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Dep't. of Fish & Game v. Meyer (11/17/95), 906 P 2d 1365
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, telephone (907) 264-0607, fax (907) 276-
5808.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, DEPARTMENT )
OF FISH AND GAME, SPORT FISH ) Supreme Court No. S-6036
DIVISION, )
) Superior Court No.
Petitioner, ) 3AN-92-4409 CI
)
v. ) O P I N I O N
)
ANDREA MEYER and ALASKA STATE ) [No. 4282 - November 17, 1995]
COMMISSION ON HUMAN RIGHTS, )
)
Respondents. )
______________________________)
Petition for Review from the Superior Court
of the State of Alaska, Third Judicial
District, Anchorage, Joan M. Woodward, Judge.
Appearances: Marie Sansone, David M.
Weingartner, Assistant Attorneys General, and
Bruce M. Botelho, Attorney General, Juneau,
for Petitioner. Randall G. Simpson, Jermain,
Dunnagan & Owens, P.C., Anchorage, for
Respondent Andrea Meyer. Mark Ertischek,
Anchorage, for Respondent Alaska State
Commission for Human Rights.
Before: Moore, Chief Justice, Rabinowitz,
Matthews, Compton and Eastaugh, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Andrea Meyer filed a discrimination complaint with the
Alaska State Commission for Human Rights (Commission) against her
employer, the Alaska Department of Fish and Game (ADF&G). We
hold that the Commission's order closing Andrea Meyer's case is
judicially reviewable. We further hold that Meyer's claim of
discrimination is supported by substantial evidence.
II. FACTS AND PROCEEDINGS
Andrea Meyer began working for ADF&G in 1977 as a
seasonal field researcher for the Russian River Sockeye Salmon
Fishery. Her job title was Fisheries Biologist I (FBI). Meyer
had substantial previous experience as a biologist as well as a
B.A. in biology. During her employment with ADF&G, Meyer's
primary duty was the creel census. She also computed fisheries
data, operated the weir at Lower Russian Lake, assisted in the
production of area surveys, conducted salmon spawning escapement
counts, enforced Fish and Game regulations, and conducted group
tours in which she explained the fishery and the wildlife of the
area.
In March 1987 Meyer filed a discrimination complaint
against ADF&G with the Alaska State Commission for Human Rights.1
The complaint alleged four specific instances which caused Meyer
to believe her employer had discriminated against her on the
basis of gender and also asserted that no women employed in the
Sport Fish Division for Region II held the position of Fish
Biologist II (FBII) or higher.
In March 1989 the Commission's executive director
issued a closing order, finding that Meyer's allegations were not
supported by substantial evidence and dismissing the case. Meyer
requested reconsideration of the closing order. The Commission's
chairperson, Katie Hurley, ordered the case reopened for further
investigation because she believed that the investigation was
insufficient to conclude that ADF&G had provided legitimate
nondiscriminatory reasons for denying Meyer employment extensions
or job assignments. In March 1991, after further investigation
and review by the Commission staff, the executive director again
closed the file on Meyer's complaint, summarizing the additional
investigation as follows:
[T]he additional investigation conducted
by Commission staff determined that
respondent's defense to complainant's prima
facie case is legitimate and
nondiscriminatory and that complainant has
failed to rebut respondent's legitimate
nondiscriminatory reason. Therefore, I find
that complainant's allegations are not
supported by substantial evidence.
Meyer again asked for reconsideration; Commissioner Esther A.
Wunnicke denied her request in an order which contained an entry
which read as follows:
A person dissatisfied with a Commission
Order dismissing the complaint may obtain
judicial review by Superior Court in
accordance with AS 44.62.560-44.62.570. An
aggrieved person must file an appeal with the
Superior Court within 30 days of the issuance
of the Order of the Commission.
Meyer appealed the closing order to superior court. ADF&G argued
that judicial review of a case-closing order is not available and
that even if available, the Commission did not abuse its
discretion by finding that Meyer's complaint was not supported by
substantial evidence. The superior court determined that such
orders are appealable to the superior court and that the
Commission abused its discretion in ruling that Meyer did not
produce substantial evidence of "pretext/ discrimination." It
consequently reversed the Commission's decision and remanded "for
further proceedings under AS 18.80.110 and, if appropriate,
18.80.120." We granted ADF&G's petition for review under Alaska
Rule of Appellate Procedure 402.2
III. DISCUSSION
The Alaska Civil Rights Act permits a person aggrieved
by discriminatory conduct to file a complaint with the Alaska
State Commission for Human Rights. AS 18.80.100. The executive
director or a staff member must then informally investigate the
complaint to determine whether the allegations of the complaint
are supported by substantial evidence. AS 18.80.110. If the
investigator determines that the allegations are supported by
substantial evidence, "the investigator shall immediately try to
eliminate the discrimination complained of, by conference,
conciliation, and persuasion." Id. By implication, if the
investigator determines that the allegations of the complaint are
not supported by substantial evidence, the complaint is
dismissed. If the investigator determines that substantial
evidence does exist and informal efforts to eliminate the
discrimination do not succeed, a hearing before the Commission is
required. AS 18.80.120. At the conclusion of the hearing, the
Commission is required to enter an order. AS 18.80.130. The
order is reviewable in court in accordance with Alaska's
Administrative Procedure Act. AS 18.80.135(a).3
ADF&G and the Commission argue that the superior
court's decision should be reversed because (1) the decision to
close Meyer's case for lack of substantial evidence is not
reviewable, and (2) if the decision is reviewable, it should be
reviewed under the abuse of discretion standard and should be
affirmed because there was no abuse of discretion. Meyer argues
that the superior court's opinion should be affirmed in all
respects.4
A.Reviewability of Case-Closing Decisions by Commission
Staff or Executive Director
ADF&G and the Commission argue that decision of the
Commission staff or executive director is not reviewable because
the decision (1) is not an "order" under AS 18.80.135, (2) does
not constitute final agency action, and (3) is an enforcement
decision committed to the Commission's discretion and thus
presumptively unreviewable. Each of these arguments fails.
1. The decision as an "order" under AS
18.80.135
The State and Commission first argue that a decision
issued before a public hearing is not an "order" under AS
18.80.1355 and is thus not subject to judicial review. The State
and Commission cite Hotel & Restaurant Union Local 878 v. Alaska
State Comm'n for Human Rights, 595 P.2d 653 (Alaska 1979), in
support.
Alaska Statute 18.80.135(a) expressly permits judicial
review of "an order of the commission . . . ." Given the
structure of the chapter, and the sequence apparently
contemplated by AS 18.80.120, .130, and .135, it seems likely
that ' 135 deals only with review of orders issued by the
Commission itself at the conclusion of hearings conducted by the
Commission pursuant to ' 130. Accordingly, ' 135 is not
concerned with review of some action by the executive director
which is not an "order" as that term is used in Chapter 80. In
Hotel and Restaurant Union Local 878, 595 P.2d at 654-55, we
discussed the sequence of events contemplated by '' 120 and 130.
That discussion supports a conclusion that ' 135 does not
authorize review of a decision of the sort that closed Meyer's
case.
Assuming ' 135 deals only with review of post-hearing
Commission orders, it does not follow that ' 135 affirmatively
bars judicial review of the order closing Meyer's case.
Moreover, all final administrative actions are presumed to be
reviewable. This presumption controls unless it is rebutted by
an affirmative indication of legislative intent that there be no
reviewability. Johns v. CFEC, 699 P.2d 334, 339 (Alaska 1985);
Sisters of Providence v. Department of Health & Soc. Servs., 648
P.2d 970, 976 (Alaska 1982); Alyeska Ski Corp. v. Holdsworth, 426
P.2d 1006, 1011 n.16 (Alaska 1967). Section 135(a) does not
express an affirmative legislative intention that file-closing
decisions of the executive director or her staff be judicially
unreviewable. We consequently apply the presumption of
reviewability, and hold that such decisions are reviewable if
they have the requisite finality.
We also reject any suggestion that a decision's
reviewability turns on whether it is labeled an "order." As AS
44.62.560(e) confirms, the legislature imposed no such
prerequisite for judicial review if agency action is "unlawfully
withheld or unreasonably withheld."6 Rather, as discussed infra,
the determinative question in deciding whether the decision is
reviewable is whether it ended the case at the agency level and
thus constituted final agency action.
We also note that when Meyer last sought
reconsideration of the executive director's file-closing order,
the order of the Commissioner denying reconsideration informed
Meyer that "[a] person dissatisfied with a Commission Order
dismissing the complaint may obtain judicial review by Superior
Court in accordance with AS 44.62.560-44.62.570." It appears the
Commissioner then considered that Meyer's order would be
judicially reviewable.
2.The case-closing order as final agency action
In deciding whether a superior court order possessed
the finality essential for appellate review, this court observed
that, "[t]he term finality is subject to several definitions."
Mukluk Freight Lines, Inc. v. Nabors Alaska Drilling, Inc., 516
P.2d 408, 411 (Alaska 1973).7 The test in Alaska for determining
whether a judgment is final is "essentially a practical one."
Matanuska Maid, Inc. v. State, 620 P.2d 182, 184 (Alaska 1980).
As the United States Supreme Court recently noted, "[t]he core
question [in determining when an agency action is final] is
whether the agency has completed its decisionmaking process, and
whether the result of that process is one that will directly
affect the parties." Franklin v. Massachusetts, __ U.S. __, 112
S. Ct. 2767, 2773 (1992).
Contrary to ADF&G's assertions, Ostman v. State
Commercial Fisheries Entry Comm'n, 678 P.2d 1323 (Alaska 1984),
does not stand for the proposition that Meyer's ability to file a
separate superior court discrimination claim renders the case-
closing decision unreviewable.8 ADF&G notes that we stated in
Ostman that a final agency determination "must be one which
disposes of the entire case . . . [or] one which ends the
litigation on the merits and leaves nothing for the court to do
but execute the judgment." 678 P.2d at 1327 (quoting Greater
Anchorage Area Borough v. City of Anchorage, 504 P.2d 1027, 1030-
31 (Alaska 1972)). However, our quoted statement discusses the
finality of a trial court decision. 504 P.2d at 1030-31. See
also Mukluk Freight Lines, 516 P.2d at 411. An agency
determination need not be "one which ends the litigation on the
merits and leaves nothing for the court to do but execute the
judgment" in order to be ripe for judicial review. Thus, we held
in Ostman that agency rejection of a fishing permit application
constitutes a final order which is reviewable in superior court
where there is no more time to submit evidence or alter the
decision through administrative means. 678 P.2d at 1326-28. Our
holding in Ostman is contrary to ADF&G's argument.
Case law from other jurisdictions is conflicting. New
York, New Jersey and Iowa have held that Human/Civil Rights
Commission dismissals based on no probable cause are judicially
reviewable. See State Div. of Human Rights v. Blanchette, 423
N.Y.S.2d 745 (N.Y. App. Div. 1979) (reviewing a Division finding
of no probable cause under substantial evidence test); Sprague v.
Glassboro State College, 391 A.2d 558, 561 (N.J. Super. App. Div.
1978) (holding that the Division on Civil Rights did not abuse
its discretion in finding no probable cause of discrimination and
that the Fourteenth Amendment does not require a hearing before
finding "no probable cause"); Oliver v. Teleprompter Corporation,
299 N.W.2d 683, 686-87 (Iowa 1980) (holding that a finding of no
probable cause is a "final decision" and that the complainant was
not limited to a thirty-day period in which to file a petition
for judicial review of no probable cause finding).9
In Simpson v. District of Columbia Office of Human
Rights, 597 A.2d 392 (D.C. 1991), the court held that a
determination by the Office of Human Rights that there was no
probable cause to believe that the Human Rights Act had been
violated was a final agency action subject to judicial review.
Id. at 397-99. As ADF&G points out, the District of Columbia
court appeared to base its decision in part on the fact that the
applicable statute did not authorize a human rights complainant
to bring suit on her own behalf if the agency declines or fails
to do so for lack of probable cause. 597 A.2d at 398. However,
the District of Columbia has since indicated that this
distinction is not pertinent. In Timus v. District of Columbia
Dep't of Human Rights, 633 A.2d 751 (D.C. 1993), the court held
that an administrative convenience dismissal (which occurs under
District of Columbia law after a finding of probable cause but
before a hearing) was subject to judicial review even though the
complainant had the right to a trial de novo in superior court.
Id. at 761. Thus, although the court in Simpson had indicated
that reviewability of an administrative convenience dismissal
might depend on whether the complainant had the right to a de
novo trial, 587 A.2d at 398, Timus indicates that judicial review
is available in both instances. 633 A.2d at 769 (Ferren, J.,
concurring).
In Demetry v. Colorado Civil Rights Comm'n, 752 P.2d
1070 (Colo. App. 1988), the court held that a decision of the
Colorado Civil Rights Commission upholding the dismissal of a
claim, based on a finding that no probable cause existed to
sustain a claim of discrimination on basis of handicap, did not
constitute final agency action and was therefore not subject to
judicial review. Id. at 1072. The court cited federal cases
involving claims brought before the Equal Employment Opportunity
Commission (EEOC). Id. at 1071. The court found the reasoning
of those cases -- that an EEOC investigation is merely
preparatory to further proceedings -- persuasive because the
complainant can bring a private cause of action in federal court
if the EEOC finds no probable cause. Id at 1072.
ADF&G also cites EEOC cases for the proposition that
the proper response to an agency's determination of no probable
cause at the agency level is filing a de novo claim in district
court rather than seeking review of the agency's adverse
determination. The EEOC cases note that Title VII provides no
express or implied cause of action against the EEOC to challenge
its investigation and processing of a charge, McCottrell v. EEOC,
726 F.2d 350, 351 (7th Cir. 1984), and that the federal
Administrative Procedure Act (APA) provides no right to judicial
review of an adverse EEOC determination, Stewart v. EEOC, 611
F.2d 679, 683-84 (7th Cir. 1979).
Alaska law is similar to federal law in giving the
complainant the right to file an original action in superior
court. See supra, note 4. However, Alaska's statutory anti-
discrimination scheme materially differs from the federal scheme.
First, Alaska's anti-discrimination statute gives the Commission
a more aggressive mandate than that held by the EEOC. "Clearly
the legislature intended the Commission to be more than a simple
complaint-taking bureau; the statutory scheme constitutes a
mandate to the agency to seek out and eradicate discrimination in
employment . . . ." Hotel, Motel, Restaurant, Constr. Camp
Employees & Bartenders Union Local 879 v. Thomas, 551 P.2d 942,
945 (Alaska 1976). Therefore, the limited role of the federal
EEOC is of dubious assistance in ascertaining the scope of powers
conferred by the Alaska legislature on the Alaska Commission for
Human Rights:
A cursory comparison reveals that the anti-
discrimination legislation enacted in Alaska
is not substantially similar to comparable
federal laws. . . . Congress limited the
adjudicatory and coercive enforcement of the
EEOC powers in favor of reliance on private
citizen action . . . .
Id. at 945.
Second, under Alaska law a hearing is mandatory when
the Commission's executive director or designated investigator
determines that substantial evidence supports a complainant's
allegations and informal efforts to eliminate discrimination
fail. AS 18.80.120. In comparison, under federal law the EEOC
is only required to use informal methods such as private
conference, conciliation and persuasion, and "may" bring a civil
action if these efforts fail. 42 U.S.C. ' 2000e-5(b), (f).
Finally, Alaska's APA potentially provides for more
expansive judicial review than the federal APA. AS 44.62.560(e).
See note 5, supra. Because the case-closing order was the final
action taken by the agency and because the Alaska legislature
intended to allow the courts to determine whether an agency's
withholding of action is unreasonable or unlawful, the decision
of the Commission staff or executive director in this case is
ripe for judicial review. AS 44.62.560(e).
3. The determination as an enforcement
decision committed to agency discretion
Citing Heckler v. Chaney, 470 U.S. 821 (1985), and Vick
v. Board of Electrical Examiners, 626 P.2d 90 (Alaska 1981),
ADF&G and the Commission argue that the agency's determination
that Meyer's case is not supported by substantial evidence is
presumptively unreviewable because that determination is an
exercise of prosecutorial discretion. This presumption was first
articulated by the Supreme Court in Heckler, where the Court
reasoned that even where the legislature has expressed no intent
to preclude review, review is not available under the federal APA
if the statute "is drawn so that a court would have no meaningful
standard against which to judge the agency's exercise of
discretion." 470 U.S. at 831. According to the Court, this
presumption helps avoid the problem of how to apply an "abuse of
discretion" standard when there are "no judicially manageable
standards available for judging how and when an agency should
exercise its discretion." Id. We reject the argument of ADF&G
and the Commission that the presumption of unreviewability
applies here.
In Vick the question was whether a board decision not
to process an accusation against a licensee was subject to
judicial review. We stated concerning this issue: "Questions of
law and fact, of policy, of practicality, and of the allocation
of an agency's resources all come into play in making such a
decision. The weighing of these elements is the very essence of
what is meant when one speaks of an agency exercising its
discretion." 626 P.2d at 93. We further stated that "[w]hen a
matter falls within an area traditionally recognized as within an
agency's discretionary power, courts are less inclined to intrude
than when the agency has acted in a novel or questionable
fashion." Id. Unlike Vick or Heckler, Meyer's case does not
involve the exercise of prosecutorial discretion at all. The
statute here provides that if the executive director or
designated staff member conducting the investigation finds
substantial evidence of discrimination, the investigator "shall .
. . try to eliminate the discrimination complained of by
conference, conciliation, and persuasion." AS 18.80.110. If the
problem is not eliminated informally, the Commission "shall"
conduct a hearing and issue an order at the completion of the
hearing. AS 18.80.120, .130(a). Thus, the statute grants no
discretion to discontinue the process once the investigator finds
substantial evidence of discrimination, unlike the statutes at
issue in Vick and Heckler.10
This case is instead closely akin to Dunlop v.
Bachowski, 421 U.S. 560 (1975), which the Supreme Court
reaffirmed in Heckler. The statute at issue in Dunlop provided:
The Secretary [of Labor] shall investigate
such complaint [by a union member] and, if he
finds probable cause to believe that a
violation . . . has occurred, . . . he shall
. . . bring a civil action . . . .
421 U.S. at 563 n.2. After investigating the complainant's
claims, the Secretary of Labor declined to file suit and the
complainant sought judicial review under the APA. The Supreme
Court held that review was available and that the Secretary's
decision not to file suit was not "an unreviewable exercise of
prosecutorial discretion." Id. at 567 n.7. The Heckler Court
stated that in Dunlop, "[t]he statute being administered quite
clearly withdrew discretion from the agency and provided
guidelines for exercise of its enforcement power." 470 U.S. at
834. The Heckler Court thus found Dunlop "consistent with a
general presumption of unreviewability of decisions not to
enforce." Id.
In Simpson v. District of Columbia Office of Human
Rights, 597 A.2d 392 (D.C. 1991), the court held that
prosecutorial discretion was not an obstacle to review:
In the present case, however, OHR was not
purporting to exercise "prosecutorial
discretion," nor did it reject Ms. Simpson's
complaint on the ground that it lacked
resources for enforcement. Rather, OHR found
that there was no probable cause to believe
that the Human Rights Act had been violated.
Whether right or wrong, that determination
was not one of the kind to which the doctrine
embraced by the District can reasonably be
applied. We conclude the OHR's determination
is subject to judicial review.
Id. at 398-99. As Meyer correctly argues, the statute now before
us provides no reason to dismiss a case other than a lack of
substantial evidence.
ADF&G and the Commission argue that the Commission
staff and executive director have wide discretion to determine
whether an allegation of discrimination is supported by
substantial evidence. ADF&G makes the following argument:
Whether a violation has occurred, whether the
Commission's resources are best spent on one
violation or another, whether the Commission
is likely to succeed if it acts, whether the
particular enforcement action requested best
fits the Commission's overall policies, and
whether the Commission has enough resources
to undertake the action at all are issues
that the Commission, and not the courts,
should decide.
The Commission also argues that these "discretionary issues" are
"policy reasons" why this court should find the decision of the
Commission staff or executive director to be unreviewable:
The Commission must have discretion to decide
whether to prosecute. The Commission has an
important policy interest in the results of
each of its investigations because of its
role in developing the body of civil rights
law in Alaska and because of its statutory
obligation to enforce Alaska's civil rights
laws. The Commission must employ its limited
resources in the most effective manner
possible in order to meet these obligations.
The Commission further argues that it will become nothing more
than a "complaint taking agency" if it cannot exercise
prosecutorial discretion in deciding whether a claim is supported
by substantial evidence.
These arguments strongly support judicial review of
staff or executive director determinations that there is no
substantial evidence. These passages indicate, as the Commission
confirmed during oral argument, that the staff or executive
director, contrary to statutory mandate, is closing cases not for
lack of evidence of discrimination but to control budget and
docket. We are sympathetic to the Commission's claim of lack of
resources. We recognize that it might be highly desirable for
the Commission staff to have the power to administratively
dismiss cases which have individual merit but no widespread
impact. However, if the Commission wants its staff to have this
discretionary authority, it must be obtained from the
legislature, not the judiciary. We cannot import these social,
political, and economic concerns into the clear scheme of the
existing statute.
An opportunity for judicial review is also necessary
because the federal EEOC may, and in some circumstances must,
accord substantial weight to findings made by state authorities.
42 U.S.C. ' 2000e-5(b); Kremer v. Chemical Constr. Corp., 456
U.S. 461, 470 n.8, 474-75 (1982); Cottrell v. Newspaper Agency
Corp., 590 F.2d 836, 838 (10th Cir. 1979).11 Furthermore, such
findings may affect workers' perceptions of potential employers
and vice versa.12 Finally, as noted above, Alaska's anti-
discrimination statutory scheme is a mandate to seek out and
eradicate discrimination in employment, and did not simply create
a complaint-taking agency. Hotel, Motel, Restaurant, Constr.
Camp Employees & Bartenders Union Local 879 v. Thomas, 551 P.2d
942, 945 (Alaska 1976). A human rights complainant in Alaska has
the statutory right to expect that his or her claim will be
decided on the merits, not pre-determined by budgetary
constraints.
B. The Finding of No Substantial Evidence
Under Alaska and federal law, a court generally applies
a three-part test in determining whether discriminatory treatment
has occurred. Texas Dep't of Community Affairs v. Burdine, 450
U.S. 248, 253-56 (1981); Thomas v. Anchorage Telephone Utility,
741 P.2d 618, 622 (Alaska 1987). In the first stage, the
employee claiming discrimination must introduce evidence raising
an inference of employer discriminatory intent.13 Once the
employee has established this prima facie case of disparate
treatment, the burden rests with the employer to articulate a
legitimate, non-discriminatory reason, supported by evidence, for
the treatment. Burdine, 450 U.S. at 254-55; Thomas, 741 P.2d at
623-24. If the employer establishes a legitimate reason for its
actions, the burden shifts back to the employee to persuade the
court that discriminatory reasons more likely motivated the
employer. Usually the employee satisfies this burden by showing
that the employer's explanation is pretextual. Burdine, 450 U.S.
at 256; Thomas, 741 P.2d at 622.
In determining that there was no substantial evidence
at the investigative stage, the Commission staff and executive
director applied the three-part Burdine/Thomas test, concluding
that ADF&G had rebutted Meyer's prima facie case of
discrimination and that Meyer had failed to show that ADF&G's
proffered reasons were pretextual. In the first case-closing
decision, the Commission's investigator stated:
According to the principles of discrimination
law, complainant must first establish a prima
facie case, that is, a set of facts which
raises an inference of sex discrimination,
before respondent can be required to justify
its actions. . . . Evidence showed that
complainant has established a prima facie
case . . . . Once complainant has established
a prima facie case, the burden shifts to
respondent to provide a legitimate non-
discriminatory reason for denying complainant
the employment extensions.
The investigator concluded:
I therefore determine that . . . respondent's
defenses to complainant's prima facie case
are legitimate and nondiscriminatory and that
complainant has failed to rebut respondent's
legitimate nondiscriminatory reasons.
The decision upon reconsideration affirmed this determination.
It was an error of law for the staff or executive
director to resolve at the investigative stage the legitimacy of
ADF&G's non-discriminatory reasons and Meyer's success in
rebutting those reasons. By offering objective evidence of facts
which established a prima facie case of discrimination and which
raised a genuine dispute about ADF&G's explanation of its
decisions, Meyer established substantial evidence of
discrimination under AS 18.80.110 sufficient to warrant a hearing
under AS 18.80.120.14 Although ADF&G asserted non-discriminatory
reasons for offering job extensions and increased responsibility
to male employees rather than Meyer, the ADF&G evidence discussed
by the Commission staff was insufficient to demonstrate that
Meyer's claims were completely lacking in merit, or that a fact
finder would be compelled to find for ADF&G.15 Consequently, the
staff and executive director could not determine whether
discrimination had occurred without resolving the factual
disputes between the two parties. These disputes could not be
resolved without a hearing.
The burden required to compel a hearing is less than
the burden required to prevail on the merits at the hearing's
conclusion. This distinction is appropriate because of the
structural differences between the unilateral investigation
conducted by Commission investigators and formal adversarial
proceedings before the full Commission. Unlike an adversarial
proceeding in which a party has the opportunity to rebut the
other's proffered evidence, an investigation by an administrative
agency "represents a unilateral inquiry into the facts which are
in the possession of the employee and the employer." 10 Marlin
M. Volz et al., West's Federal Practice Manual ' 15,919, at 488
(2d ed. 1970). Thus, at the investigative stage, neither party
may conduct discovery. 6 Alaska Administrative Code 30.320(c)
(1995). Without access to discovery, in many cases it would be
difficult or impossible for a complainant to prove that an
employer's proffered reasons are pretextual. Consequently, a
staff or executive director finding of no substantial evidence
cannot be based on the fact that a complainant "failed" to meet
the three-part Burdine/Thomas test at the investigative stage.
Nor should the staff or executive director attempt to determine
at the investigative stage whether the non-discriminatory reasons
proffered by the employer are legitimate. The Commission cannot
adequately resolve factual disputes if the parties have not been
given the opportunity to conduct discovery or cross-examine
opposing witnesses.
Other courts have generally not examined what showing
must be made to warrant a hearing under similar anti-
discrimination statutory programs. However, another jurisdiction
which has considered this issue has reached a similar conclusion.
New Jersey has defined probable cause (the functional equivalent
of "substantial evidence" as that phrase is used in AS 18.80.110)
as a "reasonable ground of suspicion supported by facts and
circumstances strong enough in themselves to warrant a cautious
[person] in the belief that the law is being violated." Sprague
v. Glassboro State College, 391 A.2d 558, 561 (N.J. 1978)
(quoting People v. Marshall, 191 N.E.2d 798, 801 (N.Y. 1963)).
In expounding on this definition, another court subsequently
stated:
Much the same way as in the administration of
criminal justice and probable cause for
Fourth Amendment purposes, a proceeding to
determine the existence of probable cause [in
the discrimination context] is not an
adjudication on the merits. Rather, it is an
initial threshold procedure to determine
whether the matter should be brought to a
halt or proceed to the next step on the road
to an adjudication on the merits. The
quantum of evidence required to establish
probable cause is less than that required by
a complainant in order to prevail on the
merits. . . . When deciding probable cause,
the Director was not permitted to resolve
disputed facts. The Director was not
concerned with whether the information
collected during the investigation was true
or false-only whether it was reasonable to
accept it as true and if so whether it
justified consideration on the merits. A
common sense, practical and nontechnical
standard is required for the probable cause
determination.
Frank v. Ivy Club, 548 A.2d 1142, 1150 (N.J. Super. App. Div.
1988) (citations omitted) (emphasis added), rev'd on other
grounds, 576 A.2d 241 (N.J. 1990), cert. denied, 498 U.S. 1073
(1991). See also New York State Div. for Youth v. State Human
Rights Appeal Bd., 442 N.Y.S.2d 813, 814 (App. Div. 1981) (where
there is no full investigation with opportunity for
confrontation, the complaint must lack merit as a matter of law
in order for division to dismiss complaint).
As noted above, the Commission staff determined that
Meyer established a prima facie case of discrimination. This
determination was correct. ADF&G does not claim that it was
error to determine that Meyer established a prima facie case of
discrimination. Instead ADF&G argues that substantial evidence
under AS 44.62.570 supported the decision to close Meyer's case
and that the superior court erred in reweighing the evidence
considered by the staff and director. The deferential standard
of review on which ADF&G relies has no bearing in this case,
because the staff and executive director incorrectly applied the
Burdine/Thomas test at the investigative stage and the Commission
never conducted the hearing mandated by statute. This error was
one of law, to which we apply our independent judgment. See
supra, note 3.16
IV. CONCLUSION
The decision to close Meyer's case is judicially
reviewable. We AFFIRM the superior court's decision and REMAND
to the superior court for the purpose of remanding this case to
the Commission with directions to proceed with Meyer's complaint
in accordance with AS 18.80.110-.120.
_______________________________
1 AS 18.80.100 authorizes any person aggrieved by
discriminatory conduct prohibited by statute to file a complaint
with the Commission.
Under AS 18.80.110 the executive director or a member
of the Commission's staff
shall informally investigate the matters set
out in a file complaint, promptly and
impartially. If the investigator determines
that the allegations are supported by
substantial evidence, the investigator shall
immediately try to eliminate the
discrimination complained of, by conference,
conciliation, and persuasion.
If these informal efforts are unsuccessful, the
executive director is required to hold a hearing before the
Commission. AS 18.80.120.
2 Although the Alaska State Human Rights Commission is
listed as a co-respondent with Andrea Meyer, the Commission was
granted permission to submit a brief in support of ADF&G's
position. Meyer was permitted to submit a reply to the
Commission's brief.
3 The following are the relevant sections of the Civil
Rights Act.
Sec. 18.80.100. Complaint.
A person who is aggrieved by any discriminatory
conduct prohibited by this chapter may sign and file
with the commission a written, verified complaint
stating the name and address of the person alleged to
have engaged in discriminatory conduct, and the
particulars of the discrimination. The executive
director may file a complaint in like manner when an
alleged discrimination comes to the attention of the
director.
Sec. 18.80.110. Investigation and conciliation.
The executive director or a member of the
commission's staff designated by the executive director
shall informally investigate the matters set out in a
filed complaint, promptly and impartially. If the
investigator determines that the allegations are
supported by substantial evidence, the investigator
shall immediately try to eliminate the discrimination
complained of, by conference, conciliation, and
persuasion.
Sec. 18.80.120. Hearing.
If the informal efforts to eliminate the alleged
discrimination are unsuccessful, the executive director
shall inform the commission of the failure, and the
commission shall provide the respondent and the
complainant with notice of the failure and shall serve
written notice together with a copy of the complaint,
requiring the person, employer, labor organization, or
employment agency charged in the complaint to answer
the allegations of the complaint at a hearing before
the commission. The hearing shall be held by the
commission at the place where the unlawful conduct is
alleged to have occurred unless the person, employer,
labor organization, or employment agency requests a
change of venue for good cause shown. The case in
support of the complaint shall be presented before the
commission by the executive director or a designee who
shall be a bona fide resident of the state. The person
charged in the complaint may file a written answer to
the complaint and may appear at the hearing in person
or otherwise, with or without counsel, and submit
testimony. The executive director has the power
reasonably and fairly to amend the complaint, and the
person charged has the power reasonably and fairly to
amend the answer. The commission is not bound by the
strict rules of evidence prevailing in courts of law or
equity. The testimony taken at the hearing shall be
under oath and shall be transcribed at the request of
any party to the hearing.
Sec. 18.80.130. Order.
(a) At the completion of the hearing, if the
commission finds that a person against whom a complaint
was filed has engaged in the discriminatory conduct
alleged in the complaint, it shall order the person to
refrain from engaging in the discriminatory conduct.
The order must include findings of fact, and may
prescribe conditions on the accused's future conduct
relevant to the type of discrimination. In a case
involving discrimination in
(1) employment, the commission may order any
appropriate relief, including but not limited to, the
hiring, reinstatement or upgrading of an employee with
or without back pay, restoration to membership in a
labor organization, or admission to or participation in
an apprenticeship training program, on-the-job training
program, or other retraining program;
(2) housing, the commission may order the
sale, lease, or rental of the housing accommodation to
the aggrieved person if it is still available, or the
sale, lease, or rental of a like accommodation owned by
the person against whom the complaint was filed if one
is still available, or the sale, lease, or rental of
the next vacancy in a like accommodation, owned by the
person against whom the complaint was filed; the
commission may award actual damages which shall
include, but not be limited to, the expenses incurred
by the complainant for obtaining alternative housing or
space; for storage of goods and effects; for moving
and for other costs actually incurred as a result of
the unlawful practice or violation.
(b) The order may require a report on the manner
of compliance.
(c) If the commission finds that a person against
whom a complaint was filed has not engaged in the
discriminatory conduct alleged in the complaint, it
shall issue and cause to be served on the complainant
an order dismissing the complaint.
(d) A copy of the order shall be filed in all
cases with the attorney general of this state.
(e) The commission may order payment of
reasonable expenses, including reasonable attorney fees
to any private party before the commission when the
commission, in its discretion, determines the allowance
is appropriate.
Sec. 18.80.135. Judicial review and enforcement.
(a) A complainant, or person against whom a
complaint is filed or other person aggrieved by an
order of the commission, may obtain judicial review of
the order in accordance with AS 44.62.560 -44.62.570.
4 We review issues of law de novo. Guin v. Ha, 591 P.2d
1281, 1284 n.6 (Alaska 1979). Thus, in deciding whether judicial
review is available and which standard of review to apply, we
will adopt the rule of law that is most persuasive in light of
precedent, reason, and policy. Id. We review questions of law
where no agency expertise is involved under the substitution of
judgment test. Handley v. State, Dep't of Revenue, 838 P.2d
1231, 1233 (Alaska 1992). If the agency has not proceeded in the
manner required by law, the agency has abused its discretion. AS
44.62.570(b)(3). No deference is given to the superior court's
decision because that court was acting as an intermediate court
of appeal. See Tesoro Alaska Petroleum Co. v. Kenai Pipeline
Co., 746 P.2d 896, 903 (Alaska 1987).
5 We have interpreted the first sentence of AS
44.62.560(e) as allowing a superior court to assert jurisdiction
and grant preliminary injunctive relief in cases in which an
agency has taken an action which directly and immediately affects
the complainant. See Alaska Pub. Util. Co. v. Greater Anchorage
Area Borough, 534 P.2d 549, 556-58 (Alaska 1975); A.J. Industries
v. Alaska Pub. Serv. Comm'n, 470 P.2d 537, 539 (Alaska 1970).
Although we have
never interpreted the second sentence of AS 44.62.560(e), in
Schnabel v. State, 663 P.2d 960 (Alaska App. 1983), the Alaska
Court of Appeals stated that the remedy provided by this sentence
"is independent of and in addition to Schnabel's right to
judicial review of an adverse administrative adjudication." Id.
at 966 (dictum) (citing United States v. R.C.A. Alaska
Communications, Inc., 597 P.2d 489, 508 (Alaska 1979)).
6 AS 44.62.560(e) provides:
The superior court may enjoin agency action
in excess of constitutional or statutory
authority at any stage of an agency
proceeding. If agency action is unlawfully
withheld or unreasonably withheld, the
superior court may compel the agency to
initiate action.
7 We noted in Mukluk that the United States Supreme Court
had stated that, "'final' in the context of appealability [is] an
'abstruse and infinitely uncertain term.'" Mukluk, 516 P.2d at
411, n.11 (quoting Will v. United States, 389 U.S. 90, 108 (1967)
(Black, J., concurring)).
8 AS 22.10.020(i) authorizes individuals to bring civil
rights actions against the State in superior court. See Johnson
v. Alaska Dept. of Fish and Game, 836 P.2d 896, 905 (Alaska
1991).
9 The Commission argues that Sprague and a previous Iowa
case, Estabrook v. Iowa Civil Rights Comm'n, 283 N.W.2d 306 (Iowa
1979), support its assertion that there is no judicial review of
no probable cause determinations in these jurisdictions.
However, these cases held only that an administrative complainant
is not constitutionally entitled to an evidentiary hearing before
a human rights commission makes a determination of no probable
cause. See Sprague, 391 A.2d at 561-62; Estabrook, 283 N.W.2d at
309-10. As noted above, Sprague itself held that a determination
of no probable cause is judicially reviewable. 391 A.2d at 561.
The court in Estabrook noted that the complainant had only
challenged the merits of the commission's finding as not
supported by substantial evidence, a standard reserved for
"contested cases" (post-hearing cases) under Iowa law. 283
N.W.2d at 311. As Oliver indicates, probable cause
determinations are judicially reviewable under Iowa law. 299
N.W.2d at 686. Furthermore, Iowa statutory law currently allows
explicitly for judicial review of "no-probable-cause decisions
and other final agency actions." Iowa Code Ann. ' 216.17(1)
(West 1994).
10 In Vick, the complainant conceded that the Board had
discretion whether to revoke a license even after it found a
regulatory violation. 626 P.2d at 92. Likewise, in Heckler, the
statute did not require the Food and Drug Administration (FDA) to
investigate the unapproved use of an approved drug even when that
use became widespread or endangered public health. 470 U.S. at
835-36 (holding statute granted FDA unreviewable discretion to
refrain from enforcement despite policy statement stating FDA was
obligated to investigate such uses which were widespread or
endangered public health).
11 The EEOC may not consider a claim until a state agency
having jurisdiction over employment discrimination has been given
at least sixty days to resolve the matter. 42 U.S.C. ' 2000e-5
(c).
12 Thus, if the complaint was valid, a finding of no
substantial evidence may give a "false negative" signal to
persons seeking positions with that employer. It may also place
the unsuccessful complainant in a bad light when he or she seeks
employment elsewhere.
13 This inference is usually accomplished by establishing
a prima facie case using the four-part test articulated in
McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (prima
facie case established by showing: (1) complainant belongs to a
racial minority; (2) complainant applied for and was qualified
for a job for which employer was seeking applicants; (3) despite
qualifications, complainant was rejected; and (4) after
rejection, the position remained open and employer continued to
seek applications from similarly qualified persons). However,
the McDonnell-Douglas test is not the only means by which a
claimant may raise an inference of discrimination. Haroldsen v.
OMNI Enterprises, Inc., 901 P.2d 426 (Alaska 1995). Strand v.
Petersburg Pub. Schools, 659 P.2d 1218, 1222 n.7 (Alaska 1983)
(citing McDonnell-Douglas Corp., 411 U.S. at 802 n.13).
14 The determination that Meyer established a prima facie
case was clearly correct. As stated by the Commission's
investigator:
Evidence showed that complainant is a member
of a protected class; that respondent denied
her extensions/job assignments in her
employment as [FBI] on four separate
occasions during 1985 and 1986; and that
respondent awarded the extensions/assignments
to male FBI's . . . . Investigation showed
that complainant was qualified for these
extended assignments.
Further, Meyer raised a genuine dispute regarding ADF&G's
employment decisions. ADF&G argued that the male employees it
chose for work extensions were the most qualified for the
positions they were given. Meyer offered evidence that at least
some of the male employees chosen were not more qualified, that
her writing skills were superior to the male applicants chosen to
complete written projects, and that if male fish biologists had
greater job capabilities, it was a result of a supervisor's
consistent efforts to enhance the qualifications of male
biologists while making no corresponding effort to enhance the
job skills of female biologists.
Meyer alleged that recipients of "unstructured
positions" were always male and always more likely to be promoted
or receive extensions. There was evidence that Supervisor Dave
Nelson decided who assumed the duty of census creel clerk and who
would be put in the "unstructured position." Shortly after the
Commission closed Meyer's case the second time, a male FBI who
had previously been in the unstructured position was promoted to
FBII.
Nelson denied that there was a pattern of "grooming"
male fish biologists for promotion.
15 Further, even without the benefit of discovery, Meyer
offered evidence that could support findings that ADF&G's
explanations were pretextual. For example, as of 1987, there
were four women in the Division, all of whom were FBI's, and
sixty-two males, holding positions of FBI through FBIV; in
comparison, there had been a significantly higher percentage of
women in the applicant pool of ADF&G registers for FBI and FBII
positions than was reflected by the number of women holding those
positions. This court has held that once a prima facie case of
discrimination is established, statistical evidence of a
discriminatory pattern "is to be viewed as evidence that the non-
discriminatory justification given by the defendant is in fact a
pretext." Brown v. Wood, 575 P.2d 760, 770 (Alaska 1978).
Moreover, the skills which Nelson stated the male FBI's
exhibit, such as using tools, were not listed in the job
description for fish biologists. Rather, these skills were
listed in the job description for fish technicians, a different
and less advanced position.
16 The parties dispute the proper standard of review to be
applied to a staff or executive director factual determination of
no substantial evidence under AS 18.80.110. Because we hold the
error was one of law, it is unnecessary to resolve this issue in
this case.