Belgrove v. North Slope Borough Power, Light, & Public Works
Belgrove v. North Slope Borough Power, Light, & Public Works
Opinion of the Court
ORDER AND OPINION
[Re: Motions at docket 46, 61]
I. MOTIONS PRESENTED
At docket 46, Plaintiff Bryan Belgrove (“Belgrove”) filed a motion for partial summary judgment as to his state law claim for wrongful discharge in breach of the covenant of good faith and fair dealing. Defendant North Slope Borough Power, Light, and Public Works (“the Borough” or “Public Works”) responded at docket 60 and crossed moved for summary judgment as to all of Belgrove’s claims at docket 61. Its memorandum and evidence in support is at docket 62. Belgrove’s reply is at docket 88, and his response in opposition to the Borough’s cross-motion is at docket 89. The Borough’s reply is at docket 90. Belgrove filed an additional reply at docket 91. Oral argument was heard on October 2, 2013.
II. BACKGROUND
Belgrove was hired as an apprentice lineman for Public Works in January 2011. He had probationary status during the first six months of his employment.
Shortly after Belgrove’s release, the Borough learned that an administrative mistake had been made so that Belgrove and another apprentice lineman hired in January of 2011 had not been properly registered as apprentices with the state. In light of the mistakes, the Borough decided to reinstate Belgrove to his former position starting in the beginning of May with back pay for all days missed.
Belgrove continued to have problems with his performance. His coworkers expressed concerns about working with him. They complained that he talked on the phone too much.
During the training course in California, Belgrove had performance problems. Belgrove did not pass two of his academic courses and failed to turn in homework.
Shortly after Belgrove’s return from training, on August 10, 2011, Belgrove brought a gun to work to sell to a coworker. This upset some of the lineman given the past concerns they had about Belgrove being argumentative and making threats.
Belgrove filed his complaint in state court for “the irregular and wrongful termination of a permanent employee based on cultural discrimination and racial profiling.” His complaint raises three claims: 1) a discriminatory termination claim under Title VII of the Civil Rights Act of 1964 and the Alaska Human Rights Act alleging race, religion, and national origin discrimination; 2) a hostile work environment claim under Title VII; and 3) a breach of the covenant of good faith and fair dealing under state law. The Borough removed the action to federal court based upon the Title VII claims. The court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1367. Belgrove moved for summary judgment as to his state law claim. The Borough moved for summary judgment as to all three claims.
III. STANDARD OF REVIEW
Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
The moving party has the burden of showing that there is no genuine dispute as to any material fact.
IV. DISCUSSION
A. Discriminatory Discharge
One of Belgrove’s claims for relief is that the Borough terminated him because of his race and national origin in violation of Title VII and the Alaska Human Rights Act. The borough moved for summary judgment on this claim, arguing there is no evidence to establish that Belgrove’s termination was based on anything but inadequate performance as a lineman. To defeat a motion for summary judgment on both his state and federal employment discrimination claims,
Under the McDonnell Douglas framework, the plaintiff bears the burden of establishing a prima facie case of discrimination.
Belgrove did not present any evidence or point to any evidence in the record to show that discrimination was more likely than not the reason for his termination.
The Borough, however, submitted Belgrove’s deposition in support of its motion for summary judgment, which provides some relevant evidence to consider. During his deposition Belgrove described a few specific instances where his coworkers made racist and derogatory comments. He stated that both Williams and Welch called him a “stupid nigger” sometime before April 19, 2011, and that Williams told him to “speak English.”
Unlike discriminatory animus exhibited by coworkers who were uninvolved in the decision to terminate an employee, evidence that a supervisor who exhibited discriminatory animus and who influenced or participated in the termination process is sufficient to show a triable issue of fact for the jury regarding discriminatory motive for termination.
Belgrove does not fare better under the McDonnell Douglas burden shifting framework because he failed to present evidence to meet his prima facie burden. To establish a prima facie case of discrimination, a plaintiff must show:' 1) he belongs to a protected class; 2) he was performing according to the Borough’s legitimate expectations; 3) he suffered an adverse employment action; and 4) that other employees with qualifications similar to his own outside of his protected class were treated more favorably or that his position was filled by someone outside of the protected class.
Even if Belgrove were to establish a prima facie case of discrimination, the Borough met its burden of demonstrating a legitimate, nondiscriminatory reason for terminating Belgrove. His supervisors consistently rated Belgrove’s performance as poor and said that he had an argumentative attitude, inappropriately used his cell phone, required constant supervision, and posed a safety risk.
B. Hostile Work Environment
Belgrove also claims that he was subjected to a hostile work environment under Title VII. To prevail on a hostile work environment claim, Belgrove must raise a triable issue of fact as to whether: (1) “he was subjected to verbal or physical conduct of a racial or sexual nature”; (2) “the conduct was unwelcome”; and (3) “the conduct was sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive work environment.”
To determine whether the conduct complained of was sufficiently severe or pervasive, the court looks to “all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”
Belgrove said in his deposition that he was subjected to “constant humiliation” and racist attitudes, but he only described a few specific incidents of harassment in any detail.
While Belgrove asserted in his deposition that he believed he was subjected to racist attitudes in the workplace, there is not enough evidence on the record to demonstrate that Belgrove’s work environment was objectively hostile. That is, there is not enough evidence to show that the discriminatory insults directed toward him
In Manatt v. Bank of America, the Ninth Circuit held that there was no hostile work environment where the plaintiff, an employee of Chinese descent, on several occasions overheard coworkers tell jokes using the phrase “China man” and refer to Chinese people as “communists from Beijing,” and where the plaintiffs coworkers on one occasion mocked her accent in front of her and called her “China woman” and on another occasion pulled their eyes back with their fingers in an attempt to mock plaintiffs Asian appearance.
C. Breach of the Covenant of Good Faith and Fair Dealing
Belgrove’s third claim against the Borough is a state law claim for the breach of the covenant of good faith and fair dealing. Both Belgrove and the Borough move for summary judgment on this claim.
Employment contracts in Alaska include an implied covenant of good faith and fair dealing.
Belgrove failed to present evidence raising a genuine issue of material fact about the Borough’s subjective motive for terminating him. The evidence, even viewed in the light most favorable to Belgrove, shows that the Borough terminated Belgrove for poor performance, including his inability to work with other lineman, and not for improper subjective motives such as depriving him of an employee benefit.
An employer violates the objective component if it treats an employee in a manner that a reasonable person would deem unfair.
Belgrove failed to present evidence raising a genuine issue of material fact as to the objective fairness of his termination. “Although the question of what a reasonable person would find to be unfair is usually a question for the trier of fact, this does not relieve [Belgrove] of the burden of presenting admissible evidence to successfully oppose a motion for summary judgment.”
Belgrove argues that the Borough terminated him unfairly because it based his termination upon incidents that occurred during his probationary period of employment and for which the Borough did not have proper documentation to support. He argues that once his six-month probationary period expired, the Borough could only terminate him for incidents that occurred during his time as a permanent employee. Belgrove does not provide any support for his assertion that any problematic behavior or job performance must be disregarded once the probationary period expires and the Borough’s policies do not support such an assertion. The difference between a probational and permanent employee is that a permanent employee can only be terminated for cause.
Belgrove also asserts that the Borough failed to follow proper procedures before terminating him. The court disagrees. As for Belgrove’s assertion that the Borough failed to implement progressive discipline as required by its own policies, the Borough’s written policies clearly indicate that while employees are subjected to progressive discipline, “the imposition of one level of discipline shall not be construed to be a prerequisite for the imposition of any other level of discipline.”
Belgrove suggests in his complaint that he was terminated in bad faith because the Borough fired him in retaliation for him contacting the Department of Labor in April 2011 about the Borough’s apprenticeship program. Assuming Belgrove was the reason the registration error was brought to light, Belgrove must then show a causal connection between his act of reporting and his termination.
V. CONCLUSION
Based on the preceding discussion, Belgrove’s motion for partial summary judgment at docket 46 is DENIED and the Borough’s motion for summary judgment at docket 61 is GRANTED.
. Ex. C.
. Belgrove depo. at pp. 33-34; Ex. E.
. Ahgeak aff. at ¶ 5; Bagienski dec. at ¶ 2.
. Williams aff. at ¶¶ 2-3; Exs. G, H.
. Grinage aff. at ¶ 3.
. Grinage aff. at ¶ 3.
. Grinage aff.; Ex. J.
. Grinage aff. at ¶ 4.
. Bagienski dec. at ¶ 2.
. Bagienski dec. at ¶ 3; Kolodziej aff. at ¶ 5; Aldred aff. at ¶ 2; Exs. L M, Q.
. Bagienski dec. at ¶¶ 6-7; Williams aff. at ¶¶ 7-8; Kolodziej aff. at ¶¶ 2, 4; Aldred aff. at ¶ 2.; Exs. L, M, N.
. Aldred aff. at ¶ 3; Ex. E.
. Aldred aff. at ¶ 4.
. Williams aff. at ¶ 8; Kolodziej aff. at ¶¶ 3, 7.
. Kolodziej aff. at ¶ 2.
. Bagienski aff. at ¶ 9.
. Ex. N.
. Ex. P. at p. 2.
. Ex. P. at pp. 2-3.
. Ex. P. atp. 5.
. Bagienski dec. at ¶ 12.
. Bagienski dec. at ¶ 12; Dunbar aff. at ¶ 4; Ex. R.
. Dunbar aff. at ¶ 4; Grinage aff. at ¶ 5.; Exs. R, T.
. Ex. V.
. Ex. W; Bagienski dec. at ¶ 12.
. Ex. W; Bagienski dec. at ¶¶ 12, 13.
. Ex. X; Grinage aft at ¶ 6.
. Grinage aff. at ¶ 6; Dunbar aff. at ¶ 5.
. Grinage aff. at ¶¶ 6, 7; Ex. Y.
. Belgrove depo. atpp. 105-09, 117-18.
. Grinage aff. at ¶ 7; Dunbar aff. at ¶ 5; Ex. Z.
. Belgrove depo. atpp. 110-13.
. Belgrove depo. at pp. 111-12.
. Bagienski dec. at ¶ 15; Belgrove depo. at p. 115.
. Fed.R.Civ.P. 56(a).
. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
. Id.
. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000).
. Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027, 1036 (9th Cir. 2005).
. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
. Id. at 323-25, 106 S.Ct. 2548.
. Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505.
. Id. at 255, 106 S.Ct. 2505.
. Id. at 248-49, 106 S.Ct. 2505.
. The Alaska Supreme Court looks to federal law in interpreting Alaska’s anti-discrimination laws and endorses the federal approach when analyzing such claims. Era Aviation, Inc. v. Lindfors, 17 P.3d 40, 43 — 44 (Alaska 2000).
. Dominguez-Curry, 424 F.3d at 1037.
. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
. Dominguez-Curiy, 424 F.3d at 1037.
. Vasquez v. Cnty. ofL.A., 349 F.3d 634, 640 (9th Cir. 2004).
. Id.
. Noyes v. Kelly Servs., 488 F.3d 1163, 1168 (9th Cir. 2007).
. Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505.
. Belgrove depo. at pp. 35-37, 57-59, 71-72.
. Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090, 1095 (9th Cir. 2005) ("[W]hen the plaintiff relies on circumstantial evidence, that evidence must be specific and substantial to defeat the employer’s motion for summary judgment.” (internal quotations omitted)).
. Dominguez-Curry, 424 F.3d at 1039-40.
. Belgrove depo. at pp. 79-81.
. Id. at pp. 83-85.
. Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998) (internal quotations omitted).
. Merrick v. Farmers Ins. Grp., 892 F.2d 1434, 1438 (9th Cir. 1990) (”[S]tray remarks are insufficient to establish discrimination.”).
.See Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir. 1993) (holding that a supervisor's comment that the company does not like grey hair was not direct evidence of age discrimination but rather was merely a stray comment because it was uttered in an ambivalent manner and was not tied to the plaintiff’s termination); Marques v. Bank of Am., 59 F.Supp.2d 1005, 1019 (N.D.Cal. 1999) (noting that a relevant consideration when determining whether a comment was a stray remark is whether it was "related in time and subject matter to the decisional process”).
. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir. 2002); Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006).
. Bagienski dec. at ¶ 15.
. See, e.g., Bagienski dec. at ¶¶ 2, 3, 7; Williams aff. at ¶¶ 2, 5.
. See, e.g., Aldred aff. ¶¶ 2, 3; Kolodziej aff. ¶¶ 3, 4.
. Ex. P.
. Vasquez, 349 F.3d at 642.
. Dominguez-Curry, 424 F.3d at 1034.
. Vasquez, 349 F.3d at 642.
. Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (internal quotations omitted).
. Manatí v. Bank of Am., 339 F.3d 792, 798 (9th Cir. 2003) (internal quotations omitted).
. Belgrove depo. at pp. 85-86.
. Id. at pp. 58-59.
. Id. at pp. 35-37.
. Id. at pp. 71-72.
. Id. at pp. 79-81.
. Id. at pp. 83-84.
. 360 F.3d 1103 (9th Cir. 2004).
. Id. at 1107-11.
. 339 F.3d at 795.
. 349 F.3d at 643.
. Cooper v. Cate, No. l:10-cv-899, 2012 WL 1669353, at *6 (E.D.Cal. May 11, 2012).
. Smith v. Dep’t of Transp., 253 P.3d 1233, 1238 (Alaska 2011).
. Smith v. Anchorage Sch. Dist., 240 P.3d 834, 844 (Alaska 2010) (quoting Mitchell v. Teck Comineo Alaska, Inc., 193 P.3d 751, 760 (Alaska 2008)).
. Id.
. Id.
. Id.
. Holland v. Union Oil Co. of Cal., Inc., 993 P.2d 1026, 1032 (Alaska 1999).
. Smith, 240 P.3d at 845.
. Ex. D. at p. 16.
. Ex. D. at pp. 46-47 (§ 4.01.2).
. Ex. D. at p. 48 (§ 4.01.4(G)).
. Ex. D. at p. 47 (§ 4.01.3).
. Ex. D. at pp. 52-53 (§ 4.01.9).
. Derendinger v. Kiewit Constr. Co., 272 F.Supp.2d 850, 854-60 (D.Alaska 2003) (granting employer’s motion for summary judgment on a retaliatory discharge claim).
. Grinage aff. at ¶ 4.
Reference
- Full Case Name
- Bryan BELGROVE v. NORTH SLOPE BOROUGH POWER, LIGHT, AND PUBLIC WORKS
- Status
- Published