Myrna I. Johnson v. Fred Meyer Stores, Inc.

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MYRNA I. JOHNSON,
Plaintiff - Appellee,
v.
FRED MEYER STORES, INC.,
Defendant - Appellant.
No. 08-35928
D.C. No. 1:04-cv-00008-RRB
MEMORANDUM*
MYRNA I. JOHNSON,
Plaintiff - Appellant,
v.
FRED MEYER STORES, INC.,
Defendant - Appellee.
No. 08-35931
D.C. No. 1:04-cv-00008-RRB
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, Chief District Judge, Presiding
Argued and Submitted July 13, 2010
Seattle, Washington
FILED
JUL 26 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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** The Honorable Donald E. Walter, Senior United States District Judge
for Western Louisiana, sitting by designation.
1 The court could have declined supplemental jurisdiction over this claim
under 28 U.S.C. § 1367(c). Given the novelty of the state law issue, it would be
preferable for the courts of Alaska to address it.
Before: RYMER and N.R. SMITH, Circuit Judges, and WALTER, Senior District
Judge.**
Fred Meyer Stores, Inc. appeals the jury verdict and entry of judgment in
favor of Myrna I. Johnson. Johnson cross appeals. We have jurisdiction over the
district court’s final judgment pursuant to 28 U.S.C. § 1291, and we affirm in part
(on the cross-appeal) and reverse in part (on the appeal).
I
Johnson’s federal claims having been dismissed, the only claim remaining
for trial was breach of the implied covenant of good faith and fair dealing arising
under state law.1 On it, just the subjective prong was tried. The district court
correctly instructed that an employer violates the covenant when it acts with
improper motive or in bad faith. However, the court applied Alaska law too
broadly by also instructing that it is breach “if a supervisor terminates an employee
for the purpose of hiring another employee for whom he had a hoped for romantic
interest.” In effect, this part of Instruction 17 directed the verdict, inappropriately
in our view, given that Alaska has recognized subjective breach only when an

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employee has been terminated for the purpose of depriving her of a contract
benefit. See Chijide v. Maniilaq Ass’n of Kotzebue, 972 P.2d 167, 172 (Alaska
1999); Mitford v. de Lasala, 666 P.2d 1000, 1007 (Alaska 1983). While the
covenant may not necessarily be limited to these circumstances alone, no Alaska
case has found a subjective breach outside of this context, see, e.g., Era Aviation,
Inc. v. Seekins, 973 P.2d 1137, 1141 (Alaska 1999), and none suggests that
discharging an at-will employee on account of personality preferences would
breach the covenant’s subjective prong. Id. at 1141 & n.29. Thus, we believe the
Alaska Supreme Court would conclude that the second half of Instruction No. 17
should not have been given.
II
Johnson argues on cross appeal that it is a public policy tort for a supervisor
to arrange an employee’s termination to replace her with another with whom he
wishes to pursue a romantic relationship. Public policy torts exist separately from
the covenant of good faith and fair dealing. See Kinzel v. Discovery Drilling, Inc.,
93 P.3d 427, 432 (Alaska 2004). But no matter how infelicitous San Miguel’s
alleged behavior may seem, Alaska evidences no such policy in its common law,

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statutes or constitution. See Luedtke v. Nabors Alaska Drilling, Inc, 768 P.3d
1123, 1130-31 (Alaska 1989).
III
We therefore affirm on the cross appeal. We reverse the judgment in favor
of Johnson for instructional error, and remand. On remand, the court may wish to
consider its discretion with respect to retaining supplemental jurisdiction.
REVERSED AND REMANDED.

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Johnson v. Fred Meyer Stores, Inc., Nos. 08-35928, 09-35931
N.R. Smith, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority to affirm on the cross appeal and, therefore, join
Part II of the majority’s memorandum disposition. However, because I believe the
district court erred by not setting aside the jury verdict, I do not believe it
necessary to address the issues presented in Part I of the majority’s memorandum
disposition. I therefore dissent from the majority’s decision to remand the case
back to the district court and would simply reverse the district court’s decision to
not grant defendant’s motion for judgment as a matter of law outright.
In sum, the district court should have set aside the jury verdict in favor of
Johnson, because no reasonable jury could have found that Johnson was fired due
to Jamie San Miguel’s allegedly improper motives. San Miguel did not fire
Johnson; rather, Mary Lucas, the Human Resources supervisor, did. Lucas did so
without any input from San Miguel. There is no evidence in the record that Lucas
knew anything about San Miguel’s allegedly improper motives. Indeed, Lucas
fired Johnson purely on the basis that Johnson—after being warned that walking
out of a meeting early would result in termination—left the meeting anyways.
Thus, San Miguel’s allegedly improper motives played no part in Lucas’s decision
to fire Johnson. Johnson cites no Alaska law that would suggest that San Miguel’s
allegedly improper motives can be imputed to Lucas in this situation.
FILED
JUL 26 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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The majority remands this case back to the district court, where the district
court may order a new trial. Because I think the district court should have granted
defendant’s motion for judgment as a matter of law, I would not reach the issue of
whether the district court misapplied Alaska law by giving the second part of Jury
Instruction No. 17. I therefore dissent from Part I of the majority’s memorandum
disposition.

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