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Moody-Herrera v. Alaska Department of Natural Resources (11/27/98), 967 P 2d 79

     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.


                              )    Supreme Court Nos. S-8191/8221
          Appellant and       )
          Cross-Appellee,     )    Superior Court No.
                              )    3AN-94-9143 CI
     v.                       )
                              )    O P I N I O N
OF NATURAL RESOURCES,         )    [No. 5050 - November 27, 1998]
          Appellee and        )
          Cross-Appellant.    )

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                    Peter A. Michalski, Judge.

          Appearances:  Bradley D. Owens, Jermain,
          Dunnagan & Owens, P.C., Anchorage, for
Appellant/Cross-Appellee.  Sarah J. Felix, Assistant Attorney
General, and Bruce M. Botelho, Attorney General, Juneau, for

          Before: Matthews, Chief Justice, Compton,
          Eastaugh, and Bryner, Justices.  [Fabe,
Justice, not participating.]  

          EASTAUGH, Justice.

          We consider here whether a hearing-impaired employee's
assertion that her employer failed to reasonably accommodate her
disability states a viable disability discrimination claim under AS
18.80.020.  We hold that it does.  But we affirm the judgment
against the employee because we also hold that the trial court did
not err in concluding that she failed to establish a prima facie
claim of disability discrimination.  We also affirm the award of
attorney's fees against the employee and reject the employer's
claim that it should have been awarded enhanced attorney's fees.
          In 1981 the State of Alaska, Department of Natural
Resources (DNR) hired Deborah Moody-Herrera (Moody) as a Photocopy
Machine Operator I upon the referral of the State of Alaska,
Division of Vocational Rehabilitation (DVR).  Moody was promoted to
Micrographics Equipment Operator I (MEO I) in 1982.  The DNR
section in which she worked produced and maintained all the maps of
the state's land holdings.  Moody's job involved photographing
large plats showing ownership interests in state land. 
          In May 1989 DNR installed new equipment in Moody's
workplace.  Moody was required to learn to operate more
computerized equipment than she had previously operated.  She
received about one week of training on the equipment, which was
more training than the others in her section received.  Soon after
the new equipment arrived, DNR reclassified Moody as an MEO II, a
position requiring her to perform at a higher level and work
          Bud Mayes supervised Moody until January 16, 1990.  While
he supervised her, Moody's evaluations were acceptable or better. 
Wendy Woolf supervised Moody for a month during Mayes's absence,
and from January 16, 1990, to December 1990.  Woolf immediately
noted problems in Moody's job performance.  These problems included
tardiness; production backlog; excessive sick leave usage; failure
to prioritize work tasks; failure to work independently; inability
to use "PROFS,"a computer program necessary to the job; and
failure to keep up with her PROFS software account.  Woolf also
noted that Moody fell behind in work, wasted time, refused to seek
computer support in the manner directed by her supervisor, left her
work station with the phone off the hook so it would not be
discovered that she was gone, and made numerous personal phone
calls during work.
          Marilyn Morris supervised Moody from December 1990 until
Moody's termination.  Morris noted that Moody refused to follow
instructions on delivering items by mail rather than in person;
refused to follow instructions on how to seek computer support;
lost control and yelled at Morris; failed to follow written
instructions on the use of the computer program; failed to follow
written instructions on another occasion, thereby causing  the
destruction of historical records; and was absent during work
hours.  Morris progressively disciplined Moody by writing a letter
of reprimand, a letter of warning, and a letter of suspension. 
          During periods when Moody was absent or unable to work in
micrographics, another employee, Eleanor Magowan, successfully
performed Moody's job in half the time. 
          Both parties agree and the superior court found that
Moody has a substantial hearing disability.  The superior court
also found that Moody's hearing may have deteriorated during her
DNR employment.  Moody requested several accommodations during her
employment.  In August 1990 Moody requested written instructions
which DNR apparently provided.  When asked in October and November
1991 what further accommodations she needed, Moody stated that she
just needed a professional work environment in which she could
perform her job duties.  In October 1991 DNR asked Moody to provide
evaluations from her physicians indicating whether she was able to
return to work and what, if any, accommodations were needed.  Three
physicians completed the evaluations, stating that Moody was able
to return to work.  Only one doctor recommended an accommodation --
ear protection -- which DNR apparently provided.  On February 27,
1992, Moody requested that she be allowed to tape record a meeting
with Morris.  DNR Human Resources Manager Ellen Clothier (then
Hazeltine) told Morris that taping was not appropriate.  Although
taping was not allowed, Moody apparently recorded part of the
meeting.  On March 30, 1992, Moody requested an interpreter. 
Morris consulted with Clothier, who contacted Moody's DVR
counselor, Duane Mayes.  DNR did not provide an interpreter,
apparently because Mayes said that an interpreter would not be
appropriate because Moody did not know American Sign Language. 
          During Moody's employment, DNR provided Moody with the
following accommodations, special telephone accommodations, a
fisheye mirror so she could see people entering her work area, an
amplified fire alarm, other staff to assist Moody in evacuating the
building during emergencies, ear protection, numerous written
instructions on work procedures, special equipment training, and
written expectations of job performance.  DNR also: asked DVR
counselor Mayes about the need for further accommodations, worked
with Moody's union representatives, allowed family members to
attend meetings about Moody's job performance, allowed nearly
unlimited leave in 1991, asked Moody what additional accommodations
she needed, offered her a job with simpler duties and
responsibilities for the same pay and benefits in January 1992,
provided additional training, and provided written reports on her
          Moody was fired on April 29, 1992.  Moody then filed suit
against DNR under the Alaska Human Rights Act, alleging that DNR
discriminated against her on the basis of sex, parenthood, and
physical disability.  The superior court tried the case without a
jury.  Moody presented evidence only on the issue of disability
discrimination.  The superior court held that Moody had abandoned
her other claims.  Moody argued that DNR violated AS
18.80.220(a)(1) by "fail[ing] to adequately consider or make
reasonable accommodations of her disabilities and, as a result, her
employment with DNR was unlawfully terminated in April 1992."
          The superior court disagreed and found that Moody's "work
problems were not a product of DNR's alleged failure to reasonably
accommodate [Moody], but were instead the product of her own
attitude and personal problems and unhappiness."  The court stated
that it was 
          left with the distinct impression that the
personality differences between [Moody] and her supervisors led
[Moody] to rely on her disability as a manipulative lever in her
relationship with them.  For all the focus on disability in the
discussion of this case, however, the court finds this really to be
a case of an employee who failed in her performance not due to her
disability but due to other factors in her life and personality. 

The court entered judgment against Moody and awarded the State
attorney's fees against her. 
          Moody appeals that decision and the award of attorney's
fees against her.  The State cross-appeals the denial of its
request for enhanced attorney's fees.  
     A.   Standard of Review
          Whether AS 18.80.220 provides for a claim against an
employer for failure to provide reasonable accommodation is a
question of statutory interpretation to which we apply our
independent judgment. [Fn. 1]  We will adopt the principles of law
which are most persuasive in light of precedent, reason, and
policy. [Fn. 2]  
          Whether Moody established her prima facie case is a mixed 
question of law and fact. [Fn. 3]  We review the court's factual
findings under the clearly erroneous standard. [Fn. 4]  Questions
of law, such as the determination of the elements of the prima
facie case, are reviewed de novo. [Fn. 5] 
          We review the award or denial of attorney's fees for
abuse of discretion. [Fn. 6]  Whether we should adopt the federal
exception for attorney's fees assessments against losing civil
rights plaintiffs is a question of law to which we apply our
independent judgment.  We will adopt the principles of law which
are most persuasive in light of precedent, reason, and policy. [Fn.
     B.   Is an Employer's Failure to Provide Reasonable
Accommodation to a Disabled Employee Actionable under the Alaska
Human Rights Act?

          Alaska Statute 18.80.220 prohibits discrimination against
disabled employees. [Fn. 8]  The Alaska Human Rights Act (AHRA),
which includes AS 18.80.220, does not explicitly state that
employers have a duty to provide reasonable accommodation to
disabled employees.  But the AHRA does not define the term
"discriminate."  Does a failure to provide reasonable accommodation
to a disabled employee amount to "discriminat[ion] against a person
in compensation or in a term, condition, or privilege of
          Moody argues that employers owe a duty under the AHRA,
just as they do under federal law, to reasonably accommodate
disabled employees.  She claims that a disability discrimination
claim differs from a dissimilar treatment claim and that "[t]he
failure to treat individuals with disabilities differently from
similarly situated employees without disabilities is a violation of
the duty to make reasonable accommodation."  Moody implicitly
claims that she therefore has a claim under the AHRA because her
employer did not reasonably accommodate her disability.
          Before determining whether DNR reasonably accommodated
Moody's disability, we must first decide the threshold question
implicated by Moody's claim -- whether the AHRA requires employers
to reasonably accommodate disabled employees. 
          In interpreting the AHRA, we have previously looked for
guidance in the parallel body of federal employment discrimination
law of Title VII, 42 U.S.C. sec. 2000e et seq. (1994 & supp. II
and the accompanying federal cases. [Fn. 9]  In following federal
cases that interpret Title VII, we have recognized two main
theories on which to base a claim of employment discrimination
under the AHRA: disparate treatment and disparate impact. [Fn. 10] 
Title VII, however, does not address employment discrimination on
the basis of physical or mental disability and therefore does not
require employers to accommodate employees' disabilities. [Fn. 11] 
          Moody suggests that we follow the Rehabilitation Act of
1973, 29 U.S.C. sec. 701 et seq. (1994 & supp. II 1996), and the
Americans with Disabilities Act (ADA), 42 U.S.C. sec. 12101 et seq.
(1994 & supp. II 1996), in imposing a duty of reasonable
accommodation.  The Rehabilitation Act prohibits the federal
government and employers who receive federal funds from
discriminating against employees with disabilities. [Fn. 12]  The
ADA was enacted in 1990 and extended the prohibition against
disability discrimination to all employers with fifteen or more
employees. [Fn. 13]  The ADA provides in relevant part that:
          No covered entity shall discriminate against a
qualified individual with a disability because of the disability of
such individual with regard to job application procedures, the
hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and
privileges of employment.[ [Fn. 14]]
The ADA then states that the term "discriminate"includes:
          (5)(A) not making reasonable accommodations to
the known physical or mental limitations of an otherwise qualified
individual with a disability who is an applicant or employee,
unless such a covered entity can demonstrate that the accommodation
would impose an undue hardship on the operation of the business of
such covered entity.[ [Fn. 15]]

          "In construing the meaning of a statute, we look to the
meaning of the language, the legislative history, and the purpose
of the statute in question."[Fn. 16]  "'The goal of statutory
construction is to give effect to the legislature's intent, with
due regard for the meaning the statutory language conveys to
others.'"[Fn. 17] 
          We apply a sliding scale approach in matters of statutory
interpretation, and have rejected a mechanical application of the
plain meaning rule. [Fn. 18]  "The plainer the statutory language
is, the more convincing the evidence of contrary legislative
purpose or intent must be."[Fn. 19] 
          1.   Language
          It is not clear from the plain language of AS 18.80.220
whether the term "discriminate"includes a failure to reasonably
accommodate employees' disabilities.  Webster's New World
Dictionary defines "discriminate"as "to constitute a difference
between; differentiate,"and "to make distinctions in treatment;
show partiality (in favor of) or prejudice (against)."[Fn. 20] 
Black's Law Dictionary defines "discrimination"as 
          [i]n constitutional law, the effect of a
statute or established practice which confers particular privileges
on a class arbitrarily selected from a large number of persons, all
of whom stand in the same relation to the privileges granted and
between whom and those not favored no reasonable distinction can be
found.[ [Fn. 21]]
Usually "discrimination"has meant "to set aside"and "to make
distinctions"between similarly situated people.  Perhaps, though,
an employer's failure to make distinctions that are necessary for
an employee to do his or her job sets that employee apart from
other employees in an unfair way.
          Moody argues that disability discrimination is "markedly
different"than other types of discrimination prohibited by Title
VII, on the theory that a disabled person seeking reasonable
accomodation may want an employer to treat her differently than
other employees.  But this is not the only way employers might
discriminate against disabled employees.  An employer might
discriminate against disabled employees by paying them less than
other employees, giving them unmanageable workloads, or dismissing
them because of their disabilities. [Fn. 22]  Each of these actions
would fit under the traditional definition of "discrimination"as
different treatment.  Moody's proposed definition, therefore, is
not necessary for a meaningful reading of the statute.  
          Therefore, we conclude that the statute's language does
not clearly give an employee a claim for an employer's failure to
reasonably accommodate the employee's disability.  
          2.   Legislative history
          In 1969 the legislature prohibited discrimination on the
basis of "physical handicap."[Fn. 23]  It appears that the House
added "physical handicap"to the Senate Bill just before the last
vote, without any memorialized discussion. [Fn. 24]  In 1987 the
legislature significantly amended AS 18.80, and added language
prohibiting discrimination on the basis of "physical or mental
disability"in sections .210, .220, .230, .240, .250, and .255.
[Fn. 25]   It also stated in section .200 that it was the policy of
Alaska to "encourage and enable physically and mentally disabled
persons to participate fully in the social and economic life of the
state and to engage in remunerative employment."[Fn. 26] 
          Although no legislative history explicitly shows that the
legislature, in enacting or amending AS 18.80.220, intended to
impose a duty of reasonable accommodation on employers, several
clues suggest that this is what the legislature intended.  First,
the same 1987 bill that amended AS 18.80.220 also amended AS
18.80.050 to require the Alaska Human Rights Commission to adopt
regulations concerning when reasonable accommodation is necessary
to employ a disabled person. [Fn. 27]  Although the Commission
apparently has not yet promulgated such regulations, this
requirement implies that the legislature intended that employers
have a duty of reasonable accommodation.
          Second, the 1987 bill contained a passage that, if
enacted, would have potentially eliminated a duty of reasonable
accommodation for physically disabled persons. [Fn. 28]  The bill
as passed did not contain that section.  A letter in committee
files may explain why.  The Commission opposed proposed section
.256, which it felt would "eliminate[] the commission's exercise of
its present authority on behalf of the physically handicapped in
employment."[Fn. 29]  The Commission's letter stated:
          The commission presently requires employers to
make reasonable accommodation to enable the physically handicapped
to be gainfully employed.  In imposing this requirement, the
commission considers evidence presented by the employer that
accommodation is prevented by business necessity -- including the
prohibitive costs of the proposed accommodation.  Section AS
18.80.256 would eliminate the present requirement for many Alaskan
employers to make reasonable accommodation to employ the disabled.[[Fn. 30]] 
The legislature did not enact section .256. [Fn. 31]  In
conjunction with its adoption of subsection .050(b), the
legislature's failure to adopt section .256 suggests that it
intended that the Commission continue to have authority to require
employers to provide reasonable accommodation. 
          3.   Purpose
          The AHRA's purpose also supports finding an implied duty
for an employer to make reasonable accommodation for a disabled
employee.  In stating the purpose of AS 18.80, the legislature
          that discrimination against an inhabitant of
the state because of . . . physical or mental disability . . . is
a matter of public concern and that this discrimination not only
threatens the rights and privileges of the inhabitants of the state
but also menaces the institutions of the state and threatens peace,
order, health, safety, and general welfare of the state and its
inhabitants.[ [Fn. 32]]

The legislature therefore enacted AS 18.80 "to eliminate and
prevent discrimination,"and "to encourage and enable physically
and mentally disabled persons to participate fully in the social
and economic life of the state and to engage in remunerative
employment."[Fn. 33] 
          We have consistently held that the AHRA "should be
broadly construed to further the goal of eradication of
discrimination."[Fn. 34] 
          Interpreting the term "discriminate"in AS 18.80.220 to
include the failure to reasonably accommodate disabled employees
furthers the goal of eradicating discrimination and enables
disabled persons to participate fully in the economic life of the
state and to engage in remunerative employment.  Unless there is a
duty to accommodate disabled employees, the statute's purpose
cannot be fully realized. 
          4.   Agency interpretation
          Several decisions of the Alaska Human Rights Commission
support a conclusion that the failure to reasonably accommodate an
employee is "discrimination"under AS 18.80.220.  Although no
recent decisions address the issue of reasonable accommodation, two
older opinions considered whether reasonable accommodation was
required or performed by an employer, suggesting that the
Commission interpreted AS 18.80.220 to require reasonable
accommodation. [Fn. 35]  
          In Bell v. Parker Drilling Co., No. A-75-1021-531E (ASCHR
Apr. 23, 1977), the Commission dismissed Bell's complaint, finding
that he was unable to perform the reasonable demands of the job and
that there were no reasonable accommodations that the employer
could perform.  The Commission stated,
          The "principal [sic] of reasonable
          accommodation"advanced by the Complainant is
as yet undeveloped in Alaska law.  It does, however, have a long
history in Federal fair employment law and is an element of the
"business necessity"defense. . . . 

          If the employer successfully demonstrates that
there is [sic] no alternative policies or practices which would
accomplish the business purpose equally well with a lesser
differential impact vis-a-vis physical handicap, then the employer
has essentially demonstrated that no reasonable accommodation is
possible.  In the instant case, Respondent is not required to
accommodate the handicap of the Complainant.  No such accommodation
of a person with such a hearing disability and speech impairment
for a position on a drilling rig is possible, short of hiring him
as a wholly superfluous employee.[ [Fn. 36]]
          In Kirkpatrick v. Ketchikan Pulp Co., No. K-74-1025-073-
E-E at 5 (ASCHR Feb. 3, 1978), the Commission held that an employer
who denied a job applicant a position because of a skin condition
"did attempt a reasonable accommodation of the complainant's
medical problem"by suggesting that she apply for another position
in the company. [Fn. 37]  Bell and Kirkpatrick illustrate that the
Commission interprets AS 18.80.220 to require reasonable
accommodation of a disability by an employer.
          5.   Other states' decisions
          Many states have enacted statutes that mirror the ADA and
explicitly require employers to reasonably accommodate disabled
employees. [Fn. 38] 
          Other states whose statutes do not require reasonable
accommodation have relied on state regulations requiring reasonable
accommodation to find that duty. [Fn. 39]  And other states with
statutes similar to AS 18.80.220 that do not expressly impose a
duty to reasonably accommodate disabled employees have found an
implied statutory duty requiring employers to reasonably
accommodate disabled employees. [Fn. 40] 
          6.   Conclusion
          Given the policy underlying AS 18.80, the legislative
intent, and the implicit agency interpretation, we conclude that AS
18.80.220 imposes a duty on an employer to reasonably accommodate
a disabled employee.
     C.   Did Moody Establish a Prima Facie Case of Disability
          We next address whether Moody made out a prima facie case
of a failure by DNR to reasonably accomodate her disability.  The
superior court held that she did not.  Moody argues that the
superior court's decision should be reversed because the superior
court inappropriately applied the analysis from McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973), to her disability
discrimination case. [Fn. 41]  She argues that the superior court
should have applied the analysis used by federal appellate courts
in considering a reasonable accommodation claim under the ADA or
Rehabilitation Act.  DNR argues that the judgment should be
affirmed because "the trial court analyzed Moody's claim under AS
18.80 by applying both the McDonnell Douglas analysis suggested by
the state, and the statutory analysis that Moody advocated."
          Unlike the McDonnell Douglas analysis that employs a
burden-shifting framework to focus on the reason for the employee's
discharge, the reasonable accommodation analysis used by the
federal courts focuses on whether reasonable accommodation was
available, was provided, or would impose undue hardship on the
employer. [Fn. 42] 
          It is not necessary to decide which analysis applies.
Because both frameworks require the same prima facie showing, and
because the superior court concluded that Moody failed to establish
a prima facie case of disability discrimination, she loses under
either framework.  
          For a disability claim under the ADA or the
Rehabilitation Act, [Fn. 43] a plaintiff establishes a prima facie
case by showing (1) that he or she is an individual who has a
disability within the meaning of the statute; (2) that he or she
could perform the essential functions of the position he or she
holds (with or without reasonable accommodation); and (3) that he
or she has suffered an otherwise adverse employment decision
because of the disability. [Fn. 44]  This showing by the plaintiff
is required whether the courts are applying the McDonnell Douglas
burden-shifting framework or a framework specifically for
reasonable accommodation claims. [Fn. 45]
          In analyzing Moody's prima facie case, the superior court
found that she failed to meet her burden of proving that she was
qualified for the MEO II position:
               c.  The court concludes that [Moody] was
unable to do the MEO II job with the reasonable accommodations.

               . . . .

               e.  The court concludes that plaintiff
was not qualified for the MEO II job with reasonable
The superior court therefore found that Moody did not establish her
prima facie case.  Moody does not challenge this fact finding. 
This finding was sufficient to preclude Moody from proving her case
under either analysis. 
          The superior court also found that even if Moody had
established her prima facie case, DNR had reasonably accommodated
Moody.  We note that DNR made extraordinary efforts to accommodate
          Because we conclude that the superior court did not err
in requiring Moody to establish a prima facie case of
discrimination and in analyzing Moody's reasonable accommodation
claim, we affirm.
     D.   There Is No Exception to Civil Rule 82 Attorney's Fees
for a Defendant in a Civil Rights Action.              
          Moody argues that this court should adopt an exception to
awards of fees and costs under Civil Rules 82 and 79 for prevailing
defendants in state law civil rights cases similar to the federal
rule for Title VII cases. [Fn. 46]  She asserts that a losing
plaintiff in a discrimination lawsuit brought under AS 18.80.220(a)
should be shielded from liability for fees and costs unless the
plaintiff's lawsuit is "frivolous, unreasonable, or without
foundation."  DNR argues that there is no need to adopt the federal
rule because Alaska has a long-standing and well-developed body of
law on attorney's fees and costs.
          With rare exceptions, litigants in federal courts and the
courts of our sister states bear their own attorney's fees absent
legislation providing otherwise. [Fn. 47]  Section 706(k) of Title
VII so provides: "In any action or proceeding under this title the
court, in its discretion, may allow the prevailing party . . . a
reasonable attorney's fee . . . ."[Fn. 48]  But the United States
Supreme Court has held in Christiansburg Garment Co. v. Equal
Opportunity Employment Commission that district courts may only
"award attorney's fees to a prevailing defendant in a Title VII
case upon a finding that the plaintiff's action was frivolous,
unreasonable, or without foundation, even though not brought in
subjective bad faith."[Fn. 49]  In so holding, the Court concluded
that there were two equitable considerations present in awarding
fees to a prevailing plaintiff that were not present in awarding
fees to a prevailing defendant. [Fn. 50]  First, "the plaintiff is
the chosen instrument of Congress to vindicate 'a policy that
Congress considered of the highest priority.'"[Fn. 51]  Second,
awards to prevailing plaintiffs are awards against violators of
federal law. [Fn. 52]
          The Court then looked to the legislative history of sec.
and determined that "while Congress wanted to clear the way for
suits to be brought under the Act, it also wanted to protect
defendants from burdensome litigation having no legal or factual
basis."[Fn. 53]  The Court then determined that awarding fees to
a defendant only upon a finding that the plaintiff's action was
"frivolous, unreasonable, or without foundation"would accomplish
both of these goals. [Fn. 54] 
          Alaska follows a fundamentally different principle.  The
system of awarding attorney's fees in Alaska is not based upon
similar considerations, and we decline to adopt an exception
similar to the federal rule.  Prevailing parties in Alaska are
normally entitled to recover part of their attorney's fees. [Fn.
55]  The purpose of Rule 82 "is to partially compensate a
prevailing party for the . . . fees incurred where such
compensation is justified and not to penalize a party for
litigating a good faith claim."[Fn. 56]  The limitations added by
the United States Supreme Court in Christiansburg to awards of
attorney's fees in Title VII cases are therefore irrelevant to
determinations of attorney's fees in Alaska.
          Moody argues that the broad policies and purposes of AS
18.80.220 -- "to protect the civil rights of all Alaska citizens
and to further the goal of eradicating discrimination"-- support
the adoption of an exception to the fee-shifting policy followed in
Alaska.  Moody states that assessing attorney's fees against a
losing plaintiff "would likely have a harsh and chilling effect on
other individual plaintiffs of modest means who seek to vindicate
their civil rights through legal action which they legitimately and
zealously pursue."  Although we have recognized the legislature's
strong statement of purpose in enacting AS 18.80, [Fn. 57] there is
no indication that the legislature intended to further that purpose
by excepting unsuccessful plaintiffs from awards of attorney's
fees.  We also note that the creation of such an exception might
encourage plaintiffs to couch their actions in terms of civil
rights claims to avoid potential liability under Rule 82 should
they lose.   
          Moody relies on Crisp v. Kenai Borough School District,
587 P.2d 1168, 1169 (Alaska 1978), to support her argument that it
would be manifestly unreasonable in this case to award attorney's
fees against a losing plaintiff who exercised her statutory rights
to challenge adverse action taken by her employer.  We held in
Crisp that attorney's fees could not be assessed against a tenured
public school teacher who unsuccessfully challenged his dismissal
because the teacher had a "statutorily guaranteed right to contest
his dismissal in the courts."[Fn. 58]   We partially overruled
Crisp in Rosen v. State Board of Public Accountancy, 689 P.2d 478,
482 (Alaska 1984), to the extent that "Crisp purports to establish
a rule of law applicable to all cases where there exists the right
or opportunity for a de novo review of an administrative
proceeding, or where an important right is being asserted . . . ."
[Fn. 59]  Crisp no longer supports Moody's argument that the nature
of her right renders the assessment of attorney's fees
          Because we decline to create another exception to Rule
82, we affirm the award of attorney's fees against Moody.
     E.   The Trial Court Did Not Err in Failing to Award the State
Enhanced Attorney's Fees under Civil Rule 82(b)(3). 

          On cross-appeal, DNR argues that the superior court erred
by not awarding enhanced attorney's fees under Civil Rule 82(b)(3).
DNR argues that seven of the factors in Rule 82(b)(3) support an
award greater than thirty percent. 
          As the prevailing party, DNR was entitled to an
attorney's fees award under Rule 82.  The award is presumptively
thirty percent of the actual attorney's fees necessarily incurred
when a case goes to trial but no money judgment is awarded. [Fn.
60]  A trial court may deviate from the schedule if it determines
that a variation is warranted upon consideration of the enumerated
factors. [Fn. 61]  
          "Attorney's fees awards made pursuant to the schedule of
Rule 82 are presumptively correct."[Fn. 62]  DNR has not
demonstrated that the superior court abused its discretion in
declining to award enhanced attorney's fees.  We therefore affirm
the superior court's award of attorney's fees.
          Although we conclude that a claim for an employer's
failure to reasonably accommodate an employee's disability is
viable under AS 18.80.220, we AFFIRM the judgment rejecting Moody's
AS 18.80.220 disability claim and AFFIRM the Civil Rule 82(b)(2)
award of attorney's fees to DNR.


Footnote 1:

     See University of Alaska v. Tumeo, 933 P.2d 1147, 1150 n.6
(Alaska 1997).  

Footnote 2:

     See Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).  

Footnote 3:

     See Gafford v. General Elec. Co., 997 F.2d 150, 169 n.10 (6th
Cir. 1993) ("[T]he determination that a plaintiff has or has not
established a prima facie case of disparate treatment encompasses
both questions of law (viz., determination of the elements of a
prima facie case), and questions of fact (viz., whether the
plaintiff has proven to the factfinder each element of the prima
facie case by a preponderance of the evidence).").  

Footnote 4:

     See Alaska USA Fed. Credit Union v. Fridriksson, 642 P.2d 804,
806-07 (Alaska 1982). 

Footnote 5:

     See Gafford, 997 F.2d at 169 n.10.  

Footnote 6:

     See McNett v. Alyeska Pipeline Serv. Co., 856 P.2d 1165, 1167
(Alaska 1993).

Footnote 7:

     See Guin, 591 P.2d at 1284 n.6.   

Footnote 8:

     AS 18.80.220 prohibits discrimination in employment because of
"physical . . . disability"not relevant to the reasonable demands
of the position:

          (a) . . .[I]t is unlawful for (1) an employer
to refuse employment to a person, or to bar a person from
employment, or to discriminate against a person in compensation or
in a term, condition, or privilege of employment because of the
person's race, religion, color or national origin, or because of
the person's age, physical or mental disability, sex, marital
status, changes in marital status, pregnancy, or parenthood when
the reasonable demands of the position do not require distinction 
on the basis of age, physical or mental disability, sex, marital
status, changes in marital status, pregnancy or parenthood.

(Emphasis added.)

Footnote 9:

     See, e.g., Thomas v. Anchorage Tel. Util., 741 P.2d 618, 622
(Alaska 1987); Alaska State Comm'n for Human Rights v. Yellow Cab,
611 P.2d 487, 490 (Alaska 1980).  

Footnote 10:

     See Thomas, 741 P.2d at 622, 628.  

Footnote 11:

     See 42 U.S.C. sec. 2000e et seq. (1994 & supp. II 1996).  But
Title VII prohibits discrimination on the basis of religion and
requires employers to reasonably accommodate the religious beliefs
of employees.  See 42 U.S.C. sec. 2000e(j) (1994); see also Trans
World Airlines, Inc. v. Hardison, 432 U.S. 63, 71-76 & n.11 (1977)
(holding that requirement of reasonable accommodation of religious
beliefs was defensible construction of Title VII before Congress
amended statute to explicitly so require).  We have also found a
similar implied duty under the AHRA.  See Wondzell v. Alaska Wood
Products, Inc., 583 P.2d 860, 864 (Alaska 1978).

Footnote 12:

     29 U.S.C. sec. 794(a) (1994). Subsection 504(a) of the
Rehabilitation Act provides that

          [n]o otherwise qualified individual with a
disability . . . shall, solely by reason of her or his disability,
be excluded from the participation in, be denied the benefits of,
or be subjected to discrimination under any program or activity
receiving Federal financial assistance . . . .

29 U.S.C. sec. 794(a) (1994); see also Stone v. City of Mt. Vernon,
118 F.3d 92, 96 (2d Cir. 1997).  Regulations under this statute
require recipients of federal funds to "make reasonable
accommodation to the known physical or mental limitations of an
otherwise qualified handicapped . . . employee unless the recipient
can demonstrate that the accommodation would impose an undue
hardship in the operation of its program."  45 C.F.R. sec. 84.12(a)

Footnote 13:

     42 U.S.C. sec.sec. 12111(5), 12112 (1994).  

Footnote 14:

     42 U.S.C. sec. 12112(a) (1994).

Footnote 15:

     42 U.S.C. sec. 12112(b)(5)(A) (1994).  As defined in the ADA,
term "discriminate"also includes the following:

          (1)  limiting, segregating, or classifying a
          job applicant or employee in a way that
adversely affects the opportunities or status of such applicant or
employee because of the disability of such applicant or employee;
          (2)  participating in a contractual or other
arrangement or relationship that has the effect of subjecting a
covered entity's qualified applicant or employee with a disability
to the discrimination prohibited by this subchapter . . . ;
          (3)  utilizing standards, criteria, or methods
of administration --
               (A)  that have the effect of
discrimination on the basis of disability; or
               (B)  that perpetuate the discrimination
of others who are subject to common administrative control; 
          (4)  excluding or otherwise denying equal jobs
or benefits to a qualified individual because of the known
disability of an individual with whom the qualified individual is
known to have a relationship or association;
                             . . . .

          (5)(B) denying employment opportunities to a
job applicant or employee who is an otherwise qualified individual
with a disability, if such denial is based on the need of such
covered entity to make reasonable accommodation to the physical or
mental impairments of the employee or applicant;
          (6)  using qualification standards, employment
tests or other selection criteria that screen out or tend to screen
out an individual with a disability or a class of individuals with
disabilities unless . . . [it] is shown to be job-related for the
position in question and is consistent with business necessity; and
          (7)  failing to select and administer tests
concerning employment in the most effective manner to ensure that,
when such a test is administered to a job applicant or employee who
has a disability that impairs sensory, manual, or speaking skills,
such test results accurately reflect the skills, aptitude, or
whatever other factor of such applicant or employee that such test
purports to measure, rather than reflecting the impaired sensory,
manual, or speaking skills of such an employee or applicant (except
where such skills are the factors that the test purports to

42 U.S.C. sec. 12112(b) (1994).

Footnote 16:

     Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787
(Alaska 1996).  

Footnote 17:

     Id. (quoting Tesoro Alaska Petroleum Co. v. State, 746 P.2d
896, 905 (Alaska 1987)).

Footnote 18:

     See State v. Alex, 646 P.2d 203, 208-09 n.4 (Alaska 1982)
(citing State, Dep't of Natural Resources v. City of Haines, 627
P.2d 1047, 1049 n.6 (Alaska 1981)).

Footnote 19:

     Muller, 923 P.2d at 788 (citing Anchorage Sch. Dist. v. Hale,
857 P.2d 1186, 1189 (Alaska 1993)); see also Alex, 646 P.2d at 208-
09 n.4.

Footnote 20:

     Webster's New World Dictionary 403 (2d ed. 1972).

Footnote 21:

     Black's Law Dictionary 467 (6th ed. 1990).  

Footnote 22:

     See, e.g., Alaska State Comm'n for Human Rights ex rel. Zuniga
v. Inlet Towers Suites Hotel, No. C-95-199 (ASCHR Jul. 7, 1997)
(involving claims of hostile work environment, termination due to
disability, and retaliation for opposing discriminatory practices).

Footnote 23:

     AS 18.80.220, as amended by ch. 119, sec. 4, SLA 1969.  

Footnote 24:

     1969 House Journal 925.  

Footnote 25:

     AS 18.80, as amended by ch. 69, sec. 7, SLA 1987.

Footnote 26:

     AS 18.80.200(b).  The subsection states:

          Therefore, it is the policy of the state and
the purpose of this chapter to eliminate and prevent discrimination
in employment, . . . because of . . . physical or mental disability
. . . .  It is also the policy of the state to encourage and enable
physically and mentally disabled persons to participate fully in
the social and economic life of the state and to engage in
remunerative employment.

Footnote 27:

     AS 18.80.050(b) provides in part: "The commission shall adopt
regulations relating to discrimination because of physical and
mental disability.  The regulations must furnish guidance
concerning the circumstances under which it is necessary to make a
reasonable accommodation for a physically or mentally disabled
person when providing employment . . . ."  (Emphasis added.)  

Footnote 28:

     Section 18.80.256 would have provided: "          This chapter may not
be construed to require, or affect other laws that require or
provide for, the alteration or remodeling of buildings, facilities,
or vehicles in order to provide access to or accommodate the needs
of a person with a physical disability."  Work draft of Senate Bill
1 (available in Senate HESS Committee Files on C.S.S.B. 1). 

Footnote 29:

     Letter from Janet L. Bradley, Human Rights Commission, to
Senator Paul Fischer (Feb. 2, 1987) (available in Senate HESS
Committee Files on C.S.S.B. 1).  

Footnote 30:


Footnote 31:

     See AS 18.80, as amended by ch. 69, SLA 1987.  

Footnote 32:

     AS 18.80.200(a).  

Footnote 33:

     AS 18.80.200(b).

Footnote 34:

     University of Alaska v. Tumeo, 933 P.2d 1147, 1152 (Alaska
1997); Thomas v. Anchorage Tel. Util., 741 P.2d 618, 629 (Alaska
1987); McLean v. State, 583 P.2d 867, 869 (Alaska 1978) ("In view
of the strong statement of purpose in enacting AS 18.80, and its
avowed determination to protect civil rights of all Alaska
citizens, we believe that the legislature intended to put as many
'teeth' into this law as possible.") (citation omitted).

Footnote 35:

     "While this court exercises independent judgment on issues of
statutory construction, the [agency's] interpretation is entitled
to 'some weight.'"  Peninsula Marketing Ass'n v. State, 817 P.2d
917, 922 (Alaska 1991) (quoting State, Dep't of Revenue v. Alaska
Pulp America, Inc., 674 P.2d 268, 274 (Alaska 1983)).

Footnote 36:

     Bell v. Parker Drilling Co., No. A-75-1021-531E at 6-7 (ASCHR
Apr. 23, 1977).

Footnote 37:

     Kirkpatrick v. Ketchikan Pulp Co., No. K-74-1025-073-E-E at 5
(ASCHR Feb. 3, 1978).

Footnote 38:

     See, e.g., Ariz. Rev. Stat. Ann. sec. 41-1463(B)(3) (West
Colo. Rev. Stat. Ann. sec. 24-34-402(1)(a) (West 1990); Del. Code
tit. 19, sec.sec. 721, 723, 724 (Michie 1995); Kan. Stat. Ann. sec.
44-1009(8) (1993); La. Rev. Stat. Ann. sec. 23:323 (West Supp.
1998); Me.
Rev. Stat. Ann. tit. 5, sec. 4553(2)(E) (West Supp. 1997); Mass.
Laws Ann. ch. 151B, sec. 4(16) (West 1996); Minn. Stat. Ann. sec.
subd. 1(6) (West Supp. 1998); Neb. Rev. Stat. sec.sec. 48-1101, 48-
1107.02 (1993); N.M. Stat. Ann. sec. 28-1-7(J) (Michie 1996); N.Y.
Exec. Law sec. 296(3) (McKinney 1998); N.D. Cent. Code sec. 14-
(1997); R.I. Gen. Laws sec. 28-5-7(1)(iv) (1995); S.C. Code Ann.
sec. 1-13-80(D)(2) (Law Co-op. Supp. 1997); Tex. Lab. Code Ann.
sec. 21.128
(West 1996); Va. Code Ann. sec. 51.5-41 (Michie 1994); Wis. Stat.
sec. 111.34 (West 1997).

Footnote 39:

     See Stansbury v. Blue Cross of Idaho Health Serv., Inc., 918
P.2d 266, 269 (Idaho 1996); Boelman v. Manson State Bank, 522
N.W.2d 73, 79 (Iowa 1994); Maryland Comm'n on Human Relations v.
Mayor of Baltimore, 586 A.2d 37, 40 (Md. Spec. App. 1991); City of
Clayton v. Missouri Comm'n on Human Rights, 821 S.W.2d 521, 529
(Mo. App. 1991); Wooten v. City of Columbus, 632 N.E.2d 605, 610-
611 (Ohio App. 1993); Braun v. American Int'l Health & Rehab.
Serv., Inc., 846 P.2d 1151, 1157 (Or. 1993); Coffman v. West
Virginia Bd. of Regents, 386 S.E.2d 1, 8-9 (W. Va. 1988), overruled
on other grounds, Skagg v. Elk Run Coal Co., 479 S.E.2d 561, 572
(W. Va. 1996).

Footnote 40:

     See Brand v. Florida Power Corp., 633 So. 2d 504, 511 n.12
(Fla. Dist. App. 1994); Holland v. Boeing Co., 583 P.2d 621, 622-24
(Wash. 1978).

Footnote 41:

     We have followed federal courts in applying the analysis from
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), to
disparate treatment claims under AS 18.80.220: 

          First the employee "carr[ies] the initial
burden under the statute of establishing a prima facie case of
racial discrimination."  The burden then shifts to the employer "to
articulate some legitimate, nondiscriminatory reason"why the
employee was discharged.  Finally, the burden shifts back to the
employee "to show that [the employer's] stated reason [for
discharge] was in fact pretext."
Haroldsen v. OMNI Enterprises, Inc., 901 P.2d 426, 430 (Alaska
1995) (quoting McDonnell Douglas, 411 U.S. at 802).

Footnote 42:

     See Monette v. Electronic Data Systems Corp., 90 F.3d 1173,
1178, 1183 (6th Cir. 1996).

Footnote 43:

     The plaintiff is required to establish the same prima facie
case under both statutes.  See Woodman v. Runyon, 132 F.3d 1330,
1338 (10th Cir. 1997); Stone v. City of Mount Vernon, 118 F.3d 92,
96 (2d Cir. 1997).

Footnote 44:

     See Smith v. Midland Brake, Inc., 138 F.3d 1304, 1307-08 (10th
Cir. 1998); Cassidy v. Detroit Edison Co., 138 F.3d 629, 633 (6th
Cir. 1998); Gaul v. Lucent Tech. Inc., 134 F.3d 576, 580 (3d Cir.
1998); Terrell v. USAir, 132 F.3d 621, 624 (11th Cir. 1998); Stone,
118 F.3d at 96; Benson v. Northwest Airlines, Inc., 62 F.3d 1108,
1112 (8th Cir. 1995).

          Several federal appellate courts state this last
requirement differently; it seems, however, that all basically
require the same showing of causation -- that there was an adverse
employment decision, which would include the failure to make a
reasonable accommodation.  See, e.g., Stone, 118 F.3d at 96
(requiring a showing that the employer refused to make such
accommodations); Terrell, 132 F.3d at 624 (requiring a showing that
plaintiff was discriminated against because of her disability).

          At least two federal appellate courts require that the
employer have notice of the employee's disability.  See Stone, 118
F.3d at 96; Bultemeyer v. Fort Wayne Community Sch., 100 F.3d 1281,
1284 (7th Cir. 1996).

Footnote 45:

     Compare Halperin v. Abacus Tech. Corp., 128 F.3d 191, 196-97
(4th Cir. 1997) (requiring the above prima facie showing when
applying the McDonnell Douglas burden-shifting analysis); Price v.
S-B Power Tool, 75 F.3d 362, 365 (8th Cir. 1996) (same); Heilweil
v. Mount Sinai Hosp., 32 F.3d 718, 722 (2d Cir. 1994) (same); with
Smith, 138 F.3d at 1307 (requiring the above prima facie showing
when applying reasonable accommodation claim analysis); Cassidy,
138 F.3d at 633 (same); Gaul, 134 F.3d at 580 (same); Terrell, 132
F.3d at 624 (same); Stone, 118 F.3d at 96 (same); Benson, 62 F.3d
at 1112 (same).

Footnote 46:

     Although this issue was raised in Thomas v. Anchorage
Telephone Utilities, our resolution of that case rendered the issue
moot and we declined to "address or indicate whether we would adopt
the federal rule on attorney's fees."  Thomas, 741 P.2d at 631

Footnote 47:

     See Christiansburg Garment Co. v. Equal Opportunity Empl.
Comm'n, 434 U.S. 412, 415 (1978).  

Footnote 48:

     42 U.S.C. sec. 2000e-5(k) (1994).  

Footnote 49:

     434 U.S. at 421.  

Footnote 50:

     See id. at 418.  

Footnote 51:

     Id. (quoting Newman v. Piggie Park Enters., 390 U.S. 400, 402

Footnote 52:

     See id. 

Footnote 53:

     Id. at 420.  

Footnote 54:

     Id. at 421.

Footnote 55:

     See Municipality of Anchorage v. Gallion, 944 P.2d 436, 448
(Alaska 1997); Municipality of Anchorage v. Gentile, 922 P.2d 248,
263 (Alaska 1996); Alaska R. Civ. P. 82.  

Footnote 56:

     Malvo v. J.C. Penney Co., 512 P.2d 575, 588 (Alaska 1973).  

Footnote 57:

     See McLean v. State, 583 P.2d 867, 869 (Alaska 1978).

Footnote 58:

     Crisp v. Kenai Borough Sch. Dist., 587 P.2d 1168, 1169 (Alaska

Footnote 59:

     Rosen v. State Bd. of Public Accountancy, 689 P.2d 478, 482
(Alaska 1984); see also Van Huff v. Sohio Alaska Petroleum Co., 835
P.2d 1181, 1188 n.7 (Alaska 1992).  

Footnote 60:

     Alaska R. Civ. P. 82(b)(2).  

Footnote 61:

     Alaska R. Civ. P. 82(b)(3).

Footnote 62:

     Babinec v. Yabuki, 799 P.2d 1325, 1337 (Alaska 1990).