Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Goodman v Fairbanks North Start Borough School District et al. (12/07/2001) sp-5508

Goodman v Fairbanks North Start Borough School District et al. (12/07/2001) sp-5508

     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.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


GERALD G. GOODMAN,            )
                              )    Supreme Court No. S-9521
             Appellant,       )
                              )    Superior Court No.
     v.                       )    4FA-98-396 CI
                              )
FAIRBANKS NORTH STAR BOROUGH  )    O P I N I O N
SCHOOL DISTRICT, and          )
FAIRBANKS NORTH STAR BOROUGH, )    [No. 5508 - December 7, 2001]
                              )
             Appellees.       )
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
                      Mary E. Greene, Judge.


          Appearances:  James M. Hackett, Law Offices of
James M. Hackett, Inc., Fairbanks, for Appellant.  John A. Treptow
and Jahna M. Lindemuth, Dorsey & Whitney, LLP, Anchorage, for
Appellees.  


          Before: Fabe, Chief Justice, Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.  


          EASTAUGH, Justice.


I.   INTRODUCTION
          Gerald Goodman sued his former employer in mid-February,
1998 for allegedly discriminating against him by failing to
accommodate his physical disability.  Was his complaint timely? 
Because we hold that there are genuine fact disputes about whether
Goodman knew or should have known before late in February 1996,
when his application for disability retirement was accepted, that
his employer was refusing to accommodate his disability, we reverse
the employer's summary judgment and remand for further proceedings. 
II.  FACTS AND PROCEEDINGS
          Gerald Goodman worked as a teacher for the Fairbanks
North Star Borough School District from 1989 through March 1, 1996.
[Fn. 1]  During the 1989-90 school year, Goodman began to
experience symptoms of Charcot-Marie-Tooth disease, a progressive
degeneration of the insulating sheaths covering the nerve fibers of
his lower extremities.  The disease caused pain in Goodman's feet
when he stood or walked for any length of time.  Goodman retrained
with the State Division of Vocational Rehabilitation, and taught
drafting for a year at the Hutchison Career Center.  
          The classroom design at Hutchison was less aggravating to
Goodman's symptoms.  Lockers between each of the drafting desks
provided Goodman with a place to sit while assisting students, the
bathroom and office were closer to his classroom, and the students'
drafting desks were lower, alleviating the need to stand while
watching students draft.  Goodman was involuntarily transferred
from Hutchison to Lathrop High School in June 1991. 
          Goodman's main classroom at Lathrop aggravated his
symptoms -- the floor was concrete and the drafting desks were
high.  The hard surface made it painful for Goodman to stand and
the high desks forced him to spend more time standing.  Goodman's
condition deteriorated, forcing him to have surgery on his feet in
August 1995.  Goodman contacted the school district's Employment
and Education Opportunity Coordinator, Elizabeth Schaffhauser, on
September 1, 1995.  He informed her of his condition and sought
accommodations.  Goodman returned to school in mid-September, using
a wheelchair and teaching on a part-time basis.  Goodman resumed
full time teaching and stopped using the wheelchair in early
October.    
          Goodman's requested accommodations included lowering the
students' drafting desks, padding or carpeting the classroom
floors, transferring Goodman to a classroom with carpeted floors,
or transferring Goodman from Lathrop to Hutchison.  Schaffhauser
investigated Goodman's needs and possible accommodations, and met
with Goodman and several other people to coordinate the efforts. 
These meetings and contacts between Schaffhauser and Goodman took
place throughout the 1995 Fall semester.  The school district
eventually gave Goodman a wheeled stool and a small padded mat. 
The school district continued to pursue accommodations after
providing the stool and mat.   
          Goodman began meeting with an attorney in late September
1995 because he "felt that [he] was being discriminated against." 
He eventually filed for disability retirement in early December
1995 because he was concerned that the school district was not
going to accommodate him.  On December 6 and December 15 Goodman
spoke with Schaffhauser about the status of the accommodation
requests.  On December 7, 1995 Goodman filed a grievance against
Schaffhauser and the school district, alleging that the school
district had failed to provide necessary floor mats.   
          After winter break, Goodman only returned to school to
administer and grade final exams, and to aid the substitute teacher
with lesson plans.  Although Goodman arranged with James Holt, the
principal at Lathrop, for a substitute teacher to teach Goodman's
classes, Holt "had agreed to leave [Goodman's] job position open." 
Goodman used his remaining sick leave and was granted emergency
leave.  The State of Alaska notified Goodman a few days before
March 1, 1996 that it was granting his application for disability
retirement.  The school district paid Goodman through February 29,
1996, and Goodman's retirement became effective on March 1, 1996. 
          Goodman filed a complaint against Fairbanks North Star
Borough (FNSB) and the school district on February 18, 1998,
alleging discrimination based on disability under AS
18.80.220(a)(1).  FNSB and the school district moved for summary
judgment on statute-of-limitations grounds.  The superior court
granted the motion for summary judgment, holding that Goodman had
failed to file within the two-year statute of limitations. [Fn. 2] 
It held that Goodman's cause of action accrued no later than mid-
January 1996, when he knew that the school district was not going
to provide adequate accommodations.  Goodman appeals.
III. DISCUSSION
     A.   Standard of Review
          The date when Goodman discovered or should reasonably
have discovered that the school district would not provide him with
reasonable accommodations presents a question of fact "which cannot
ordinarily be determined by the superior court on a motion for
summary judgment." [Fn. 3]  If reasonable minds could differ as to
the date of discovery, there is a genuine issue of material fact,
and summary judgment is inappropriate. [Fn. 4]  All reasonable
inferences must be drawn in favor of Goodman, the nonmoving party.
[Fn. 5]  On legal issues, we adopt principles of law which are
"most persuasive in light of precedent, reason, and policy." [Fn.
6]
          Although dismissing a claim for failure to adhere to the
statute of limitations is legitimate, it is "not generally favored
by the courts." [Fn. 7]  We will not strain either the law or the
facts in aid of a statute-of-limitations defense. [Fn. 8]  Statutes
of limitations prescribing a relatively short period of time should
be construed narrowly. [Fn. 9]
     B.   A Genuine Issue of Material Fact About Whether Goodman's
Resignation Was Conditional Precludes Summary Judgment.
          The superior court held that Goodman's claim accrued no
later than mid-January 1996, and was thus time barred by the two-
year statute of limitations.  The superior court stated that "Mr.
Goodman's testimony indicates that he knew the School district had
no intention of considering accommodation after he was on leave." 
The court reasoned that the latest date when the claim could have
accrued was mid-January, "when Mr. Goodman stopped teaching and
went on emergency leave with no indication from the School District
that accommodations would be made before his retirement."  The
court concluded that "Mr. Goodman's retirement on March 1, 1996,
was not a new failure to accommodate, but rather was a consequence
of the School District's earlier failure to accommodate his
disability of which Goodman clearly had notice before going on
leave in mid-January."
          Goodman argues that his cause of action did not accrue
until he suffered a compensable harm, when he retired on March 1,
1996. 
          A cause of action for failure to accommodate arises "when
the employee receives unequivocal notice of the facts giving rise
to his [or her] claim or a reasonable person would know of the
facts giving rise to [the] claim." [Fn. 10]
          The facts, viewed in the light most favorable to Goodman,
demonstrate that Goodman did not receive unequivocal notice that
the school district was refusing to accommodate him until Goodman's
application for disability retirement was accepted in late 
February 1996, and his employment with the district ended.  The
record supports Goodman's argument that although he filed for
disability retirement in December 1995 and exhausted his leave time
in January 1996, he still hoped to receive accommodations that
would enable him to continue working.  Goodman testified that he
did not consider his decision to retire to be irrevocable.  He
explained in his corrections to his deposition transcript that he
considered retirement "as one of my options but not the preferred
one."  He testified that James Holt, the Lathrop High School
principal, "had agreed to leave [his] job position open."  Holt's
Statement of Disability form, dated December 4, 1995, stated that
the school district would retain Goodman and require him to perform
his currently assigned teaching duties if Goodman's application for
disability were denied and Goodman wished to continue working.  We
note that while the record permits an inference that Goodman knew
in January 1996 that the district had not yet accommodated him, it
does not establish beyond dispute that Goodman knew or should have
known that the school district would make no further efforts to
accommodate him.    
          The record also supports an inference that the school
district did not consider his retirement request to be irrevocable. 
Goodman notified Schaffhauser on November 21, 1995 that he was
applying for disability retirement, and that he would "try to stay
off his foot at Christmas and see if there's any improvement." 
This communication should have informed the school district that
although Goodman would be applying for disability retirement, he
preferred accommodation, and that his retirement application would
be conditional. 
          The record also permits the inference that Goodman
successfully communicated his preference.  The school district
continued to investigate ways to accommodate Goodman after he filed
for retirement.  Schaffhauser testified in her deposition that as
of December 6, 1995, the school district was still planning to
accommodate Goodman, one week after she told Goodman how to apply
for disability retirement.  When she was asked, "as the EEO officer
at that time, 12/6/95 . . .  what was your plan to accommodate Mr.
Goodman and how had it been implemented?" Schaffhauser testified
that "[w]e were working on getting some floor covering.  We had
gotten him a stool for him to utilize, and we were looking at the
appropriate floor covering for the area that he worked in." 
Goodman again notified Schaffhauser on December 15 that he was
working to complete his application for disability retirement, and
that he would go on official leave on January 2.  During this
conversation, Goodman mentioned filing the grievance.  Schaffhauser
denied that the school district had done nothing, "referring more
to the idea that we were working on getting him carpeting . . .
that we showed that we were interested in accommodating through
getting him something on the . . . floor."  Goodman testified that
he filed the grievance to alert the school district of his
unhappiness with the status of the accommodations and because he
"would like to have been able to keep working." 
          The record also permits the inference that the parties
did not think that Goodman's leave would halt the attempts to
accommodate.  Schaffhauser testified that in September she checked
on how many days of sick leave Goodman had, because "we were just
looking at the time that we thought he might be out and -- and the
time we would have to develop accommodations for him."  Leave, at
least in September, was contemplated as time for accommodations
rather than a termination of the relationship. 
          It is possible to infer from the testimony that Goodman
had decided that the school district was refusing to accommodate
him, and that Schaffhauser and Goodman thought that the issue of
accommodation was moot because Goodman was retiring.  But it is
also reasonable to infer that the school district was still
investigating possible accommodations, and that Goodman expected
either to be accommodated or to be granted his disability
retirement.  Under this view, the school district first signaled
its refusal to accommodate Goodman when his request for disability
retirement was accepted in late February, and his employment with
the district ended. 
          The school district, arguing that Goodman believed it was
discriminating against him in 1995, cites evidence that Goodman
consulted a lawyer in September and testified that he had concluded
in November 1995 that the school district was not going to
accommodate him.  This is evidence that Goodman suspected
discrimination as early as November.  But it does not establish the
absence of any genuine dispute about when Goodman discovered or
should have discovered his cause of action.  Absent an articulated
refusal to accommodate, a failure-to-accommodate claim requires
evaluation of omissions rather than overt acts. [Fn. 11]  Although
Goodman knew that he had not yet been accommodated, the evidence
permits an inference that he did not know or have reason to know
that the school district would make no further reasonable
accommodation efforts.
          The school district did not notify Goodman of any
decision not to accommodate, and it continued to make movements
toward accommodation.  Goodman knew of many of these efforts. 
Schaffhauser continued to investigate possible accommodations, and
her investigations continued at least through December 1995.  The
school district's use of a substitute teacher through March 1 and
Holt's agreement to leave Goodman's position open permit a
reasonable mind to find that Goodman did not know or have reason to
think that the school district had moved beyond indecision and was
now refusing to accommodate his disability.  It is not clear from
the record when the school district decided to abandon efforts to
accommodate Goodman.  And it is difficult to conclude as a matter
of law that Goodman should have known that the school district was
refusing to accommodate him if the school district had not yet
decided to refuse further accommodations.
          We have held that the date of discovery "cannot
ordinarily be determined by the superior court on a motion for
summary judgment," and that "[w]here reasonable minds could draw
different conclusions as to the date of discovery, a genuine issue
of material fact exists and summary judgment must be denied." [Fn.
12]  The record here would permit, but would not compel, a fact
finder to find that Goodman did not discover the school district's
refusal to accommodate until Goodman's application for disability
retirement was accepted in late February 1996, and his employment
with the district ended.  Retirement was not an inevitable
consequence of the January leave of absence or the course of
dealings before the school district approved Goodman's retirement
application.  Goodman's employment relationship with the district
ended when the State of Alaska approved his retirement disability
retirement application in late February 1996.  After that date and
given the course of the district's dealings with Goodman, Goodman
could not reasonably have believed that the district would make
further accommodation efforts.  But until that time, the
circumstances we have discussed above gave rise to genuine,
material fact disputes about whether Goodman should have realized
before February 18, 1996 that the district would make no further
efforts to accommodate his disability, precluding summary judgment
on the statute-of-limitations issue.  The school district's failure
to notify Goodman of any decision to refuse accommodation precludes
summary judgment on this issue.
          Given this conclusion, we do not reach Goodman's
alternative arguments that his claim was saved by the doctrine of
equitable tolling, that some of his causes of action accrued after
February, or that he had alleged a continuous violation.
          Although genuine fact disputes preclude summary judgment
against Goodman on the statute-of-limitations issue, we cannot say
as a matter of law that Goodman reasonably could have believed as
of February 18, 1996, that the school district had not yet refused
to provide further accommodations for his disability.  We therefore
cannot hold that he must prevail on his argument that the statute
of limitations does not bar his claims.  On remand the superior
court will have to resolve these fact disputes to decide whether
Goodman's failure-to-accommodate claims are barred in whole or in
part.  The court may do this by conducting a preliminary fact
hearing to resolve this issue before any trial, or by submitting
fact disputes on this issue to the trial finder of fact.
IV.  CONCLUSION
          Given these genuine, material fact disputes about the
accrual of his cause of action, it was error to grant summary
judgment against Goodman.  We REVERSE and REMAND for further
proceedings.

                            FOOTNOTES


Footnote 1:

     Because we are reviewing a grant of summary judgment, we here
set out the facts drawing all permissible inferences in favor of
the non-movant, Goodman.  We draw no conclusions about the
substantive merit of Goodman's claim.

          Appellee contended at oral argument that the deposition
testimony supporting these inferences was not properly before the
court because Goodman had failed to notify the Fairbanks North Star
Borough School District and the Fairbanks North Star Borough as
required by Alaska Civil Rule 30(f)(3).  The record does not
support this argument.  Goodman filed many pages from his
deposition and the deposition of Elizabeth Schaffhauser with his
April 9, 1999 opposition to summary judgment.  Goodman's April 9,
1999 filings include a notification which listed the pages of the
depositions filed before the court and certified that "a true and
correct copy of the foregoing document was served by mail" on
opposing counsel. 


Footnote 2:

     See AS 09.10.070(a)(5).


Footnote 3:

     Breck v. Moore, 910 P.2d 599, 605 (Alaska 1996) (quoting
Gudenau & Co. v. Sweeney Ins., Inc., 736 P.2d 763, 767 (Alaska
1987)).


Footnote 4:

     See Gudenau, 736 P.2d at 767.


Footnote 5:

     See Bauman v. Day, 892 P.2d 817, 825 (Alaska 1995) (citing
Wright v. State, 824 P.2d 718, 720 (Alaska 1992)); Gudenau, 736
P.2d at 767.  


Footnote 6:

     Bauman, 892 P.2d at 825 (citing Langdon v. Champion, 745 P.2d
1371, 1372 n.2 (Alaska 1987)).  


Footnote 7:

     Safeco Ins. Co. v. Honeywell, Inc., 639 P.2d 996, 1001 (Alaska
1981).


Footnote 8:

     See id. (quoting Guy F. Atkinson Co. v. State, 403 P.2d 880
(Wash. 1965)).  


Footnote 9:

     See Safeco Ins. Co., 639 P.2d at 1001. 


Footnote 10:

     Burfield v. Brown, Moore, & Flint, Inc., 51 F.3d 583, 589 (5th
Cir. 1995) (interpreting accrual of cause of action under Americans
with Disabilities Act) (citation omitted).


Footnote 11:

     We express no opinion here about the effect of an employer's
lengthy failure to respond to a request for accommodations.


Footnote 12:

     Gudenau, 736 P.2d at 767 (citations omitted).   But cf. Sopko
v. Dowell Schlumberger, Inc., 21 P.3d 1265, 1272 (Alaska  2001)
(holding that "Sopko had 'sufficient information' to start an
inquiry into his cause of action [directly after the incident] even
though the full extent of his injury was not revealed until 1995").


In the Supreme Court of the State of Alaska

Gerald G. Goodman,              )
                                )        Supreme Court No. S-09521
                 Appellant(s),  )
                   v.           )                 Order
                                )                     
Fairbanks North Star Borough    )
School District, and            )
Fairbanks North  Star Borough,  )                     
                                )                     
                   Appellee(s). )          Date of Order: 12/7/01
Trial Court Case # 4FA-98-00396CI


     Before: Fabe, Chief Justice, Matthews, Eastaugh, Bryner, and
Carpeneti, Justices.
          Upon consideration of the Petition for Rehearing, titled
Motion for Reconsideration, dated August 3, 2001, and the response
dated August 14, 2001, 

     It Is Ordered:

     1.   The Petition for Rehearing is Granted.  

     2.   Opinion No. 5441, issued on July 27, 2001, is Withdrawn. 

     3.   Opinion No. 5508 is issued on this date in its place.  As
corrected, it reflects that it was not the Fairbanks North Star
Borough School District that accepted Goodman's retirement
application. [Fn. 1]  The result is unchanged because the result
the court reaches does not turn on which entity accepted the
retirement application.  
     
     Entered by direction of the court.

                                   Clerk of the Appellate Courts

                                                                  
                                   Marilyn May

Alaska Supreme Court Order
Gerald G. Goodman v. Fairbanks North Star Borough, etal, S-09521
Page 2


cc:  Supreme Court Justices
     Judge Greene
     Fairbanks Appeals Division
     Publishers

Distribution:  
 
     James M Hackett 
     Attorney at Law 
     401 Eleventh Avenue 
     Fairbanks AK 99701 
 
     John A. Treptow 
     Dorsey & Whitney LLP 
     1031 W. Fourth Ave., Suite 600 
     Anchorage AK 99501 
 
     Jahna Lindemuth 
     Dorsey & Whitney LLP 
     1031 W. Fourth Ave., Sutie 600 
     Anchorage AK 99501


                        FOOTNOTES (Order)


Footnote 1:

     These changes are found on page 1, 4, 7, 10-12 of Op. No.
5508.