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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Parson v. State, Dept. of Revenue, AHFC (07/25/2008) sp-6288
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
| JAMES PARSON, | ) |
| ) Supreme Court No. S- 12486 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-04- 08383 CI | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, DEPARTMENT | ) |
| OF REVENUE, ALASKA HOUSING | ) No. 6288 - July 25, 2008 |
| FINANCE CORPORATION, | ) |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sharon L. Gleason, Judge.
Appearances: C.R. Kennelly, Law Office of
C.R. Kennelly, and Ted Stepovich, Anchorage,
for Appellant. Richard W. Postma, Jr.,
Margaret Paton-Walsh, Assistant Attorneys
General, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
WINFREE, Justice.
I. INTRODUCTION
James Parson appeals from a superior court judgment
dismissing his employment-related claims against Alaska Housing
Finance Corporation (AHFC). After the Alaska State Commission
for Human Rights closed Parsons administrative complaint of
racial discrimination because Commission staff found a lack of
substantial evidence to support it, Parson sued AHFC in superior
court. Parson pled several causes of action, including statutory
racial discrimination. AHFC moved for summary judgment on all of
Parsons claims or, alternatively, for conversion of the statutory
discrimination claims to an administrative appeal. The superior
court ruled that the Commission proceedings had resulted in an
acquittal that barred Parsons direct statutory discrimination
claims against AHFC, but converted those claims into an
administrative appeal of the Commissions decision to close his
agency complaint. The court granted summary judgment dismissing
all of Parsons direct claims. After the court refused to enter
partial final judgment to allow him to appeal the dismissal of
all of his direct claims, Parson voluntarily dismissed the
putative administrative appeal. This appeal followed. Because
we conclude that the Commissions closure of Parsons agency
complaint for lack of substantial evidence does not bar him from
bringing his statutory discrimination claim in superior court, we
reverse the grant of summary judgment in favor of AHFC and remand
for further proceedings on Parsons statutory discrimination
claims.
II. FACTS AND PROCEEDINGS
Parson, an African-American, was originally hired by
AHFC as a temporary laborer and gained permanent status in 1993.
In October 2002 Parsons employment was terminated for failure to
complete an anger management program that AHFC required him to
attend after other employees complained that he had acted in a
threatening manner toward them. Parson met with an anger
management counselor three times but refused to admit any
wrongdoing. As a result, the program counselor sent him back to
AHFC to resolve [the] matter. AHFC then terminated his
employment.
Parson filed a complaint with the Commission, alleging
that his termination and other actions by AHFC during the course
of his employment amounted to racial discrimination and
retaliation for numerous complaints he had made. AHFC denied the
allegations, asserting that Parson had been terminated for
failure to accept responsibility for and rectify unacceptable
behavior toward coworkers and supervisors. A Commission staff
member conducted an informal investigation, ultimately
determining that Parsons allegations were not supported by
substantial evidence. The Commissions executive director then
issued a closing order.1
A month later, Parson filed a complaint in superior
court. He claimed: (1) his termination was racially motivated;
(2) he was subjected to race-based discriminatory conduct
throughout his AHFC employment; (3) AHFCs conduct violated his
contractual rights and contractual due process and was a breach
of the covenant of good faith and fair dealing; and (4) his
termination was in violation of public policy. Parson further
asserted that the Commission had dismissed the case without a
hearing in violation of Plaintiffs due process, equal protection
and Title 18 rights under AS 18.20.220 and that [t]o the extent
it can be appealed or should be, plaintiff does so by this
complaint.2 AHFC answered the superior court complaint by
denying all allegations of racial discrimination and motivation.
AHFC also asserted several defenses, among them that Parson had
not properly perfected an administrative appeal and that res
judicata or collateral estoppel barred his claims.
AHFC filed a motion for summary judgment on all of
Parsons claims. As to Parsons statutory discrimination claims,
AHFC requested that the superior court either dismiss them or
convert them into an administrative appeal of the Commissions
decision. AHFC argued that AS 18.80.2803 barred Parson from
bringing statutory discrimination claims in superior court
because the Commissions closure of Parsons case for lack of
substantial evidence was an acquittal of AHFC, and therefore
Parsons sole remedy was an administrative appeal of the
Commission decision. Alternatively, AHFC asked that Parsons
statutory discrimination claims be dismissed on their merits,
arguing that Parson could not make a prima facie case of
discrimination or show pretext for the firing.
Parson opposed summary judgment, filing an affidavit to
dispute some of AHFCs factual allegations. He argued that the
Commissions administrative closure was not a final decision on
the merits of his claims and noted that he had appeared without
counsel before the Commission and was incapable of litigating or
adequately assisting the [Commission] staff in its investigation
and unable to effectively represent himself before the
Commission. Parson reiterated his contention that he was
entitled to a hearing before the Commission and asked the
superior court to remand the case to the Commission if it viewed
the Commissions jurisdiction as exclusive.
Three weeks before the scheduled start of a jury trial,
the superior court granted summary judgment in favor of AHFC.
Stating that AS 18.80.280 precluded claims under the Human Rights
Act . . . when the [Commission] has issued a final agency
decision with respect to the same alleged violation by AHFC, the
superior court also granted summary judgment against Parson
insofar as [he] seeks to litigate the alleged violation in this
court. But the court also determined that Parson should be
accorded an opportunity for appellate review by this court of the
[Commissions] decision; to that end, Parsons statutory
discrimination claims were converted into an administrative
appeal. The superior court dismissed Parsons other claims for
failure to exhaust collective bargaining grievance procedures.
Parson requested but was denied reconsideration. He
then requested but was denied entry of partial final judgment as
to the claims dismissed by the superior court. Parson then moved
for a voluntary dismissal of the putative administrative appeal
and for entry of final judgment. AHFC did not oppose the
motions, and the court entered final judgment against Parson.
Parson appealed the courts grant of summary judgment dismissing
all of his direct claims against AHFC. But Parson briefed only
the dismissal of his statutory discrimination claims and limited
his request for relief to a remand for proceedings on those
claims, thus waiving appeal of the dismissal of his other claims.4
III. DISCUSSION
A. Standard of Review
We review a grant of summary judgment de novo.5
Summary judgment is proper if there is no genuine factual dispute
and the moving party is entitled to judgment as a matter of law.6
In reviewing a summary judgment motion, we draw all reasonable
inferences in favor of the nonmoving party.7 We may affirm a
grant of summary judgment on any basis appearing in the record.8
The interpretation of a statute is a question of law to which we
apply our independent judgment, interpreting the statute
according to reason, practicality, and common sense, considering
the meaning of the statutes language, its legislative history,
and its purpose.9
B. The Commissions Closure of Parsons Administrative Claim
Does Not Bar Direct Claims Against AHFC in Superior
Court.
The Alaska Human Rights Act10 creates concurrent
jurisdiction over discrimination claims; both the Commission and
the superior court can hear a discrimination claim under the Act.11
Jurisdictional conflict in concurrently filed complaints is
avoided by requiring that a plaintiff serve the Commission with a
copy of a superior court complaint, thus giving the Commission
the right to intervene and seek a deferral of court proceedings
upon certification that it is presently investigating or actively
dealing with [the matter] giving rise to the cause of action.12
If the Commission fails to intervene or file a certification and
conduct a hearing on the plaintiffs claim, the court has complete
jurisdiction.13
In some circumstances, a final determination on the
merits of a claim by the Commission will preclude a subsequent
action in superior court on all or part of the same claim.14 The
superior courts reliance on AS 18.80.28015 when granting summary
judgment to AHFC indicates its agreement with AHFCs contention
that the Commissions closure of Parsons discrimination complaint
was an acquittal barring a superior court action.
The Commissions decision closing Parsons case was not
an acquittal of AHFC for purposes of AS 18.80.280. In
interpreting this provision, we look at the ordinary meaning of
the statutory language because it has not acquired a peculiar
meaning through statutory definition or previous judicial
construction.16 Relying on Blacks Law Dictionary, AHFC argues
here, as it did in the superior court, that acquittal and
dismissal are equivalent, but the definitions of these words
differ in one crucial way: an acquittal generally comes after a
trial, while a dismissal generally comes before a trial.17 When
discrimination complaints are before both the Commission and the
superior court at the same time and the Commission does not seek
to defer the court proceedings or ultimately does not hold an
adjudicatory hearing, the superior court has complete
jurisdiction of the case, notwithstanding the provisions of AS
18.80.280.18 It should be no different when the Commission fails
to hold a hearing and closes a case before a complaint is filed
in superior court. The Commission never adjudicated the merits
of Parsons discrimination claims and therefore did not acquit
AHFC. Because the Commission did not acquit AHFC, Parsons
superior court claims were not foreclosed by AS 18.80.280. The
superior court erred in holding that they were.
AHFC also argues that even if the Commissions closure
of Parsons complaint was not an acquittal, it was a dismissal
with prejudice, creating a preclusive effect in the nature of res
judicata or collateral estoppel. Administrative adjudications
can have preclusive effect in later court proceedings in some
circumstances.19 But we previously have stated that [t]he
preclusive use of prior administrative findings must always be
fair and that fairness at a minimum requires that the
administrative process follow the essential elements of
adjudication, including notice and an opportunity to present and
rebut evidence, a formulation of issues of fact and law, and
other procedural elements necessary for a conclusive
determination of the issue.20 Issue preclusion can apply only
when the issue to be precluded from relitigation is identical to
the issue already litigated, there has been a final judgment on
the merits, and the determination of the issue was essential to
that final judgment.21
AHFC argues that in closing Parsons case for lack of
substantial evidence, the Commission used essentially the same
standard the superior court would use for a summary judgment
motion. AHFC then proceeds by analogy: because dismissal of a
court case without prejudice is generally not reviewable,22
judicial review of an administrative order closing a case must be
available only if the closing order is with prejudice.23 AHFC
concludes from this that the Commissions closure was an
adjudication giving rise to preclusive effects.
This argument fails to recognize that we have
distinguished administrative determinations from trial court
decisions and held that [a]n agency determination need not be one
which ends the litigation on the merits and leaves nothing for
the court to do but execute the judgment in order to be ripe for
judicial review.24 The fact that the closure of Parsons case was
a final agency action subject to judicial review does not mean
that the closure was a dismissal with prejudice precluding a
lawsuit in superior court.25 Moreover, an informal investigation
by Commission staff does not contain the essential elements of
adjudication. Closure of Parsons case after an informal staff
investigation without any kind of adversarial activity or
decision on the merits by an independent fact-finder is not a
dismissal with prejudice and does not give rise to issue or claim
preclusion in a subsequent lawsuit in superior court.
C. Parsons Voluntary Dismissal of the Administrative
Appeal Does Not Bar Appeal of the Superior Courts Grant
of Summary Judgment.
AHFC asserts that Parson is barred from appealing the
superior courts summary judgment ruling because of his voluntary
dismissal of the administrative appeal. AHFCs argument rests on
cases holding that a party who agrees to a dismissal waives the
right to an appeal.26
Parsons case is distinguishable from those AHFC relies
on because Parson voluntarily dismissed only one claim his
putative administrative appeal after the trial court already had
granted summary judgment against him on his direct claims.27
Parson does not seek review of the merits of the Commissions
determination, and he is not appealing from a judgment related in
any way to the administrative appeal. While his voluntary
dismissal of the administrative appeal does preclude further
review of the Commissions actions,28 it does not foreclose Parson
from appealing the earlier summary judgment ruling barring Parson
from bringing direct statutory discrimination claims against AHFC
in superior court.
AHFC contends that Parson should not be allowed to
appeal the superior courts conversion of his discrimination claim
to an administrative appeal because Parson invited the error.
The invited error doctrine does not prohibit appellate review,
but rather embodies the notion that errors that are invited are
less worthy of consideration by an appellate court than those
where a party merely fails to object.29 When an error is invited,
an appellate court examines the error to see if there is an
exceptional situation where reversal is necessary to preserve the
integrity of the judicial process or to prevent a miscarriage of
justice.30 The invited error doctrine does not apply here,
despite the language of Parsons complaint reflecting a desire to
appeal the Commissions closing order, because Parson did not
actively seek, but rather actively opposed, the order barring his
direct statutory discrimination claims and converting them into
an administrative appeal.
AHFC also argues that if the superior court erred in
barring Parson from bringing direct statutory discrimination
claims, instead converting those claims into an administrative
appeal, it was harmless error. AHFC contends that Parson can
show no prejudice from the ruling because (1) the superior court
could have conducted a trial de novo on appeal, and (2) the
superior courts potential appellate remedies would have been the
same as its potential trial-court remedies. This argument is
undercut by AHFCs concerted efforts to avoid Parsons direct
claims. It is telling that had Parson been allowed to take his
discrimination claims to trial, he would have had not only a full
trial on the merits of his claims, but a jury trial on the merits
of his claims. In an administrative appeal, on the other hand,
Parson could have requested a trial de novo,31 but there was no
guarantee that the court would grant the request,32 much less that
his claim would be heard by a jury.33 This is sufficient to
overcome AHFCs harmless error argument.
D. We Decline To Consider Alternative Grounds for
Affirming the Superior Courts Grant of Summary
Judgment.
AHFC asks that we affirm the superior courts summary
judgment ruling on the alternative ground that Parson did not
make a prima facie case of discrimination, or, if he made a prima
facie case, that he was not able to show pretext after AHFC put
forward a legitimate, nondiscriminatory reason for his
termination. Although an appellate court may affirm a grant of
summary judgment based on any grounds appearing in the record,
this power is discretionary.34 Here, we prefer that the superior
court allow the parties an appropriate opportunity to marshal
their evidence and then examine that evidence to determine
whether AHFC is entitled to summary judgment on the merits of
Parsons statutory discrimination claims.
IV. CONCLUSION
Because the Commissions closure of Parsons
administrative complaint after an informal investigation was not
an acquittal of AHFC and did not contain the required
adjudicative elements to give rise to any preclusive effect, we
REVERSE the superior courts grant of summary judgment to AHFC on
Parsons statutory discrimination claims. We REMAND for further
proceedings on those claims.
_______________________________
1 We described this process in State, Department of Fish
& Game, Sport Fish Division v. Meyer, 906 P.2d 1365, 1368 (Alaska
1995):
The Alaska Civil Rights Act permits a
person aggrieved by discriminatory conduct to
file a complaint with the Alaska State
Commission for Human Rights. AS 18.80.100.
The executive director or a staff member must
then informally investigate the complaint to
determine whether the allegations of the
complaint are supported by substantial
evidence. AS 18.80.110. If the investigator
determines that the allegations are supported
by substantial evidence, the investigator
shall immediately try to eliminate the
discrimination complained of, by conference,
conciliation, and persuasion. Id. By
implication, if the investigator determines
that the allegations of the complaint are not
supported by substantial evidence, the
complaint is dismissed.
This was clarified and confirmed by the legislative enactment of
AS 18.80.112, effective in 2006. Ch. 63, 4 & 14, SLA 2006.
2 Cf. Meyer, 906 P.2d at 1369-74 (Commission decision to
close a complaint for lack of substantial evidence is judicially
reviewable.).
3 AS 18.80.280 provides: The acquittal of a person by
the commission or a court of competent jurisdiction of any
alleged violation of this chapter is a bar to any other action,
civil or criminal, based on the same act or omission.
4 Alaska Contl Bank v. Anchorage Commercial Land Assocs.,
781 P.2d 562, 563 n.2 (Alaska 1989) (issues raised in points on
appeal but not briefed are waived).
5 Parker v. Tomera, 89 P.3d 761, 765 (Alaska 2004)
(citing Therchik v. Grant Aviation, 74 P.3d 191, 193 (Alaska
2003)).
6 Id.
7 Moore v. Allstate Ins. Co., 995 P.2d 231, 233 (Alaska
2000) (citing Parson v. Marathon Oil Co., 960 P.2d 615, 618
(Alaska 1998)).
8 Parker, 89 P.3d at 765 (citing Martinez v. Ha, 12 P.3d
1159, 1162 (Alaska 2000)).
9 Grimm v. Wagoner, 77 P.3d 423, 427 (Alaska 2003)
(citing Native Vill. of Elim v. State, 990 P.2d 1, 5 (Alaska
1999)).
10 See AS 18.80.010.300.
11 See AS 18.80.060(a)(4), (b)(3); AS 18.80.100.130;
AS 18.80.145; AS 22.10.020(i); Johnson v. State, Dept of Fish &
Game, 836 P.2d 896, 900, 905 (Alaska 1991).
12 AS 18.80.145(a).
13 AS 18.80.145(d).
14 See AS 18.80.280 (claim preclusion by Commission
acquittal); Johnson, 836 P.2d at 907 (issue preclusion).
15 See supra note 3.
16 Dansereau v. Ulmer, 903 P.2d 555, 564 (Alaska 1995)
(citing Foreman v. Anchorage Equal Rights Commn, 779 P.2d 1199,
1201 (Alaska 1989)).
17 Blacks Law Dictionary 25, 502 (8th ed. 2004). In a
somewhat analogous context, the prosecutions dismissal of
criminal charges before trial is not an acquittal, but if the
prosecution presents insufficient evidence at trial to sustain a
conviction, the court may enter a judgment of acquittal. Compare
Alaska R. Crim. P. 43(a) with Alaska R. Crim. P. 29; see also
State v. Williams, 730 P.2d 806, 807-08 (Alaska 1982); Morgan v.
State, 673 P.2d 897, 901 (Alaska App. 1983).
18 AS 18.80.145(d).
19 Johnson, 836 P.2d at 906-07.
20 Id. at 908.
21 Id. at 906.
22 Sherry v. Sherry, 622 P.2d 960, 963 n.4 (Alaska 1981).
23 See supra note 2.
24 Meyer, 906 P.2d at 1371 (quoting Greater Anchorage Area
Borough v. City of Anchorage, 504 P.2d 1027, 1030-31 (Alaska
1972)).
25 Nothing in the pre-2006 Human Rights Act, the
Commissions regulations, or our case law implies that a closure
for lack of substantial evidence after an informal investigation
is a dismissal with prejudice. In 2006 the Human Rights Act was
amended to clarify, inter alia, that closure for lack of
substantial evidence does not prevent a superior court action on
the same facts. AS 18.80.112(d); ch. 63, 4, SLA 2006. While
this section does not apply to Parsons complaint, see ch. 63,
14, SLA 2006, it supports our conclusion. See In re Estate of
Evanco, 955 P.2d 525, 528 (Alaska 1998) (policy in successor
statute is factor to be considered in construing ambiguous
statute that has not been interpreted).
26 E.g., Legge v. Greig, 880 P.2d 606, 607-09 (Alaska
1994); Gravel v. Alaskan Vill., Inc., 409 P.2d 983, 986 (Alaska
1966).
27 See DeNardo v. Corneloup, 163 P.3d 956, 959-62 (Alaska
2007) (reviewing claims not dismissed voluntarily by appellant
but holding review of dismissed claim unavailable).
28 See id. at 959-60.
29 People of Guam v. Alvarez, 763 F.2d 1036, 1037 (9th
Cir. 1985).
30 Id. at 1038 (quoting Marshall v. United States, 409
F.2d 925, 927 (9th Cir. 1969)).
31 AS 44.62.570(d); Alaska R. App. P. 609(b).
32 See Sw. Marine, Inc. v. State, Dept of Transp. & Pub.
Facilities, Div. of Alaska Marine Highway Sys., 941 P.2d 166, 179
(Alaska 1997) (citing Kott v. City of Fairbanks, 661 P.2d 177,
180 n.1 (Alaska 1983) (describing trials de novo on appeal as
rare)).
33 AS 18.80.135(a) provides that judicial review of
Commission decisions shall be under the provisions of the Alaska
Administrative Procedures Act, specifically AS 44.62.560.570.
AS 44.62.570(a) provides that an appeal shall be heard by the
superior court sitting without a jury. Moreover, we previously
have noted that the term trial de novo does not imply a right to
a jury trial. Fairbanks N. Star Borough v. Duncan, 878 P.2d 641,
641 (Alaska 1994).
34 Snyder v. Am. Legion Spenard Post No. 28, 119 P.3d 996,
1001 (Alaska 2005).
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