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Kinzel v. Discovery Drilling6/25/2004
t was sufficient. The e-mail evidence plainly suggests that at least one adverse employment decision was made by Brown because of Kinzel's OSH report: Kinzel's reassignment from the Fort Wainwright job to the more physically demanding job at Glennallen. Although this adverse employment action was not the one that was under review by the jury, Kinzel was fired a little more than a month after he was reassigned. If an improper motive played a role in the reassignment, there is little reason to think that it would have been dispelled at the time of Kinzel's firing.
We conclude therefore that a mixed-motive instruction should have been given. But Discovery argues that the failure to give such an instruction was harmless error "as the jury found Kinzel's filing of a workers' compensation claim and an AKOSH complaint did not have a 'determinative effect in Discovery Drilling's decisionmaking process in terminating his employment.' " Discovery misses the point of a mixed-motive instruction. If the jury had been given a mixed-motive instruction, Kinzel would only have had to show that Discovery's prohibited motive was a motivating factor, though not necessarily a determinative one, in the decision to fire Kinzel. If the jury so found the burden would have shifted to Discovery to show that it would have fired Kinzel even if he had not initiated safety-related complaints on the Fort Wainwright job. By contrast, under the instructions as given, the burden was on Kinzel to show that his filing "had a determinative effect." Since the jury's finding was not guided by an appropriate instruction, it does not show that the failure to give such an instruction was harmless.
2. Limiting Lost Wages to Two Weeks
The superior court ruled that since Kinzel was an at-will employee subject to termination upon two weeks notice without cause, Kinzel was entitled to lost wages for no more than two weeks pay. Kinzel claims that this limitation was erroneous because his retaliatory discharge action should be considered an action in tort rather than contract. He argues that it follows from the tort nature of his claim that his lost wages claim should not be limited to the two-week notice period and further that emotional distress damages, loss of consortium damages, and punitive damages were eliminated by the court's ruling that his retaliation claim could only be recognized in contract.
Discovery responds that this argument is not a basis for reversal since it relates only to the measure of damages and the jury found for Discovery on the liability issues relating to the wrongful termination claim. Discovery also argues that breaches of the covenant of good faith and fair dealing have consistently been held to be contract actions in Alaska, that the proper measure of damages in a wrongful termination contract case is the employee's reasonable expectations, and that Kinzel's reasonable expectations did not extend beyond the two-week notice of termination period to which he was entitled as an at-will employee.
In reply, Kinzel argues that if at-will employees were limited to two weeks severance pay on claims for retaliatory discharge this "would actually encourage employers to fire at-will employees who reported to OSH; the consequences to the employer would be slight and the incentive to be rid of a gadfly would be great." Kinzel also contends that in virtually every state that has considered the issue, employer retaliation for filing a safety-related complaint is considered a tort, that the measure of damages for the tortious discharge of an at-will employee is based on the employee's expectation of continued employment, and relevant to this is the employee's past history with the company
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