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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Mahan v. Arctic Catering, Inc. (04/21/2006) sp-6002
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
| BONITA MAHAN, | ) |
| ) Supreme Court No. S- 11184 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-02-5536 CI | |
| v. | ) |
| ) | |
| ARCTIC CATERING, INC., | ) O P I N I O N |
| RICARDO GOBALEZA, AND | ) |
| TODD HARRIS, | ) No. 6002 - April 21, 2006 |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the
Superior Court of the State of Alaska, Third
Judicial District, Anchorage, John E. Reese,
Judge.
Appearances: Hugh W. Fleischer, Law
Offices of Hugh W. Fleischer, Anchorage, for
Appellant. Laura L. Farley, Farley & Graves,
P.C., Anchorage, for Appellees.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
BRYNER, Chief Justice.
FABE, Justice, with whom CARPENETI, Justice,
joins, dissenting.
I. INTRODUCTION
Bonita Mahan worked for Arctic Catering on two
occasions: once in 1999 and again in 2000. Mahan claims that
during her first period of work, two of her supervisors sexually
harassed her. During her second period of work, in 2000, Mahan
was fired after working only ten days. Nearly two years later
Mahan sued Arctic, claiming sexual harassment and wrongful
termination. The superior court granted Arctic summary judgment,
dismissing Mahans claims for sexual harassment because they were
time-barred, and dismissing her wrongful termination claim
because it was unsupported. Mahan appeals, challenging these
rulings. We affirm, holding that Mahan presented no evidence of
harassment occurring within the statutory time limit and failed
to raise any genuine issues of material fact supporting her claim
for wrongful termination.
II. FACTS AND PROCEEDINGS
Bonita Mahan worked as an at-will employee for Arctic
Catering on two separate occasions. She first worked as a
housekeeper at the Badami camp on the North Slope from January
25, 1999, until March 11, 1999. Mahans supervisors there were
Doug Schneider and Ricardo Gobaleza. While she was at Badami,
Mahan claims, Gobaleza made several sexual comments to her; she
consistently rejected his sexual advances. Mahan alleges that
she complained about Gobaleza to Todd Harris, Arctics operations
manager, but Harris reacted by joining in the harassment. Mahan
quit her job with Arctic on March 11, 1999, because of a rash
that she suffered after her skin reacted to laundry soap and
because the person she was filling in for returned to work.
Arctic rehired Mahan the following year, and she began
work at the Alpine camp on March 5, 2000. On March 16, 2000,
Mahans supervisor, Scott Laney, fired her, stating that she could
not perform necessary duties of her position.
On March 14, 2002, Mahan filed a complaint in the
superior court against Arctic, Gobaleza, and Harris for sexual
harassment and wrongful termination.1 Arctic moved for summary
judgment, asserting that Mahans claim for sexual harassment was
barred by the statute of limitations. Arctic further asserted
that Mahan failed to present any evidence to support her claim
for wrongful termination. The superior court dismissed Mahans
sexual harassment claim as untimely, finding that a sexual
harassment claim must be brought within two years of the
harassments occurrence and that Mahan had alleged no act of
harassment occurring less than two years before March 14, 2002
the date she filed her complaint. The court also dismissed
Mahans wrongful termination claim, finding that she had failed to
present any evidence tending to show that Arctic terminated her
for improper or pretextual reasons.
Mahan appeals.
III. DISCUSSION
A. Standard of Review
A trial court may grant a motion for summary judgment
when there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law.2 We review de
novo a trial courts order granting summary judgment,3 viewing all
reasonable inferences in the light most favorable to the non-
moving party4 and considering affidavits, depositions,
admissions, answers to interrogatories and similar material to
determine . . . whether there are any . . . triable genuine
issues of material fact.5
B. Sexual Harassment Claim
Alaska law prohibits an employer from discriminating
against a person because of the persons sex.6 We have held that
this law prohibits sexual harassment against employees.7 Alaska
Statute 09.10.070 requires that claims for sexual harassment be
brought within two years of the wrongful conducts occurrence.8
The two-year limit starts when a party knows or should have known
of a claim usually the date that the alleged incident occurs.9
Mahan filed her claim on March 14, 2002. Barring some basis for
extending the statutory period, then, her sexual harassment claim
would be limited to acts occurring within the two years preceding
this filing date.
Mahan testified in her deposition that almost all the
incidents of sexual harassment occurred at Arctics Badami camp
during her first period of employment between January 25 and
March 11, 1999. She stated that Richard Gobaleza first made
sexual comments to her soon after he began working as her
supervisor at Badami in February 1999. Mahan claimed that she
eventually told Todd Harris, Arctics operations manager, about
Gobalezas comments, but [he] seemed like he didnt care.
According to Mahan, Harris began making sexual comments to her as
well, and the harassment by both men continued until Mahan left
Badami on March 11. Because this alleged harassment all occurred
more than two years before Mahan filed her complaint, her sexual
harassment claim was time-barred to the extent that it was based
on the Badami camp incidents.
Mahan did describe one incident of possible sexual
harassment by Gobaleza that occurred at Alpine camp during her
second period of employment. She testified at her deposition
that when Gobaleza first saw her at Arctic, he hugged her and
asked how she was doing. When asked at the deposition if she
thought this conduct was inappropriate, Mahan initially insisted
that she was unable to respond, saying, I dont know how to answer
that question, I dont know, and I cant answer. She then added, I
guess, when he rubbed his hand down by my bra strap, when he went
to give a hug, thats inappropriate; if he was just giving me a
hug, thats not. In a supplemental affidavit filed two months
after her deposition, Mahan specified that this incident occurred
at least seven days prior to March 16, 2000 that is, sometime
before March 9, 2000.
In responding to a written interrogatory before
testifying at her deposition, Mahan also had claimed to remember
a sexually harassing remark that Harris made to her one morning
at Alpine camp; but she could not pin this incident to any
specific date. Later, at her deposition, Mahan did not mention
this incident and recalled only one episode of possible sexual
harassment at Alpine: Gobalezas hug. Although Mahan testified
that she remembered seeing Harris at Alpine camp the day she was
fired and that she thought he had been there earlier as well, she
acknowledged: But I cant remember how many days or anything.
When asked if Harris said or did anything at Arctic that she
considered harassment, Mahan replied, I cant remember right now.
Whatever I had put on the paperwork, thats what it was. In
testifying about the difficulties at Alpine that led up to her
termination, Mahan did not claim that any new acts of harassment
at Alpine contributed to her firing; to the contrary, she
specifically attributed her firing to the harassment she had
experienced the year before at Badami: I was terminated because
of what happened in the past, at Badami. . . . Because I was
sexually harassed by Todd Harris and by Ricardo. And I guess
they it reminded them of it every time theyd see me anyplace
else. Although Mahans post-deposition affidavit specified that
Gobalezas hug occurred before March 9, 2000, the affidavit
omitted any mention of her pre-deposition claim that Harris had
made a sexually harassing comment to her at Alpine.
Even construing the totality of this evidence in Mahans
favor for summary judgment purposes, we find no substantial
evidence of any incident of sexual harassment occurring within
the two-year period before March 14, 2002, the date Mahan filed
her complaint. By Mahans own account, the Gobaleza hug occurred
sometime before March 9, 2000 several days outside the two-year
statutory limit. Mahans initial interrogatory responses included
an additional claim that Harris made a sexually harassing remark
to her at Alpine. But Mahan acknowledged that this remark
occurred on some date unknown. At her subsequent deposition,
Mahan could not recall this allegation and she provided no
further information about it in her supplemental affidavit.
Given these circumstances, we think that it would be sheer
speculation to assume that Harriss alleged comment at Alpine
occurred sometime within the three-day span between March 14,
2000 (the outside limit of the statutory filing period), and
Mahans termination on March 16, 2000.
In fact, Mahan does not seriously contest this point.
She insists instead that because her case involves a continuous
course of severe and pervasive sexual harassment, the continuing
violations doctrine resurrects her claim. Under this doctrine,
certain patterns of ongoing discriminatory conduct can preserve a
sexual harassment claim that might otherwise be time-barred.10 To
benefit from this theory, though, a plaintiff must first
demonstrate that some discriminatory act occurred within the
limitations period. The plaintiff must then show that the timely
filed claim based upon this act within the limitation period is
closely related to the otherwise time-barred claims.11 Upon
making this showing, the plaintiff can use evidence of earlier
events to prove the defendants liability for the acts within the
statutory period.12
But here, as we have already mentioned above, Mahan has
failed to show any acts of sexual harassment occurring within two
years of her complaint. And the only evidence of other
discriminatory acts she offers is the evidence she relies on to
support her wrongful termination claim. Because Mahans sexual
harassment claim ultimately depends on the same evidence as her
claim for retaliatory discharge, we turn to the discharge claim.13
C. Wrongful Termination Claim
Mahans complaint separately advanced a claim against
Arctic for wrongful termination, alleging that the company
violated the Alaska Human Rights Act14 by firing her on March 16,
2000, in retaliation for opposing Gobalezas and Harriss earlier
acts of sexual harassment. In considering retaliatory discharge
claims under the Act, we apply the distinction between pretext
and mixed motive cases that federal courts use in enforcing the
federal Civil Rights Act.15 Although Mahan advances her
retaliatory discharge claim primarily as a pretext case, we will
consider her claim under both theories.
In a pretext case, we apply the same three-part
framework used under federal law.16 First, the plaintiff must
establish a prima facie case for retaliatory discharge. To meet
this standard, Mahan would need to show that (1) she engaged in
[a protected activity]; (2) her employer subjected her to adverse
employment action; [and] (3) there was a causal link between the
protected activity and the employers action. Causation
sufficient to establish a prima facie case of unlawful
retaliation may be inferred from the proximity in time between
the protected action and the allegedly retaliatory discharge.17
Once the plaintiff establishes a prima facie case, the burden in
a pretext case shifts to the employer to show a legitimate, non-
retaliatory reason for the discharge.18 To do so, the employer
must produce admissible evidence that would allow a trier of fact
to conclude that the employers decision was not motivated by
discriminatory animus.19 If the employer offers evidence that
rebuts the employees prima facie case, the burden of proof shifts
back to the employee to show that the employers explanation is a
pretext for retaliation.20
Here, Mahan contends that her evidence established a
prima facie case of retaliatory discharge. She maintains that
her evidence showed that she engaged in protected activity by
refusing Harriss and Gobalezas sexual advances, and that Arctic
fired her for engaging in this protected activity. More
particularly, Mahan asserted at her deposition that her
supervisors at Arctic set her up to be fired by forcing her to
work harder than other workers and assigning her to do unpleasant
jobs: Its just the way I was treated. Whenever they looked at
me, I was they piled extra work on my shoulders every time,
extra stuff, that the other housekeepers didnt have to do. Mahan
theorized that she was treated this way, and was ultimately
fired, because of the sexual harassment that had occurred during
her first period of employment: I was terminated because of what
happened in the past, at Badami.
Arctic responds that no genuine issue of material fact
exists on the issue of pretext, because there was uncontroverted
evidence showing that Arctic had legitimate reasons to terminate
Mahans employment and because Mahan failed to produce any
evidence tending to show that these reasons were a pretext.
Specifically, Arctic points to record evidence demonstrating that
Mahan was unable to perform her work because she continually
broke out in a rash when she handled laundry. Arctic also points
to undisputed evidence that Mahan received verbal reprimands for
fighting with other workers. According to Arctic, this evidence
gave Mahan the burden of offering proof that her firing was
actually a pretext a burden that, in Arctics view, Mahan failed
to carry.
Arctics argument is persuasive. As an initial matter,
we note that Mahans own testimony leaves little dispute as to the
existence of facially legitimate, non-retaliatory reasons for her
termination. Mahan herself acknowledged that she had developed a
rash on her arms that precluded her from doing the work she had
been told to do in the laundry. She further acknowledged having
problems meeting her supervisors demands I had five bosses that
[were] trying to tell me what to do, and . . . just I couldnt
handle it. And she admitted that during her short tenure at
Alpine camp she received two verbal reprimands for fighting with
other workers.
Because Arctic supported its summary judgment motion
with ample evidence of legitimate, non-discriminatory reasons for
Mahans discharge, Mahan had the burden of producing admissible
evidence sufficient to raise a genuine issue of fact supporting
her theory that these reasons were merely a pretext.21 Mahans
burden required her to offer something more than unsupported
assumptions and speculation.22 In French v. Jadon, Inc., for
example, we held that summary judgment was appropriate when an
employer produced evidence showing that it fired its employee
because she was unreliable, and the employee responded by
presenting nothing more than her own subjective belief that the
employers asserted ground for her firing was merely a pretext.23
Here, as in French, the claim of pretext is based on
nothing more than the claimants unsupported assumptions and
speculation.24 Relying on her deposition testimony, Mahan asserts
that Arctic gave her extra work and then used her inability to
handle the workload as a pretext to fire her: Arctics actual
motive, Mahan insists, was to get back at her for refusing to
have sex with Gobaleza and Harris in 1999. But while Mahan
offered her subjective opinion that she had been treated
unfairly, she presented no solid evidence to show that she
actually received unusually burdensome and unequal work. Mahan
testified that her supervisors piled work on [her] shoulders; and
she expressed the conclusory view that she had not been hired to
do the work she was given. But she provided no factual details to
flesh out these bare allegations; she described no concrete
examples of conduct by Arctic to substantiate her perception that
she received more work than other housekeepers; and she presented
no other factual information tending to show that other
housekeepers got better treatment.
More important, Mahan offered nothing but her own
subjective, after-the-fact impressions to establish the link that
she assumed must have existed between her extra workload and the
prior sexual harassment. At her deposition, Mahan gave no
testimony suggesting a close temporal or other logical link
between her firing in March 2000 and the protected conduct that
she herself claimed to be the cause of Arctics retaliation her
resistence to Gobalezas and Harriss sexual advances the year
before at Badami. She insisted that she believe[d] that what
happened in Badami had a lot to do with her firing; and she said
that she guess[ed] that her presence at Alpine must have reminded
Gobaleza and Harris of what had happened a year before at Badami.
Yet when pressed to say why she believed this, Mahan simply
responded, Because I just do. When asked how the supervisors who
actually fired her at Alpine knew of the sexual harassment that
occurred the previous year at Badami, Mahan replied, Apparently,
[Harris and Gobaleza] must have talked to them. I dont know. At
the same time, Mahan readily acknowledged, Maybe Im wrong.
Although Mahan did describe one specific incident in
2000 that she apparently viewed as sexually harassing the
incident in which Gobaleza greeted her with a hug upon first
seeing her back on the job at Alpine she did not claim that this
incident prompted her to take any action that could reasonably be
construed as protected conduct conduct such as resisting
Gobalezas efforts to hug her or reporting his actions to her
supervisors. Absent some evidence that Gobalezas hug prompted
Mahan to engage in protected conduct, the temporal connection
between this recent act of sexual harassment and her ensuing
firing would not alone provide a logical basis to suggest that
her firing was a retaliatory measure: [C]ausation sufficient to
establish a prima facie case of unlawful retaliation may be
inferred from the proximity in time between the protected
activity and the allegedly retaliatory discharge.25 According to
Mahans evidence, her most recent protected conduct allegedly
occurred at Badami, a full year before she was fired.
On this record, we conclude that the superior court
properly granted summary judgment to Arctic on Mahans claim of
pretextual discharge because, in response to uncontroverted
evidence of Arctics legitimate reasons to fire her, Mahan failed
to offer anything more than unsupported assumptions and
speculation to establish her theory of pretext.26
Mahans failure to meet her burden under the pretext
framework does not necessarily defeat her retaliatory discharge
claim, since she could conceivably still prevail on a mixed-
motive theory by showing that, even if Arctics legitimate reasons
were not completely pretextual, its actions were nonetheless
substantially motivated by a desire for retaliation. Yet under
the facts presented here Mahans claim fares no better as a mixed-
motive case than it does under a pretext theory. Under federal
case law, mixed-motive cases require the plaintiff to clear[] the
initial hurdle of presenting direct evidence of discriminatory
intent.27 In Kinzel v. Discovery Drilling, we declined to
strictly apply the federal direct evidence requirement; yet we
nonetheless held that a plaintiff in a mixed-motive case must at
least offer either direct evidence of prohibited motivation or
circumstantial evidence strong enough to be functionally
equivalent to direct proof.28
To meet this burden, the plaintiff in a mixed-motive
case must present evidence of conduct or statements by persons
involved in the decisionmaking process that may be viewed as
directly reflecting on the discriminatory attitude.29 If that
evidence is sufficient to permit the factfinder to infer that
[the discrimination] was more likely than not a motivating factor
in the employers decision, then the plaintiff may recover unless
the employer [can] establish[] by a preponderance of the evidence
that [it] would have taken the same action without consideration
of the impermissible [discrimination.]30 In a mixed-motive case,
then, the claimant must go beyond establishing the existence of a
potential retaliatory motive by adducing strong evidence
evidence akin to direct proof that tends to establish the
improper motives substantial contributing role.
Here, as our discussion of Mahans pretext theory shows,
Mahan offered neither direct nor strong circumstantial evidence
suggesting that Arctic actually fired her for retaliatory
reasons. At most, she presented a theory of retaliation based on
subjective belief and an attenuated circumstantial chain of
events. She insisted that she was fired from her job at Alpine
camp in March 2000 for engaging in protected conduct that
occurred the year before at Badami camp, yet she identified no
specific conduct or statements by persons involved in the
decisionmaking process31 to support her contention. As already
noted, she offered only her own subjective belief: When asked
whether Arctic fired her because of her refusal to have sex with
Harris and Gobaleza at the Badami camp in 1999, Mahan responded,
I believe it had a lot to do with it; maybe Im wrong, but I
believe it did.
We see no arguable basis on this record for concluding
that Mahans beliefs concerning Arctics retaliatory animus
amounted to sufficiently strong circumstantial evidence to raise
a genuine dispute of material fact under Kinzels standard for a
mixed-motive claim.
IV. CONCLUSION
We thus AFFIRM the superior courts order granting
summary judgment to Arctic.
FABE, Justice, with whom CARPENETI, Justice, joins, dissenting.
I disagree with the courts conclusions that Mahan has
failed to raise a genuine issue of material fact on her claim of
wrongful termination and that her hostile work environment claim
is time-barred. As the court correctly notes, all inferences
must be drawn in favor of Mahan, as the non-moving party.1 Yet
the courts decision credits Arctics version of the facts and its
argument that Mahans termination stemmed from her failure to
perform her work because she continually broke out in a rash when
she handled laundry.2 If Mahans deposition testimony and her
responses to interrogatories are viewed in the light most
favorable to her, one must conclude that she has raised a genuine
issue of material fact on the question whether her termination
was retaliatory. Viewed in the light most favorable to Mahan,
the evidence suggests that her supervisors assigned her tasks in
the laundry room with the knowledge that these were outside her
normal duties and that she was allergic to laundry soap in order
to punish her, and that this retaliatory conduct led to her
termination. Furthermore, Mahan has made a convincing argument
that her otherwise untimely hostile environment claim has been
revived by her termination under the continuing violations
doctrine. I would therefore reverse the superior courts grant of
summary judgment and permit Mahan to proceed on both her wrongful
termination and hostile environment claims.
I. The Evidence Presented by Mahan Raises a Genuine Issue of
Material Fact.
Mahans argument is that both Harris and Gobaleza
sexually harassed her while she was at Badami. According to
Mahans responses to interrogatories, Gobaleza would come into the
restroom when Mahan was cleaning and use the urinal in front of
her. Both Gobaleza and Harris came into her room at night to the
point where [she] had to prop a chair against the door, because
[she] wasnt getting enough rest at night. Each man asked Mahan
to have sex with him and when Mahans supervisor, Doug Schneider,
observed Gobalezas conduct, he said thats considered sexual
harassment and told Gobaleza to leave Mahan alone. Schneider
told Mahan she was a good employee, the best one they had.
When Mahan was rehired to work for Arctic at the Alpine
camp, she claims that Gobaleza continued the harassment and
rubbed his hand down by [her] bra strap, when he went to give a
hug. Mahan also believed that at Alpine, Harris evidenced
residual resentment of her action in reporting him for the sexual
harassment at Badami. According to Mahans deposition testimony,
submitted in support of her opposition to the motion for summary
judgment, when Harris arrived at Alpine, he piled work on
[Mahans] shoulders every time, extra stuff, that the other
housekeepers didnt have to do.
Mahan also testified that at Alpine, she wasnt assigned
to do laundry; [she] was assigned to do the bedrooms and the
bathrooms and stuff. She insisted that she was supposed to make
beds, do bathrooms, and only the laundry that was in the
bedrooms. . . . Not work . . . in the laundry room. She
maintained: I did the duties of [the] position I was hired for.
I was not hired to work in the laundry room. She claims that she
wasnt treated like the other housekeepers, and was given a
tremendous amount of extra work by Harris. She also claims that
Harris was [at Alpine] the day [she] was fired from [her] job up
there.
Thus, the courts assertion that there are facially
legitimate, non-retaliatory reasons for her termination because
the rash on Mahans arms precluded her from doing the work she had
been told to do in the laundry3 does not give Mahan the benefit
of her testimony that she was not assigned to work in the laundry
and that she was being given inappropriate duties by Harris due
to her protected activity of resisting his sexual advances.
Moreover, although Arctic offered evidence that it fired Mahan
due to her inability to perform laundry duties, Mahans evidence
that she was not hired to do laundry and that she was given extra
duties as retaliation for her earlier claims of harassment were
more than unsupported assumptions and speculation. 4
Finally, although the court concludes that there is no
strong chronological connection between Mahans firing in March
2000 and the protected conduct in 1999 of resisting the sexual
advances of Gobaleza and Harris at Badami, Mahan stated that
sexual harassment occurred at Alpine as well as Badami. In her
answers to interrogatories, she stated that Mr. Harris asked Ms.
Mahan to have sex with him at Alpine and Badami on repeated
occasions during her tenure. (Emphasis added.) She also
responded that Harris made the following comment to me at
Alpine[:] You sure have a cute ass. I wish I could have a piece
of that. She claimed that Gobaleza inappropriately rubbed his
hand down her bra strap when he gave her a hug at Alpine. Her
claim of sexual harassment at Alpine thus establishes a
chronological connection between her firing and the protected
conduct.
II. This Case Is Distinguishable from French v. Jadon, Inc.
The court relies on French v. Jadon, Inc.5 for the
proposition that Mahan must offer more than her own subjective
impressions to establish a link between the alleged sexual
harassment and her subsequent firing. But Mahans case is
distinguishable from French because, unlike the plaintiff in
French, Mahan points to specific instances of sexual advances at
both camps, and she asserts that one of her alleged harassers was
among those who assigned her extra work at Alpine.6 As noted
above, Mahan alleges in her affidavit that Gobaleza and Harris
made sexual advances toward her at both camps, that Harris
assigned her a tremendous amount of extra work at Alpine, and
that Harris was [at Alpine] the day [she] was fired from [her]
job up there. Whether this evidence would ultimately persuade a
jury is unclear, but it certainly amounts to more than just
Mahans own subjective impressions.
III. The High Evidentiary Threshold that the Court Applies Here
Is Inconsistent with Recent Case Law.
Our many decisions on the standard for summary judgment
prevent us from weighing the evidence relied on by a non-moving
party in opposition to summary judgment.7 Thus, our role at this
stage is not to decide whether Mahan has a strong case for
retaliatory discharge; it is merely to decide if she has raised a
genuine issue of material fact. As we have held repeatedly, the
evidentiary threshold necessary to preclude an entry of summary
judgment is low.8
Two recent decisions, neither of which the court
attempts to distinguish, indicate just how low. In Cikan v. ARCO
Alaska, Inc., this court reversed a superior courts grant of
summary judgment to the defendant in a slip-and-fall action
brought eight and a half years after the alleged injury.9 The
court held that there was a genuine issue of material fact as to
whether the plaintiff had been rendered incompetent by the
accident, thereby tolling the statute of limitations.10 But the
evidence of Cikans mental incompetence during the two-year
statute of limitations11 was far less substantial than Mahans
evidence in the present case. Cikans medical expert did not
state that [she] was mentally incompetent or incapable of
understanding her legal rights from the date of injury . . .
until the running of the statute [two years later];12 the
testimony of lay witnesses relied upon by the court focused on
Cikans incompetency after the expiration of the statute of
limitations (rather than during the time that she should have
been filing a lawsuit);13 and one of these witnesses testified
that Cikan appeared to have her life together six months after
the accident.14 Nevertheless, the court held that the evidence
raised a genuine issue of material fact.
And in Meyer v. State, Department of Revenue, Child
Support Enforcement Division ex rel. N.G.T.,15 the court held
that a putative fathers sworn denial that he engaged in sexual
intercourse with the childs mother at the time of conception was
sufficient to preclude the entry of summary judgment in a child
support action, even though the record included a genetic test
indicating a 99.98% probability that he was the father.16 The
sworn denial, which was the only evidence presented against
paternity, was not even unequivocal: Meyer admitted that he was
unable to recall the precise dates, times of day, locations and
circumstances surrounding each [sexual] contact that [he] . . .
had with [the childs mother].17 The Meyer court recognized the
significant statistical odds suggesting Meyers paternity, but
held that Meyers denial is sufficient to create a genuine factual
issue despite the scientific evidence. Given the low threshold
necessary to preclude entry of summary judgment set by this court
in Cikan and Meyer, Mahans stronger evidentiary showing is
certainly sufficient to defeat Arctic Caterings motion for
summary judgment.
IV. Departing from Our Prior Cases To Set a Higher Threshold Is
Likely To Discourage Meritorious Discrimination Claims.
By failing to apply consistently our summary judgment
standard, the court not only creates a conflict with existing
case law, but also sets a precedent that could deter meritorious
claims in the future. Discrimination cases, including claims of
harassment and wrongful termination, often turn on subtle
questions of credibility and intent that only a factfinder faced
with a live witness should decide.18 The evidence in these
cases, which may consist primarily of the testimony of the
alleged victim and the alleged perpetrator, is likely to contain
conflicting claims, and is likely to be susceptible to different
interpretations, depending on which inferences the factfinder
draws. For this reason, discrimination claims including claims
that might prevail if allowed to proceed are particularly
vulnerable to summary judgment if courts improperly weigh the
credibility of evidence, fail to draw reasonable inferences in
favor of the non-moving party, or decide outright the ultimate
questions of fact. As several scholars have noted, this makes it
significantly more difficult for victims of discrimination to
seek redress, even when the law grants them a cause of action.19
Thus, by deterring meritorious discrimination claims, the courts
departure from precedent is likely to have pernicious effects
that go far beyond this particular case.
V. Mahans Hostile Environment Claim Should Be Permitted To
Proceed.
Because Mahan has brought forth sufficient evidence to
prevent summary judgment on her claim of retaliatory discharge,
she should also be permitted to proceed with her hostile
environment claim. We have held that certain patterns of
discriminatory acts against the same employee can preserve a
claim as timely that might otherwise be barred by the statute of
limitations.20 As the court correctly notes, a plaintiff seeking
to preserve otherwise-barred claims must first demonstrate that
some discriminatory act occurred within the limitations period
[and] . . . must then show that the timely filed claim based
upon this act within the limitation period is closely related to
the otherwise time-barred claims.21 To determine whether the
claims are sufficiently related, we look to three primary
characteristics of the violations: subject matter, temporal
proximity, and permanence,22 with permanence being the most
important of the three.23 A permanent violation triggers a
reasonable persons awareness of the alleged discrimination and
the need to assert [his or] her rights.24
Federal case law, although not entirely clear on this
point, does not appear to preclude a claim of retaliatory
termination from reviving a hostile environment claim.25 Because
Mahan does allege a hostile environment, the court should apply
the three factors for determining whether the continuing
violations doctrine revives her sexual harassment claims.26 If
Mahan was given work that she was physically unable to do in
retaliation for her complaints about sexual harassment, as the
evidence suggests, her termination for inability to do that work
is clearly related to the previous incidents of sexual
harassment. Similarly, given the evidence that sexual harassment
occurred at the second camp as well as the first, which implies
that the alleged harassment happened within days of her
termination, the harassment and termination were proximate in
time. Finally, her termination was permanent, in that it would
trigger[] a reasonable persons awareness of the alleged
discrimination and [of] the need to assert [his or] her rights.27
I therefore believe that, based on the evidence that Mahan has
presented, she should be permitted to proceed with her hostile
environment claim as well as her wrongful termination claim.
VI. Conclusion
In sum, Mahan has unequivocally alleged harassment and
wrongful retaliation, and has presented evidence that easily
surmounts the low threshold required to withstand a motion for
summary judgment. Affirming the grant of summary judgment in
this case is a departure from our recent precedents. And the
courts decision today is likely to deter meritorious civil rights
actions in the future. Furthermore, because Mahan has made a
showing of a discriminatory act within the statute of limitations
that is closely related to the acts underlying her hostile
environment claim, she should be permitted to proceed with her
hostile environment claim as well. I therefore respectfully
dissent.
_______________________________
1 Mahans complaint also included claims for defamation
and intentional infliction of emotional distress. Mahan later
withdrew her defamation claim. Because Mahans IIED claim relies
on her claim for sexual harassment, we need not discuss it
separately here.
2 In re Estate of Evans, 901 P.2d 1138, 1140 (Alaska
1995).
3 Tongass Sport Fishing Assn v. State, 866 P.2d 1314,
1317 n.7 (Alaska 1994).
4 R.E. v. State, 878 P.2d 1341, 1345 (Alaska 1994).
5 French v. Jadon, Inc., 911 P.2d 20, 24 (Alaska 1996)
(internal citations omitted) (citing Broderick v. Kings Way
Assembly of God Church, 808 P.2d 1211, 1215 (Alaska 1991)).
6 AS 18.80.220(a)(1) provides that it is unlawful for:
an employer to refuse employment to a person,
or to bar a person from employment, or to
discriminate against a person in compensation
or in a term, condition, or privilege of
employment because of the persons race,
religion, color, or national origin, or
because of the persons age, physical or
mental disability, sex, marital status,
changes in marital status, pregnancy, or
parenthood when the reasonable demands of the
position do not require distinction on the
basis of age, physical or mental disability,
sex, marital status, changes in marital
status, pregnancy, or parenthood.
7 See French, 911 P.2d at 28.
8 The relevant portion of AS 09.10.070 provides in part:
(a) Except as otherwise provided by law, a
person may not bring an action . . .
(5) upon a liability created by
statute, other than a penalty or forfeiture;
unless the action is commenced within two
years of the accrual of the cause of action.
(Emphasis added.)
9 Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1249 (Alaska
2001).
10 Sengupta, 21 P.3d at 1249.
11 Id.
12 Reich v. Cominco Alaska, Inc., 56 P.3d 18, 26 (Alaska
2002).
13 Because we conclude in Part III.C below that Mahan
presented insufficient evidence to support her retaliatory
discharge claim, we need not address the dissents suggestion that
Mahans wrongful termination might have revived her time-barred
sexual harassment claim. See Dissent at 23-25. We note only
that Mahan has not raised or meaningfully argued this point on
appeal.
14 Specifically, AS 18.80.220(a)(4) makes it unlawful for
an employer to discharge, expel, or otherwise discriminate
against a person because the person has opposed any practices
forbidden under AS 18.80.200-18.80.280 [the Alaska Human Rights
Act].
15 Era Aviation, Inc. v. Lindfors, 17 P.3d 40, 43 (Alaska
2000).
16 See VECO, Inc. v. Rosebrock, 970 P.2d 906, 918 (Alaska
1999) (stating that the three-part framework used in Title VII
cases has been adopted for discrimination claims as well as
retaliatory discharge claims).
17 Id. at 919.
18 Id.; see also Lincoln v. Interior Regl Hous. Auth., 30
P.3d 582, 586 (Alaska 2001).
19 Kinzel v. Discovery Drilling, 93 P.3d 427, 433 (Alaska
2004) (quoting VECO, Inc., 970 P.2d at 919).
20 Lincoln, 30 P.3d at 586-87.
21 McGlothlin v. Municipality of Anchorage, 991 P.2d 1273,
1277 (Alaska 1999).
22 French, 911 P.2d at 25.
23 Id.
24 Id.
25 Kinzel, 93 P.3d at 433 (emphasis added).
26 French, 911 P.2d at 25.
27 Era Aviation, 17 P.3d at 44.
28 Kinzel, 93 P.3d at 434.
29 Id. at 435 (quoting Ostrowski v. Atlantic Mut. Ins.
Cos., 968 F.2d 171, 182-83 (2d Cir. 1992) (citation omitted)).
30 Id.
31 Id.
1 See K & K Recycling, Inc. v. Alaska Gold Co., 80 P.3d
702, 711 (Alaska 2003); R.E. v. State, 878 P.2d 1341, 1345
(Alaska 1994).
2 Slip Op. at 10.
3 Slip Op. at 11.
4 Slip Op. at 11.
5 911 P.2d 20 (Alaska 1996).
6 See id. at 27, 29 & n.16 (noting that plaintiff
produced no evidence of any statement or action reasonably
permitting an inference that her employment was in fact
conditioned on dating her supervisors brother to support her quid
pro quo harassment claim and observing that plaintiff could not
point to any specific events to support her hostile work
environment claim).
7 See Cabana v. Kenai Peninsula Borough, 50 P.3d 798, 801
(Alaska 2002) (The court does not weigh the evidence or witness
credibility on summary judgment.); Alakayak v. British Columbia
Packers, Ltd., 48 P.3d 432, 449 (Alaska 2002) (same); Moffatt v.
Brown, 751 P.2d 939, 944 (Alaska 1988) (rejecting summary
judgment standard for defamation used by federal courts because
it incorporated a substantive evidentiary standard, inevitably
implicat[ing] a weighing of the evidence) (internal citations
omitted).
8 Hammond v. State, Dept of Transp. & Pub. Facilities,
107 P.3d 871, 881 (Alaska 2005) (quoting Johns Heating Serv. v.
Lamb, 46 P.3d 1024, 1032 (Alaska 2002)).
9 Cikan v. ARCO Alaska, Inc., 125 P.3d 335 (Alaska 2005).
10 Id.
11 Id. at 5 n.8 (citing AS 09.10.070 (providing that
lawsuits based on statutory causes of action must be brought
within two years)).
12 Id. at 16 (Fabe, J., dissenting).
13 Id.
14 Id.
15 994 P.2d 365 (Alaska 1999) .
16 Id. at 368.
17 Id. at 369 (Fabe, J., dissenting).
18 Ann C. McGinley, Credulous Courts and the Tortured
Trilogy: The Improper Use of Summary Judgment in Title VII and
ADEA Cases, 34 B.C. L. Rev. 203, 208 (1993).
19 See, e.g., M. Isabel Medina, A Matter of Fact: Hostile
Environments and Summary Judgments, 8 S. Cal. Rev. L. & Womens
Stud. 311, 357-71 (1999) (arguing that the practice of deciding
certain factual questions, such as whether the plaintiff
experienced a hostile work environment, at the summary judgment
stage makes it unnecessarily difficult for plaintiffs to bring
sexual harassment claims); Ann C. McGinley, supra note 18, at 241-
42 (noting that many courts approaching a summary judgment motion
in a civil rights case . . . require a plaintiff to prove that
[he or] she was discriminated against, which effectively shift[s]
the burden of proof on a motion for summary judgment from the
moving party to the plaintiff, and require[s] the plaintiff to
meet the ultimate burden of proof at the summary judgment stage);
see also Jana E. Cuellar, The Age Discrimination in Employment
Act: Handling the Element of Intent in Summary Judgment Motions,
38 Emory L. J. 523, 532-37 (1989) (noting similar problems in the
context of age discrimination actions).
20 Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1249 (Alaska
2001); see also Reich v. Cominco Alaska, Inc., 56 P.3d 18, 26
(Alaska 2002).
21 Sengupta, 21 P.3d at 1249; Slip Op. at 7-8.
22 Sengupta, 21 P.3d at 1249.
23 Id.
24 Id.
25 The United States Supreme Court has held that certain
discriminatory acts, including termination, failure to promote,
denial of transfer, or refusal to hire are [d]iscrete acts, and
that an untimely claim for a discrete act cannot be revived
through the doctrine of continuing violations. See Natl R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 114-15 (2002) (holding
that discrete discriminatory acts are not actionable under Title
VII if the statute of limitations for these acts has expired,
even if they are related to other acts that are the subject of a
timely claim). But Morgan did not hold that other claims cannot
be revived by a discrete discriminatory act, and Morgan did
conclude that the continuing violations doctrine applies to
hostile environment claims. See id. at 115-16. To the extent
that Mahan alleges a series of incidents that, taken together,
create a hostile work environment, the assertion that the
discrete act of her termination revived the original claim does
not appear to be inconsistent with the holding of Morgan.
Furthermore, at least one state court has declined to
adopt the reasoning of Morgan even as it applies to reviving
discrete acts. See Yanowitz v. LOreal USA, Inc., 116 P.3d 1123,
1141-42 (Cal. 2005) (holding that the continuing violations
doctrine can revive acts that are part of a retaliatory course of
conduct, even if such acts could not be revived under federal
law).
26 See Reich, 56 P.3d at 26 (The continuing violations
doctrine allows a plaintiff to establish the elements of a
hostile work environment claim by relying on incidents that
predate the statutory limitations period to prove that a hostile
environment continued into the limitations period.).
27 Sengupta, 21 P.3d at 1249.
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