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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Harry Ross v State of Alaska Human Rights Commission (8/30/2019) sp-7405
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, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
HARRY ROSS, )
) Supreme Court No. S-16961
Appellant, )
) Superior Court No. 3AN-16-09261 CI
v. )
) O P I N I O N
ALASKA STATE COMMISSION FOR )
HUMAN RIGHTS, ) No. 7405 - August 30, 2019
)
Appellee. )
)
rom the Superior Court of the State of Alaska, Third
Appeal f
Judicial District, Anchorage, Erin B. Marston, Judge.
Appearances: Mark Choate, Choate Law Firm LLC, Juneau,
for Appellant. William E. Milks, Assistant Attorney General,
and Jahna Lindemuth, Attorney General, Juneau, for
Appellee.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
WINFREE, Justice.
I. INTRODUCTION
After 36 years of service with the Alaska Railroad Corporation - most of
those years as a conductor - an African-American man applied for a newly created
managerial trainmaster position, but he was not chosen. He brought an unsuccessful
internal racial discrimination complaint. He brought a similar complaint before the
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Alaska State Commission for Human Rights, and it was denied. He then appealed to the
superior court, and it ultimately affirmed the Commission's determination that he had
failed to carry his burden of showing racial discrimination.
On appeal to us, the man contends that the Railroad's stated reasons for not
hiring him were pretextual. Although there is some basis for his arguments that a hiring
panel member may have harbored racial prejudice and that the explanation that he was
not chosen because of poor interview performance was a post-hoc rationalization, we
reviewtheCommission's determinationonlyfor substantial supportingevidence. Under
this deferential standard of review, we conclude that the evidence detracting from the
Commission's determination is not dramatically disproportionate to the supporting
evidence. Because substantial evidence in the record thus supported the Commission's
determination, we affirm the superior court's decision upholding it.
II. FACTS AND PROCEEDINGS
A. Facts
Harry Ross is an African-American who was hired as a brakeman by the
then-federally-owned Railroad in 1968, promoted to conductor around 1974, and
promoted to yardmaster in 1982. He testified that when he was a brakeman and
conductor, African-American colleagues commonly were referred to by a racial slur and
the slur was used in his presence to deride an African-American colleague's
performance. Ross asserted that when he was a yardmaster efforts were made to reduce
his higher evening-shift pay to increase a white colleague's pay, and an employee -
apparently white - he had trained to become a yardmaster later was chosen over him
for a higher position.
After three years as a yardmaster, Ross returned to being a conductor in
1985. He testified that he chose to return to the conductor position because of the
discrimination he had endured as a yardmaster. Personnel records indicate that when the
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federal government transferred the Railroad to the State of Alaska in 1985, his
employment terminated; hethen was rehiredby theState-owned Railroad asaconductor.
Ross still was a conductor in 2004 when he learned the Railroad was hiring
for ninenewmanagerialtrainmaster positionsto be located inAnchorage, Fairbanks, and
Talkeetna. The position description listed minimum qualifications of "15 years of train
service experience and one year supervising, directing, or being a team leader for train
operations personnel." The trainmaster positions were non-union, and length of
experience was not determinative. Ross was among 18 candidates selected to interview
for the 9 new positions; he sought one of the proposed Anchorage positions. Two
candidates were African-American; the rest were white.
A panel of five white Railroad employees interviewed candidates and
recommended whom to hire; the recommendations were accepted in their entirety. The
hiring panel was supposed to conduct interviews using a questionnaire with 25 graded
questions, 3 ungraded questions, and 1 graded itemtitled "Interview Presentation." Ross
responded to a question about his reasons for applying by citing his experience, his
desire to increase his pension based on a better "high three" salary years, his enjoyment
of working with people, and his wish to better support his new wife. He responded to
a question about computer proficiency by stating that his skills were "basic."
The panelists eventually abandoned the grading system because the
candidates were not consistently asked the same questions and because panelists did not
receive instruction on its proper use. Panelists testified that they instead discussed the
candidate's strengths and weaknesses after each interview, and that, in a group
discussion after concluding all the interviews, they decided which candidates to
recommend. Four panelists made notes about some candidates' interview performance
and qualifications; it appears that only one made notes, which were negative, about
Ross's performance.
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The Railroad made offers to only 7 of 18 applicants, despite recruiting for
9 positions. Two positions were left vacant in Anchorage; neither Ross nor the other
African-American candidate was offered a position. Although no successful Anchorage
candidate had as long a tenure as Ross, all had been with the Railroad for many years -
one for 22 years, two for 29 years, and one for 30 years. The Railroad continued
recruiting to fill the vacancies, reducing the minimum required years of experience from
15, when Ross applied, to 5 in 2005.
Ross filed an internal complaint with the Railroad in November 2004,
alleging that he was not chosen for a trainmaster position because of his race. The
complaint was investigated by Ouida Morrison, the Railroad's African-American equal
employment opportunity manager; she reviewed notes panelists made during the
interviews and conducted individual interviews with Ross and the panelists.
Two of the panelists - Pat Flynn and Curt Rudd - allegedly had past
racially fraught interactions with Ross. Morrison testified to hearing from a colleague
that Ross once had remarked that white people look alike and that this remark upset
Flynn. Morrison memorialized this account in an email to the Railroad's counsel,
concluding that Flynn had "formed an opinion about [Ross] and never let it go." But it
does not appear that Flynn was asked about the alleged incident during the subsequent
discrimination investigations, and neither Flynn nor the colleague was questioned about
it during the Commission's administrative hearing.
Rudd admitted in testimony that he had referred to Ross by the nickname
"Black Magic" for the 30 years they had known each other. Rudd testified that the
nickname reflected Ross's apparently supernatural ability to turn trains around on
schedule and that Ross had adopted the nickname for himself. Rudd further testified that
the nickname was never meant to offend Ross and that Rudd ceased using the nickname
when Ross objected to it in 2008. Ross denied ever referring to himself as "Black
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Magic," which he considered "kind of racist"; he said he felt the nickname was part of
an ingrained hostile workplace culture that he had to let pass.
Flynn and Rudd may have played a disproportionate role in deciding
whether to hire Ross as trainmaster. Rudd was the Anchorage terminal superintendent
and would have been Ross's direct supervisor; Flynn testified that both he and Rudd
would supervise trainmasters located in Anchorage. Morrison and the Railroad's Vice
President ofOperations,who ultimatelywasresponsibleforthehiring decisions, testified
that Flynn had been designated the lead panelist.
Morrison testified that the panelists told her that when interviewing they
focused on candidates' ability to communicate and interact, especially with younger
colleagues. Morrison also testified that Ross told her he had been offended when Flynn
entered Ross's interview late. Morrison concluded that Ross had performed poorly in
the interview and that "he did not relay or sell himself that he was willing and wanting
and desiring to do the job." But she never issued a formal determination whether the
panel had discriminated against Ross.
In April 2005 Ross filed a complaint with the Commission, claiming that
the Railroad discriminated against him in violation of AS 18.80.220(a)(1), prohibiting
employment discrimination based on race. The Commission investigator interviewed
Ross and the panelists. The investigator issued a two-page determination in March 2007,
finding that the Railroad did not offer Ross a trainmaster position because he provided
short answers and failed to elaborate during the interviews, did not "sell himself,"
conveyed that he felt "entitled" to the position, and lacked computer skills. The
Commission therefore dismissed Ross's complaint without a hearing.
B. Proceedings
Ross appealed the Commission's dismissal to the superior court. The
superior court issued its first decision in March 2008. The court relied on the
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1
U.S. Supreme Court's three-part McDonnell Douglas Corp. v. Green test. We have
2
stated that, absent "direct evidence"
of discriminatory intent, the three-part test should
3 Under the McDonnell Douglas framework,
be used to analyze discrimination claims.
the complainant bears the initial burden of establishing a prima facie case of
discrimination: membership in a protected class, application to a position for which the
1 411 U.S. 792 (1973).
2 "[T]he term 'direct evidence' refers to the quantum of proof ; it is not used
as an antonym for 'circumstantial evidence.' In order to show direct evidence [of
discriminatory intent,] the plaintiff must 'at least offer either direct evidence of
prohibited motivation or circumstantial evidence strong enough to be functionally
equivalent to direct proof.' " Smith v. Anchorage Sch. Dist., 240 P.3d 834, 840 (Alaska
2010) (emphasis in original) (first quoting Kinzel v. Discovery Drilling, Inc., 93 P.3d
427, 434 (Alaska 2004); then quoting Mahan v. Arctic Catering, Inc., 133 P.3d 655, 662
(Alaska 2006)).
3 See VECO, Inc. v. Rosebrock, 970 P.2d 906, 918 (Alaska 1999) ("In
determining whether an employer has violated [Alaska's Human Rights Act] when there
is no direct evidence of discriminatory intent, we have adopted the three-part framework
used in Title VII cases."); Peterson v. State, Dep't of Nat. Res., 236 P.3d 355, 364
(Alaska 2010) ("Because it is 'usually impossible' for an employee to prove that the
actions of an employer were motivated by discriminatory intent, we have adopted the
three-part pretext analysis . . . for claims of employment discrimination where there is
no direct evidence of discriminatory intent, known as the McDonnell Douglas test.").
If there is "direct evidence" of discriminatory intent in a mixed motive case,
we apply the framework from Price Waterhouse v. Hopkins, 490 U.S. 228 (1989),
superseded by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1074.
Era Aviation v. Lindfors, 17 P.3d 40, 44 (Alaska 2000), superseded on other grounds by
regulation as stated in Moody v. Royal Wolf Lodge, 339 P.3d 636, 640 (Alaska 2014).
Under the Price Waterhouse framework for mixed motive cases - those "based on a
mixture of legitimate and illegitimate considerations" - if the plaintiff produces direct
evidence of discriminatory intent, the burden shifts to the defendant to show that the
decision would have been the same absent the influence of discriminatory intent. Id.
(quoting VECO, 970 P.2d at 920-21). Ross argues that the explanations why he was not
hired were pretextual; he does not argue that this is a mixed motive case.
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complainant was qualified, denial of the application, and hiring of a person not within
4
the same protected class as the complainant.
If the complainant establishes a prima facie
case, the burden shifts to the employer to offer "legitimate, nondiscriminatory reasons
5 An employer "need only produce admissible evidence
for the employment action."
which would allow the trier of fact rationally to conclude that the employment decision
had not been motivated by discriminatory animus."6 If the employer offers a legitimate,
credible reason for not hiring the complainant, the burden shifts back to the complainant
to prove that the reason is pretextual.7 "[A] complainant may demonstrate pretext 'either
directly by persuading the [tribunal] that a discriminatory reason more likely motivated
the employer or indirectly by showing that the employer's proffered explanation is
unworthy of credence.' "8
The superior court distinguished between the amount of evidence needed
to prevail under the test at an adjudication and the amount of evidence needed (at that
9
time) to compel an administrative hearing based on an investigation by the Commission.
4 Raad v. Alaska State Comm'n for Human Rights, 86 P.3d 899, 904-05
(Alaska 2004).
5 Id. at 905.
6 Id . (quoting VECO, 970 P.2d at 919).
7 Id .
8 Id . (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981)).
9 See State, Dep't of Fish & Game, Sport Fish Div. v. Meyer, 906 P.2d 1365,
1375 (Alaska 1995), superseded on other grounds by statute, AS 18.80.112(b), as
recognized in Huit v. Ashwater Burns, Inc. , 372 P.3d 904, 914 n.52 (Alaska 2016).
When Ross filed his complaint, the Commission was authorized to dismiss complaints
only for lack of substantial evidence; in 2006 the legislature enacted AS 18.80.112(b),
(continued...)
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A complainant needed only establish a prima facie case and offer facts raising a "genuine
dispute about [the employer's] explanation of its decisions" to meet the evidentiary
10 The court determined Ross had
threshold to obtain an administrative hearing.
established a prima facie case of discrimination and offered facts raising a genuine
dispute about the Railroad's explanation by offering documents the Commission had not
addressed because of its limited investigation. The court therefore ordered the
Commission to hold a full evidentiary hearing.
A hearing was held before an administrative law judge (ALJ) in January
2009. Ross testified to past discrimination at the Railroad, including the common use of
racial slurs earlier in his career and a specific instance when he heard a slur used to refer
to an African-American colleague. He also testified to instances when he felt racist and
discriminatory behavior had been directed at him. Ross testified that Rudd's "Black
Magic" nickname referred to Ross's race and was offensive. Ross said that he had been
training an apparently white subordinate who was promoted to a position that Ross also
had applied for and that he believed the promotion was motivated by discrimination.
Ross testified to being "annoyed" by Flynn's late arrival to the interview, but Ross
insisted that it did not affect his performance. He testified that in his interview he
stressed his experience as a yardmaster and his desire to train younger workers.
Each hiring panelist testified, offering accounts of the trainmaster
candidates' interviews - Ross's in particular - consistent with the internal and
Commission investigations' findings. Panelists testified that they were looking for
candidates to "sell themselves" on why they deserved the position and to demonstrate
9 (...continued)
allowing the Commission to dismiss complaints for prudential reasons. See Toliver v.
Alaska State Comm'n for Human Rights , 279 P.3d 619, 623 n.3 (Alaska 2012).
10 Meyer, 906 P.2d at 1375.
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an ability to communicate. Panelists testified that Ross gave short responses to questions
and failed to elaborate on how his experience qualified him for the trainmaster position,
leading some to discount the value of his experience despite knowing his tenure and
service as a yardmaster.
Panelists testified that Ross appeared to lean too heavily on his experience,
seemingly taking for granted that his experience would guarantee him a position. Flynn
testified that this demonstrated a "seniority mentality." Flynn and two others testified
that Ross appeared more interested in benefitting from the position - particularly a
higher pension - than in benefitting the Railroad.
Three former Railroad employees testified to racism and discrimination at
the Railroad. A white former employee testified to a general culture of racial
discrimination during his time at the Railroad. An African-American former employee
testified to: hearing racial slurs; witnessing, sometime in the 1990s, a white employee
use a racial slur when telling Ross not to sit in the same train car; and experiencing
discrimination similar to what Ross alleged. Specifically, the former employee testified
that when he was a yardmaster in 1993, he interviewed to become a terminal manager
- a position with the same duties as yardmaster - and an interviewer accused him of
being interested only in earning his "high three." He testified that the interviewer later
told him he should not get the raise that came with the promotion, and that another
interviewer - possibly Rudd - made a comment to the effect that he was too lazy for
the job. He filed a complaint with the Railroad, but it found no discrimination.
Another African-Americanformeremployeetestifiedtohearingacolleague
describe him to a third person using a racial slur in 2003 after the colleague thought their
telephone conversation had ended. He testified that in 2003 or 2004 he had applied for
a training program, that he had the most seniority of those who applied, that the
employee who was selected had the least seniority, and that selection traditionally had
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been based on seniority. The former employee had filed complaints with the Railroad
and then the Commission, but both complaints apparently were denied. He later quit.
WitnessestestifiedthatonlyahandfulofAfrican-American employees held
management positions at the Railroad around the time of the trainmaster interviews and
that none of these positions were in the transportation division. Apparently the only two
African-American employees in management in 2004 were Morrison and the
administrative support staff supervisor.
The ALJ issued a recommendation to the Commission in July 2009.
Applying the second and third prongs of the McDonnell Douglas test, the ALJ found that
the Railroad had offered a legitimate business reason for its decision, shifting the burden
back to Ross to "persuad[e] the [tribunal] that a discriminatory reason more likely
motivated the employer or . . . that the employer's proffered explanation is unworthy of
11 The ALJ ultimately was not persuaded by Ross's claim that the Railroad's
credence."
explanation was pretextual.
In response to Ross's argument that use of racial epithets and lack of
African-American managers demonstrated a workplace culture denying equal
opportunity toAfrican-Americanemployees, theALJ first concludedthatthegeneraluse
of racial slurs in the workplace was not probative of animus in the specific hiring process
for trainmasters. The ALJ then concluded that Rudd's using the nickname "Black
Magic" and his involvement in denying the other African-American employee's
application for terminal manager may have been relevant, because Rudd participated in
the trainmaster hiring process, but that Rudd did not mean "Black Magic" to be
derogatory and the hiring decisions were made as a group. The ALJ also concluded that
the lack of African-American managers was not probative because it did not indicate the
11 Raad, 86 P.3d at 905 (quoting Burdine, 450 U.S. at 256).
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Railroad's specific intent in hiring for the trainmaster position and was not placed in a
broader statistical context.
In response to Ross's argument that the Railroad's explanation was a post-
hoc rationalization facilitated by a flawed hiring process, the ALJ concluded that,
although the hiring process was flawed, the explanations the panelists provided were
related to thetrainmaster position's responsibilities and likely not fabricated. In response
to Ross's argument that his not being hired despite having superior qualifications
demonstrated discrimination, the ALJ concluded that his tenure and job history were not
determinative because the position was non-union and merit based and because of
credibletestimony that thenewtrainmaster position andhis previousyardmasterposition
differed. The ALJ further concluded that Ross failed to inform the panel how his
relevant experience qualified him to be a trainmaster. The ALJ recommended that the
Commission dismiss Ross's complaint because he failed to prove discrimination.
The Commission adopted the ALJ's recommendation, and Ross appealed
to the superior court. The court found that the ALJ had failed to adequately scrutinize
the hiring panel's reliance on subjective hiring criteria, relying on Ninth Circuit Court
of Appeals case law finding such criteria prone to conceal conscious and unconscious
12 The court therefore remanded the matter for the ALJ to consider, in
discrimination.
light of pertinent Ninth Circuit case law, the panel's use of subjective criteria in the
hiring process.
12 The superior court cited the following cases: Xin Liu v. Amway Corp. , 347
F.3d 1125, 1136-37 (9th Cir. 2003); Jauregui v. City of Glendale , 852 F.2d 1128, 1135-
36 (9th Cir. 1988); Atonio v. Wards Cove Packing Co. , 810 F.2d 1147, 1481 (9th Cir.
1987) (en banc); Nanty v. Barrows Co. , 660 F.2d 1327, 1334 (9th Cir. 1981), overruled
on other grounds by O'Day v. McDonnell Douglas Helicopter Co. , 79 F.3d 756, 760 (9th
Cir. 1996).
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In April 2014 the ALJ issued a revised recommendation identical in most
respects to the previous recommendation, but the ALJ also observed that several white
employees who met the minimum qualifications had not been selected and that hearing
testimony indicated other candidates had been evaluated based on interview
performance. The Commission issued a final order adopting the revised
recommendation with little explanation, although one commissioner dissented on the
ground that the "interview process was highly subjective and a ready vehicle for
unintentional discrimination." The superior court then affirmed the Commission's
revised determination. This appeal followed.
III. STANDARD OF REVIEW
"When a superior court acts as an intermediate appellate court in an
13
administrative matter, 'we independently review the merits of the agency's decision.' "
14
WereviewaCommission decision for substantial supportingevidence. "'[S]ubstantial
evidence[]' . . . is 'such relevant evidence as a reasonable mind might accept as adequate
15
to support' the agency's conclusion." "The substantial evidence test is highly
deferential, but we still review the entire record to ensure that the evidence detracting
from the agency's decision is not dramatically disproportionate to the evidence
13 Pub. Safety Emps. Ass'n, AFSCME Local 803, AFL-CIO v. City of
Fairbanks, 420 P.3d 1243, 1248 (Alaska 2018) (quoting State, Dep't of Admin., Div. of
Ret. & Benefits v. Shea , 394 P.3d 524, 528-29 (Alaska 2017)).
14 Pyramid Printing Co. v. Alaska State Comm'n for Human Rights, 153 P.3d
994, 998 (Alaska 2007) ("A determination by the Human Rights Commission will stand
if it is supported by substantial evidence.").
15 Local 803, 420 P.3d at 1248 (quoting Shea v. State, Dep't of Admin., Div.
of Ret. & Benefits, 267 P.3d 624, 630 (Alaska 2011)).
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supporting it such that we cannot 'conscientiously' find the evidence to be
'substantial.' " 16
IV. DISCUSSION
A. Legal Standard And Scope Of Review
Ross argues that the Railroad's explanation for not selecting him was
pretextual. As noted earlier, we apply the three-part McDonnell Douglas test to
discrimination claims based on pretext if there is no direct evidence of discriminatory
17
intent.
Ross and the Railroad agree that the test's first two prongs - a prima facie
showing that the employee was qualified but that no member of the employee's race was
hired, and the employer's offer of a legitimate business reason for not hiring the
employee - have been met. The sole question for us on review is whether substantial
evidence supports the Commission's determination that Ross did not satisfy the third
prong by showing the offered reasons for not hiring him were a pretext for
discrimination. We have noted, when applying a similarly deferential standard of
review, that the deferential standard of review may result in a decision we might not have
18
reached were we the initial decision maker.
16 Id. (emphasis in original) (quoting Shea, 267 P.3d at 634 n.40).
17 See VECO, Inc. v. Rosebrock, 970 P.2d 906, 918 (Alaska 1999); Peterson
v. State, Dep't of Nat. Res., 236 P.3d 355, 364 (Alaska 2010).
18 See State v. Pub. Safety Emps. Ass'n , 235 P.3d 197, 202 (Alaska 2010)
(stating in appeal of arbitration clearing police officer of multiple allegations of
misconduct that "[i]f we were reviewing this case in the first instance, or under a less
deferential standard, we likely would not have reached [the same] conclusion").
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B. Substantial Evidence Supporting The Commission's Determination
1. Rudd's use of "Black Magic"
Ross argues that Rudd's use of the nickname "Black Magic" reflects racial
animus that, when considered together with flaws in the hiring process and other
evidence of discrimination by the Railroad, demonstrates Ross was not hired because of
his race. Ross disputes Rudd's testimony that the nickname reflected Ross's magical
ability with trains rather than racial prejudice, pointing to the term's negative association
with "Satanismand devil-worship." Ross suggests that, even if not explicitlyprejudicial,
the term's racial reference and connotations should be considered circumstantial
evidence of discriminatory intent.
The Railroad responds by invoking the ALJ's conclusion that Rudd
credibly testified he had not intended "Black Magic" to be derogatory based on
widespread use of nicknames in the railyard and his ceasing use of the nickname when
Ross asked. The Railroad concedes that "Black Magic" may be considered
circumstantial evidence of discriminatory intent along with other evidence, but it
concludes that, even so, it would not make unreasonable the ALJ's finding that Ross was
not denied the trainmaster position because of discrimination.
The ALJ found that "[b]ased on the testimony, the use of th[e] name, while
racial, was not intended to be derogatory." But the ALJ also noted:
Although not intended as derogatory, reasonable people
could view the nickname as derogatory. This is especially
true in light of the testimony that racial epithets had been
used at the [Railroad] in the not-so-distant past. Mr. Rudd's
use of this term may reflect a conscious or unconscious bias,
and the apparent acceptance of his use of this term by others
may reflect a more general conscious or unconscious
discriminatory attitude that could have spilled over into the
interview process.
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The ALJ concluded that the nickname "may be circumstantial evidence of
a discriminatory attitude and will be considered in conjunction with the entire record."
The ALJ did not discount that the nickname might be probative of discrimination,
concluding only that it did not necessarily establish discrimination in the decision not to
hire Ross and had to be considered in light of other evidence. This essentially is how
Ross argues that it should be considered, although he seems to believe the ALJ should
have found the intent behind using the nickname was necessarily prejudicial.
"The substantial evidence test is highly deferential, but we still review the
entire record to ensure that the evidence detracting from the agency's decision is not
dramatically disproportionate to the evidence supporting it such that we cannot
19 We do not review in isolation
'conscientiously' find the evidence to be 'substantial.' "
whether "Black Magic" was indicative of racial animus; we instead do what the parties
request, namely review the record as a whole, keeping in mind that "Black Magic" may
be probative of discriminatory intent.
2. Flynn's alleged racial prejudice
Ross also alleges that Flynn harbored racial prejudice against him and that
it tainted the hiring process. Ross cites Morrison's email to the Railroad's counsel
stating that Flynn had "formed an opinion about [Ross] and never let it go." Ross also
cites Flynn's explanation during the investigation that one reason he did not want to hire
Ross was because Flynn had learned that Ross could not complete the application by
computer. Ross infers from this that Flynn likely believed, based on racial stereotypes,
that Ross was unintelligent.
19 Local 803, 420 P.3d at 1248 (emphases in original) (quoting Shea, 267 P.3d
at 634 n.40).
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----------------------- Page 16-----------------------
The ALJ did not address these allegations in its recommendation, although
supporting evidence was presented at the administrative hearing. Presumably the ALJ
did not find Ross's allegations persuasive, and we do not find that decision necessarily
unreasonable. It does not appear that Flynn was asked about his alleged bias during
either the investigation or the administrative hearing, and Morrison's third-hand account
alone is not necessarily conclusive. And although there may be reason to infer that
Flynn's stated concern about Ross's computer skills was disingenuous - one candidate
was selected even though he told the panelists his computer skills were "not great" and
he "may need some training," and he also had completed the application by hand - Ross
offers nothing indicating that Flynn's true motives were discriminatory aside from
Morrison's account and a conclusory statement that Flynn must have believed Ross
could not complete the application using a computer because of his race.
3. Subjective criteria
Ross argues that the hiring panel's explanation that it based its hiring
recommendations on enthusiasm should be closely scrutinized because using subjective
hiring criteria such as enthusiasm often masks discriminatory intent. Ross asserts that
this explanation cannot withstand close scrutiny in light of evidence of racial animus,
because enthusiasm was unrelated to the job qualifications for trainmaster or the
interviewquestionnairethepanelabandoned,and becausepanelists' testimony regarding
Ross's interview demeanor contrasted with their testimony that he was normally
outgoing and "animated." Ross notes that some panelists knew of his long tenure with
the Railroad - including his experience in what he considered to be the comparable
yardmaster position - but that they failed to share this information, and he also notes
that the panel did not review personnel records.
The Railroad responds that interview performance constituted a legitimate
basis for recommending whom to hire into a non-union, supervisory position, where
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----------------------- Page 17-----------------------
seniority was not determinative. The Railroad argues that using enthusiasm as a cover
for discrimination would require an unlikely conspiracy among panelists and that the
panel's decision not to recommend three white candidates because of poor interview
performances indicates it instead based its decisions on interview performance. The
Railroad further argues that evidence shows the panelists agreed Ross performed poorly
in his interview and that he was not recommended for that reason.
The ALJ foundthepanelists' testimony regarding hiring criteriapersuasive
because, although subjective, enthusiasm for the position served a legitimate business
purpose and was related to the job description, especially given the position's
supervisory nature. The ALJ found persuasive thepanelists' testimony that Ross was not
recommended because he failed to show enthusiasm, despite testimony that he normally
was outgoing. Ross testified to being annoyed during his interview, and panelists
testified that they felt his mention of wanting a higher pension indicated he was solely
interested in how the position could benefit him.
The Ninth Circuit repeatedly has stated that use of subjective hiring criteria
should be closely scrutinized because such use readily can serve as a cover for
20 It has favorably cited the Tenth Circuit's observation that "subjective
discrimination.
criteria such as 'dedicated' and 'enthusiasm' may offer a convenient pretext for giving
20 See Xin Liu v. Amway Corp., 347 F.3d 1125, 1136 (9th Cir. 2003)
("[S]ubjective evaluations . . . are particularly 'susceptible of abuse and more likely to
mask pretext.' " (quoting Weldon v. Kraft, Inc., 896 F.2d 793, 798 (3d Cir. 1990)));
Jauregui v. City of Glendale , 852 F.2d 1128, 1135-36 (9th Cir. 1988); Atonio v. Wards
Cove Packing Co. , 810 F.2d 1477, 1484 (9th Cir. 1987) (en banc) ("Subjective practices
may well be a covert means to effectuate intentional discrimination . . . ."); Nanty v.
Barrows Co. , 660 F.2d 1327, 1334 (9th Cir. 1981) ("Subjective job criteria present
potential for serious abuse and should be viewed with much skepticism."), overruled on
other grounds by O'Day v. McDonnell Douglas Helicopter Co. , 79 F.3d 756, 760 (9th
Cir. 1996).
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force and effect to prejudice, and can create a strong inference of employment
21
discrimination."
Wethereforeclosely examinetheRailroad's useofsubjectivecriteria.
Panelists testified that they based their recommendation decisions not just
on candidates' enthusiasmfor the position but also on their ability to communicate. Ross
is incorrect that these criteria were unrelated to the trainmaster qualifications or to the
interview questionnaire. The position description listed "communication" and
"supervision and control" as job responsibilities. A trainmaster's duties include
"[p]rovid[ing] employees with feedback on specific issues relating to job performance."
Given the position's supervisory nature, it makes sense that the position description
would place importance on an ability to communicate clearly with subordinates.
The interview questionnaire reflected the position description's emphasis
on communication. One question read: "Good communicating skills are necessary to
be an effective supervisor. Describe your communicating skills." The questionnaire
further indicated that enthusiasm was an important hiring criterion. For example, one
question asked, "How will the Alaska Railroad benefit from you being selected for this
position?"
Ross suggests that the panel wholly abandoned the position description and
questionnaire, but this was not the case. The panel did not ask all the questions to all the
candidates, and it abandoned the grading system because of this and because of a lack
of direction on using the grading system. But some panelists made notes serving as a
reasonableproxy for grading enthusiasmand ability to communicate. For example, three
panelists wrote that Ross said he wanted a better "high three" for his pension. Three
wrote that Ross mentioned his supervisory experience; two wrote that he said he enjoyed
21
Xin Liu , 347 F.3d at 1137 (quoting Lujan v. Walters, 813 F.2d 1051, 1057
(10th Cir. 1987)).
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working with people. Two wrote that he said he wanted the position to support his new
wife. One wrote that he "did not offer a lot of info [and] did not explain in great detail
on some of the questions."
The panelists' testimony that recommendation decisions were based on
interview performance is consistent with an emphasis on enthusiasm and ability to
communicate. For example, panelists testified that they felt Ross performed poorly in
his interview because he gave short answers, which did not convey his desire to become
trainmaster, and because he appeared to feel entitled to the position. Ross discounts this
testimony because several panelists knew himto be normally outgoing, but at the hearing
he admitted that he was "annoyed" when Flynn arrived late to the interview, which may
well have affected Ross's demeanor. Regardless, panelists testified that they were
concerned with candidates' enthusiasm for the trainmaster position, not whether they
were generally outgoing or animated.
Wefind unpersuasiveRoss'sargumentsthatpanelists whoknewofhis long
tenure with the Railroad and his yardmaster experience should have shared this
information and that the panelists should have consulted personnel records. Ross
essentially suggests that the panel should have decided whom to recommend based on
candidates' experience. But as the ALJ observed, the trainmaster position was
supervisory and non-union; mere tenure was not determinative. And the ALJ found
credible the testimony that the new trainmaster and former yardmaster positions
materially differed and that Ross failed to inform the panel of relevant aspects of his
experience. Although Ross testified that he stressed his experience in his interview, we
generally defer to the fact finder's credibility determinations when reviewing
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22
administrative adjudications for substantial evidence. We therefore conclude that the
ALJ's finding that the hiring criteria were not pretext for discrimination is supported by
substantial evidence.
The ALJ also discounted the possibility that racial animus might have
played a part in the panel's decision not to recommend Ross because any one panelist's
prejudices were unlikely to influence the four other panelists. The Railroad urges us to
adopt this position, arguing that accepting Ross's claim requires finding a conspiracy
between panelists to use lack of enthusiasm as a cover for discrimination. But this is not
necessarily the case. It is possible that the panel intended to base its recommendation
decisions on some combination of enthusiasm, communication, and interview
performance; that it decided not to recommend Ross for discriminatory reasons; and that
it then used the criteria as a post-hoc rationalization for its decision. Such a scenario
would not necessitate a conspiracy. Rudd, whose use of the nickname "Black Magic"
may be probative of racial prejudice, was the Anchorage terminal superintendent and
would have supervised Ross had he been hired as trainmaster. Other panelists may have
deferred to Rudd's judgment on which candidates to recommend; if for discriminatory
reasons Rudd decided that Ross should not be recommended, then the rest of the panel
may have gone along. Ross's non-recommendation might have been based on
discrimination, even if the majority of the panel had no discriminatory intent.
Enthusiasm, communication, and interview performance being post-hoc
rationalizations for not selecting Ross finds some support in the fact that, although the
Railroad stated it did not hire Ross and three white candidates because of poor interview
performance, only interview notes for the three white candidates clearly indicated
22 Tesoro Corp. v. State, Dep't of Revenue , 312 P.3d 830, 837 (Alaska 2013)
("In applying [the substantial evidence] standard, we will not . . . re-evaluate the fact
finder's credibility determinations.").
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significantly poor performance. Rudd's and another panelist's notes included
evaluations of candidates' interview performance. Rudd described one white candidate
as a "poor interview," another as "not a chance - poor," and the third as "didn't answer
half of our questions - not a candidate." The other panelist described one white
candidateas"notastrongpersonality";that candidate"criedthroughout [the]interview."
Yet neither Rudd nor the other panelists made any similarly striking notes about Ross's
interview performance. If Ross interviewed so poorly that the panelists decided not to
recommend himfor that reason, one would expect to find interview notes similar to those
for the other candidates not hired because of poor interview performance. Other than
one panelist's notes that Ross "[d]id not offer a lot of info[,] did not explain in great
detail on some of the questions," panelists' notes contain no express indication of Ross's
alleged poor communication or sense of entitlement that they later testified were reasons
for not recommending him.
Panelists' focus on Ross's desire for a better "high three," both in interview
notes and testimony, is suspect. An African-American former employee testified that
during an interview for a position similar to trainmaster, an interviewer accused him of
being interested only in earning his "high three." He testified that the interviewer later
told him that he should not get the raise that came with the promotion. Rudd also
interviewed that former employee and may have made a comment implying the
employee was too lazy for the job, although the employee conceded that someone else
may have made the comment. Despite being circumstantial, Rudd's involvement in the
hiring process for both positions and alleged similar concern about the benefits accruing
from a promotion - particularly concern about "high three" - suggest that panelists'
invocation of Ross's sense of entitlement may have been tainted by racial animus. And
the Railroad's denial of promotion benefits to African-American employees is supported
by Ross's testimony that when he became yardmaster an attempt was made to give his
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evening-shift differential to a white employee, "because they sa[id] that he was doing
more [of] the work than I was." That white employee was Rudd.
4. Tenure and experience
Ross also argues that the Railroad's decision to leave trainmaster positions
open rather than hire him, despite his having more years of experience than any other
candidate and being the only candidate to have served in the allegedly similar yardmaster
position, demonstrates discriminatory intent. The Railroad responds by citing the ALJ's
recommendation that Ross's experience was not particularly relevant given the
differences between the former yardmaster and new trainmaster positions and the
trainmaster position's merit-based nature. The Railroad further stresses that Ross's
tenure was not significantly longer than that of the four candidates selected for
Anchorage trainmaster positions.
Although Ross had the longest tenure with the Railroad, it was not
significantly longer than the tenure of other candidates. Compared to Ross's 36 years
with the Railroad, most candidates - including those not selected - had worked there
for 20 to 30 years. The four candidates hired as Anchorage trainmasters had been with
the Railroad for a long time - one for 22 years, two for 29 years, and one for 30 years.
Ample evidence supports the ALJ's findings that the position was merit based and that
longevity with the Railroad was not a major factor in the hiring decisions. Even
assuming Ross's three years in the former yardmaster position distinguished his
experience, his qualifications were not "clearly superior" to those of other candidates -
the ALJ found credible the testimony that the new trainmaster and the former yardmaster
positions differed. The ALJ also found credible the testimony that Ross failed to inform
the panel of relevant aspects of his experience and how he qualified for the new
trainmaster position.
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5. Absence of African-American employees in management
positions
Ross briefly argues that the absence of any African-American managers in
the transportation division augments the other evidence that the Railroad discriminated
against him. The Railroad observes that the ALJ expressly discounted the significance
of this fact, stating that "[w]ithout more information, it is impossible to determine
whether the lack of minority supervisors is an anomaly that suggests discrimination, or
the result of insufficient minority applicants. Therefore, the unexplained dearth of
minority supervisors is of little, if any, probative or persuasive value." The Railroad
stresses that this passage relies on U.S. Supreme Court precedent indicating the
importance of statistical comparisons to establishing a pattern of discrimination.
There is some evidence that the absence of minorities in management is
attributable to discrimination. Ross testified that when he had been yardmaster, an
apparently white employee Ross had been training was promoted into a management
position for which Ross had applied. An African-American former employee testified
to being turned down for a position for racially suspect reasons. Still, this evidence is
anecdotal and certainly not determinative.
6. Conclusion
UltimatelywereviewtheCommission's decision for substantialsupporting
evidence in light of the whole record. Given the hiring process and use of subjective
criteria, considered together with Rudd's use of the nickname "Black Magic," Ross's
experience, andanecdotalevidenceofAfrican-Americansbeing deniedother managerial
positions, a fact finder might have determined that intentional or unintentional racial
animus prevented Ross from being hired as a trainmaster. But the evidence detracting
from the Commission's contrary decision is not dramatically disproportionate to the
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----------------------- Page 24-----------------------
23
supporting evidence; we cannot conclude that the ALJ's adopted recommendation
necessarily lacked substantial supporting evidence. The ALJ found credible the
panelists' testimony about why Ross was not recommended, concluding that it likely was
not fabricated and was related to the responsibilities of the trainmaster position.
We therefore conclude - based on the appropriate deferential standard of
review - that it was not error for the Commission to determine Ross did not establish
that the reasons the Railroad offered for not hiring him were pretextual.
V. CONCLUSION
The superior court's decision to uphold the Commission's decision is
AFFIRMED.
23 See Local 803 , 420 P.3d at 1248 ("The substantial evidence test is highly
deferential, but we still review the entire record to ensure that the evidence detracting
from the agency's decision is not dramatically disproportionate to the evidence
supporting it such that we cannot 'conscientiously' find the evidence to be
'substantial.' " (emphasis in original) (quoting Shea, 267 P.3d at 634 n.40)).
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