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Miller v. Safeway, Inc. (11/26/2004) sp-5849
Miller v. Safeway, Inc. (11/26/2004) sp-5849
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
FRANK MILLER, )
) Supreme Court No. S-11101
Appellant, )
) Superior Court No.
v. ) 3KN-01-00436 CI
)
SAFEWAY, INC. and ) O P I N I O N
MICK GALIC, )
) [No. 5849 - November 26, 2004]
Appellees. )
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kenai,
John Reese, Judge.
Appearances: John E. Havelock, Law Offices
of John E. Havelock, Anchorage, for
Appellant. Cynthia L. Ducey, Delaney, Wiles,
Hayes, Gerety, Ellis & Young, Inc.,
Anchorage, for Appellees.
Before: Bryner, Chief Justice, Matthews,
Fabe, and Carpeneti, Justices. [Eastaugh,
Justice, not participating.]
FABE, Justice.
I. INTRODUCTION
Frank Miller is an Alaska Native who was terminated
from his employment at Safeway after he refused to cut his hair
in accordance with a corporate grooming policy. He sued on the
grounds that the policy discriminated on the basis of race,
religion, and gender, and that it violated his right to privacy.
Miller subsequently moved to amend his complaint to add claims of
breach of the implied covenant of good faith and fair dealing,
wrongful discharge, and common law privacy. The superior court
denied as untimely Millers request to amend his complaint and
granted Safeways motion for summary judgment, dismissing the
case.
Because we conclude that state action is required for
Millers constitutional privacy cause of action, we affirm the
trial courts ruling dismissing Millers constitutional claim for
lack of state action. We also affirm the superior courts rulings
that Miller failed to demonstrate discrimination on the basis of
race, sex, or religion. Miller failed to present evidence that
the hair length policy was discriminatory or that he was treated
less favorably than similarly qualified employees on the basis of
race or gender, and he failed to provide notice to his employer
that his religious beliefs and practices conflicted with Safeways
hair length policy. But because the trial court must freely
grant leave to amend a complaint, and no prejudice would have
resulted to Safeway in light of the trial courts decision to
vacate the trial date and reopen discovery on certain issues, we
reverse the trial courts denial of Millers motion to amend his
complaint and remand for a determination whether Safeway breached
the implied covenant of good faith and fair dealing or wrongfully
terminated Miller.
II. FACTS AND PROCEEDINGS
A. Facts
Frank Miller is an Athabascan Indian and a member of
the Kenaitze tribe. Miller holds shares in Kenai Native
Association, Inc. and Cook Inlet Region, Inc., and is an Alaska
Native under federal law. Miller has worn his hair shoulder
length or longer all his life, with the exception of the period
of time he served in the United States Navy between 1961 and
1966. In an affidavit, Miller explained his reasons for growing
long hair: I personally like to have my hair long and feel it is
an expression of my natural personality, my spirituality and my
ties with Alaska Native tradition. Miller maintains that his
mother, who was also Athabascan, raised Millers awareness of his
Native culture and tradition and passed down to him the Native
practice of growing hair long.
On July 29, 1998, Miller was hired to work as a sales
clerk for a Carrs supermarket in the Oaken Keg, the section of
the store that markets liquor. Miller indicates that the Oaken
Keg knew that he was an Alaska Native due to his appearance and
his statement that he is American Indian/Alaskan Native on
employee ethnicity records gathered by Safeway in August 1998.
The store manager who hired Miller informed him that he would be
allowed to keep his hair long so long as he kept it tied back,
notwithstanding the printed dress code for Carrs employees. The
dress code policy recites, under a section entitled General
Appearances:
Well groomed and conservatively styled hair.
a. Mens hair: No longer than collar
length. No beards.
Mustaches acceptable if neatly groomed and
not curved over lower lip. Sideburns should
not extend below the ear lobe.
b. Womens hair: Neatly styled.
The introduction to the Oaken Keg policies also included the
following statement regarding Millers terms of employment:
When you begin with the Oaken Keg, you will
be on a probationary status. At the end of
(90) days, upon successful completion of the
probationary period, you will become a
permanent employee.
Miller was not advised that he was in violation of the dress code
or that he must cut his hair until February of 2001, more than
two years and seven months after he was hired. Joe Price, Millers
supervisor, did not initially make any comments to Miller
regarding hair length. Safeway purchased Carrs in April 1999,
and Miller attended a Safeway orientation in June 1999 in which
the Safeway dress code policy for male employees reiterated the
previous Carrs policy that the hair length of male employees
should not exceed the collar-line. Although Millers hair was
noticeably long and fell below the collar line, none of the
supervisors or trainers at the orientation directed any comments
to Miller concerning his hair. Sometime after the orientation,
Miller and Price had a conversation in which Miller recalls that
Price remarked, unless they say something to me, you are not
required to get a haircut.
In January 2001, a year and a half after Safeway
acquired Carrs, Miller learned that the Oaken Keg store where he
worked was scheduled to close the next month. In late January
2001 all store employees, including Miller, were informed by
letter or memorandum that they would have a job in either the
Soldotna or Kenai Carrs stores. Miller states that he expected
that he would be transferred to one of these other stores.
According to Miller, he received regular job evaluations in which
his performance was judged good to excellent in every respect.
Close to a week before the store closed, Price informed
Miller that, according to Safeway manager Mick Galic, if Miller
wanted to transfer to another store he would have to cut his
hair. Miller told Price that he would not cut his hair. As a
result, Safeway terminated Miller.
B. Procedural History
Miller filed a class action complaint on June 8, 2001.
The complaint alleged violations of his constitutional rights to
privacy and freedom of speech. The complaint also alleged
discrimination based on creed and religion in violation of the
Alaska Constitution, as well as statutory claims under AS
18.80.220 and AS 22.10.020 for discrimination based on race,
color, national origin, religion, and gender. Miller stated his
action as a class action on behalf of past and present employees
and persons who had been terminated or rejected by Carrs or
refused employment due to the policies herein complained of.
Superior Court Judge John Reese presided over the case.
The parties agreed at their pre-conference planning meeting on
October 15, 2001 that they would be ready for trial by April
2003. The three dates for trial requested in the order of
preference were: May 12, 2003, April 27, 2003, and April 21,
2003. Millers counsel was unable to attend the pretrial
scheduling conference that took place on October 16, 2001, and
the trial date selected at the scheduling conference was July 22,
2002, eight months from the date of the conference.1 Millers
counsel asserts that he assumed that the pretrial scheduling
order issued on November 16, 2001 would roughly correspond to
what he had agreed to at the pre-conference planning meeting, and
that he did not notice the accelerated trial date and discovery
schedule until mid-January 2002.
On January 25, 2002, Miller filed a motion to amend the
pretrial order to reset the trial date for the originally
requested time in April 2003. Safeway opposed the motion,
arguing that Millers request was unreasonable because Miller had
not adequately participated in discovery or taken the procedural
steps necessary to pursue a proper class action. Judge Reese
issued an order ruling that it did not appear that Miller was
diligently pursuing the class action part of the claim, but that
if Miller did have a valid class action, the July 22, 2002 trial
date was too soon. Judge Reese therefore scheduled a status
hearing for April 22, 2002 to review the progress of the
preparation of Millers case. Safeway asserts that although the
trial court decided to hold a status conference it did not vacate
or modify discovery deadlines.
On April 18, 2002, Safeway moved for summary judgment,
seeking dismissal of Millers case in its entirety. On May 1,
2002, Miller filed a motion for extension of time to oppose the
summary judgment asserting three grounds: (1) Safeways failure to
respond adequately to discovery; (2) the need for more extensive
discovery; and (3) Millers intent to amend his complaint to
include wrongful termination, breach of the implied covenant of
good faith and fair dealing, and invasion of privacy.
Nine days later, on May 10, 2002, Miller filed a motion
to amend his complaint to add three causes of action: breach of
the covenant of good faith and fair dealing, wrongful discharge,
and common law invasion of privacy. Miller asserted that Safeway
would not be prejudiced by his late filing because the new claims
were based on the previously pleaded facts. On May 30, 2002,
Safeway opposed the motion to amend asserting undue delay,
prejudice, and futility of the amendment. Millers motion to
amend was not ruled upon until the following January 2003, when
the trial court denied the motion to amend as not timely.
Over six months prior to that ruling, on May 20, 2002,
Judge Reese presided over the status hearing, originally
scheduled for April 22, to review the progress of the case and to
determine whether to vacate the scheduled trial date of July 22,
2002. The trial court decided to vacate the trial date and set a
new trial schedule once the court had resolved the summary
judgment motion. The trial court also noted that although
discovery was officially closed, pending discovery could be
completed, as well as any additional discovery necessary to
oppose summary judgment.
On June 28, 2002, Miller filed a motion to compel
responses to the requests for production, interrogatories, and
requests for admissions. Miller filed his opposition to Safeways
summary judgment motion and cross-motion for partial summary
judgment on December 23, 2002, before the trial judge issued an
order on the motion to compel. The superior court did not issue
an order on the motion to compel until January 7, 2003, when it
ultimately denied the motion, ruling that only discovery relevant
to the summary judgment opposition was allowed.
In his opposition to summary judgment, Miller included
a supplemental affidavit in which he expanded upon his cultural
upbringing in an Athabascan village, his spiritual beliefs, and
Safeways knowledge of his Alaska Native background. The trial
court struck this affidavit from the record, ruling that the
[r]elevance of the affidavit is questionable, and the
religion/hair length issues are subsequent, inappropriate
modifications of [Millers] prior deposition testimony.
On March 10, 2003, Judge Reese granted Safeways motion
for summary judgment in its entirety and denied Millers cross-
motion for summary judgment. The trial court concluded that:
(1) the constitutional claims failed because Safeway was a
private actor and state action was required; (2) there was no
evidence that Safeway intended to discriminate on the basis of
race or that the hair length policy had a disparate impact on
race; (3) the religious discrimination claim failed because
Miller failed to notify Safeway that the hair length policy
conflicted with his religious or spiritual beliefs; and (4) the
hair length policy did not constitute unlawful gender
discrimination. The superior court dismissed the action before
ruling on Millers motion to certify the class, rendering Millers
class certification motion moot.
Miller appeals these rulings arguing that: (1) state
action is not a necessary prerequisite for a constitutional claim
under the privacy amendment of the Alaska Constitution; (2) he
presented a prima facie case raising an inference of an intent to
discriminate; and sufficient evidence that Alaska Natives are
disparately impacted by Safeways hair length policy; (3) Safeway
did have notice that its hair length policy conflicted with
Millers spiritual beliefs; (4) the hair length policy constituted
unlawful employment discrimination under AS 18.80.220; (5) the
trial court erred when it denied Millers motion to amend his
complaint; (6) the trial court should have granted Millers motion
to certify the class; and (7) the trial court should have
considered Millers supplemental affidavit.
III. DISCUSSION
We have previously recognized in Breese v. Smith2 that
hairstyles are a deeply personal expression of individual
identity and a reflection of diversity in a pluralistic society.
In Breese, we held that students attending public schools have a
constitutional right to wear their hair in accordance with their
personal tastes.3 Unlike Breese, the present case involves
constitutional and statutory claims against a private actor in
its capacity as an employer. In Luedtke v. Nabors Alaska
Drilling, Inc.,4 we declined to extend the constitutional right
to privacy to the actions of private actors because the parties
failed to present a history of the privacy amendment5
demonstrating an intent to bar private action. In this case,
Miller asks us to reconsider our decision in Luedtke, arguing
that he has uncovered legislative history of the amendment that
proves an intent to proscribe private action.
Although we have not previously recognized
constitutional privacy claims against private employers, we have
firmly established that conduct such as discrimination by a
private employer constitutes an unlawful employment practice
under Alaska law.6 Miller asserts that Safeway discriminated
against him in violation of AS 18.80.220 on the basis of race,
religion, and sex when it terminated his employment.7
The causes of action for wrongful termination and
breach of the implied covenant of good faith and fair dealing
provide additional safeguards against employment practices that
violate substantial and fundamental public policies. Millers
motion to amend his complaint to add these claims was denied by
the trial court as untimely. We must therefore consider whether
Alaska Civil Rule 15s mandate that leave to amend shall be freely
given when justice so requires8 required the trial court to grant
Millers motion to amend his complaint. In deciding this
question, we must balance the possible prejudice to Safeway in
defending these claims with the potential harm caused to Miller
if he is precluded from litigating these issues. We will review
each of these questions in turn.
A. Standard of Review
