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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sengupta v. University of Alaska (07/21/2006) sp-6026
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
| MRITUNJOY SENGUPTA, | ) |
| ) Supreme Court No. S- 11805 | |
| Appellant, | ) |
| ) Superior Court No. 4FA-03-889 CI | |
| v. | ) |
| ) O P I N I O N | |
| UNIVERSITY OF ALASKA, | ) |
| UNIVERSITY OF ALASKA | ) No. 6026 - July 21, 2006 |
| FAIRBANKS, MARSHALL LIND, | ) |
| PAUL REICHARDT, and JAMES | ) |
| PARRISH, both individually and as | ) |
| employees of the University of | ) |
| Alaska Fairbanks, and the University | ) |
| of Alaska, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Mark I. Wood, Judge.
Appearances: Mritunjoy Sengupta, pro se, Mill
Creek, Washington. Mark E. Ashburn, Ashburn
& Mason, P.C., Anchorage, for Appellees.
Before: Bryner, Chief Justice, Eastaugh,
Fabe, and Carpeneti, Justices. [Matthews,
Justice, not participating.]
EASTAUGH, Justice.
I. INTRODUCTION
Plaintiff Mritunjoy Sengupta was terminated for cause
by the University of Alaska Fairbanks in 1995. In 2002 he
unsuccessfully sought reemployment with the university. Sengupta
then sued the university and related parties (collectively the
university or UAF) for refusing to rehire him. He contended that
UAF could not base its refusal to rehire him on his previous
termination because that termination was improper for various
reasons. Sengupta also claimed that UAFs refusal to rehire him
violated the First Amendment, Title VII of the Civil Rights Act,
the Alaska Administrative Procedure Act, and university policies.
The superior court rejected all of Senguptas claims. Because
Sengupta has failed to show that: (1) retaliation for his
protected speech was a substantial motivating factor in the
universitys refusal to rehire him, (2) he exhausted his
administrative remedies under Title VII, (3) proper grounds exist
for reopening his previous lawsuit against UAF, or (4) his rights
were otherwise violated, we affirm the ruling of the superior
court in all respects.
II. FACTS AND PROCEEDINGS
On December 14, 2002 Sengupta sent to UAF Chancellor
Marshall Lind a cover letter and resume applying for a
professorship at UAFs School of Mineral Engineering (SME). On
January 23, 2003 UAF Provost Paul Reichardt sent this response to
Sengupta:
Your employment as a faculty member with the
University of Alaska Fairbanks was terminated
for cause in 1995 under circumstances that
make you ineligible for future employment
with the University. Should you choose to
apply for a position, your application will
not be considered.
This refusal to rehire is the putative basis for
Senguptas current lawsuit. But it is also the latest chapter in a
long adversarial relationship between these parties. In 1992 and
1993 Sengupta, then a tenured professor at UAFs SME, brought
three grievances against UAF regarding his salary and UAFs
failure to promote him.1 His grievances were heard by Hearing
Officer James Parrish in 1994. In ruling against Sengupta,
Hearing Officer Parrish found that Sengupta had repeatedly and
purposefully been untruthful during the grievance proceeding,
that he had submitted false documents to the hearing officer,
that he had made untruthful statements both within and without
UAF that were often designed to degrade his colleagues, and that
he had plagiarized a colleagues work.
In September 1994, about two months after Hearing
Officer Parrish resolved Senguptas grievances against him, UAF
gave Sengupta a notice of its intention to discharge him for
cause. UAF cited the findings in the grievance proceeding as
the grounds for termination. At Senguptas ensuing pretermination
hearing, Hearing Officer Julian Rice determined that collateral
estoppel prevented Sengupta from challenging the findings entered
in the grievance proceeding and that those findings demonstrated
cause for termination. The university accepted nearly all of
Hearing Officer Rices findings and terminated Sengupta for cause
in 1995. After exhausting his administrative remedies, Sengupta
appealed to the superior court.2 In August 1996 Superior Court
Judge Jay Hodges affirmed the universitys termination decision.
We dismissed Senguptas subsequent appeal as untimely.3
In early 1997 Sengupta sued UAF in superior court.4 He
alleged that UAF violated his First Amendment rights by firing
him for statements he made while he was a UAF employee.5 He also
alleged that UAF terminated him because of his race and national
origin.6 The superior court granted summary judgment to UAF on
all of Senguptas claims.7 On appeal, we affirmed the superior
courts decision.8
Sengupta filed the present lawsuit against UAF in April
2003. He alleged that UAFs refusal to rehire him in 2003
violated the First Amendment, the UAF Faculty Senate
Constitution, the Regents Policy on Evaluation of Faculty, the
Regents Grievance Policy, and the Alaska Administrative Procedure
Act. He also alleged that UAFs denial of employment was
substantially unfair.
In August 2003 the superior court judge first assigned
to the case recused herself and the case was reassigned to Judge
Mark I. Wood. Sengupta moved for Judge Woods recusal, arguing
that the judge had a conflict of interest. Sengupta
simultaneously filed a separate document entitled Plaintiffs
Challenge on the Assignment of Judge Mark [I.] Wood. The
superior court denied Senguptas recusal motion but did not
specifically address Senguptas separate Challenge.
In April 2004 the superior court granted UAFs motion
for summary judgment on all claims. The court also granted
Senguptas motion to file a third amended complaint.
Senguptas third amended complaint asserted a Title VII
Civil Rights Act claim, alleging that UAF refused to rehire him
because of his race and national origin. UAF moved for summary
judgment. On January 10, 2005 the superior court granted summary
judgment to UAF on this claim. On the same day, the superior
court denied Senguptas motion to reopen his 1997 discrimination
suit.
Sengupta now appeals the superior courts summary
judgment decisions, its denial of his motion to reopen his 1997
case, and its apparent failure to rule on his challenge to the
assignment of Judge Wood. He also argues that his 1995
termination case should be reopened.
III. DISCUSSION
A. Sengupta Failed To Demonstrate the Existence of a
Genuine Issue of Material Fact Regarding Whether UAF
Violated His First Amendment Rights.
Sengupta argues that the superior court erred by
granting summary judgment to the university on his First
Amendment claim. Sengupta contended in his 1997 lawsuit that UAF
fired him in retaliation for statements he made criticizing SME
during his tenure as a professor.9 In the present case, Sengupta
again argues that UAF fired him in retaliation for these
statements. He reasons that because the 1995 firing violated his
constitutional rights, UAF may not rely on it to refuse him new
employment. Sengupta also appears to allege separately that UAFs
2003 refusal to rehire him was directly motivated by his
criticisms of the school. UAF responds that Sengupta has failed
to establish a prima facie case of First Amendment retaliation
and that his arguments are barred by res judicata and collateral
estoppel.
Summary judgment is appropriate if there is no genuine
issue as to any material fact and the party to whom summary
judgment was granted is entitled to judgment as a matter of law.10
All reasonable inferences of fact must be drawn in favor of the
non-prevailing party (generally the non-movant).11 We review
grants of summary judgment de novo.12
The First Amendment prohibits public employers from
retaliating against employees or prospective employees for
engaging in constitutionally protected expression.13 Public
employees who suffer such retaliation may sue under 42 U.S.C.
1983.14 To establish a prima facie case of First Amendment
retaliation, a plaintiff must produce evidence showing:
(1) he was subjected to an adverse employment
action, . . . (2) he engaged in speech that
was constitutionally protected because it
touched on a matter of public concern and (3)
the protected expression was a substantial
motivating factor for the adverse action.[15]
Sengupta cannot establish a prima facie case that UAF retaliated
against him in 2003 simply by attacking his 1995 termination. To
prevail on his First Amendment claim, Sengupta must demonstrate
that the adverse employment action at issue in this case, the
universitys refusal to rehire him was substantially motivated by
his criticisms of the university.16 Sengupta cannot meet this
requirement by demonstrating that UAF officials innocently relied
upon the outcome of a prior adjudication, even if he could
demonstrate that his First Amendment rights were not protected
during the prior proceeding. Sengupta must present some evidence
that the officials who declined to rehire him in 2003 did so not
because he was terminated for cause in 1995, but because of the
statements he made criticizing the university prior to his
termination.
Although it is true that [g]enerally, a plaintiff need
only offer very little direct evidence of motivation to survive
summary judgment,17 Senguptas proffered evidence did not meet even
this limited burden.18 Affidavits by UAF Provost Paul Reichardt
and Chancellor Marshall Lind stated that Senguptas application
was rejected because of his previous termination and denied that
his application was rejected because of Senguptas prior
statements on public issues. Reichardt and Lind also both
asserted in their affidavits that they were not serving in their
current positions when Sengupta was terminated in 1995. UAFs
human resources director also stated in an affidavit that
Sengupta was ineligible for rehire because UAF had adopted a
policy in 1997 of screening out job applicants who have been
previously terminated for cause.
Sengupta has presented no evidence that UAF has not
uniformly applied the no-rehire policy.19 His contention that
this policy is not contained in UAFs faculty appointment policies
ignores the fact that those policies vest the appointment power
in the chancellor and his designees.20 Sengupta has not
identified, nor have we discovered, any provision in UAFs faculty
appointment policies, the Regents Policy, or other university
policy that prevents the chancellor from adopting a no-rehire
policy.
Sengupta relies on a memorandum by a member of the Ad
Hoc Regents Committee on the School of Mineral Engineering (the
Regents report) written shortly after his termination. He
characterizes the report as vindicating his concerns about
academic problems and other management problems. The three-page
memorandum is critical of SME in several respects, including
enrollment, retention, and what it terms the facultys woefully
low research efforts. Sengupta argues that the report permits an
inference that UAF fired him to cover up its failures. (Emphasis
omitted.) But even if the report relied on by Sengputa raised a
factual question regarding UAFs motives for firing him in 1995,21
it would not give rise to a further permissible inference that
different UAF officials retaliated against Sengupta in 2003 by
refusing to rehire him more than seven years after the 1995
report allegedly vindicated his pre-1995 criticisms.
Sengupta also argues that his qualifications and the
awards he received while employed by the university demonstrate
that he deserves appointment to SME. But UAF does not base its
refusal to rehire Sengupta on his lack of qualifications; it
argues instead that Sengupta was found to have been dishonest,
unprofessional, and disruptive. These were also grounds for his
1995 termination. Hence, Senguptas qualifications and awards are
not relevant to whether UAF retaliated against him by refusing to
rehire him.
Because none of the evidence offered by Sengupta
reasonably permits an inference that UAFs 2003 application of its
no-rehire policy was substantially motivated by the criticisms
Sengupta expressed a decade earlier, the superior court properly
granted summary judgment to UAF on this claim.22
B. Sengupta Failed To Demonstrate the Existence of a
Genuine Issue of Material Fact Regarding Whether UAF
Violated Its Own Policies.
Sengupta claims that the superior court erred in
granting summary judgment against him on his claim that UAF
refused to rehire him because he filed grievances against UAF in
1992 and 1993 seeking higher pay and a promotion. Regents Policy
04.08.040 prohibits the university from retaliating against a
grievant for good faith participation in the dispute and
grievance resolution process. Sengupta offers no evidence for
this argument beyond UAFs admitted reliance on his 1995
termination to deny him reemployment in 2003. As with Senguptas
First Amendment claim, to avoid summary judgment after the
university makes a prima facie showing that its 2003 action was
not in retaliation for filing the 1992 and 1993 grievances,
Sengupta must offer at least some evidence of a retaliatory
motive on the part of the UAF officials who failed to rehire him.23
He has not done so.
Sengupta also argues that UAF violated Regents Policy
04.04.040(A)(4) because his 2002 application did not receive
peer review. But this provision does not require peer review,
either by express command or through its requirement that
appointments be made in accordance with Regents Policy and policy
and procedures approved for each university.24 Furthermore, it
appears that no provisions in the UAF Faculty Appointment and
Evaluation Policies, the Faculty Collective Bargaining Agreement,
or the UAF Faculty Constitution require peer review of the
chancellors appointment decisions. Sengupta identifies no
specific provisions that contain a peer review requirement
pertinent to his rehire application.
Sengupta also argues that UAF cannot deny him
employment on the basis of his termination because the
appointment policies do not have any provision to consider
circumstances of termination eight years ago (in 1995) as the
exclusive basis or even as a criteri[on] to deny a new
appointment to the position as a Professor. But because the
policies provide no substantive criteria for appointments, the
lack of any specific policy dealing with the rehiring of
terminated employees cannot be interpreted as limiting the
chancellors discretion to refuse to rehire on the basis of the
prior termination.
C. UAF Was Not Required To Consider Mitigating
Circumstances in Refusing To Rehire Sengupta.
Sengupta argues that UAF could not refuse to rehire him
without considering mitigating circumstances in his termination.
He cites a federal appeals court decision that required the
district court to consider mitigating factors in determining
whether a university had cause to terminate a tenured professor.25
But because UAF was not required, either by law or its own
policies, to demonstrate cause for refusing to rehire Sengupta,
the federal case is inapposite.
D. Sengupta Failed To Exhaust His Administrative Remedies
Before Bringing His Title VII Discrimination Claim.
Sengupta argues that UAF failed to present evidence at
summary judgment that its failure to rehire Sengupta was not
based on race. We need not reach the merits of this argument
because Sengupta failed to exhaust his administrative remedies
with the Equal Employment Opportunity Commission (EEOC).
Claimants under Title VII generally may not bring civil
actions unless they have first filed a charge with the EEOC
within 180 days of the alleged discrimination.26 If the EEOC
either finds against the claimant or takes no action, it issues a
right to sue letter, permitting the claimant to bring suit
against the defendant.27
Sengupta had filed complaints with the EEOC before he
began his 1997 lawsuit and had received right to sue letters from
the EEOC in response. Sengupta explains that he did not file a
complaint with the EEOC before filing the current lawsuit because
it would [have been] futile to file another charge with the
[EEOC] on the same facts. Sengupta was sure that the [EEOC]
would issue him a fourth Right[] to Sue [letter] if he would have
filed another complaint with the [EEOC]. Sengupta alleges,
without evidentiary support, that the EEOC told him after he
filed his earlier complaints that it was unable to investigate
Senguptas charges due to lack of staff and resources.
Senguptas futility argument is unpersuasive. Although
courts have split on whether a showing of futility excuses Title
VIIs exhaustion requirement,28 we need not decide that legal
question here because Sengupta has failed to demonstrate
futility. Sengupta would infer from an alleged conversation with
the EEOC in 1997 that the EEOC in 2003 lacked the resources to
investigate his 2003 claim. Such an inference would be too
tenuous and speculative to satisfy any futility exception that
may exist in Title VII.29
E. Sengupta Cannot Reopen the Judgment in His 1995
Termination Proceeding.
Although Sengupta initially emphasizes on appeal that
he is challenging UAFs refusal to rehire him in 2003, he uses
much of his opening brief to argue that the judgment in the 1995
termination proceedings should be reopened because he has
discovered new evidence.
Per Alaska Civil Rule 60(b), a motion for relief from
judgment on the basis of newly discovered evidence or fraud must
be made not more than one year after the date of notice of the
judgment. Judge Hodges issued his decision in the pretermination
case in 1996. It is now too late for Sengupta to reopen the
termination proceeding on the basis of new evidence.30
Furthermore, the new evidence Sengupta cites is not
relevant to his 1995 termination. Sengupta spends much of his
brief discussing the Regents report. He interprets it as
vindicating his criticisms of SME, establishing the sole grounds
upon which a tenured professor could be terminated, establishing
the incompetence of his former colleagues, and establishing the
trustworthiness of student evaluations of his teaching.
On each of these counts Senguptas reading of the report
is untenable. The report discusses some enrollment and retention
problems and criticizes the faculty for lackluster research
efforts, but it does not support any of Senguptas contentions
regarding his 1995 termination.
Other new evidence cited by Sengupta as a basis for
reopening his termination case, including a Department of Labor
report, an investigative report by UAF concerning an associate
general counsel, and a civil complaint by the associate general
counsel against Senguptas first hearing officer, is also
irrelevant to the termination proceeding. Senguptas remaining
arguments for reopening his pretermination hearing are both
unpersuasive and untimely.31
F. The Superior Court Did Not Err in Denying Senguptas
Motion To Reopen His 1997 Discrimination Case.
The superior court in 2005 summarily denied Senguptas
motion to reopen his 1997 civil rights case against UAF.
Sengupta argues that the Regents report demonstrates that he was
treated differently than Caucasian and Chinese faculty members
because he was fired and they were not. Senguptas motion to
reopen the judgment resolving his previous lawsuit is barred by
the one-year time limit for reopening judgments for newly
discovered evidence.32 Furthermore, Sengupta incorrectly
interprets the Regents report as requiring that all faculty
members be fired for poor research efforts. The report
recommends a prospective policy of termination for low research
output, not a retroactive one. Senguptas new evidence is
therefore also irrelevant.
G. Sengupta Failed To Timely Raise the Superior Courts
Failure To Rule on His Peremptory Challenge.
On September 17, 2003 Sengupta filed in the superior
court a document entitled Plaintiffs Challenge on the Assignment
of Judge Mark [I.] Wood. The document simply reads, in relevant
part, Plaintiff challenges [the] assignment [of] Judge Mark [I.]
Wood. On the same day Sengupta also filed a motion seeking Judge
Woods recusal on the basis of an alleged conflict of interest.
Judge Wood denied that motion, but did not specifically address
Senguptas Challenge. Sengupta argues that the Challenge was a
peremptory challenge under Alaska Civil Rule 42(c) and that his
Challenge required Judge Wood to recuse himself under that rule.
Alaska Civil Rule 42(c) allows each party one
peremptory challenge of the assigned judge.33 Although Senguptas
Challenge was not entitled Notice of Change of Judge, as Alaska
Civil Rule 42(c)(1) requires, we hold that, under our lenient
approach to filings by pro se litigants,34 Senguptas Challenge
sufficiently conformed to the requirements of Alaska Civil Rule
42(c).
But given Senguptas failure to follow the requirements
of Rule 42(c), it is not surprising that the superior court did
not recognize the document as a separate peremptory challenge,
particularly because it was filed simultaneously with Senguptas
motion papers seeking Judge Woods recusal for cause. Upon entry
of Judge Woods next ruling in the case, the October 14, 2003
denial of Senguptas motion for recusal for cause, plaintiff
should have realized that the court had not recognized that his
companion document was really a Rule 42(c) notice of change of
judge. The entry of the order denying the recusal motion would
have been unnecessary had the judge seen and acted on the
separate Challenge document.
But Sengupta did not raise the issue of the unresolved
Challenge at the time of that ruling, or, as far as we can tell
from the record, at any other time during the superior court
proceedings in the ensuing months. Regarding pre-trial motions,
we have held that [t]o preserve a claim based on a superior
courts failure to rule on a motion, a party must make every
effort to request and obtain a ruling before proceeding to trial.35
Allowing a litigant to wait until after entry of final judgment
to inform a court that there is an unresolved Rule 42(c)
peremptory challenge would invite abuse, providing litigants with
the ability to avoid unfavorable judgments and relitigate their
cases before different judges. We therefore hold that even a pro
se litigant must make an effort to obtain a ruling on a
peremptory challenge once it becomes apparent that the assigned
judge is continuing to preside over the case. Because Sengupta
made no effort to obtain such a ruling after Judge Wood entered
the October 14, 2003 order, he did not preserve the issue for
appeal.
H. The Provost Was Authorized To Deny Employment to
Sengupta.
Finally, Sengupta argues that the UAF provost is not
authorized to review the circumstances of termination of a
tenured Professor. Senguptas contention is without merit. UAF
vests the power of appointment in the chancellor or the
chancellors designee. No university policy or other legal
principle prevents the provost from serving as the chancellors
designee merely because the applicant was previously involved in
a contentious termination for cause. In rejecting Senguptas 2003
rehire application, the provost, like every other official at
UAF, was entitled to rely on the finality of the termination
proceeding and therefore to assume that the legal issues
surrounding Senguptas termination had long-since been resolved in
favor of UAF.
IV. CONCLUSION
We therefore AFFIRM the judgment below.
_______________________________
1 Sengupta v. Univ. of Alaska (Sengupta I), 21 P.3d 1240,
124546 (Alaska 2001).
2 Id. at 124647.
3 Id. at 1247. Sengupta subsequently brought a
malpractice suit against his attorney for failing to file a
timely appeal. We recently affirmed the superior courts grant of
summary judgment against Sengupta in that case. Sengupta v.
Wickwire, 124 P.3d 748, 755 (Alaska 2005).
4 Sengupta I, 21 P.3d at 1247.
5 Id. at 1252.
6 Id. at 1247.
7 Id. at 124748.
8 Id. at 1263.
9 Id. at 1252. These statements included the contents of
a letter he sent to a state representative and copied to the
governor, criticizing the qualifications of his colleagues, his
accusation that a colleague secretly interfered with his attempt
to purchase software for the school, and his testimony at the
grievance proceeding concerning an anonymous videotape allegedly
showing his colleagues neglecting their duties at a Las Vegas
convention. Id.
10 Alaska R. Civ. P. 56(c).
11 Rockstad v. Erikson, 113 P.3d 1215, 1219 (Alaska 2005);
Kaiser v. Umialik Ins., 108 P.3d 876, 879 (Alaska 2005).
12 Kaiser, 108 P.3d at 879.
13 See Sanchez v. City of Santa Ana, 936 F.2d 1027, 1038
(9th Cir. 1991) (as amended on Denial of Rehearing and Rehearing
En Banc). But cf. Garcetti v. Ceballos, 126 S. Ct. 1951, 1960
(2006) (holding that statements made by public employees pursuant
to their official duties are not constitutionally protected).
14 See id. at 1037.
15 Ulrich v. City & County of San Francisco, 308 F.3d 968,
976 (9th Cir. 2002).
16 See Ulrich, 308 F.3d at 976.
17 Id. at 980.
18 Senguptas failure may result from his apparent belief
that we held in Sengupta I that he had proved First Amendment
retaliation by UAF. In fact, we held only that Sengupta would
have been entitled to raise a First Amendment defense in the
pretermination hearing. Sengupta I, 21 P.3d at 1252. We
expressed no opinion about whether such a defense would have been
successful.
19 Cf. Raytheon Co. v. Hernandez, 540 U.S. 44, 55 (2003)
(holding that, in disability discrimination case, if employer
applied a neutral, generally applicable no-rehire policy, to
employee terminated for cause, employers decision not to rehire
[former employee] can, in no way, be said to have been motivated
by [former employees] disability).
20 The UAF Faculty Appointment and Evaluation Policies
state that [a]ll appointments shall be made by the chancellor or
the chancellors designee in accordance with [Board of Regents]
Policy and policy and procedures approved for the University of
Alaska Fairbanks. The Regents Policy uses almost identical
language.
21 Because Senguptas pretermination expressions of
criticism of the school related to the integrity and
qualifications of faculty members issues not mentioned in the
report we doubt that such an inference is reasonably
permissible.
22 Because we affirm on the basis of UAFs argument that
Sengputa did not establish a prima facie case of First Amendment
retaliation, we need not consider UAFs contention that collateral
estoppel and res judicata bar Sengputas claim.
23 Provost Reichardt and Chancellor Lind both stated in
their affidavits that Sengupta was refused reemployment because
of his previous termination for cause and not because of his use
of the grievance process.
24 Regents Policy 04.04.040(A)(4) states:
Method of appointment. All appointments
shall be made by the Chancellor or the
Chancellors designee in accordance with
Regents Policy and policy and procedures
approved for each university.
25 McConnell v. Howard Univ., 818 F.2d 58, 64 (D.C. Cir.
1987).
26 42 U.S.C. 2000e-5(e)(f) (2000).
27 Greenlaw v. Garrett, 59 F.3d 994, 999 (9th Cir. 1995).
28 See Lilly v. Harris-Teeter Supermarket, 720 F.2d 326,
335 (4th Cir. 1983) (holding that futility exception applied to
interveners when EEOC had already denied almost identical claims
by plaintiffs in same lawsuit who were injured by same alleged
conduct); Murphy v. West, 945 F. Supp. 874, 876 (D. Md. 1996)
(holding that plaintiffs assertion of futility exception in Title
VII was extraordinary proposition that must be rejected out of
hand); Bachman v. Collier, 73 F.R.D. 300, 303 (D.D.C. 1976)
(stating in dictum in Title VII case that [t]his Court would not
require exhaustion if it concluded that said exhaustion would be
no more than a futile act); DeFigueiredo v. Trans World Airlines,
Inc., 322 F. Supp. 1384, 138586 (S.D.N.Y. 1971) (holding that
exhaustion would be futile in class action when another member of
class had already filed complaint with EEOC over same
discriminatory practices).
29 Sengupta also argues that Regents Policy 04.02.010
prohibits discrimination by the university and does not require
claimants to file a complaint with the EEOC. Because exhaustion
is a federal statutory requirement, it is irrelevant that the
Regents Policy does not require claimants to exhaust their EEOC
remedies.
30 Rather than rely on Alaska Civil Rule 60, Sengupta
contends that his termination proceedings should be reopened
because he was denied a full and fair opportunity to litigate.
We have held the lack of a full and fair opportunity to litigate
may prevent a judgment from being given preclusive effect under
the doctrine of res judicata. Sengupta I, 21 P.3d at 1257. But
Sengupta is not seeking here to avoid preclusion of his claims;
he is seeking to reopen the past judgment that made final his
termination for cause and that therefore, as a matter of UAF
policy, made him ineligible for rehire. He may not do so without
satisfying Alaska Civil Rule 60.
31 A number of Senguptas additional arguments why his
termination case should be reopened first appear in his reply
brief. We deem arguments raised for the first time in a reply
brief to have been waived. See Simpson v. State, Commercial
Fisheries Entry Commn, 101 P.3d 605, 611 (Alaska 2004).
32 See Alaska R. Civ. P. 60(b).
33 Alaska Civil Rule 42(c) states in relevant part:
(c) Change of Judge as a Matter of Right.
In all courts of the state, a judge or master
may be peremptorily challenged as follows:
(1) Nature of Proceedings. In an
action pending in the Superior or District
Courts, each side is entitled as a matter of
right to a change of one judge and of one
master. Two or more parties aligned on the
same side of an action, whether or not
consolidated, shall be treated as one side
for purposes of the right to a change of
judge, but the presiding judge may allow an
additional change of judge to a party whose
interests in the action are hostile or
adverse to the interests of another party on
the same side. A party wishing to exercise
the right to change of judge shall file a
pleading entitled Notice of Change of Judge.
The notice may be signed by an attorney, it
shall state the name of the judge to be
changed, and it shall neither specify grounds
nor be accompanied by an affidavit.
34 See Kaiser v. Sakata, 40 P.3d 800, 803 (Alaska 2002)
([T]he pleadings of pro se litigants [should be held] to less
stringent standards than those of lawyers, particularly where
lack of familiarity with the rules rather than gross neglect or
lack of good faith underlies litigants errors.).
35 Taylor v. Johnston, 985 P.2d 460, 467 (Alaska 1999).
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