Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

corrections@appellate.courts.state.ak.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

FRED BECKER V, 

Appellant, 

v. 

FRED MEYER STORES, INC., 

Appellee. 

) 

) Supreme Court No. S-15314 

Superior Court No. 3AN-12-05517 CI 

O P I N I O N 

No. 6962 – October 16, 2014 

) 

) 

) 

) 

) 

) 

) 

) 

Appeal from the Superior Court of the State of Alaska, Third 

Judicial District, Anchorage, Erin Marston, Judge. 

Appearances: Kevin T. Fitzgerald, Ingaldson Fitzgerald, 

P.C., Anchorage, for Appellant. Daniel W. Hickey, 

Gruenstein & Hickey, Anchorage, and Susan K. Stahlfeld, 

Miller Nash LLP, Seattle, Washington, for Appellee. 

Before: Fabe, Chief Justice, Winfree, Stowers, and Bolger, 

Justices. [Maassen, Justice, not participating.] 

BOLGER, Justice. 

I. INTRODUCTION 

Fred Becker V, a loss prevention manager employed by Fred Meyer Stores, 

Inc., was terminated in January 2012. He sued his former employer, alleging breach of 

contract, breach of the implied covenant of good faith and fair dealing, and wrongful 

termination. The superior court granted summary judgment in favor of Fred Meyer, 

concluding (1) that Fred Meyer’s loss prevention policy manual did not create a contract 
 

 

 

 

 

 

 

 

 

between Becker and Fred Meyer and Becker’s employment was terminable at will and 

(2) that Becker had presented no evidence that he was treated differently from similarly 

situated employees with respect to the good faith and fair dealing claim. But because the 

record presents genuine issues of material fact regarding both claims, we reverse the 

superior court’s summary judgment ruling. 

II. FACTS AND PROCEEDINGS 

A. Facts 

Becker was employed by Fred Meyer as a loss prevention manager for 17 

years. From July 2011 until January 13, 2012, Becker was assigned to the Northern 

Lights Fred Meyer store in Anchorage. 

On January 3, 2012, Becker was on duty when he observed a man enter the 

store. Becker watched him enter the photoelectronics department. Becker then went to 

the loss prevention office and continued to observe the man through a security camera. 

When Becker saw him remove a stereo system from the shelf, Becker returned to the 

sales floor and went to the photoelectronics department. There Becker watched the man 

carry the stereo system to the back aisle and remove its security wrap. The man then 

picked up the stereo system, left the department, and proceeded toward the store exit. 

As the man passed the last point of sale and the electronic security devices, Becker 

identified himself as a loss prevention employee and told the man to stop. The man 

dropped the stereo system1 and fled. Becker pursued him even though he no longer had 

the stolen merchandise. 

While the man was running, he tripped and fell in the Fred Meyer parking 

lot, dropping his cell phone. Becker, thinking he could use the phone for identification 

The parties dispute whether the stereo system was dropped inside or outside 

the door. 

-2- 6962 

1 
 

 

 

 

 

 

 

 

 

 

purposes, picked it up. The man got up and “came at” Becker, demanding that he return 

the phone. Becker then turned and threw the phone onto the roof of the Fred Meyer 

building. He later testified that he threw the phone “instinctively,” out of fear of the man. 

His phone now out of reach, the man ran into the parking lot and got into 

his car. Becker stepped off the sidewalk and followed him, noting the vehicle’s license 

plate number as the man drove away. 

Becker called the police, telling them about the theft and attempted arrest 

and providing descriptions of the man and his vehicle. Becker then went up to the 

store’s roof, recovered the phone, and found photographs of the man on the phone. An 

Anchorage Police Department officer later arrived and made a report of the incident. 

The man was charged in connection with the theft later that month. 

On January 13 Becker met with his supervisor, Devin Lilly, to discuss the 

January 3 incident. Lilly told Becker that he “should have handed the phone back to [the 

man]” rather than throwing it on the roof. He also claimed Becker had violated company 

policy by using a security camera to observe the man, by running on the sales floor, and 

by stepping off the sidewalk to pursue him. Lilly explained that, because of these 

violations and other past policy violations Becker had committed, Becker’s employment 

was terminated effective immediately. According to Becker, he never received a verbal 

or written warning concerning any policy violation before he was terminated. 

Becker appealed the termination decision to Scott Bringhurst, Fred Meyer’s 

Director of Loss Prevention. Bringhurst considered Becker’s appeal but concluded that 

“[t]he incident as a whole demonstrated extremely poor judgment on [Becker’s] part” 

and “termination was . . . appropriate given the totality of the circumstances.” 

-3- 6962
 
 

 

 

B. Proceedings 

Becker filed a complaint in the Anchorage superior court, claiming breach 

of contract, breach of the implied covenant of good faith and fair dealing, and wrongful 

termination.2 He claimed that Fred Meyer’s loss prevention policies and procedures 

were part of his employment contract and that Fred Meyer breached those contractual 

provisions when it terminated his employment without notice. Becker also alleged that 

Fred Meyer had treated him more harshly than other employees who committed policy 

violations similar to his own. 

Fred Meyer moved for summary judgment. The company argued that its 

loss prevention policy manual was not a binding contract and that, even if it were, Fred 

Meyer’s actions did not violate company policy. As to Becker’s claim based on the 

covenant of good faith, Fred Meyer argued that Becker “cannot point to a single 

employee who . . . committed so many policy violations in a single stop, who was not 

immediately terminated.” 

The superior court agreed that Fred Meyer’s policy manual was not a 

contract, and that Becker’s employment was, therefore, terminable at will. The court also 

concluded that Becker had failed to “raise a genuine issue of material fact whether he 

was treated in a disparate manner than other similarly situated employees,” and, 

therefore, could not maintain a claim under the implied covenant of good faith and fair 

dealing. Accordingly, the court granted the motion for summary judgment and dismissed 

Becker’s claims. Becker now appeals from this ruling. 

Becker also originally claimed that Lilly made “false and defamatory” 

statements about him, but he later voluntarily dismissed his defamation claim. 

-4- 6962 

2 
 

 

 

 

III. STANDARD OF REVIEW 

We review a grant of summary judgment de novo.3 “In our review, we 

must determine whether any genuine issue of material fact exists and whether on the 

established facts the moving party is entitled to judgment as a matter of law.”4

 “Whether 

the evidence presented a genuine issue of material fact is a question of law,”5 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.”6 

IV. DISCUSSION 

A. Breach Of Contract 

“[E]mployee policy manuals may modify at-will employment 

agreements . . . .” 7 “The employer is bound by the representations in the manual when 

the manual’s provisions create the reasonable expectation that employees have been 

granted certain rights.”8 “Because it is generally . . . a question of fact whether the 

3 Hoendermis v. Advanced Physical Therapy, Inc., 251 P.3d 346, 351 

(Alaska 2011). 

4 Id. (quoting Nielson v. Benton, 903 P.2d 1049, 1052 (Alaska 1995)) 

(internal quotation marks omitted). 

5 Lockwood v. Geico Gen. Ins. Co., 323 P.3d 691, 696 (Alaska 2014) 

(quoting Kalenka v. Jadon, Inc., 305 P.3d 346, 349 (Alaska 2013)) (internal quotation 

marks omitted). 

6 Hoendermis, 251 P.3d at 351. 

7 Id. at 355 (quoting Holland v. Union Oil Co. of Cal., 993 P.2d 1026, 1030 

(Alaska 1999)) (internal quotation marks omitted). 

8 Id. (quoting Parker v. Mat-Su Council on Prevention of Alcoholism & Drug 

Abuse, 813 P.2d 665, 666 (Alaska 1991)) (internal quotation marks omitted); see also 

Jones v. Cent. Peninsula Gen. Hosp., 779 P.2d 783, 788 (Alaska 1989) (“Employers 

(continued...) 

-5- 6962
 
 

 

 

 

 

manual did modify the employment agreement,”9 we will answer this question as a 

matter of law “[o]nly if reasonable minds could not differ in resolving this issue.”10 

Becker argues that the Fred Meyer loss prevention manual altered his atwill employment relationship. In particular, he argues that a reasonable person would 

believe that a loss prevention employee could be terminated without notice only for 

engaging in one of the six types of misconduct listed in the manual as a cause for 

immediate termination. Fred Meyer responds that because the manual contains hedging 

language suggesting that the listed grounds for termination without notice are nonexclusive, the manual does not create any expectation that an employee will be 

terminated only for the reasons listed in the manual. 

Section 201 of the loss prevention manual provides, in relevant part: 

Every member of the Fred Meyer Loss Prevention 

department has duties and responsibilities that require 

absolute professionalism, maturity and tact. Many Loss 

Prevention functions require a degree of flexibility and access 

to controlled areas that necessitate a strict compliance to 

policy. Every moment on duty you represent the department 

and company. In fairness to all concerned, you need to know 

and understand what is expected, what is not permitted and 

the disciplinary action resulting from not complying with 

these directives. The following responsibilities are in 

8

(...continued) 

should not be allowed to instill . . . reasonable expectations of job security in employees, 

and then withdraw the basis for those expectations when the employee’s performance is 

no longer desired.” (alteration in original) (quoting Leikvold v. Valley View Cmty. Hosp., 

688 P.2d 170 (Ariz. 1984)) (internal quotation marks omitted)). 

9 Holland, 993 P.2d at 1031 (alteration in original) (internal quotation marks 

omitted). 

10 Id. at 1031 n.28 (internal quotation marks omitted). 

-6- 6962
 
 

 

 

 

 

addition to the “Fred Meyer Employee Responsibilities” 

form, which applies to all employees of the company. 

CAUSES FOR IMMEDIATE TERMINATION WITHOUT 

PRIOR WARNING 

1.	 Discussing investigations or other confidential matters 

with anyone not required to be involved or authorized 

to receive the information. 

2. 	 Carrying or using any weapon on Fred Meyer property 

on or off duty. . . . 

3.	 Use of excessive force (physical or verbal) when 

making an arrest or while conducting an interview. 

4.	 Knowingly falsifying, omitting or misrepresenting any 

known facts (verbal or written) concerning an 

incident, audit, or crime with which you are directly or 

indirectly involved. 

5.	 Failure to report . . . and document a non-arrest or 

non-policy stop . . . . 

6.	 Continued pursuit of a suspect when they have either 

displayed a lethal weapon, entered a vehicle or have 

left Fred Meyer property. 

Section 201 also lists 11 “causes for disciplinary action resulting in either suspension 

without pay, or termination.” (Emphasis omitted.) 

The manual also includes “Disciplinary Guidelines” for “Non-Arrest and 

Non-Policy Stops.” These guidelines define two categories of stops that do not comply 

with Fred Meyer policy: “non-arrest apprehensions” and “non-policy stops.” A nonarrest apprehension occurs when a customer is stopped but the customer does not have 

stolen merchandise. The manual distinguishes between non-arrest apprehensions that 

occur because of a failure to follow department procedures (“errors in judgment”) and 

apprehensions that occur “due to circumstances that [the employee was] not aware of at 

the time of the apprehension” (“errors in fact”), and sets out a different progressive 

-7-	 6962
 
 

 

 

 

disciplinary procedure for each type of non-arrest apprehension. For example, an 

employee’s first non-arrest apprehension resulting from an error in judgment will result 

in a “[w]ritten warning including suspension of employment without pay”; a second 

violation within 24 months will result in discipline “[u]p to and including termination of 

employment.” 

A non-policy stop occurs when a stop does lead to an arrest and the 

recovery of stolen merchandise, but the loss prevention employee making the stop did 

not follow all applicable loss prevention apprehension procedures. In particular, the 

manual requires the loss prevention employee to ensure that five criteria are met before 

apprehending a suspect: 

a. You must observe the suspect enter the section. 

b. You must observe the suspect remove the merchandise 

from the display and know exactly what that item is. 

c. If the item is concealed, you must observe that 

concealment and know exactly where it is. 

d. You must maintain continuous observation of the 

suspect and merchandise, from the display until he/she 

exits the store. Once concealed, observation of the 

concealment area, (where the item is on the person), 

must be continuously observed. 

e. You must, for purposes of safety, have another 

employee follow you out of the store to act as a 

witness and to provide assistance, if necessary. 

(Emphasis omitted.) 

Non-policy stops are, according to the manual, less serious than either type of non-arrest 

apprehension. Accordingly, a non-policy stop “will be reviewed by the District Loss 

Prevention Manager . . . and will result in a verbal or written warning.” However, all 

“[n]on-policy apprehensions must be verbally reported to [the] District Loss Prevention 

-8- 6962
 
 

 

Manager immediately after the arrest[;] failure to report can and will result in 

termination.” 

The disciplinary guidelines further provide that: 

[A]ny of the following actions will result in immediate 

termination of employment: 

A.	 The [f]ailure to report any non-arrest apprehension 

within 1 hour of its occurrence. 

B.	 Any non-arrest apprehension made before the Loss 

Prevention person has been released from Phase 2 

training. 

C.	 Any arrest made by a member of Loss Prevention who 

has not been released from Phase two where another 

qualified member of Loss Prevention was not 

physically present. 

D.	 Any gross disregard of Policy and or any grave lack of 

judgment that causes a non-arrest apprehension. 

E.	 Any continued or uncorrected lack of judgment / lack 

of fact which persists after re-training and education 

have been documented from previous incident. 

(Emphasis omitted.) 

Fred Meyer argues that, notwithstanding the detailed procedures described 

above, “no employee could believe that they would always be entitled to progressive 

discipline” because the manual contains “hedging terms.” For example, the manual 

provides that “termination of employment is always an option when the judgment of the 

individuals involved and their actions are so grievous and severe, that it places Fred 

Meyer at increased risk [of] civil liability.” The manual also provides that the listed 

grounds for termination are “in addition to [those listed in] the ‘Fred Meyer Employee 

Responsibilities’ form.” Fred Meyer argues that this language makes it clear that the 

company retains discretion to terminate employment without cause. 

-9-	 6962
 
 

 

 

 

 

 

In Hoendermis v. Advanced Physical Therapy, Inc., we concluded that a 

policy manual did not give an employee a right to progressive discipline where the 

manual explicitly provided that the employer retained discretion not to follow the 

manual’s discipline procedures.11 That manual also “expressly provided that all . . . 

employees were employed at will and could be discharged for any reason.”12 Similarly, 

we concluded in Holland v. Union Oil Co. of California that a one-page memorandum, 

which included a non-exclusive list of prohibited conduct and provided that progressive 

discipline would be provided “[i]n most instances,” did not create a right to progressive 

discipline.13 

In contrast, we held in Jones v. Central Peninsula General Hospital that a 

policy manual setting out “fifteen non-exclusive categories of acts or omissions that may 

result in termination for cause” was, as a matter of law, incorporated into an employment 

contract.14 Despite a one-sentence disclaimer stating that the manual “is not a contract 

of employment nor is it incorporated in any contract of employment,”15 the manual 

“create[d] the impression . . . that employees are to be provided with certain job 

protections.”16 And in Parker v. Mat-Su Council on Prevention of Alcoholism and Drug 

Abuse, we concluded that an employer’s “personnel manual which outline[d] various 

11 251 P.3d at 355-56.
 

12 Id. at 355.
 

13
 993 P.2d at 1032. 

14 779 P.2d 783, 788-89 (Alaska 1989). 

15 Id. at 787. 

16 Id. at 788. 

-10- 6962
 
 

 

 

 

 

 

 

 

 

 

disciplinary polices and procedures and provide[d] that involuntary termination will 

occur only for cause” modified an employment agreement.14 

This case falls somewhere between these precedents. Fred Meyer’s policy 

manual does not include language indicating that it may decline to follow its disciplinary 

procedures as it pleases. Although it is true that the manual provides that “termination 

of employment is always an option when the judgment of the individuals involved and 

their actions are so grievous and severe, that it places Fred Meyer at increased risk [of] 

civil liability,” that language merely creates an exception to progressive discipline in 

cases where an employee’s actions have exposed Fred Meyer to a risk of liability; it does 

not render the disciplinary procedures discretionary in all instances. And given the sheer 

level of detail contained in the manual, any language suggesting that Fred Meyer policy 

is not legally binding would need to be very prominent to be effective.15 

It is also true, as Fred Meyer points out, that the list of “causes for 

immediate termination without prior warning” is “in addition to the ‘Fred Meyer 

Employee Responsibilities’ form.” (Emphasis omitted.) But that language does not 

suggest that Fred Meyer may terminate employment without notice for any reason.16 It 

merely emphasizes that another Fred Meyer policy form, which also applies to loss 

prevention employees, lists other reasons for termination without warning. 

14 813 P.2d 665, 666-67 (Alaska 1991). 

15 See Jones, 779 P.2d at 788 (“[A] one-sentence disclaimer, followed by 85 

pages of detailed text covering policies, rules, regulations, and definitions, does not 

unambiguously and conspicuously inform the employee that the manual is not part of the 

employee’s contract of employment.”). 

16 Cf. Holland, 993 P.2d at 1032 (explaining that a one-page memorandum, 

which included a non-exclusive list of prohibited conduct and provided that progressive 

discipline would be provided “[i]n most instances,” did not create a right to progressive 

discipline). 

-11- 6962
 
 

 

 

 

 

 

 

 

Therefore, there is a triable question of fact whether a reasonable person 

would believe that the provisions of the loss prevention policy manual are binding. 

Fred Meyer argues that, even if the policy manual does give Becker 

enforceable contract rights, its decision to terminate Becker’s employment without notice 

was justified by Becker’s alleged misconduct. But the superior court did not reach this 

question in its order granting summary judgment.17 We conclude that this issue should 

first be addressed by the superior court. 

B. Implied Covenant Of Good Faith And Fair Dealing 

All employment contracts — even those terminable at will — are subject 

to an implied covenant of good faith and fair dealing.18 “The covenant contains both 

objective and subjective components.”19 The objective component “requires employers 

to act in a manner that a reasonable person would regard as fair.”20 For example, an 

employer may not treat similarly situated employees differently.21 An employer breaches 

17 The superior court wrote: “Because the Court finds that the Manual did not 

constitute a contract altering Becker’s at-will employment relationship, the Court does 

not need to address the issue of whether [Fred Meyer] complied with its disciplinary 

procedures.” 

18 Hoendermis v. Advanced Physical Therapy, Inc., 251 P.3d 346, 356 

(Alaska 2011). 

19 Id. 

20 Id. (quoting Charles v. Interior Reg’l Hous. Auth., 55 P.3d 57, 62 (Alaska 

2002)) (internal quotation marks omitted). 

21 Id. Employees are similarly situated if they are “members of the same class, 

as defined by job position and the nature of the alleged misconduct.” Id. at 357. 

-12- 6962
 
 

 

 

 

 

 

 

 

the subjective component, on the other hand, if it acts with a bad-faith purpose.22 

“[G]enerally whether the covenant has been breached is a question for the trier of fact.”23 

Becker argues that Fred Meyer violated the objective component of the 

covenant. He alleges that several employees who committed similar or more serious 

violations of the loss prevention manual were not terminated without notice but received 

less severe discipline. Fred Meyer responds that Becker presented “no evidence of any 

employee . . . who did anything remotely like what Becker did on January 3.” 

To support his allegation that Fred Meyer treated him differently from 

other, similarly situated employees, Becker notes that during discovery he identified 29 

Fred Meyer employees who committed similar violations but were not terminated. He 

also notes that he testified about some of those employees during his deposition and that 

Devin Lilly maintained in an affidavit that “on numerous occasions there have been Loss 

Prevention employees committing non-apprehension arrests, which are considered far 

more egregious than non-policy stops, who were not terminated without prior notice.” 

The superior court concluded that this evidence was not sufficient to defeat 

summary judgment. Although the court acknowledged that Becker had identified other 

employees who, he alleged, were similarly situated, “he did not describe in any detail 

how these other employees’ conduct correlated to his own alleged conduct or that there 

was any disparate treatment between Fred Meyer’s disciplinary action against him and 

these other employees.” 

22 Willard v. Khotol Servs. Corp., 171 P.3d 108, 113-14 (Alaska 2007). 

23 Mills v. Hankla, 297 P.3d 158, 167 (Alaska 2013) (alteration in original) 

(quoting Okpik v. City of Barrow, 230 P.3d 672, 681 (Alaska 2010)) (internal quotation 

marks omitted). 

-13- 6962 
 

 

 

 

In Hoendermis, an employee “was terminated for allegedly failing to get 

along with other employees.”24 We concluded that Hoendermis’s affidavit, which 

alleged that several other employees had engaged in various forms of misconduct 

without their employment being terminated, was sufficient to raise an issue of material 

fact whether she was treated differently from similarly situated employees.25 

The superior court concluded that Becker’s case was distinguishable from 

Hoendermis because Becker did not describe in detail the misconduct committed by the 

other employees or identify an employee who “committed a non-policy stop approaching 

the sheer number of violations that he is alleged to have committed.” But in Hoendermis, 

we did not suggest that a certain level of detail about other employees’ misconduct was 

required to defeat summary judgment.26 

Moreover, Becker did describe in detail misconduct committed by two 

other loss prevention employees, and the discipline to which each of them was subjected. 

Becker alleged that one employee was not terminated after a non-arrest apprehension, 

which, according to the policy manual, is more serious than a non-policy stop. And 

Becker alleged that a second employee was not terminated after committing a non-arrest 

apprehension; rather, the employee was suspended and transferred out of the loss 

prevention department. Therefore, the record reflects that Becker did provide evidence 

about the specific circumstances of some of the other employees he identified. 

Nor does Hoendermis require, as Fred Meyer suggests, that an employee 

claiming disparate treatment show that another employee with exactly the same job 

24 251 P.3d at 357. 

25 Id. 

26 See id. 

-14­ 6962 
 

 

 

 

 

 

 

description was treated differently after committing exactly the same misconduct.27 To 

the contrary, the evidence in Hoendermis indicated that employees in varying positions 

had committed a wide range of misconduct, from engaging in a romantic relationship 

with a patient to assaulting another employee at work.28 We found that Hoendermis, who 

was discharged for failing to “get along with other individuals employed in the clinic,”26 

had been treated differently and that this was sufficient to prevent summary judgment.27 

We concluded that “whether Hoendermis was similarly situated to any of these other 

employees is a question of fact” to be determined at trial.28 Therefore, Becker was not 

required to identify an employee who committed precisely the same misconduct as he 

did in order to withstand summary judgment. 

And while it is true that Fred Meyer presented evidence indicating that 

some employees were terminated for committing policy violations, that evidence merely 

points to the existence of a factual dispute; it does not establish that summary judgment 

was warranted. 

For these reasons, we conclude that Becker has raised a material question 

of fact whether Fred Meyer breached the objective component of the implied covenant 

of good faith and fair dealing.29 

27 Id. at 356-57.
 

28 Id. at 357.
 

26 Id. at 350.
 

27 Id. at 357.
 

28 Id.
 

29
 Becker also argues that the court should not have dismissed his wrongful 

termination claim. The superior court dismissed the claim as “premised on his first two 

(continued...) 

-15- 6962
 
 

V. CONCLUSION 

The judgment of the superior court is REVERSED and REMANDED for 

further proceedings consistent with this opinion. 

29(...continued) 

causes of action: breach of contract and breach of the covenant of good faith and fair 

dealing.” Because a genuine issue of material fact exists for both of these underlying 

claims, however, Becker’s wrongful termination claim remains unresolved. 

-16- 6962