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Hammond v. State2/25/2005
No. 5871
MATTHEWS, Justice, with whom EASTAUGH, Justice, joins, dissenting.
I. INTRODUCTION
Robert Hammond was terminated from his job with the Department of Transportation and Public Facilities. He contested his termination by pursuing the grievance-arbitration mandated by his collective bargaining agreement. While his grievance was being contested, Hammond simultaneously pursued statutory whistleblower claims in state court against the Department of Transportation and Public Facilities and fellow employees David Eberle, Richard Briggs, and Gordon Keith. His grievance was ultimately dismissed after arbitration. The superior court then gave res judicata effect to the arbitral decision to grant summary judgment for the defendants. Hammond appeals. We hold that Hammond is not precluded from pursuing his independent statutory claims in state court because he did not clearly and unmistakably agree to submit those claims to arbitration. We therefore reverse the superior court's grant of summary judgment.
II. FACTS AND PROCEEDINGS
A. Facts
Robert Hammond was an employee of the Alaska Department of Transportation and Public Facilities (DOTPF) for approximately twenty years. In August 1994 he was assigned to DOTPF's Homer Gravel Roads Project. While working on the project, Hammond concluded that the rock being used by the contractor violated the DOTPF contract specification that established maximum rock size. Hammond made a series of complaints to the contractor, throughout the DOTPF chain of command, and to the Federal Highway Administration (FHWA) about what he believed to be a violation of contract specifications. In October Hammond complained to DOTPF's Director of Design and Construction, Dean Reddick, about the project's management and about the contractor's failure to follow contract specifications. At that meeting Hammond requested that he be transferred from the project; Reddick complied.
After being transferred from the project Hammond made repeated allegations of DOTPF mismanagement. Some of these allegations were extremely serious and charged DOTPF and its personnel with corruption, fraud, and incompetence. In June 1995 Hammond received performance evaluations from his supervisor on the Homer Gravel Roads project and from Richard Briggs, his regular supervisor, stating that his performance was "mid-level acceptable." In July 1995 Hammond filed charges with FHWA alleging criminal violations of 18 USC § 1020 by DOTPF management. As a result of these charges, Hammond was placed on paid, off-site status, which subjected him to a reduction in wages. After investigation, FHWA concluded that Hammond's charges were without merit. A separate investigation into Hammond's allegations was conducted by the state, which hired an independent investigator, Richard Kerns, to investigate the Homer Gravel Roads Project and another project. Kerns's investigation found no violations of 18 USC § 1020 or the Alaska Whistleblower Act. Kerns also concluded that Hammond had no reasonable basis to make his allegations and that the allegations were not made in good faith.
David Eberle, Director of Design and Construction for the Central Region of DOTPF, terminated Hammond's employment with DOTPF on July 31, 1996, relying primarily upon the Kerns report and the recommendations of Briggs and DOTPF Regional Construction Engineer Gordon Keith. Eberle cited Hammond's "unfounded attacks impugning the integrity and competence of department staff and Federal Highway Administration personnel, threatening behavior, and refusal to follow the directions of management" as the reasons for termination.
B. Proceedings
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