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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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
We review a grant of summary judgment using our
independent judgment.9 We must determine whether any genuine
issue of material fact exists and whether the moving party is
entitled to judgment on the law applicable to the established
facts. All reasonable inferences of fact from proffered
materials must be drawn against the moving party and in favor of
the non-moving party.10 A trial courts decision regarding the
admissibility of evidence, including expert testimony, is
generally reviewed for abuse of discretion, but when
admissibility turns on a question of law, we apply our
independent judgment.11 The superior courts denial of a motion to
amend a complaint is reviewed for abuse of discretion.12
B. State Action Is Required To Pursue a Cause of Action
Under the Privacy Amendment, Alaska Constitution,
Article I, Section 22.
We have long recognized that the primary purpose of the
constitutional right to privacy13 is to protect the personal
privacy of individuals from unwarranted intrusions by the
government.14 In Luedtke, we declined to extend the
constitutional right to privacy to prohibit action by private
parties after determining that the parties had not established
that the history of article I, section 22 demonstrated an intent
to proscribe private action.15 We concluded:
The parties in the case at bar have failed to
produce evidence that Alaskas constitutional
right to privacy was intended to operate as a
bar to private action . . . . Absent a
history demonstrating that the amendment was
intended to proscribe private action, or a
proscription of private action in the
language of the amendment itself, we decline
to extend the constitutional right to privacy
to the actions of private parties.[16]
Miller claims that the parties and this court in Luedtke
overlooked evidence demonstrating that the privacy amendment was
intended to proscribe private action. Miller asserts that the
initial Senate draft of the amendment evidenced an intent on the
part of the legislature to reach private parties because it
stated that the legislature shall provide for the prosecution and
punishment of public officials and private parties.17 Miller
further contends that our dicta in State v. Planned Parenthood of
Alaska18 suggests that the legislature did not abrogate this
intent when it subsequently changed the phrasing of the
amendment. In Planned Parenthood, we took note of the House
Judiciary Committees debate on the wording of the amendment,
which originated as Senate Joint Resolution No. 68, after it was
amended by the Senate and transmitted to the House. The
resolution then stated:
The right of the people to privacy is
recognized and shall not be violated. The
legislature shall provide for the prosecution
and punishment of public officials and
private parties who act in violation of this
section, and shall provide civil remedies to
supplement common law remedies to redress and
prevent such violations.[19]
(Emphasis added.)
According to the House Judiciary Committee minutes
quoted in Planned Parenthood, the committee members engaged in
the following discussion concerning the second sentence of the
resolution that refers to violations of private parties:
Representative Banfield moved to delete the
second sentence. There was no objection.
Art Peterson, committee counsel, said we
could say shall implement this section or
shall provide for the implementation of this
section and leave out the details. This
would be stating principles generally which
allows for easier administration.
[Representative] Barber felt that we were
leaving out the penalty section. Moran said
this would be covered in the
implementation.[20]
Miller asserts that while the House members altered the
language of the amendment from the drafted wording the
legislature shall provide for the prosecution and punishment of
public officials and private parties to its ultimate formulation
as [t]he legislature shall implement this section,21 this change
did not reflect a substantive decision that the amendment should
no longer apply to private parties. Miller maintains that the
legislature instead intended that the broader language, the
legislature shall implement this section, would encompass the
previous view that the legislature could prosecute and punish
both public and private action. Safeway refutes Millers
interpretation, arguing that to the extent language regarding
private action was omitted from the final version of Section 22,
we must presume that the legislature intended to change the
meaning. Moreover, Safeway convincingly argues that the citizens
who ratified the amendment voted on a version of Section 22 that
did not contain any specific language regarding penalties for
private action. Because we must look to the intent of Alaskas
voters,22 the history that Miller must produce exceeds the scope
of merely legislative history. Miller must demonstrate that the
voters of Alaska clearly intended that the privacy amendment
should apply to both public and private action.
The privacy clause of the California Constitution has
been construed to apply to private actions.23 But as we pointed
out in Luedtke, the history surrounding the 1972 adoption of the
privacy amendment by the voters of California evinces a clear
intent that the clause applies to private as well as governmental
action.24 The California Supreme Court determined that election
brochures which were published by the drafters of its amendment
satisfied this requirement because they contained frequent
references to the intrusive activities of businesses and
explained that the amendment would provide an enforceable right
of privacy against these business interests. These brochures
provided sufficient proof to evince an intent on the part of the
California voters to ratify a privacy amendment that would
proscribe private action.25 But Miller has failed to produce
evidence that the voters who ratified Section 22 specifically
intended that the privacy amendment should apply to private
action. Thus, the superior court did not err in its
determination that state action is required to assert a violation
of a constitutional right to privacy.
C. Miller Did Not Present Evidence Sufficient To Raise an
Inference of Racial Discrimination Under AS
18.80.220(a)(1).
The Alaska Human Rights Act, AS 18.80.220, was modeled
on federal law, thus making federal case law relevant to this
courts interpretation of the statute.26 But we have repeatedly
articulated that AS 18.80.220 is intended to be more broadly
interpreted than federal law to further the goal of eradicating
discrimination.27 We therefore review an employees claims of race
discrimination in light of federal Title VII case law, mindful of
the strong statement of purpose in enacting AS 18.80 and our
legislatures intent to put as many teeth into the statute as
possible.28 Under Title VII and AS 18.80.220, an employee may
bring both a disparate treatment29 and a disparate impact claim of
employment discrimination. Miller asserted both theories of
discrimination.
1. Disparate treatment
We have determined, in accordance with the reasoning of
the United States Supreme Court, that it is usually impossible
for an employee to prove that the employer acted with
discriminatory intent.30 We therefore apply the three-part
pretext analysis adopted by the United States Supreme Court when
the employee is unable to provide such direct evidence.31 Under
this three-part analysis, the employee carries the initial burden
of establishing a prima facie case of racial discrimination.32
The burden then shifts to the employer to articulate a
legitimate, nondiscriminatory reason why the employee was
discharged.33 The final stage of the test shifts the burden back
to the employee to show that the employers stated reason for the
discharge was in fact pretext.34 The pretext analysis can assist
the jury in deciding whether the termination was based upon
prohibited discrimination or upon legitimate factors.35
To establish that Safeway terminated him with intent to
discriminate, Miller must first satisfy the threshold requirement
of demonstrating a prima facie case by a preponderance of the
evidence.36 Miller must show that: (1) he is a member of a
protected class under the statute; (2) he was qualified for the
position; (3) he suffered adverse employment action, despite
these qualifications; and (4) the employer treated him less
favorably than other qualified persons.37
The trial court did not apply this four-part analysis,
but it did make a factual finding that Miller is half Athabascan.
For the purpose of this argument we will assume that Miller
presented sufficient evidence that he is a member of a protected
racial group. But on the remaining elements, Millers hair length
did not comport with Safeways grooming qualifications which
require that male employees should not allow their hair to fall
below the collar line. Miller was allowed an exemption from this
qualification for over two and a half years, and then was
terminated for failing to abide by the policy. Although the
retraction of this apparent waiver may have occurred under
circumstances that were wrongful or which breached an implied
covenant of good faith and fair dealing, as we discuss below,
Miller does not present evidence that he was treated less
favorably than non-Native male employees with long hair.
2. Disparate impact
We have held that an expansive application of the
disparate impact theory comports with the strong purposes behind
AS 18.80.220.38 In Thomas v. Anchorage Telephone Utility, we
adopted an analysis for disparate impact claims similar to the
one enunciated by the United States Supreme Court.39 In order to
present a prima facie case of discrimination, an employee must
show that a facially neutral employment act, practice, or policy
has a significant discriminatory impact on a protected group.40
If the employee proves discriminatory impact, the employer has
the burden of proving that its actions are justified by business
necessity or job-relatedness.41
Miller has not presented any studies, research, or
testimony to prove that Alaska Native males are disparately
impacted by Safeways hair length requirement. His attempt to
make a prima facie case is confined to the analysis that [w]ith
respect to disparate impact [Safeways knowledge and
responsibility] is icing on the cake. Miller relies on folklore
and literary texts and he makes no effort to synthesize
information to demonstrate a palpable theory that Alaska Natives
are disparately impacted by Safeways policies. Due to the
inadequacy of evidence we need not decide whether a grooming
policy pertaining to hair length would amount to impermissible
discrimination if it were shown to have a disproportionate impact
on Alaska Native males.42
D. Miller Did Not Establish a Prima Facie Case of
Religious Discrimination under 18.80.220(a)(1).
Miller also contends that Safeway discriminated against
him when it terminated him for expressing his religious beliefs
through his hairstyle. To assess whether an employee has
established a prima facie case of religious discrimination we
follow the approach employed by the Ninth Circuit in Title VII
cases, as articulated in Opuku-Boateng v. State of California.43
This approach requires the plaintiff to demonstrate that: (1) he
or she has a bona fide religious belief that conflicts with an
employment requirement; (2) he or she informed the employer of
this belief; and (3) he or she suffered an adverse consequence
for failing to comply with the conflicting employment
requirement.44 Once these elements have been established, the
burden then shifts to the employer to show that it could not
accommodate the plaintiffs religious beliefs without undue
hardship.45 The plaintiff must provide more than a scintilla of
proof for each of the three elements of his or her case to
survive summary judgment.46
Turning to Millers claim, he did present to the
superior court an affidavit in which he described his long hair
as an expression of his spirituality and his ties with Alaska
Native tradition. The trial court correctly acknowledged that
Miller met this first requirement. Millers claim falters in the
second part of the test which requires Miller to have informed
his employer about his spiritual beliefs. Because Miller did not
give notice to Safeway regarding his religious beliefs or the
fact that his hairstyle was tied to his spiritual beliefs, he has
not satisfied the second requirement. We therefore affirm the
superior courts grant of summary judgment on this issue.
E. Safeways Grooming Policy Did Not Constitute Gender
Discrimination Under AS 18.80.220(a)(1).
It is undisputed that Safeways grooming policy
established a hair length requirement for male employees but did
not restrict the hair length of female employees. Under Title
VII Section 703(e) an employer cannot discriminate on the basis
of sex unless there is a bona fide occupational qualification
reasonably necessary to the normal operation of that particular
business enterprise.47 As Safeway asserts, however, many courts
interpreting Title VII have held that it is not unlawful to
institute a sex-based grooming policy that treats men and women
differently.48 In Harper v. Blockbuster Entertainment Corp., the
Eleventh Circuit noted that the Equal Employment Opportunity
Commission initially took the opposing position, but finally
concluded that successful litigation of male hair length cases
would be virtually impossible in the face of the unanimity of the
courts of appeal that considered the issue.49 These courts have
generally found that grooming regulations have no significant
effect on the employment opportunities of either sex, and that
the length of an employees hair more closely relates to the
employers choice of how to run a business than to equal
employment opportunity.50 Miller fails to cite authority from any
jurisdiction holding that enforcing different hair length
requirements for male and female employees is a discriminatory
employment practice.
We agree with the reasoning of the numerous federal
cases addressing this issue and conclude that Alaska law should
not be more broadly construed in this particular respect. We
conclude that Miller has not demonstrated that Safeways hair
grooming policy discriminated on the basis of gender.51 We affirm
the superior courts ruling on this issue.52
F. The Trial Court Erred in Failing To Allow Miller To
Amend His Complaint.
In the absence of a motion filed on the eve of trial,
[l]eave to amend is liberally granted in Alaska,53 and we have
long held that leave should freely be given unless it would
[result] in an injustice.54 A pro-amendment ethos dominates the
intent and judicial construction of Rule 15(a).55 And as the
United States Supreme Court noted in interpreting the federal
version of Rule 15(a) in Foman v. Davis, the rules declaration
that leave to amend shall be freely given when justice so
requires is a mandate that is to be heeded.56 We have recognized
that if there is no apparent or declared reason such as undue
delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, futility of amendment, etc. the
leave sought should, as the rules require, be freely given. 57
The trial courts proffered reason for denying the motion was
untimeliness. There was no mention of undue delay, bad faith, or
prejudice. Yet prejudice to the opposing party is the
predominate factor in determining whether or not to grant leave
to amend. 58 [D]elay alone is an insufficient basis upon which to
deny a motion to amend.59 Even if a party unreasonably delayed
moving to amend it is an abuse of discretion to deny leave to
amend where the opposing party was not misled or prejudiced by
the amendment.60 The policy that a court should freely grant
amendments limits a courts ability to deny leave to amend, and in
a proper case, may warrant a finding of abuse of discretion in
denying leave.61
We reversed the superior courts decision to deny leave
to amend in Betz v. Chena Hot Springs Group after concluding that
the hardship to the [moving party] occasioned by denial of [the]
amendment is great while the prejudice . . . from allowing
[leave] is not substantial.62 We determined in Betz that the
moving partys delay in filing a May motion to amend was perhaps
undue given the September trial date and the August discovery
cut off.63 However, once the trial was put over for a year, we
concluded that this [delay] factor did not weigh heavily against
the [moving party].64 Miller filed his motion to amend on May 10,
2002, the same month as the status hearing on the viability of
the July 22, 2002 trial date, and within six months of the
pretrial scheduling order which was issued by the trial court on
November 16, 2001. The trial court ultimately vacated the July
2002 trial date and decided to postpone rescheduling until
resolution of the summary judgment motion. The court also
reopened discovery as to the issues raised by Safeways summary
judgment motion and pending discovery. Yet despite the fact that
Miller filed his motion to amend the complaint in May 2002, the
trial court did not issue a ruling on the amendment until January
7, 2003. Because the trial court ordered a status conference to
review the trial schedule, subsequently vacated the trial date,
reopened discovery on some matters, and then retained the motion
under advisement for over seven months before ruling on it,
Millers motion to amend should not have been denied on the basis
of undue delay.65
In Betz, we further considered the potential prejudice
that may result to the nonmoving party and determined that when
the new claim did not require any additional fact finding . . .
[applying] a new legal theory to those facts is not the kind of
prejudice that should defeat an amendment.66 And as we recognized
in Gamble v. Northstore Partnership, the remedy for inadequate
time to prepare on a new theory is a continuance, not preventing
a trial on the merits of the new theory. 67 The amendments
proposed by Miller all involved the same transaction and raised
facts identical to the other claims pleaded. Given that the
timeline for discovery was extended after Safeway received notice
of Millers new claims, Safeway was not unreasonably burdened by
the task of preparing for litigation of the new theories. And
because the trial date was postponed, Safeway had considerable
time to conduct discovery before trial. As the United States
Supreme Court stated in Foman, [i]f the underlying facts or
circumstances relied upon by a plaintiff may be a proper subject
of relief, he ought to be afforded an opportunity to test his
claim on the merits.68 The hardship to Miller occasioned by
denying him the opportunity to test the merit of his claim
outweighs any prejudice to Safeway.
Safeway last argues that the denial of the motion to
amend was proper because it proposed claims that were futile.
Millers motion included claims for breach of the implied covenant
of good faith and fair dealing, wrongful termination, and
invasion of privacy. We will proceed to consider the alleged
futility of these claims.
The implied covenant of good faith and fair dealing is
a part of every employment contract in Alaska.69 It is designed
to prevent the abuses of unfettered discretion inherent in a
situation of unequal bargaining power.70 An employee is not
required to leap at his masters every command.71
In Bakken v. North American Coal Corp.,72 a federal
district court in North Dakota found that a genuine issue of
material fact existed as to bad faith and breach of the implied
covenant when an employer represented to its employee that she
could transfer her employment when her department was moved to
another city but subsequently denied her this opportunity and
terminated her due to the alleged elimination of her position.73
Miller was also informed by Safeway that he would be able to
transfer to another store in Kenai or Soldotna when the Oaken Keg
store where he worked was scheduled to close. Safeway then
terminated Miller on one weeks notice based on his failure to cut
his hair despite its previous decision to exempt Miller from the
hair length policy for over two and a half years. Safeway has
provided no reason for why it chose to enforce the hair length
policy against Miller at the time of transfer. For purposes of
this motion, Safeway has failed to show that it would be futile
to allow Miller to claim that Safeway breached the implied
covenant of good faith and fair dealing by terminating him
despite its representation of continued employment in another
city, or by wrongfully terminating him in violation of the public
policy supporting the protection of employee privacy.74
IV. CONCLUSION
Because we conclude that state action is required for a
cause of action under Alaskas constitutional right of privacy, we
AFFIRM the trial courts decision on this issue. Because Miller
failed to produce evidence of discrimination on the basis of
race, sex, or religion, we AFFIRM on all of these issues as well.
And we conclude that issues pertaining to class certification,
the supplemental affidavit, and supplements to the record are all
subsequently mooted. But we REVERSE and REMAND the trial courts
decision to deny Miller leave to amend his complaint because
addition of the claims alleging breach of the implied covenant of
good faith and fair dealing and wrongful termination did not
prejudice Safeway, and it is premature to conclude that these
claims had no merit.75
_______________________________
1 Counsel for Safeway asserts that when she arrived at
the scheduling conference, she learned that Millers counsel would
not be attending the meeting, but that he had given his consent
to proceed with the conference. She asserted in an affidavit
that based on that confirmation and my availability, one of the
dates proffered by the judge, [July 22, 2002], was selected.
2 501 P.2d 159 (Alaska 1972).
3 Id. at 168.
4 768 P.2d 1123, 1130 (Alaska 1989).
5 Alaska Const. art. I, 22.
6 Raad v. Alaska State Commn for Human Rights, 86 P.3d
899 (Alaska 2004); Wondzell v. Alaska Wood Prods., Inc., 601 P.2d
584, 585 (Alaska 1979); AS 18.80.220.
7 Millers complaint also alleged a violation of his free
speech rights and discrimination on the basis of creed and
religion in violation of the Alaska Constitution. Miller does
not argue that the superior court erred in entering judgment on
these claims.
8 Alaska R. Civ. P. 15(a).
9 e, 824 P.2d 718, 720 (Alaska 1992)).Laidlaw Transit,
Inc. v. Crouse
10 Id. (citing Wright v. State, 824 P.2d 718, 720 (Alaska
1992)).
11 Laidlaw Transit, Inc. v. Crouse, 53 P.3d 1093, 1097
(Alaska 2002).
12 Bauman v. Day, 942 P.2d 1130, 1132 (Alaska 1997).
13 The Alaska Constitution was amended in 1972 to add the
following section: Right of Privacy. The right of the people to
privacy is recognized and shall not be infringed. The
legislature shall implement this section. Alaska Const. art. I,
22.
14 State v. Planned Parenthood of Alaska, 35 P.3d 30, 38
(Alaska 2001); Luedtke, 768 P.2d at 1129 (quoting Woods & Rohde,
Inc. v. State, Dept of Labor, 565 P.2d 138, 148 (1977) (quoting
Weltz v. State, 431 P.2d 502, 506 (Alaska 1967) (referring to
article I, section 14 guarantees against unreasonable searches
and seizures))).
15 768 P.2d at 1130.
16 Id.
17 1972 Senate Joint Resolution No. 68, 7th Leg., 2d Sess.
(May 5, 1972). Miller also maintains that we uncovered a part of
the legislative history in our dicta in Valley Hosp. Assn, Inc.
v. Mat-Su Coalition for Choice, 948 P.2d 963, 969-70 (Alaska
1997) where we noted similar phrasing in the initial Senate draft
of the amendment, Senate Joint Resolution No. 68.
18 35 P.3d 30 (Alaska 2001).
19 Id. at 36.
20 Id. at 37 (quoting H. Jud. Comm. Minutes at 318-19, 7th
Leg., 1st Sess. (May 30, 1972)) (original brackets and ellipsis
omitted).
21 Alaska Const. art. I, 22.
22 See, e.g., Hickel v. Halford, 872 P.2d 171, 177-81
(Alaska 1994) (construing term used in article IX, section 17(a)
of Alaska Constitution by looking at language of provision,
purpose of amendment, statement in support of amendment published
in voter pamphlet, and language used in related statutory
provisions).
23 Luedtke, 768 P.2d at 1130.
24 768 P.2d at 1129-30 (citing White v. Davis, 533 P.2d
222, 233-34 (Cal. 1975)).
25 White, 533 P.2d at 233-34; Luedtke, 768 P.2d at 1130.
26 Era Aviation, Inc. v. Lindfors, 17 P.3d 40, 43 (Alaska
2000); Wondzell v. Alaska Wood Products, Inc., 601 P.2d 584, 585
(Alaska 1979) (citations omitted).
27 Wondzell, 601 P.2d at 585.
28 Id. at 585-86 (quoting McLean v. State, 583 P.2d 867,
869 (Alaska 1978) (internal quotations omitted)).
29 Miller can assert both an individual disparate
treatment action as well as a systemic disparate treatment claim
alleging a pattern and practice of discrimination. From the
evidence presented, it appears that Miller is bringing an action
based on individual disparate treatment and systemic disparate
impact.
30 Haroldsen, 901 P.2d at 431; United States Postal Serv.
Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983) (There will
seldom be eyewitness testimony as to the employers mental
processes.).
31 Raad v. Alaska State Commn for Human Rights, 86 P.3d
899, 904 (Alaska 2004) (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973)); Haroldsen, 901 P.2d 426 at 430.
32 Raad, 86 P.3d at 904.
33 Id.
34 Id.
35 Era Aviation, 17 P.3d at 44.
36 St. Marys Honor Center v. Hicks, 509 U.S. 502, 506
(1993).
37 Haroldsen, 901 P.2d at 430; Era Aviation, 17 P.3d at 44
n.10 (citing McDonnell Douglas, 411 U.S. 792, 802). We adopted
the McDonnell Douglas prima facie test for disparate treatment
employment discrimination cases in Alaska State Commn for Human
Rights v. Yellow Cab, 611 P.2d 487 (Alaska 1980). The Supreme
Court noted in McDonnell Douglas that the prima facie standard is
not inflexible, as [t]he facts necessarily will vary in Title VII
cases, and the specification . . . of the prima facie proof
required from respondent is not necessarily applicable in every
respect in differing factual situations. 411 U.S. at 802, n.13.
38 Thomas v. Anchorage Telephone Util., 741 P.2d 618, 629
(Alaska 1987).
39 Id. at 628.
40 Id. (citing Intl Bhd. of Teamsters v. United States,
431 U.S. 324, 349 (1977)).
41 Id. (citing Abermarle Paper Co. v. Moody, 422 U.S. 405,
425 (1975); Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971)).
42 Although we do not address this issue, we note that
other jurisdictions have concluded that grooming policies do not
disparately impact racial minorities under Title VII section 703.
See Rogers v. American Airlines, Inc., 527 F. Supp. 229, 232
(S.D.N.Y. 1981) (An all-braided hair style is an easily changed
characteristic, and, even if socioculturally associated with a
particular race or nationality, is not an impermissible basis for
distinctions in the application of employment practices by an
employer. (citation omitted)); see also Eatman v. United Parcel
Serv., 194 F. Supp. 2d 256, 262 (S.D.N.Y. 2002). But these
decisions have been criticized by several commentators. See
Roberto J. Gonzalez, Cultural Rights and the Immutability
Requirement in Disparate Impact Doctrine, 55 Stan. L. Rev. 2195,
2215-16 (2003) (arguing that the immutability requirement for
disparate impact adopted in Rogers is unsubstantiated because
[t]he landmark case that established the disparate impact theory,
Griggs v. Duke Power Co., found an employer liable for requiring
applicants to have a high school diploma or pass an intelligence
test . . . . [Requiring a diploma] in no way had to fall within
the definition of race [as immutable] in order to trigger Title
VII scrutiny.); see also Kenji Yoshino, Covering, 111 Yale L. J.
769, 781 (2002). (Yoshino writes that the contemporary forms of
discrimination to which racial minorities and women are most
vulnerable often take the guise of enforced [assimilation]. A
member of a racial minority can be sanctioned for failing to
minimize the race-salient traits that make her different from
others: for wearing cornrows, for lapsing into Spanish, or for
speaking with an accent.). See generally Barbara J. Flagg,
Subtle Opposition, 34 Colum. Hum. Rts. L. Rev. 605, 608-09 (2003)
(Flagg argues that coercive pressure on minorities to assimilate
would seem to fit comfortably within the disparate impact model
of liability, but difficulties arise in practice if the workplace
includes only small numbers of employees, if other non-whites are
not adversely affected by the challenged policy because they
elect to assimilate, if a court requires that a challenged
practice must disparately affect the employers own workplace, or
if plaintiffs cannot provide proof of the criterion.).
43 95 F.3d 1461 (9th Cir. 1996).
44 Grant v. Joe Myers Toyota, Inc., 11 S.W.3d 419, 422-23
(2000); Opuku-Boateng, 95 F.3d at 1467 n.9; Turpen v. Missouri-
Kansas-Texas R.R. Co., 736 F.2d 1022, 1026 (5th Cir. 1984).
45 Grant, 11 S.W.3d at 423.
46 Id.
47 Title VII, 703(e), 42 U.S.C. 2000(e).
48 Harper v. Blockbuster Entmt Corp., 139 F.3d 1385, 1388-
89 (11th Cir. 1998); Tavora v. New York Mercantile Exchange,101
F.3d 907, 908 (2d Cir. 1996); Longo v. Carlisle DeCoppet & Co.,
537 F.2d 685, 685 (2d Cir. 1976); Earwood v. Contl Southeastern
Lines, Inc., 539 F.2d 1349, 1351 (4th Cir. 1976); Barker v. Taft
Broad. Co., 549 F.2d 400, 401 (6th Cir. 1977); Knott v. Missouri
Pac. R.R. Co., 527 F.2d 1249, 1252 (8th Cir. 1975); Baker v.
California Land Title Co., 507 F.2d 895, 898 (9th Cir. 1974);
Dodge v. Giant Food, Inc., 488 F.2d 1333, 1336-37 (D.C. Cir.
1973).
49 Harper, 139 F.3d at 1388 (citation and quotation marks
omitted).
50 Tavora, 101 F.3d at 908; Willingham, 507 F.2d at 1091.
51 We can envision a different set of circumstances,
however, in which an employers grooming or appearance-based
policies could give rise to a claim of sex discrimination. An
airlines policy of hiring only attractive female flight
attendants provides one such example. See Wilson v. Southwest
Airlines Co., 517 F. Supp. 292 (N.D. Tex. 1981). The Northern
District of Texas rejected Southwest Airliness defense that it
may discriminate against males because its attractive female
flight attendants and ticket agents personify the airlines
[image]. Id. at 293, 304. See also Diaz v. Pan Am. World
Airways, Inc., 442 F.2d 385, 387-88 (5th Cir. 1971).
52 Because we hold that all of the foregoing claims are
not viable, we need not discuss the matters of class
certification, the supplemental affidavit, and the supplements to
the record because they were all based on these claims and are
now mooted.
53 Valdez Fisheries Dev. Assn, Inc. v. Alyeska Pipeline
Serv. Co., 45 P.3d 657, 671 (Alaska 2002).
54 Thompsons Estate v. Mercedes-Benz, Inc., 514 P.2d 1269,
1271 (Alaska 1973).
55 3 James Wm. Moore, Federal Practice 15.14[1] (3d ed.
2003).
56 371 U.S. 178, 182 (1962).
57 Betz v. Chena Hot Springs Group, 742 P.2d 1346, 1348
(Alaska 1987) (citing Foman, 371 U.S. at 182).
58 Thompsons Estate, 514 P.2d at 1271.
59 Betz, 742 P.2d at 1348.
60 Kittredge Sports Co. v. Superior Court, 261 Cal. Rptr.
857, 859-60 (Cal. App. 1989) (citing Higgins v. Del Faro, 176
Cal. Rptr. 704 (Cal. App. 1981)); see also Smith v. Costa Lines,
Inc., 97 F.R.D. 451, 453 (N.D. Cal. 1983) (holding that it may be
held an abuse of discretion for the court to deny leave unless
there is a demonstrable showing of prejudice to an opposing
party); Karn v. Coldwell Banker Residential Real Estate, Inc.,
705 So. 2d 680, 680-81 (Fla. Dist. App. 1998) (holding that the
trial court abused its discretion when it failed to grant leave
to the moving party to amend their complaint before final summary
judgment was entered).
61 3 Moore, supra note 55, at 15.14[1].
62 Betz, 742 P.2d at 1350.
63 Id. at 1349.
64 Id.
65 See also Bamm, Inc. v. GAF Corp., 651 F.2d 389, 391-92
(5th Cir. 1981) (The trial court abused its discretion in denying
a motion to amend after it had retained the motion under
advisement for nearly five months before denying it. Much of the
delay is attributable to the time spent in considering the
motion.).
66 Betz, 742 P.2d at 1350.
67 Gamble v. Northstore Pship, 907 P.2d 477, 484 (Alaska
1995) (quoting Wright v. Vickaryous, 598 P.2d 490, 496 (Alaska
1979)).
68 371 U.S. at 182.
69 Haroldsen, 901 P.2d at 429.
70 Stark v. Circle K Corp., 751 P.2d 162,167 (Mont. 1988)
(citation omitted).
71 Id. at 167.
72 641 F. Supp. 1015 (D.N.D. 1986).
73 Id. at 1022-23.
74 In Luedtke, we recognized that violation by an employer
of a public policy, including the policy supporting the
protection of employee privacy, can constitute a breach of the
implied covenant of good faith and fair dealing. Luedtke, 768
P.2d at 1130. In Luedtke, the discharge of employees who refused
to submit to urinalysis did not constitute a breach of the
implied covenant because the policy supporting employee privacy
was outweighed by the policy supporting employee safety. Id. It
is premature to determine that Millers claim that his termination
for refusal to cut his hair breached the implied covenant is
without merit.
Millers motion to amend his complaint also included a
stand-alone claim of invasion of his common law right to privacy.
In Luedtke, we held that former employees who refused to take a
drug test had no cause of action for invasion of privacy against
their employer because the intrusion was prevented from taking
place. Luedtke, 768 P.2d at 1138. Because Miller refused to cut
his hair, no intrusion took place. Thus, his stand-alone
invasion of privacy claim is futile.
75 In light of our reversal of the trial courts grant of
summary judgment, all attorneys fees awarded by the trial court
are vacated.