
summary judgment ...