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Thomas v. State, Department of Environmental Conservation, Division of Environmental Health, Food Safety & Sanitation

Supreme Court of Alaska

August 26, 2016


         Appeal from the Superior Court of the State of Alaska Superior Court No. 3AN-10-10515 CI, Third Judicial District, Anchorage, Eric A. Aarseth, Judge.

          Ernest 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 Bolger, Justices.


          MAASSEN, Justice.


         A 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.

         On 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, we affirm.


         A. Thomas's Discipline History And His Ethics Complaint

         Ernest 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 . . . ."

         The 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."[1]

         The 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 bargaining agreement.

         On 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 including dismissal."

         B. The Cordova Incident And Thomas's Termination

         On 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."[2] 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] ID."

         As the 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.

         According 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."[3] 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.

         Upon 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.

         Following 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.

         C. Thomas's Lawsuit

         Thomas 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.

         Thomas 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?"

         The 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.


         "We 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.' "[4] " '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.' "[5]

         "The 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."[6]"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.' "[7]

         Finally, "[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."[8]Once we have identified the appropriate standard, "we review awards of attorney's fees for an abuse of discretion."[9] "Abuse exists if the [superior] court's decision 'is arbitrary, capricious, manifestly unreasonable, or the result of an improper motive.' "[10]


         A. The Superior Court Did Not Err By Granting Summary Judgment.

         Thomas's 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 not agree.

         "Alaska 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.' "[11] "[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."[12]"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 exists.'"[13]

         1. There was no genuine issue of material fact precluding summary judgment ...

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