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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Grundberg v. Alaska State Commission for Human Rights (8/22/2014) sp-6943

Grundberg v. Alaska State Commission for Human Rights (8/22/2014) sp-6943

         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,  

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SUE L. GRUNDBERG,                                     )  

                                                      )        Supreme Court No. S-15365  

                           Appellant,                 )  

                                                      )        Superior Court No. 3AN-12-11889 CI  

         v.                                           )  

                                                      )        O P I N I O N  

ALASKA STATE COMMISSION                               )  

FOR HUMAN RIGHTS,                                     )        No. 6943 - August 22, 2014  


                           Appellee.                  )  


                  Appeal from the Superior Court of the State of Alaska, Third  


                  Judicial District, Anchorage, Philip R. Volland, Judge.  

                  Appearances:  David R. Edgren, Edgren Law Offices, LLC,  


                  Wasilla, and Joe P. Josephson, Josephson Law Offices, LLC,  


                  Anchorage,  for  Appellant.              William  E.  Milks,  Assistant  


                  Attorney   General,   and   Michael   C.   Geraghty,   Attorney  

                  General, Juneau, for Appellee.  

                  Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  


                  Bolger, Justices.  

                  FABE, Chief Justice.  


                  Alaska  Statute  18.80.112(b)(4)  provides  the  executive  director  of  the  

Alaska State Commission for Human Rights with discretion to dismiss a complaint of  

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employment discrimination if the complainant initiates an action in another forum "based  


on the same facts."  Here, a public employee filed a complaint with the Commission in  

2007 alleging employment discrimination and filed another complaint with the superior  


court in 2012. Upon learning of the 2012 complaint, the executive director dismissed the  


2007 complaint, citing AS 18.80.112(b)(4).  We conclude that the executive director had  


a proper statutory basis for dismissal because the 2012 civil complaint was "based on the  

same facts" as those alleged in the 2007 complaint.  


                   In May 2007 Sue Grundberg applied for a promotion with her employer,  


the  Alaska  Department  of  Transportation  and  Public  Facilities,  but  the  Department  


promoted someone else instead.  Grundberg filed an administrative complaint against the  

Department with the Alaska State Commission for Human Rights alleging that she was  


"fully qualified" for the promotion and that the Department had engaged in age, race, and  

sex  discrimination  in  violation  of  various  state  and  federal  laws  by  promoting  "a  

younger, less qualified Caucasian male" over her.  

                   The Commission initiated an administrative investigation and "did not find  


substantial evidence to support allegations in the complaint."  The executive director of  

                                                            1   On appeal, we reversed and remanded to the  


the Commission dismissed the complaint. 


Commission.   We held that Grundberg had identified substantial evidence supporting  


an  inference  that  there  was  a  reasonable  possibility  (1)  that  the  Department  was  

          1        AS  18.80.112(a)   provides:  "If  an  investigation  of  a  complaint  under  

AS  18.80.110  fails  to  discover  substantial  evidence  of  an  unlawful  discriminatory  

practice under this chapter, the executive director shall issue an order dismissing the  

complaint without prejudice."  

          2        Grundberg v. Alaska State Comm'n for Human Rights, 276 P.3d 443, 452  


(Alaska 2012).  

                                                             -2-                                                      6943

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motivated         by     discriminatory           intent     and      (2)    that    the     Department's            proffered  


non-discriminatory purpose was mere pretext.   Accordingly, we concluded that the  


dismissal was improper and that Grundberg deserved a hearing before the Commission  

on her allegations unless another basis for dismissal was found.4  


                    On remand, the Commission  pursued Grundberg's 2007 administrative  


complaint.    It  prepared  a  draft  accusation  on  behalf  of  Grundberg,  a  draft  entry  of  


appearance by a Commission-appointed human rights lawyer on behalf of Grundberg,  

and a draft referral for hearing by the Commission.  


                    But on November 17, 2012, before these drafts were finalized, Grundberg  

filed  a  civil  complaint  against  the  Department  in  superior  court.    She  divided  the  


2012  superior  court  complaint  into  two  parts,  first  listing  "[g]eneral  [a]llegations  

[a]pplicable to [e]ach [c]ause of [a]ction," and second setting out specific claims for  



                    Among the general allegations were the following: that Grundberg applied  

in mid-2007 for a promotion for which she possessed all necessary qualifications and  

that   the   promotion   went   to   a   "white   male"   candidate   instead   of   to   her.   The  


2012  complaint  detailed  the  procedural  history  of  Grundberg's  2007  administrative  


complaint, from inception through dismissal, appeal, and remand.  The 2012 complaint  


then stated that during the pendency of that appeal, Grundberg initiated an action in the  

U.S. Equal Employment Opportunity Commission (EEOC), bringing new claims of race,  


sex, and age discrimination and retaliation that allegedly occurred in 2010 and 2011  

involving  poor  performance  evaluations,  pay  reduction,  temporary  suspension,  and  


hostile  and  unequal  treatment  at  work.    The  2012  complaint's  general  allegations  

          3         Id.  

          4         Id.  

                                                               -3-                                                             6943  

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concluded by stating that the EEOC was unable to substantiate her claims and had issued  

a 90-day notice of Grundberg's right to sue.  

                   Following these "general allegations applicable to each cause of action,"  

the 2012 complaint listed five separate claims for relief, each of which "re-allege[d] and  

incorporate[d] herein each and every allegation" from the preceding paragraphs of the  

complaint.      The   2012   complaint   brought   three   claims   of   age,   sex,   and   race  

discrimination, stating simply that Grundberg's age, sex, and race were "factor[s] in the  


decisions of the [Department] and her supervisor regarding her employment" and "made  

a  difference,  affecting  her  adversely,  when  such  decisions  were  [made]."                                      The  

2012 complaint also included an equal protection claim, alleging that the Department  


"intentionally treated [Grundberg] differently from other similarly situated employees"  


without "rational basis" based on "the vindictiveness of [her] supervisor rather than upon  

legitimate  grounds  or  objectives,  or  personnel  needs."    Finally,  the  2012  complaint  

claimed illegal retaliation following her filing of the 2007 complaint.  

                   The  executive  director  of  the  Commission  learned  of  the  2012  civil  


complaint  on  November  27,  2012,  and  ordered  the  2007  administrative  complaint  

dismissed  on  November  30,  2012,  stating:    "Complainant  has  initiated  an  action  in  

Alaska Superior Court based on the same facts at issue in this case."  The executive  

director stated that the legal basis for this dismissal was AS 18.80.112(b)(4), which  


provides:  "At any time before the issuance of an accusation under AS 18.80.120, the  


executive director may dismiss without prejudice a complaint if the executive director  


determines that . . . the person aggrieved by the discriminatory practice has initiated . . .  

an action or proceeding in another forum based on the same facts."  

                   Following filing of the 2012 complaint and dismissal of the 2007 complaint,  


the Department answered Grundberg's 2012 complaint, denying all relevant allegations  


of discrimination, denial of equal protection, and retaliation.  The Department also raised  

                                                            -4-                                                      6943

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the affirmative defense that "Grundberg's claims may be barred as untimely or by the  

applicable statutes of limitations."  

                      Following the Department's answer, Grundberg appealed the executive  


director's dismissal of her 2007 administrative action to the superior court.  She argued  


that the Commission lacked a statutory basis to close her case under AS 18.80.112(b)(4)  


because her 2012 civil action was not "based on the same facts" as her 2007 action.  The  

superior  court,  in  its  role  as  an  intermediate  appellate  court,  concluded  that  the  


Commission  had  a  statutory  basis  to  close  Grundberg's  2007  action  because  her  

2012   civil   complaint   "subsume[d]   the   facts   of   her   2007   complaint   before   the  

Commission." Grundberg appeals.  



                      It  is  a  legal  question  whether  a  new  complaint  is  based  on  facts  that  


underlay a prior complaint.   Because "no agency expertise is involved" in this legal  

determination, the substitution-of-judgment standard of review applies, and "we may  


'substitute [our] own judgment for that of the agency even if the agency's decision had  


                                                 The ultimate decision to dismiss a complaint pursuant to  

a reasonable basis in law.' "  


any of the factors in AS 18.80.112(b) is at the discretion of the executive director of the  

                      7  But the executive director of the Commission abuses that discretion if the  


           5          Cf.   Alaska  Wildlife  Alliance  v.  State ,  74  P.3d  201,  205  (Alaska  2003)  

("Whether res judicata prevents a plaintiff from bringing an action presents a question              

of law that we review de novo.").  



                      Davis Wright Tremaine LLP v. State, Dep't of Admin. , 324 P.3d 293, 299  

(Alaska 2014) (alteration in original) (internal citations omitted).  



                      See AS 18.80.112(b) ("[T]he executive director may dismiss" a complaint  


if  the  director  determines  that  one  of  seven  predicate  conditions  is  met.  (emphasis  


                                                                     -5-                                                              6943

----------------------- Page 6-----------------------


predicate        legal     determination           cited      as    a   statutory       basis      for    dismissal        under  

AS 18.80.112(b) is made in error.  



                    Alaska Statute 18.80.112(b)(4) provides that the executive director of the  


Commission  "may  dismiss  without  prejudice  a  complaint  if  the  executive  director  


determines that . . . the person aggrieved by the discriminatory practice has initiated . . .  

an action or proceeding in another forum based on the same facts."  


                    Grundberg asks us to reverse the dismissal of her 2007 action and remand  

to the Commission for further proceedings.  She provides two specific arguments.  First,  


she argues that the 2012 civil complaint does not rely, as a basis for relief, on any of the  


facts alleged in the 2007 complaint and thus that the executive director lacked a statutory  


basis for dismissal under AS 18.80.112(b)(4).  Grundberg reasons that the discussion in  


the 2012 complaint of the Department's allegedly discriminatory failure to promote her  

in 2007 was only "factual historical and background information" and did not form "a  

factual basis for relief in that action."  Second, Grundberg argues that if the two-year  



statute of limitations in AS 09.10.070(a)  applies to claims arising from the events of  


2007, then as a matter of law the 2007 events were not the "same facts" underlying  

Grundberg's 2012 complaint.  


                    The Commission responds that the 2012 complaint clearly includes claims  


based  on  the  same  facts  alleged  in  the  2007  complaint.                              It  further  maintains  that  

AS  18.80.112(b)(4)  does  not  make  the  ultimate  viability  of  the  duplicative  action  

relevant to the executive director's power to dismiss the administrative complaint.  It  



                    AS 09.10.070(a) provides:  "Except as otherwise provided by law, a person  


may not bring an action . . . upon a liability created by statute [such as, for example,  


employment discrimination] . . . unless the action is commenced within two years of the  

accrual of the cause of action."  

                                                                -6-                                                             6943  

----------------------- Page 7-----------------------


concludes that, in any event, the limitations period on Grundberg's 2007 claims would  


have been equitably tolled while they were at the Commission and that the corresponding  

claims in her 2012 complaint would thus not be time-barred in superior court.  


                    We affirm the Commission's dismissal of Grundberg's 2007 complaint  


under  AS  18.80.112(b)(4).                 Two  complaints  are  "based  on  the  same  facts"  under  


AS 18.80.112(b)(4) when they both allege common facts that are sufficient to make out  

                                                                                                            9  That test is  


a well-pleaded claim for relief that is actually brought in both complaints.  

met here.  

                    First,  the  2012  complaint  alleges  all  of  the  relevant  facts  that  the  

2007 complaint alleged:  that Grundberg worked at the Department in 2007 and sought  


a promotion but that the Department instead gave the promotion to a younger, white male  

due to alleged age, race, and sex discrimination.  


                    Second, the 2007 complaint uses these shared facts to make out claims for  


discriminatory failure to promote in 2007 based on the impermissible characteristics of  

age, sex, and race.  


                    Third, the 2012  complaint uses these same facts to make out the same  

claims.  Grundberg attempts to recast those facts as "historical" rather than operative  


bases  for  relief  in  her  2012  complaint,  but  we  reject  that  characterization  for  three  

reasons.    First,  the  2012  complaint  describes  those  facts  as  "[g]eneral  [a]llegations  

[a]pplicable to [e]ach [c]ause of [a]ction."  Second, the 2012 complaint incorporates  

those  facts  by  reference  in  each  enumerated  claim  for  relief.    And  third,  the  

2012  complaint's  claims  for  relief  for  age,  race,  and  sex  discrimination  are  broadly  

          9         Conversely,  two  complaints  are  not  "based  on  the  same  facts"  under  


AS 18.80.112(b)(4) when the common facts, standing alone, are not sufficient to make  


out a well-pleaded claim for relief, or when the common facts would be sufficient but the  

two complaints do not bring the same claim for relief.  

                                                             -7-                                                           6943  

----------------------- Page 8-----------------------

phrased to include "the decisions of the [Department] and her supervisor regarding her   

employment" and make no attempt to distinguish between the claims based on actions                             

taken in 2010 and 2011 and the actions characterized by the shared facts from 2007.          

Grundberg's 2012 complaint alleged the same 2007 facts to make out the same claims       

for relief.  That Grundberg's 2012 complaint also alleged new facts to support additional         

claims for relief - such as new instances of age, sex, and race discrimination in 2010  

and 2011 or the new retaliation and equal protection claims - is of no moment.  

                     For  these  reasons,  we  conclude  that  the  executive  director  correctly  


determined that the legal predicate to discretionary dismissal under AS 18.80.112(b)(4)  


was met in this case as a matter of law because Grundberg "initiated . . . an action . . . in  

another forum based on the same facts" as her 2007 complaint.  

                     The possibility that Grundberg's 2007 claims might now be time-barred is  


legally irrelevant to the question whether the 2012 complaint is "based on the same facts"  

as the 2007 complaint.  And in any event, under our precedent, Grundberg's 2007 claims  

of  age,  sex,  and  race  discrimination  would  likely  not  be  time-barred  because  the  



limitations clock was equitably tolled while those claims were before the Commission. 

We also note that AS 18.80.112(d)(2) provides that dismissal under any of the provisions  


in section .112, including subsection (b)(4), "does not prevent a complainant from . . .  


filing a new complaint under AS 18.80.100 that resolves the grounds for the dismissal."  


Accordingly, Grundberg may attempt to cure the defect that led to the dismissal of her  


2007 complaint and re-file with the Commission.  

           10        See, e.g., Beegan v. State, Dep't of Transp. & Pub. Facilities , 195 P.3d 134,  

141-43 (Alaska 2008).  

                                                                  -8-                                                                6943  

----------------------- Page 9-----------------------



                  We agree with the Commission's legal determination that Grundberg's  


2012 complaint in superior court was "based on the same facts" as her 2007 complaint  


to the Commission within the meaning of AS 18.80.112(b)(4).  We therefore AFFIRM  

the Commission's dismissal of Grundberg's 2007 complaint.  

                                                          -9-                                                   6943

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