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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Beegan v. State (10/31/2008) sp-6322
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
| DENNIS J. BEEGAN, | ) |
| ) Supreme Court No. S- 12615 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-05-12324 CI | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| DEPARTMENT OF | ) No. 6322 October 31, 2008 |
| TRANSPORTATION & PUBLIC | ) |
| FACILITIES, ANCHORAGE | ) |
| INTERNATIONAL AIRPORT, | ) |
| and LEO VON SCHEBEN, | ) |
| Commissioner, in his Official | ) |
| Capacity, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sharon L. Gleason, Judge.
Appearances: Jeffrey J. Jarvi, Law Office of
Michael Stehle, P.C., Anchorage, for
Appellant. Brenda B. Page, Assistant
Attorney General, Anchorage, and Talis J.
Colberg, Attorney General, Juneau, for
Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices.
FABE, Chief Justice.
I. INTRODUCTION
In January 2005 Dennis Beegan won a favorable judgment
from the Alaska State Commission for Human Rights against the
State of Alaska, Department of Transportation and Public
Facilities (DOTPF) for retaliatory failures to hire. The
Commission awarded him certain relief but no damages. Nine
months later, Beegan filed a suit against DOTPF in superior court
pursuing damages for the retaliatory conduct. The superior court
dismissed Beegans claims for back pay and noneconomic damages,
reasoning that they were precluded by the doctrine of collateral
estoppel. It also dismissed Beegans whistleblower claim and his
claim for retaliation in violation of public policy because it
determined that AS 18.80 afforded Beegan adequate legal
alternatives for his retaliation claims. Because we conclude
that Beegans back pay and noneconomic damages claims were not
precluded by collateral estoppel or res judicata and that his
claim for noneconomic damages was neither waived nor barred by
the statute of limitations, we reverse the superior courts
decision and remand for trial on these claims.
II. FACTS AND PROCEEDINGS
Dennis Beegan was hired on a temporary basis as a
maintenance electrician for DOTPF at Ted Stevens International
Airport around November 11, 1996. He was fifty-four years old at
the time. His first period of temporary hire lasted ninety days,
and that term was extended twice. During this time period, two
temporary maintenance electricians were upgraded to permanent
positions; Beegan was not. Another permanent position became
available shortly after Beegans last temporary term ended.
Although a conversation with his former supervisor led him to
believe that he would be dispatched to interview for the
position, this did not occur.
On December 29, 1997, Beegan filed his first complaint
with the Commission alleging that DOTPF had discriminated against
him on the basis of age. In August 1999 Beegan interviewed for
another permanent electrician position at the airport but was
rejected. Over the course of the next two years, Beegan
continued to apply for permanent positions and was repeatedly
rejected. He filed several more complaints with the Commission
as a result. On December 18, 2002, the Commission consolidated
his five complaints into one amended complaint.
A Commission hearing officer conducted a hearing on the
matter between July 14 and July 18, 2003. The hearing officer
issued recommended findings of fact and conclusions of law, which
a panel of three commissioners considered but declined to adopt.
The commissioners instead filed a Proposed Decision and Order on
August 2, 2004, inviting comment and further briefing from the
parties.
The Commission published its final decision on January
26, 2005. It found that DOTPF had neither discriminated against
Beegan on the basis of age nor retaliated against him for filing
an age discrimination complaint in 1999. The Commission did
find, however, that DOTPFs February 2000, November 2000, and May
2001 rejections of Beegans applications for permanent employment
were improperly motivated by retaliation for his human rights
complaints. The Commission rejected Beegans request for front
pay along with his request to be hired for the next available
electrician position at the airport. But the Commission did
order DOTPF to interview Beegan for the next such position with
unbiased personnel. Importantly, the Commission noted that
Beegans request for back pay damages had been withdrawn and it
therefore did not address that claim.
Though he did not appeal this decision, Beegan did
submit an affidavit to the Commission immediately after its
decision was distributed. In his affidavit Beegan stated that
his request for back pay damages had been withdrawn over his
objection by Commission staff and that he had dutifully mitigated
his damages. He requested that the Commission consider his back
pay request and award him back pay. The Commission never
responded to this request or the allegations in Beegans
affidavit.
Approximately nine months later, in October 2005,
Beegan filed a pro se complaint against DOTPF in superior court,
alleging age discrimination and retaliation for filing age
discrimination complaints. Among other relief, he requested back
pay damages and reinstatement. As an alternative to
reinstatement, he requested damages for future wages and
benefits. Beegan later secured representation and filed an
amended complaint in February 2006, alleging age discrimination,
retaliation for filing age discrimination complaints, violation
of public policy, breach of the covenant of good faith and fair
dealing, defamation, and interference with business
relationships. He listed his damages as both past and future
economic and non-economic losses, including but not limited to
loss of wages, injury to business reputation, mental anguish,
humiliation, embarrassment, and inconvenience. He requested
compensatory damages, attorneys fees, and any other relief found
to be proper.
DOTPF moved to dismiss Beegans amended complaint on
grounds of sovereign immunity, statute of limitations, and lack
of an employment contract. Beegan opposed the motion, abandoning
his age discrimination and defamation claims but asserting (1)
that DOTPF was collaterally estopped from denying it retaliated
against him; (2) that DOTPF was liable for retaliation in
violation of public policy; (3) that the statute of limitations
was equitably tolled while the Commission proceedings were
pending; and (4) that sovereign immunity was inapplicable.
Beegan appended the Commissions decision and his January 2005
affidavit regarding back pay damages to his opposition motion.
The superior court considered these additional
documents in its ruling and so converted DOTPFs motion for
judgment on the pleadings to a summary judgment motion. It
dismissed Beegans claims in their entirety. Relevant to this
appeal, the superior court ruled: (1) that Beegan was
collaterally estopped from seeking damages in superior court
because the Commissions unappealed decision resolved all issues
associated with the retaliatory conduct, including damages, and
(2) that Beegans theory of a common law claim for retaliation in
violation of public policy, along with his Whistleblower Act
claim, failed because AS 18.80 provided him with adequate legal
alternatives.
Beegan filed a motion for reconsideration arguing that
the issue of back pay damages was not precluded because the
Commission had explicitly declined to rule on it, and that his
theory of common law retaliation in violation of public policy
and his Whistleblower Act claim were viable. The superior court
denied the motion for reconsideration and entered final judgment
against Beegan on all claims. Beegan appeals the dismissal of
his claims for back pay and noneconomic damages under AS 18.80,
his theory of common law retaliation in violation of public
policy, and his Whistleblower Act claim.
III. STANDARD OF REVIEW
We review the grant of a summary judgment motion de
novo, affirming if the record presents no genuine issue of
material fact and if the movant is entitled to judgment as a
matter of law.1 All reasonable inferences are drawn in favor of
the nonmovant in this examination.2 Questions of law such as the
application of collateral estoppel, res judicata, and statutes of
limitations are reviewed de novo.3
IV. DISCUSSION
A. Beegans Claim for Back Pay Damages in Superior Court Is
Not Precluded.
The superior court dismissed Beegans request for back
pay damages on collateral estoppel grounds. DOTPF agrees with
the superior courts conclusion, additionally arguing that res
judicata bars the claim. We conclude that neither doctrine
precludes Beegans back pay damages claim in superior court.
Res judicata and collateral estoppel prohibit parties
from litigating points that have already been resolved: claim
preclusion prevents a party from suing on a claim which has been
previously litigated to a final judgment,4 and issue preclusion
prevents a party from pursuing an issue in a second action that
is identical to [one] decided in the first action.5 But Beegans
request for back pay damages, whether viewed as an issue or a
claim, has never been resolved. The only reference to back pay
in the Commissions decision is found in a footnote: In
Complainants Brief on Relief to which Mr. Beegan is Entitled,
Complainant states that Mr. Beegan is no longer seeking the
remedy of back pay. The superior court concluded that because
the Commission determined all appropriate relief to award to Mr.
Beegan as authorized by AS 18.80.130(a)(1), his claims for back
pay damages were barred by collateral estoppel. But the
Commission neither decided the question of back pay damages nor
issued a final judgment on the matter; indeed, it clearly
acknowledged that no back pay damages claim was before it. And
AS 18.80.145(b), which establishes a system of concurrent
jurisdiction between the two forums,6 provides that questions
left unresolved by the Commission remain open before the superior
court: the decision of the commission is binding on the parties
to the court action as to all issues resolved in the hearing but
not as to any issues not resolved in the hearing. (Emphasis
added.)
DOTPF argues that this provision applies only to cases
in which a party pursues actions under AS 18.80 in court and in
front of the Commission at the same time and the Commission
intervenes in the court action. This argument is unavailing. As
we made clear in Johnson v. Alaska State Department of Fish &
Game, the application of AS 18.80.145 is not limited to
situations in which the Commission requests deferral.7
DOTPF maintains that even if the doctrine of collateral
estoppel does not apply, Beegans claim for back pay damages is
nonetheless barred by res judicata because he had the opportunity
to assert the back pay claim before the Commission but failed to
do so. DOTPF relies on our decisions in Sengupta v. University
of Alaska8 and McElroy v. Kennedy9 to support its position.
Res judicata prohibits a party not only from
relitigating a resolved claim in a subsequent action, but also
from asserting any legal theory, cause of action, or defense
which could have been asserted in that [prior] action.10 As we
stated in McElroy, when a party has previously had an opportunity
to litigate an issue, the fact that he chose not to, whether
because of a strategic decision or ignorance or other reason,
does not exempt him from the principles of res judicata11 in
subsequent litigation. But in Sengupta we also noted the well-
established principle that no decision may constitute res
judicata if the party against whom it is asserted has not had a
full and fair opportunity to litigate his claims.12 Here, the
record reveals that Beegan did not have such an opportunity to
litigate his back pay damages claim. Beegan has consistently
maintained that his request for back pay damages was withdrawn
over his objection by the Commissions human rights advocate who
prosecuted the case, and DOTPF has provided no evidence to the
contrary.
Moreover, the statutory structure supports Beegans
claim that he lacked control in the case before the Commission.
A person alleging discrimination may file a complaint with the
Human Rights Commission under AS 18.80.100(a). Commission staff
then investigate the claim and determine whether substantial
evidence exists to support it.13 If the staff determines the
claim is colorable, it attempts to remedy the problem via
conference, conciliation, and persuasion.14 Failing that, the
Commissions executive director may choose to refer the complaint
for hearing, in which case she issues an accusation and presents
it to the Commission.15
The Commission executive director and her staff control
this process throughout: They may use discretion to eliminate
claims at the mediation and prosecution stages. A Commission
staff member drafts the accusations and presents the cases to the
Commission. Indeed, the case against DOTPF was filed not by
Beegan himself but by the Commission ex rel. on the information
of Beegan.16 The prohibition against claim splitting presumes
that one exercises control over which claims are brought.
Because Beegan did not control his claim for back pay damages
before the Commission, he did not have a full and fair
opportunity to litigate it, and res judicata does not preclude
him from pursuing this claim in superior court.
DOTPF also argues that Beegans back pay claim fails
because he did not appeal the Commissions decision, but DOTPF
mischaracterizes Beegans appeal to this court as a conten[tion]
that the Commission erred in its decision regarding the scope of
appropriate relief. In fact, Beegan consistently argues in his
briefing that the Commission never decided the question of back
pay damages because the request was improperly withdrawn by
Commission staff, not that the Commission erred in its decision
on relief. Beegan appeals the superior courts determination that
his back pay damages claim is precluded by the Commissions
decision; he does not appeal the Commission decision not to
address the claim. Because the Commission did not decide the
question of back pay damages, there was no final order on back
pay damages for Beegan to appeal.
As we explained in Johnson, Beegan was free to seek
damages in superior court after having prevailed before the
Commission: [W]hen . . . claimants before the Commission
prevail, their claim does not merge into the favorable judgment.
Rather, they are still free to bring subsequent action . . . in
superior court, because the remedies available in court are
different than those available before the Commission.17 Beegans
claims are subject to issue and claim preclusion analysis, but we
have already determined that neither doctrine prohibits his back
pay damages claim.
For the foregoing reasons, the superior court erred in
dismissing Beegans back pay damages claim.
B. Beegans Claim for Noneconomic Damages Is Neither
Precluded nor Barred by the Statute of Limitations.
The superior court held that the Commissions decision
resolved all issues of liability and the entire scope of the
appropriate relief to award, including damages. It reasoned that
Beegans claim for noneconomic damages under AS 18.80 in superior
court was therefore precluded. But again, claims can only be
precluded by collateral estoppel or res judicata if the initial
forum actually decided the question or if the party could have
raised the question in the initial forum and did not. Here, the
Commission did not evaluate Beegans claim for noneconomic damages
because it could not have done so: that remedy was unavailable to
Beegan at the Commission level.18 Our decision in Johnson is
instructive.
In Johnson, a surf fisherman filed a complaint with the
Commission on behalf of himself and other Alaska Native surf
fishermen alleging that the Department of Fish and Game had
racially discriminated against them.19 They later sued the
Department in superior court for the same conduct.20 The Johnson
plaintiffs were permitted to seek noneconomic damages in superior
court after prevailing before the Commission because the two
forums offered different remedies. Indeed, when . . . claimants
before the Commission prevail, their claim does not merge into
the favorable judgment. Rather, they are still free to bring
subsequent action . . . in superior court, because the remedies
available in court are different than those available before the
Commission.21 Because noneconomic damages were not available to
the fishermen at the Commission level, they could pursue these
damages in superior court even after they had prevailed before
the Commission:
Under the Act, the Commissions powers to
remedy violations of AS 18.80 are quite
specific. . . . [T]he Commissions power to
award money is limited to special damages or
to money payments incident to equitable
relief, that is, to damages for direct,
calculable pecuniary loss, such as back pay
or housing expenses.
Plainly, the remedial powers that th[e]
statute grants to the superior court are
broader than the specific powers that AS
18.80.130 grants to the Commission. Indeed,
the extraordinary difference between remedies
available before the Commission and remedies
available before the court provides the only
rational reason for affording complainants
new action in superior court after they have
prevailed before the Commission.[22]
This is the case here. As Johnson makes clear, the Commission
was not empowered to award noneconomic damages to Beegan for AS
18.80 claims.23 Beegans claim for noneconomic damages before the
superior court was thus not precluded by collateral estoppel or
res judicata.
DOTPF finally contends that Beegans claim for
noneconomic damages fails for two other reasons: (1) because
Beegan waived it before the superior court and (2) because it is
barred by the statute of limitations. Neither contention has
merit.
1. Beegan did not waive his noneconomic damages
claim.
DOTPF concedes that Beegan pleaded noneconomic damages
in his amended complaint but contends that he did not request
them in relation to an AS 18.80 retaliatory failure to hire claim
and therefore waived them. We disagree. In his amended
complaint, Beegan pleaded noneconomic damages [a]s a result of
defendants conduct. Among the allegations of defendants conduct
in paragraph eleven of the complaint is a statement that Beegan
was not hired for such a permanent maintenance electrician
position at the airport . . . because he previously made
complaints of age discrimination with the Alaska State Commission
for Human Rights. This allegation precisely asserts the conduct
on which an AS 18.80 retaliatory failure to hire claim rests, and
it suffices to raise the claim under the liberal pleading
standard of Alaska Civil Rule 8(a).24 Moreover, the superior
court considered and ruled on Beegans claim for damages under AS
18.80.
2. The statute of limitations does not bar Beegans
claim for noneconomic damages.
DOTPF also submits that Beegans noneconomic damages
claim is barred by the statute of limitations. Under AS
09.10.070, claims based on AS 18.80 must be brought within two
years of the offending conduct.25 Beegan did not file his claim
in superior court until at least four years after the offending
conduct occurred. His claim for noneconomic damages is therefore
barred unless equitable tolling applies.
As we recognized in Dayhoff v. Temsco Helicopters,
Inc., [t]he equitable tolling doctrine applies to relieve a
plaintiff from the bar of the statute of limitations when he has
more than one legal remedy available to him.26 We further
explained that after answering this threshold question, three
additional elements must be met for equitable tolling to apply:
(1) pursuit of the initial remedy must give the defendant notice
of the plaintiffs claim; (2) the defendants ability to gather
evidence must not be prejudiced by the delay; and (3) the
plaintiff must have acted reasonably and in good faith.27 On the
threshold question, Beegan had more than one legal remedy
available to him: he was entitled to proceed both before the
Commission and the superior court.28 And each of the three
additional elements set out in Dayhoff has been met. First,
DOTPF has had notice of Beegans retaliatory failure to hire claim
since he first presented it to the Commission in 1999. Second,
although DOTPF asserts that it would be prejudiced if Beegan were
allowed to pursue noneconomic damages because witnesses have died
or moved on, and memories have faded, DOTPF has known about
Beegans claim for years. As we stated in Dayhoff, if evidence
available when the employer first learned of the claim[] is no
longer available, and the employer could have obtained or
preserved the evidence, the current unavailability of the
evidence will not support a finding of employer prejudice.29
Finally, nothing in the record suggests that Beegan has acted
unreasonably or in bad faith before the superior court or the
Commission.
DOTPF nonetheless argues that equitable tolling should
not apply in this case because Beegans administrative action was
not dismissed or defective, relying on our decision in Gudenau &
Co. v. Sweeney Insurance30 to support its position. DOTPF also
cites our decision in Fred Meyer of Alaska, Inc. v. Bailey:
Generally, equitable tolling applies when the plaintiff files an
action in court after an administrative proceeding or initial
court action is dismissed or proves unavailing.31
But Beegans administrative action did prove unavailing.
Despite success on some of his claims before the Commission,
Beegan was not awarded noneconomic damages because they were not
available to him before the Commission. His initial action tolls
his subsequent one not because it was dismissed, but because it
was unavailing with respect to this form of relief.32
Our equitable tolling analysis in Gudenau relied on
case law from the Ninth Circuit and California,33 and decisions
from those jurisdictions suggest that equitable tolling should
apply here. For example, in Daviton v. Columbia/HCA Healthcare
Corp., the Ninth Circuit held that litigants who had prevailed on
their administrative complaint for disability discrimination
before the United States Department of Health and Human Servicess
Office of Civil Rights satisfied all the requirements for
equitable tolling in their subsequent district court case against
the same defendant for the same wrong.34 The Ninth Circuit also
concluded that litigants need not seek the same remedies before
both forums in order for equitable tolling to apply.35 And in
Collier v. City of Pasadena, the court held that a plaintiffs
successful workers compensation claim equitably tolled the
statute of limitations on his subsequent disability pension case
based on the same injury.36 Similarly, in Tu-Vu Drive-In Corp. v.
Davies, the Supreme Court of California held that the statute of
limitations on a plaintiffs subsequent damages claim was tolled
by the previous and successful third-party claim for recovery of
the seized property at issue.37
To deny equitable tolling here simply because Beegan
succeeded before the Commission on some of his claims would place
form over substance in light of the relevant statutory structure.
Had Beegan filed before the two entities at the same time, it is
quite likely that the superior court proceedings would have been
stayed by operation of the statute38 pending the Commissions
decision, which would have put the parties in essentially the
same position they are now. And the statutory structure could
scarcely be more permissive in providing an aggrieved party with
routes to relief. For instance, the statute provides that a
human rights litigant may file a complaint with the Commission;39
he may file a complaint in superior court;40 he may file in both
forums simultaneously; or he may bring the discriminatory
practice to the attention of the Commissions executive director
and encourage her to file a complaint.41 This statutory structure
indicates that the legislature intended to provide human rights
litigants particular flexibility in pursuing relief.42 Requiring
human rights litigants to file before the superior court and the
Commission simultaneously to preserve their rights in both
forums, as DOTPF suggests, would introduce a rigid requirement
into an otherwise permissive structure and could frustrate
legislative intent. Such a requirement would have a particularly
harsh effect on pro se litigants, like Beegan, and could cause
superfluous filings in the superior court.43
The Supreme Court of California has articulated the
general principle underlying the equitable tolling doctrine:
[I]f the defendant is not prejudiced thereby, the running of the
limitations period is tolled when an injured person has several
legal remedies and, reasonably and in good faith, pursues one.44
Our decisions have demonstrated the same general principle.45
Beegan has met this standard and the test set forth in our case
law.
Because Beegan filed his claim in superior court
approximately nine months after the Commission issued its
decision, and because his claim was equitably tolled during the
pendency of the Commission proceedings, Beegans noneconomic
damages claim is not barred by the statute of limitations.46
V. CONCLUSION
The decision of the superior court is REVERSED and the
case is REMANDED for determination of back pay and noneconomic
damages.
_______________________________
1 Matanuska Elec. Assn v. Chugach Elec. Assn, 152 P.3d
460, 465 (Alaska 2007).
2 Id.
3 Id.; Law Offices of Steven D. Smith, P.C. v. Borg-
Warner Sec. Corp., 993 P.2d 436, 443 (Alaska 1999).
4 McElroy v. Kennedy, 74 P.3d 903, 906 (Alaska 2003)
(internal quotation marks omitted).
5 Johnson v. Alaska State Dept of Fish & Game, 836 P.2d
896, 906 (Alaska 1991).
6 Other states have also established systems of
overlapping jurisdiction in the context of human rights cases.
See, e.g., Gandy v. Wal-Mart Stores, Inc., 872 P.2d 859, 862-63
(N.M. 1994) (upholding concurrent jurisdiction of the Human
Rights Division and the judicial system in the context of human
rights claims); Harrison County Bd. of Educ. v. Carson-Leggett,
466 S.E.2d 447, 449-51 (W. Va. 1995) (holding that a series of
adverse decisions by the West Virginia Education and State
Employees Grievance Board did not preclude a party alleging sex
discrimination and unlawful retaliation from later pursuing her
claims before the Human Rights Commission).
7 836 P.2d at 907-08, 908 n.16.
8 21 P.3d 1240 (Alaska 2001).
9 74 P.3d 903.
10 Id. at 906 (emphasis added). Our cases have clarified
that the could have been asserted test is limited to claims
against a party arising out of the same transaction being
litigated. The rule against claim splitting is a conventional
application of the doctrine of res judicata. The rule against
claim splitting provides that all claims arising out of a single
transaction must be brought in a single suit, and those that are
not become extinguished by the judgment in the suit in which some
of the claims were brought. Robertson v. Am. Mech., Inc., 54
P.3d 777, 780 (Alaska 2002) (quoting McDowell v. State, 23 P.3d
1165, 1167 n.9 (Alaska 2001) and Osborne v. Buckman, 993 P.2d
409, 412 (Alaska 1999)).
11 McElroy, 74 P.3d at 909 (internal quotation marks
omitted).
12 21 P.3d at 1253.
13 AS 18.80.110.
14 Id.
15 AS 18.80.120.
16 Ex rel. suits are typically brought by the government
upon the application of a private party . . . who is interested
in the matter. Blacks Law Dictionary 621 (8th ed. 2004).
17 836 P.2d 896, 907 n.15 (Alaska 1991); see also id. at
909, 914.
18 Id. at 914 (In all cases, however, the Commissions
power to award money is limited to special damages or to money
payments incident to equitable relief, that is, to damages for
direct, calculable pecuniary loss, such as back pay or housing
expenses. (footnote omitted)). The statute was amended in
September 2006 to expressly prohibit the Commission from awarding
noneconomic damages. See AS 18.80.130(a); ch. 63, 6, SLA 2006.
19 836 P.2d at 900, 903.
20 Id. at 903.
21 Id. at 907 n.15, 914.
22 Id. at 914 (quoting McDaniel v. Cory, 631 P.2d 82, 88
(Alaska 1981)) (footnote omitted).
23 Id.
24 Alaska Civil Rule 8(a) requires a complaint to set
forth a short and plain statement of the claim showing that the
pleader is entitled to relief and a demand for judgment for the
relief the pleader seeks.
25 Beegan suggests that his claims may sound in contract
rather than tort and that the statute of limitations may
consequently be three years rather than two. Regardless, he did
not file his superior court suit until four to five years after
the offending conduct, which is outside either allowable time
period.
26 772 P.2d 1085, 1087 (Alaska 1989).
27 Id.
28 AS 18.80.130(a)(1); AS 22.10.020(i).
29 722 P.2d at 1088 n.7.
30 736 P.2d 763, 768 (Alaska 1987).
31 100 P.3d 881, 886 (Alaska 2004).
32 Several federal courts have come to a similar
conclusion in an analogous context, holding that pursuit of
internal union remedies tolled the limitations period applicable
to a hybrid suit under 301 of the Labor Management Relations Act
. . . where the remedies pursued, although not capable of
providing a union member with complete relief, were capable of
providing some relief. James Lockhart, Annotation, When Is Six-
Month Limitations Period, Applicable to Employees Hybrid Action
Against Employer and Union Under 301 of Labor Management
Relations Act of 1947 (29 U.S.C.A. 185), Subject to Tolling or
Equitable Modification Due to Pendency of, or Employees Pursuit
of, Contractual or Internal Union Remedies?, 17 A.L.R. Fed. 2d
523, 32 (2007); see also id. 33; Robinson v. Cent. Brass Mfg.
Co., 987 F.2d 1235, 1243-44 (6th Cir. 1993) (stating former
employees pursuit of union remedies equitably tolled subsequent
suit against union in federal court because union remedies could
have provided her some relief, though not complete relief).
33 736 P.2d at 768.
34 241 F.3d 1131, 1133-34, 1141-42 (9th Cir. 2001).
35 Id. at 1133, 1141.
36 142 Cal. App. 3d 917, 921, 935 (Cal. App. 1983).
37 426 P.2d 505, 506 (Cal. 1967); see also Elkins v.
Derby, 525 P.2d 81, 84 (Cal. 1974).
38 AS 18.80.145(a) provides that [i]f the commission
certifies in writing to the court that it is presently
investigating or actively dealing with the act, practice, or
policy of the defendant giving rise to the cause of action, the
court shall, at the request of the commission, defer proceedings
for a period of not more than 45 days or such extended period as
the court may allow. See also subsection (b) of this provision,
which provides that the decision of the commission is binding on
the parties to the court action as to all issues resolved in the
hearing but not as to any issues not resolved in the hearing.
39 AS 18.80.100(a) provides that [a] person who is
aggrieved by a discriminatory practice prohibited by this chapter
may sign and file with the commission a written, verified
complaint.
40 AS 22.10.020(i) states that [a] person who is injured
or aggrieved by an act, practice, or policy which is prohibited
under AS 18.80 may apply to the superior court for relief. That
said, the commission must be given an opportunity to intervene if
it chooses, under AS 18.80.145(a): When an action is brought
under AS 22.10.020(i), the plaintiff shall serve a copy of the
complaint on the commission. Upon timely application, the
commission may intervene as a matter of right.
41 AS 18.80.100 provides that the executive director may
file a complaint in the manner provided in (a) of this section
when a discriminatory practice comes to the attention of the
executive director.
42 In an analogous context, other courts have concluded
that civil rights statutes should be liberally construed to
provide litigants flexibility in pursuing relief, particularly
through the application of equitable tolling. See Martinez v.
Orr, 738 F.2d 1107, 1110 (10th Cir. 1984) (In view of the
principle that Title VII [of the Civil Rights Act of 1964] is a
remedial statute to be liberally construed in favor of victims of
discrimination, we conclude that the thirty-day limitation of
[U.S.C.] section 2000e-16(c) . . . may be subject to equitable
tolling in appropriate cases. (citations and internal quotation
marks omitted)).
43 See Elkins, 525 P.2d at 88 (If in order to avert loss
of his rights, an injured party is forced to initiate proceedings
with both the compensation board and a superior court, he brings
onerous procedural burdens upon himself, his employer, and the
already overtaxed judicial system.).
44 Id. at 84.
45 See, e.g., Dayhoff v. Temsco Helicopters, Inc., 772
P.2d 1085, 1087 (Alaska 1989).
46 Beegan also contests the superior courts dismissal of
his alternative claims based on retaliation in violation of
public policy and the Whistleblower Act. Because we hold that
his claims for damages under AS 18.80 are not precluded, we need
not reach these alternative theories.
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