IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
ROBERT SOELBERG, No. 87448-9-I
Appellant,
v. UNPUBLISHED OPINION
ALASKA AIRLINES, a foreign for profit corporation,
Respondent.
BOWMAN, A.C.J. — Robert Solberg appeals the trial court’s summary
judgment dismissal of his breach of contract and negligent misrepresentation
claims against Alaska Airlines (Alaska). We affirm.
FACTS
Soelberg is a retired airline pilot with over 40 years of flying experience,
including experience with the Boeing 747 and 727 aircrafts. He also has over 25
years of experience as a flight simulator instructor. In 2021, Soelberg applied to
become a Boeing 737 flight simulator instructor for Alaska. Scott Nielsen,
Alaska’s general manager of training, interviewed Soelberg for the position.
During the interview, Nielsen explained that Alaska uses a training system known
as the “Advanced Qualification Program” (AQP). Nielsen also told Soelberg that
he would be able to “ ‘train to proficiency’ ” within the AQP system. Soelberg
understood this to mean he “would be able to repeat modules within the training
program as necessary until [he] became proficient.” No. 87448-9-I/2
Alaska offered Soelberg the position. It sent him an offer letter that
included a paragraph titled “At-will employment,” which explained, in relevant
part:
This offer letter does not alter the at-will nature of your employment. The employment relationship may be ended at any time by you or Alaska Airlines for any reason, with or without notice or cause.
Soelberg accepted the position and began his training with Alaska in January
2022.
Alaska’s AQP training system is approved by the Federal Aviation
Administration (FAA). It allows for flexible techniques and performance-based
training. And it includes a concept called “train-to-proficiency.” “Train-to-
proficiency” means “an instructor-in-training will not be ‘checked off’ for a task
until the trainee is proficient, regardless of how many hours are spent on that
task.” There are three modules that a potential instructor must complete during
training. In these modules, there are “qualifying” training events that provide
trainees with opportunities to practice skills. And then there are “gate” events,
which are cumulative tests of the skills already learned in the qualifying events.
To advance through the training process, a potential instructor must complete
each step of the program sequentially. The flight instructor training typically
takes about three months to complete.
Soelberg successfully completed the first two modules of the training.
While completing the third module, which has three subcomponents, he failed
two gate events. After additional training, he completed one of these gate events
2 No. 87448-9-I/3
but still failed the other. As of October 2022, 10 months after he began the
training program, Soelberg still had not completed all three modules.
In October 2022, Chelsea Ozolin replaced Nielsen as Alaska’s general
manager of training. Ozolin reviewed Soelberg’s performance record and
decided to terminate his employment. On November 9, 2022, Alaska terminated
Soelberg “ ‘due to [his] inability to successfully complete the required training and
meet the qualifications for [his] role.’ ”
On September 5, 2023, Soelberg sued Alaska for breach of contract and
negligent misrepresentation. On September 6, Alaska moved for summary
judgment dismissal of Soelberg’s claims. The court granted its motion and
dismissed Soelberg’s complaint with prejudice.
Soelberg appeals.
ANALYSIS
Soelberg argues the trial court erred by dismissing his complaint at
summary judgment. We disagree.
We review a trial court’s grant of summary judgment de novo. McDevitt v.
Harborview Med. Ctr., 179 Wn.2d 59, 64, 316 P.3d 469 (2013). Summary
judgment is appropriate only when “there is no genuine issue as to any material
fact and . . . the moving party is entitled to a judgment as a matter of law.” CR
56(c).
A defendant moving for summary judgment can challenge whether the
plaintiff produced competent evidence to support the essential elements of their
claim. See Boyer v. Morimoto, 10 Wn. App. 2d 506, 519, 449 P.3d 285 (2019).
3 No. 87448-9-I/4
The plaintiff must then provide sufficient evidence to support those elements.
Young v. Key Pharms., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). The
plaintiff may not rely on the allegations in their pleadings. Id. Instead, the
plaintiff must respond with evidence setting forth specific facts to show that there
is a genuine issue for trial. Id. at 225-26. We consider all facts submitted and
draw all reasonable inferences therefrom in a light most favorable to the
nonmoving party. Ellis v. City of Seattle, 142 Wn.2d 450, 458, 13 P.3d 1065
(2000). If the plaintiff fails to meet their burden, summary judgment for the
defendant is proper. See Knight v. Dep’t of Lab. & Indus., 181 Wn. App. 788,
795-96, 321 P.3d 1275 (2014).
Soelberg argues the court erred by dismissing his breach of contract
claim. He acknowledges his employment with Alaska was terminable “at-will” but
argues Alaska’s promise to train him to proficiency modified the at-will nature of
his employment agreement.
Employment relationships in Washington are generally terminable at-will
by either party. Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 223, 685
P.2d 1081 (1984). But the at-will nature of an employment agreement can be
modified in three ways. Kuest v. Regent Assisted Living, Inc., 111 Wn. App. 36,
48, 43 P.3d 23 (2002) (citing DePhillips v. Zolt Constr. Co., 136 Wn.2d 26, 34-37,
959 P.2d 1104 (1998)). First, the parties may expressly agree to modify its
terms. Id. Second, the parties’ conduct may create an implied modification of
the terms. Id. And third, an equitable claim may exist where an employer makes
4 No. 87448-9-I/5
promises of specific treatment for conduct that precludes enforcement of the at-
will aspect of the employment agreement. Id.
When determining whether an implied agreement modified the at-will
nature of employment,
courts will look at the alleged “understanding”, the intent of the parties, business custom and usage, the nature of the employment, the situation of the parties, and the circumstance of the case to ascertain the terms of the claimed agreement.
Roberts v. Atl. Richfield Co., 88 Wn.2d 887, 894, 568 P.2d 764 (1977). An
employee’s subjective understanding or expectation as to a term of their
employment is not enough to establish an implied agreement to modify the
nature of their employment. Id.
Soelberg argues that Nielsen’s promise to train him to proficiency changed
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
ROBERT SOELBERG, No. 87448-9-I
Appellant,
v. UNPUBLISHED OPINION
ALASKA AIRLINES, a foreign for profit corporation,
Respondent.
BOWMAN, A.C.J. — Robert Solberg appeals the trial court’s summary
judgment dismissal of his breach of contract and negligent misrepresentation
claims against Alaska Airlines (Alaska). We affirm.
FACTS
Soelberg is a retired airline pilot with over 40 years of flying experience,
including experience with the Boeing 747 and 727 aircrafts. He also has over 25
years of experience as a flight simulator instructor. In 2021, Soelberg applied to
become a Boeing 737 flight simulator instructor for Alaska. Scott Nielsen,
Alaska’s general manager of training, interviewed Soelberg for the position.
During the interview, Nielsen explained that Alaska uses a training system known
as the “Advanced Qualification Program” (AQP). Nielsen also told Soelberg that
he would be able to “ ‘train to proficiency’ ” within the AQP system. Soelberg
understood this to mean he “would be able to repeat modules within the training
program as necessary until [he] became proficient.” No. 87448-9-I/2
Alaska offered Soelberg the position. It sent him an offer letter that
included a paragraph titled “At-will employment,” which explained, in relevant
part:
This offer letter does not alter the at-will nature of your employment. The employment relationship may be ended at any time by you or Alaska Airlines for any reason, with or without notice or cause.
Soelberg accepted the position and began his training with Alaska in January
2022.
Alaska’s AQP training system is approved by the Federal Aviation
Administration (FAA). It allows for flexible techniques and performance-based
training. And it includes a concept called “train-to-proficiency.” “Train-to-
proficiency” means “an instructor-in-training will not be ‘checked off’ for a task
until the trainee is proficient, regardless of how many hours are spent on that
task.” There are three modules that a potential instructor must complete during
training. In these modules, there are “qualifying” training events that provide
trainees with opportunities to practice skills. And then there are “gate” events,
which are cumulative tests of the skills already learned in the qualifying events.
To advance through the training process, a potential instructor must complete
each step of the program sequentially. The flight instructor training typically
takes about three months to complete.
Soelberg successfully completed the first two modules of the training.
While completing the third module, which has three subcomponents, he failed
two gate events. After additional training, he completed one of these gate events
2 No. 87448-9-I/3
but still failed the other. As of October 2022, 10 months after he began the
training program, Soelberg still had not completed all three modules.
In October 2022, Chelsea Ozolin replaced Nielsen as Alaska’s general
manager of training. Ozolin reviewed Soelberg’s performance record and
decided to terminate his employment. On November 9, 2022, Alaska terminated
Soelberg “ ‘due to [his] inability to successfully complete the required training and
meet the qualifications for [his] role.’ ”
On September 5, 2023, Soelberg sued Alaska for breach of contract and
negligent misrepresentation. On September 6, Alaska moved for summary
judgment dismissal of Soelberg’s claims. The court granted its motion and
dismissed Soelberg’s complaint with prejudice.
Soelberg appeals.
ANALYSIS
Soelberg argues the trial court erred by dismissing his complaint at
summary judgment. We disagree.
We review a trial court’s grant of summary judgment de novo. McDevitt v.
Harborview Med. Ctr., 179 Wn.2d 59, 64, 316 P.3d 469 (2013). Summary
judgment is appropriate only when “there is no genuine issue as to any material
fact and . . . the moving party is entitled to a judgment as a matter of law.” CR
56(c).
A defendant moving for summary judgment can challenge whether the
plaintiff produced competent evidence to support the essential elements of their
claim. See Boyer v. Morimoto, 10 Wn. App. 2d 506, 519, 449 P.3d 285 (2019).
3 No. 87448-9-I/4
The plaintiff must then provide sufficient evidence to support those elements.
Young v. Key Pharms., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). The
plaintiff may not rely on the allegations in their pleadings. Id. Instead, the
plaintiff must respond with evidence setting forth specific facts to show that there
is a genuine issue for trial. Id. at 225-26. We consider all facts submitted and
draw all reasonable inferences therefrom in a light most favorable to the
nonmoving party. Ellis v. City of Seattle, 142 Wn.2d 450, 458, 13 P.3d 1065
(2000). If the plaintiff fails to meet their burden, summary judgment for the
defendant is proper. See Knight v. Dep’t of Lab. & Indus., 181 Wn. App. 788,
795-96, 321 P.3d 1275 (2014).
Soelberg argues the court erred by dismissing his breach of contract
claim. He acknowledges his employment with Alaska was terminable “at-will” but
argues Alaska’s promise to train him to proficiency modified the at-will nature of
his employment agreement.
Employment relationships in Washington are generally terminable at-will
by either party. Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 223, 685
P.2d 1081 (1984). But the at-will nature of an employment agreement can be
modified in three ways. Kuest v. Regent Assisted Living, Inc., 111 Wn. App. 36,
48, 43 P.3d 23 (2002) (citing DePhillips v. Zolt Constr. Co., 136 Wn.2d 26, 34-37,
959 P.2d 1104 (1998)). First, the parties may expressly agree to modify its
terms. Id. Second, the parties’ conduct may create an implied modification of
the terms. Id. And third, an equitable claim may exist where an employer makes
4 No. 87448-9-I/5
promises of specific treatment for conduct that precludes enforcement of the at-
will aspect of the employment agreement. Id.
When determining whether an implied agreement modified the at-will
nature of employment,
courts will look at the alleged “understanding”, the intent of the parties, business custom and usage, the nature of the employment, the situation of the parties, and the circumstance of the case to ascertain the terms of the claimed agreement.
Roberts v. Atl. Richfield Co., 88 Wn.2d 887, 894, 568 P.2d 764 (1977). An
employee’s subjective understanding or expectation as to a term of their
employment is not enough to establish an implied agreement to modify the
nature of their employment. Id.
Soelberg argues that Nielsen’s promise to train him to proficiency changed
the at-will nature of his employment such that he could not be terminated for poor
performance. But the evidence shows that the term “train-to-proficiency” is
customarily used in the industry to describe an FAA-approved AQP training
metric. Ozolin explained in her declaration that
[t]rain-to-proficiency simply means that an instructor-in-training will not be “checked off” for a task until the trainee is proficient, regardless of how many hours are spent on that task. It is not a guarantee of employment—it is a threshold requirement for serving as an instructor. AQP programs still include review boards and other checks to ensure that trainees who are not advancing can be identified and separated if need be.
Soelberg offers no evidence to the contrary. Indeed, Soelberg agrees that
the term “train-to-proficiency” did not amount to a promise not to terminate him
for poor performance. Soelberg explained in his declaration that he believed that
5 No. 87448-9-I/6
Nielsen’s statement meant that
Alaska committed that [his] employment would be conducted under the AQP concept, and [he] would be able to repeat certain modules as necessary in order to become proficient.
And in his deposition, Soelberg stated that he understood this did not mean that
he “could train indefinitely” and that Alaska “could not fire [him].” He agreed that
his position with Alaska was “at-will employment” and that Alaska could terminate
his employment “at any point.” He also agreed that Alaska “gave [him] all the
time [he] requested [to train] up to that point” when he failed the final gate event.
Because Soelberg fails to show that the parties expressly or impliedly
agreed to modify his at-will employment, the trial court did not err by dismissing
his breach of contract claim.1
We affirm summary judgment for Alaska.
WE CONCUR:
1 Soelberg also argues the court erred by dismissing his negligent misrepresentation claim. He contends that Nielsen “promised” to train him to proficiency and that Alaska “recognized [he] would rely upon this promise when accepting employment,” which Alaska “then failed to honor.” Because we determine the term “train-to-proficiency” did not guarantee Soelberg employment, he cannot show that Alaska engaged in misrepresentation. The court did not err by dismissing that claim.