You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Reich v. Cominco Alaska, Inc. (10/4/2002) sp-5637
Reich v. Cominco Alaska, Inc. (10/4/2002) sp-5637
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
GERI REICH, )
) Supreme Court No. S-9717
Appellant, )
) Superior Court No. 2KB-97-53
CI
v. )
) O P I N I O N
COMINCO ALASKA, INC. )
) [No. 5637 - October 4, 2002]
Appellee. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Second Judicial District,
Kotzebue, Ben J. Esch, Judge.
Appearances: C.R. Kennelly, Stepovich,
Kennelly & Stepovich, P.C., Anchorage, for
Appellant. Sean Halloran, Hartig, Rhodes,
Hoge & Lekish, P.C., Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
I. Geri Reich sued her former employer, Cominco Alaska,
Inc., alleging that it subjected her to a hostile work
environment at the Red Dog Mine. The mine was operated by
Cominco but owned by NANA Regional Corporation. Alaska Rule of
Civil Procedure 47(c)(12) excludes prospective jurors who have a
financial interest in the litigation. Does this rule apply to
stockholders of a corporation, such as NANA, which is not a party
to the lawsuit but which may be financially affected by the
verdict? We conclude that it does, and hold that the superior
court did not err by excluding prospective jurors who were NANA
shareholders.
The timeliness of Reichs hostile work environment claim
potentially depended on the continuing violations doctrine. The
trial jury found for Cominco. Because Reich has not demonstrated
that the instructions and special verdict form prevented the jury
from finding a continuing violation, we affirm Comincos judgment.
II. FACTS AND PROCEEDINGS
On June 25, 1997 Geri Reich filed a lawsuit in the
superior court in Kotzebue against her former employer, Cominco
Alaska, Inc. The complaint asserted claims of sexual and racial
discrimination,1 hostile work environment, and unlawful
termination, negligent infliction of emotional distress, and
intentional infliction of emotional distress. Reich had worked
as an electrician at the Red Dog Mine from 1989 until July 17,
1995; she was terminated in August 1995. Cominco operates the
mine but NANA Regional Corporation owns the mine and the
surrounding land. NANA was created by the Alaska Native Claims
Settlement Act; almost all of its members are Inupiat Eskimos,
one of the largest ethnic groups in the Kotzebue area.
Per the terms of their Development and Operating
Agreement for the mine, NANA and Cominco annually share the mines
net profits. The agreement permits Cominco to subtract from
gross revenues its costs of defending lawsuits against it and any
judgment against it, unless the judgment is based on a jury award
that finds Cominco liable for gross negligence or willful
misconduct.
At Comincos request, the superior court excluded for
cause all prospective jurors who owned stock in NANA; it found
that each had a direct financial interest in the outcome of the
lawsuit. The court relied on Alaska Civil Rule 47(c)(12), which
permits parties to challenge for cause prospective jurors who
have a financial interest, other than that of a taxpayer or
permanent fund dividend recipient in the outcome of the case.
The court found that any verdict other than one holding Cominco
liable for gross negligence or willful misconduct would reduce
NANAs share of the mines profits; it found that even a verdict of
no liability would reduce NANAs profits because Cominco could
deduct its defense costs so long as there was no finding of
liability for fault greater than ordinary negligence. The court
therefore concluded that concern about the amount of corporate
dividends NANA would pay its shareholders could influence the
decision of jurors who were NANA shareholders.
Reich filed a petition for review asking us to reverse
the order excluding NANA shareholders. Although we denied her
petition, we directed the trial court to examine the prospective
jurors before excluding them because Civil Rule 47(c) only
permits for cause challenges [a]fter the examination of
prospective jurors is completed and before any juror is sworn.2
We also directed the trial court to decide whether Cominco had
standing to assert this challenge based on a showing of a
substantial risk of prejudice.
The trial court allowed the prospective jurors to be
examined, and excluded all NANA shareholders including those who
claimed they would not be influenced. The trial court also
impliedly found that Cominco had standing to challenge
prospective jurors who were NANA shareholders because Cominco
demonstrated that, to avoid reduced dividends, those jurors would
have incentive to find Cominco grossly negligent or its conduct
willful. Reich appeals these rulings.
After Cominco moved for summary judgment, the superior
court dismissed Reichs claims of intentional infliction of
emotional distress and negligent infliction of emotional
distress,3 but allowed her wrongful discharge and hostile work
environment claims to proceed. Reich argued that the continuing
violations doctrine applied to her hostile work environment
claim. The superior court allowed Reich to rely on the
continuing violations doctrine. Her last day at the mine was
July 17, 1995 and she filed her lawsuit on June 25, 1997. Reich
offered evidence of incidents occurring before June 26, 1995 to
support her claim that a hostile work environment continued after
June 26, 1995. Question No. 5 on the special verdict form asked
the jury whether Ms. Reich was subjected to a hostile or abusive
work environment at Cominco because of her race or sex after June
26, 1995. Reich objected that the quoted language was
inconsistent with her hostile work environment claim. Reich
claims on appeal that the quoted language in the special verdict
form effectively prevented the jury from finding liability unless
Reich established that all of the elements of hostile work
environment arose after June 26, 1995.
III. DISCUSSION
A. The Superior Court Did Not Abuse Its Discretion by
Excluding NANA Shareholders.
1. Standard of review
We review a trial courts interpretation of a rule of
civil procedure applying our independent judgment, adopting the
rule of law that is most persuasive in light of precedent,
reason, and policy.4 It is well settled that challenges for
cause under Rule 47(c) . . . are within the sound discretion of
the trial judge, with which we are most reluctant to interfere.5
We will reverse a trial courts grant or denial of juror
challenges for cause only in exceptional circumstances and to
prevent a miscarriage of justice.6 We review the trial courts
factual determinations, such as whether a prospective juror is a
NANA shareholder, for clear error.7
2. Civil Rule 47(c)(12)
Civil Rule 47(c)(12) permits challenges for cause of
jurors who have a financial interest in the outcome of the case.
Civil Rule 47(c) states:
After the examination of prospective jurors
is completed and before any juror is sworn,
the parties may challenge any juror for
cause. . . . The following are grounds for
challenge for cause: . . .
(12) That the person has a financial
interest, other than that of a taxpayer or
permanent fund dividend recipient in the
outcome of the case.
Does this rule permit as the trial court held here
the exclusion of shareholders of a corporation which is not a
party to the lawsuit but which has a financial interest in the
lawsuits outcome? In Malvo v. J.C. Penney Co.,8 we identified
the grounds that require the trial court to determine the
existence of certain relationships between jurors and parties to
the litigation when a Rule 47(c) challenge is raised. We then
held: Once facts have been presented establishing such a
relationship between the juror and a party, the grounds for
challenge have been met. Accordingly, the failure of the trial
judge to grant the challenge for those jurors who had a debtor-
creditor relationship with J.C. Penney was error.9 A trial judge
does not have discretion to deny a challenge for cause once that
relationship has been established.10
Thus, as interpreted in Malvo, Rule 47(c)(12) requires
trial courts to presume that prospective jurors with financial
relationships with a party to the litigation cannot be impartial
and that their interest in the outcome will influence their
decision.11 In these situations, the relationship between the
prospective juror and a party to the lawsuit points so sharply to
bias in the particular juror that even the jurors own assertions
of impartiality must be discounted.12 When the prospective juror
is a stockholder in a company which is a party to the litigation,
the prospective jurors impartiality is even more suspect. That a
stockholder in a company which is party to an action is
incompetent to sit as a juror is so well settled as to be black
letter law.13 Most courts apply a per se rule barring a
shareholder from sitting on a jury in an action to which the
corporation is a party or in which it has a direct pecuniary
interest.14
In Noey v. Ukpeagvik Inupiat Corp.,15 we extended to
Native corporations the rule against seating jurors who are
stockholders in a company which is a party to a lawsuit. We
held:
This rule [excluding jurors who are
stockholders in a company which is party to a
lawsuit] extends to village and regional
corporations irrespective of whether the
shares are freely alienable or are earning
dividends at the time of the trial.
Ownership of shares in a village corporation
constitutes a direct financial interest in
that corporation and consequently a financial
interest in the outcome of the litigation to
which the corporation is a party.[16]
In Noey, the Ukpeagvik Inupiat Corporation (UIC) sued
Stephen Noey for recission and restitution. UIC was the Barrow
village corporation and it filed its lawsuit in Barrow. Noey
moved to change venue, arguing that he could not get a fair trial
because a majority of the jury pool would be UIC shareholders who
would be biased against him.17 The trial court denied the motion,
holding that the benefit of having the case decided locally
outweighed possible prejudice against Noey.18 We reversed,
holding that UIC stock ownership was a valid ground for challenge
for cause.19
We now extend Noey and hold that the per se rule that
excludes as jurors stockholders in a company which is a party to
the litigation also applies to stockholders in a corporation
which is not a party but which is nonetheless financially
interested in the outcome. We must next decide if the trial
court abused its discretion by finding that NANA has a financial
interest in this case and excusing its shareholders for cause.
3. The trial court did not abuse its discretion.
a. Cominco had standing to challenge the jurors
under Rule 47(c)(12).
We first consider Reichs argument that Cominco did not
have standing to challenge the prospective jurors because their
bias did not run against it. She asserts that because the
prospective jurors are shareholders in a company that does
business with Cominco, their prejudice would lie against her.
Civil Rule 47(c)(12) permits a party to challenge a
person with a financial interest in the lawsuit. The rule does
not require both that the challenged juror have a financial
relationship and that the relationship actually influence the
juror. The rule simply requires a finding of financial interest.
Reich argues that it is unlikely that the challenged jurors knew
of the relationship between NANA and Cominco. She argues that it
is even more unlikely that jurors who were aware of the
relationship would understand its financial implications. But
the record demonstrates that some prospective jurors were aware
of the relationship and understood that it had an impact on NANAs
profits.
For reasons we discuss below NANA, and therefore its
shareholders, had a financial interest in the outcome of the
lawsuit. Because Cominco would have been prejudiced by jury
deliberations influenced by that financial interest, we hold that
Cominco had standing to challenge the prospective jurors.
b. The
trial
court
did
not
clear
ly
err
in
deter
minin
g
which
prosp
ectiv
e
juror
s
were
NANA
share
holde
rs.
The superior court obtained a list of the prospective
jurors who were NANA shareholders and allowed Reichs attorney to
voir dire them regarding bias. Each prospective juror was
examined; those who were found to be NANA shareholders were
dismissed. The trial court did not clearly err in deciding which
prospective jurors were NANA shareholders.
c. NANA has a direct pecuniary interest in the
outcome of this lawsuit.
Reich argues that because NANA is not a party to the
litigation, the financial interest of its shareholders is only
indirect.
The superior court found that [t]he evidence in this
case demonstrates that NANA and Cominco have a joint venture
agreement concerning the operation of the Red Dog Mine, and that
the contractual process of division of costs and profits
[creates] a potential for shareholders to compromise their
verdicts in this case.
A companys direct financial interest in the outcome of
litigation is imputed to its shareholders.20 NANA and Cominco
have an operating agreement specifying their financial
relationship. In determining whether NANA had a financial
interest in Reichs lawsuit, the superior court relied on the
affidavit and testimony of Shelby Stastny, NANAs Chief Financial
Officer. Stastny explained the Development and Operating
Agreement between NANA and Cominco. Stastny asserted that any
damages awarded against Cominco will affect Comincos operating
costs and, in turn, the net profits for the Red Dog Project.
Accordingly, NANA has a direct pecuniary interest in the outcome
of the . . . litigation. NANA receives a net smelter royalty for
the minerals extracted from the Red Dog Mine. After Cominco
recovers operating costs relating to the mine, NANA receives a
portion of each years net profits. The percentage of the net
profits that NANA receives increases annually. NANA will
ultimately receive fifty percent of the annual net profits.
Cominco may subtract operating costs from gross profits
before it calculates NANAs revenue. Legal expenses associated
with the mine are included in those deductible operating costs so
long as a jury does not find Cominco liable for gross negligence
or willful misconduct. Cominco may therefore subtract any costs
of defending a lawsuit in which a jury finds that Cominco was not
at fault or was simply negligent. Cominco may also deduct a
judgment if it is based on fault less serious than gross
negligence. These deductions decrease NANAs net profits. A
verdict of no liability will reduce NANAs profits, as will a
verdict of liability based on simple negligence. The agreement
between Cominco and NANA therefore potentially gives NANA
shareholders an incentive to find Cominco liable for gross
negligence or willful misconduct. Finding otherwise will reduce
NANAs profits and could affect its dividends.
The superior court concluded that NANA is financially
tied to Cominco and the operation of the Red Dog Mine, and that
NANA has a pecuniary interest in the outcome of this litigation.
The superior court ruled that this financial interest justified
the challenge for cause of NANAs shareholders.
Reich relies on Harmotta v. Bender.21 The challenged
jurors were members of the Roman Catholic Church and were to hear
a case involving a Roman Catholic parish in the same diocese.22
They were challenged because they were members of the Diocese
fund church activities, and could be called upon to reimburse the
church if the appellants recovered a judgment against the church.23
The trial court ruled that they were not subject to challenge
because their interest was too remote; the appellate court held
that this ruling was not an abuse of discretion.24
To some extent, Harmotta simply reflects the deference
given to a trial court when it decides whether to exclude
challenged jurors in circumstances permitting an exercise of
discretion. But here, once the trial court found that NANA had a
pecuniary interest in the outcome of this litigation, the per se
rule of exclusion applied to NANA shareholders, and the trial
court no longer had discretion to permit NANA shareholders to sit
as jurors. In Harmotta there was only a possibility church
members would be called on to reimburse the church. In this
case, Reichs lawsuit would reduce NANAs profits unless the jury
found willful misconduct or gross negligence. Jurors who are
NANA stockholders therefore had incentive to find Cominco liable
for either willful conduct or gross negligence, and had incentive
not to find it free of fault.
Other reported decisions preclude stockholders from
sitting on juries in cases in which their company might have any
financial interest at all, regardless of the amount of interest
or whether the prospective juror claims impartiality.25
The stockholders financial interest in Reichs case was
closer to the prospective jurors interest in Noey than the
attenuated interest in Harmotta. The interest here is even
clearer than that of a prospective juror who owns shares of a non-
defendant insurance company with a financial stake in the outcome
of the litigation.26 Some courts have gone so far as to
disqualify . . . relatives within the prohibited degree of
relationship to a stockholder in a cause where the corporation is
a party or has pecuniary interest.27
The trial court conducted voir dire in compliance with
Rule 47(c) before dismissing the NANA shareholders for cause.
The superior court accepted Stastnys explanation and ruled that
the prospective jurors incentive to protect their dividends
justified their exclusion. We hold that the superior court did
not err by dismissing NANA shareholders for cause.
B. The Special Verdict Form Did Not Prevent the Jury from
Finding that a Hostile Work Environment Existed Within
the Two Years Before Reich Filed Suit.
Reich argues that the court prevented the jury from
taking the continuing violations doctrine into account when it
decided her hostile work environment claim against her.28 The
crux of Reichs argument is her contention that the hostile work
environment instruction, the special verdict form, and the courts
response to a jury question essentially told the jury that it
could not find liability if the employer was given notice of a
hostile work environment prior to the two-year limitations period
before Reich filed suit. She argues that the court erroneously
required her to prove that she gave additional notice to Cominco
within the limitations period, depriving her of the benefit of
the continuing violations doctrine.
We review de novo jury instructions to which timely
objection was made.29 A special verdict form is a type of jury
instruction subject to the same standard of review for jury
instructions.30 A jury instruction containing an erroneous
statement of law constitutes reversible error if it prejudice[s]
one of the parties; prejudice exists if it can be said that the
verdict may have been different had the erroneous instruction not
been given. 31 In evaluating whether there has been prejudicial
error with regard to jury instructions, the reviewing court must
put itself in the position of the jurors and determine whether
the error probably affected their judgment. We review this
question de novo.32
Reich filed suit on June 25, 1997. Alaska Statute
09.10.070, the two-year statute of limitations, determines the
timeliness of her hostile work environment claim.33 All elements
of that claim must have occurred within the two years before she
sued, unless she proved a continuing violation.34 The continuing
violations doctrine allows plaintiffs to establish an ongoing
tort through incidents that occurred before the statute of
limitations period and that continued into the limitations
period.35 The continuing violations doctrine allows a plaintiff
to establish the elements of a hostile work environment claim by
relying on incidents that predate the statutory limitations
period to prove that a hostile environment continued into the
limitations period.36
The trial court agreed to apply the continuing
violations doctrine to this case.37 The doctrines application was
potentially critical to Reichs hostile work environment claim
because there was a factual dispute whether Cominco was given
notice of a hostile work environment within the two years before
Reich filed suit, and whether Cominco failed to remedy the
alleged condition. There was evidence that Cominco supervisors
had been put on notice before June 26, 1995 of a possible hostile
work environment.
The special verdict form submitted these questions to
the jury:
Do you find from a preponderance of the
evidence:
1. That Ms. Reich complained to Cominco
management about being harassed or
discriminated against in her employment?
2. That complaints made to Cominco
management by Ms. Reich were a causal
factor in Comincos decision to discharge
Ms. Reich?
. . . .
5. That Ms. Reich was subjected to a
hostile or abusive work environment at
Cominco because of her race or sex after
June 26, 1995?
6. That such hostile or abusive work
environment was created by a supervisor
with immediate or successively higher
authority over Ms. Reich, or that such a
supervisor knew of such conduct and
failed to take remedial action
calculated to end the harassment?
The jury answered yes to Question No. 1, and no to Questions No.
2, 5, and 6. It did so after the court, responding to a question
from the jury, informed the jury over Reichs objection that the
June 26, 1995 time frame also applied to Question No. 6.
We discern no error. The instructions, the verdict
form, and the courts answer to the jurys question did not prevent
the jury from giving effect to the continuing violations doctrine
or considering Reichs claim as she presented it. The special
verdict form appropriately required the jury to determine whether
Reich was subjected to a hostile work environment after June 26,
1995. It did not prevent the jury from considering events
occurring or information conveyed before June 26, 1995 in
deciding whether a hostile work environment existed after that
date. It did not prevent the jury from relying on evidence that
the employer had been put on notice before that date that a
hostile work environment existed. Cominco did not claim that
notice previously given was no longer effective after June 26.
Nor did it claim that it had no duty to remedy a hostile work
environment if it was put on notice of that condition before June
26. The jury was not prevented from finding that knowledge
gained before June 26 continued after June 26, or that inaction
predating June 26 continued after that date.
It is hard to imagine how the Question No. 6 time frame
dispute could have affected the outcome. The jury answered no to
Question No. 5, which asked if the jury found That Ms. Reich was
subjected to a hostile or abusive work environment at Cominco
because of her race or sex after June 26, 1995. That question
did not prevent Reich from relying on pre-June 26 events to prove
that she was subjected to a hostile work environment after June
26. But given the jurys answers to Question No. 2 (finding that
Reichs complaints to Cominco management were not a causal factor
in its decision to discharge her) and Question No. 5, it is
difficult to see how the jury could have answered yes to Question
No. 6 even if the court had not told the jury to apply the June
26 time frame when answering Question No. 6.
As Cominco argues, it is irrelevant how the jury
interpreted the special verdict form questions because the
negative answer to Question No. 5 means that the jury found that
there was no hostile environment at any time after June 26, 1995.
Cominco asserts that this finding necessarily means that no
preexisting hostile environment continued beyond June 26, 1995,
and that no new improper conduct created a hostile environment
after that date. Cominco thus reasons that it would have been
irrelevant to . . . ask the jury to determine whether a
supervisor had knowledge of any inappropriate conduct that may
have occurred prior to June 26, 1995, because the jury found . .
. no improper conduct occurring after that time and because the
jury also found that [a hostile environment] did not exist
afterward. We agree with these propositions.
Furthermore, Reich contended in final argument to the
jury that Cominco exposed her to continuous harassment that began
soon after she was hired and that culminated in her termination.
In light of this approach and the jurys answer to Question No. 5,
it is highly improbable that the continuing violation doctrine
had any relevance to Reichs case.38
We therefore conclude that the trial court did not err
in rejecting Reichs objection to answering the jurys inquiry, and
that no error in submitting the continuing violations doctrine to
the jury prejudiced Reichs hostile work environment claim.39
IV. CONCLUSION
Because the superior court correctly applied the per se
rule allowing challenges for cause of prospective jurors with a
financial interest in the litigation, we AFFIRM the superior
courts exclusion of jurors who owned stock in NANA.
Because the special verdict form and the instructions
did not erroneously prevent the jury from giving effect to the
continuing violations theory of tort liability, we AFFIRM the
judgment for Cominco.
_______________________________
1 Reich is an Inupiat Eskimo.
2 Reich v. Cominco Alaska, Inc., Case No. S-9622, (Alaska
Supreme Court Order, March 24, 2000).
3 Reich has not appealed the dismissal of these claims.
4 Brown v. Lange, 21 P.3d 822, 824 (Alaska 2001)
(citation omitted).
5 Malvo v. J.C. Penney Co., 512 P.2d 575, 578 (Alaska
1973).
6 Mitchell v. Knight, 394 P.2d 892, 897 (Alaska 1964).
7 Mapco Express v. Faulk, 24 P.3d 531, 535 (Alaska 2001).
8 512 P.2d 578 (Alaska 1973).
9 Id. at 579.
10 We declined to decide in Joseph v. State, 26 P.3d 459,
464 (Alaska 2001), whether exclusion under Rule 47(c) is
mandatory. The trial court there excluded prospective jurors who
had been criminally prosecuted by the state. It did not examine
the challenged jurors individually and instead relied exclusively
on state records. We ruled that it was error to exclude the
prospective jurors without examining them individually. That
ruling is inapposite here because Reichs jurors were individually
examined before they were excused.
11 Noey v. Ukpeagvik Inupiat Corp., 683 P.2d 260, 261
(Alaska 1984).
12 Getter v. Wal-Mart Stores, Inc., 66 F.3d 1119, 1122
(10th Cir. 1995) (quotations and citations omitted); see also
Gladhill v. Gen. Motors Corp., 743 F.2d 1049, 1050 (4th Cir.
1984) (If, as is the law, the juror is legally disqualified from
acting, the jurors analysis of his subjective qualifications is
beside the point.).
13 Chestnut v. Ford Motor Co., 445 F.2d 967, 971 (4th Cir.
1971) (citations omitted).
14 In re Asbestos Litigation, 626 A.2d 330, 331 (Del.
Super. 1993) (citations omitted); see also S. Bell Tel. & Tel.
Co. v. Shephard, 204 S.E.2d 11, 12 (S.C. 1974) (A stockholder in
a corporation is incompetent to serve as a juror in a case in
which the corporation is a party or has a pecuniary interest.).
15 683 P.2d 260 (Alaska 1984).
16 Id. at 261.
17 Id. at 260.
18 Id.
19 Id. at 261.
20 We have held that this is no less true for Native
corporations irrespective of whether the shares are freely
alienable or are earning dividends at the time of trial. Noey,
683 P.2d at 261.
21 601 A.2d 837 (Pa. Super. 1992).
22 Id. at 838.
23 Id. at 840-41.
24 Id. at 841.
25 Noey, 683 P.2d at 261; see also Dunipace v. Martin, 242
P.2d 543, 545 (Ariz. 1925); Page v. Contoocook Valley R.R., 21
N.H. 438, 438 (N.H. 1850); S. Bell Tel., 204 S.E.2d at 11.
26 Gonzalez v. Wells, 445 S.E.2d 332, 333 (Ga. App. 1994).
27 Salina v. Commonwealth of Virginia, 225 S.E.2d 199, 200
(Va. 1976) (citation omitted); see also Shipman v. Johnson, 80
S.E.2d 717, 721 (Ga. App. 1954) (disqualifying prospective jurors
who held stock in litigants husbands insurer).
28 We have held that [c]onduct which unreasonably
interferes with work performance . . . creates an abusive working
environment. French v. Jadon, Inc., 911 P.2d 20, 28 (Alaska
1996) (quoting Ellison v. Brady, 924 F.2d 872, 877 (9th Cir.
1991) (internal quotation marks omitted). A corporation is
vicariously liable for its employees conduct if [o]ne or more of
[its] supervisory employees encouraged, caused, permitted,
ratified, or participated in the conduct; or . . . knowing of the
conduct, excused it or failed to take remedial action reasonably
calculated to end the harassment. Veco, Inc. v. Rosebrock, 970
P.2d 906, 912 (Alaska 1999).
29 Glamann v. Kirk, 29 P.3d 255, 259 (Alaska 2001).
30 Id.
31 Barrett v. Era Aviation, Inc., 996 P.2d 101, 103
(Alaska 2000) (quoting Beck v. State, Dept of Transp. & Pub.
Facilities, 837 P.2d 105, 114 (Alaska 1992)).
32 Cable v. Shefchik, 985 P.2d 474, 479 (Alaska 1999)
(quoting Harris v. Keys, 948 P.2d 460, 465-66 (Alaska 1997)).
33 AS 09.10.070 provides in part: A person may not bring
an action . . . for any injury to the person . . . not arising on
contract and not specifically provided otherwise; . . . upon a
liability created by statute . . . unless the action is commenced
within two years.
34 The court instructed the jury that it had to find these
four elements to find a hostile work environment:
(1) [T]he Plaintiff was subject to racially
or sexually offensive acts or statements; (2)
such acts or statements were unwelcome and
had not been invited or solicited, directly
or indirectly, by the Plaintiffs own acts or
statements; (3) such acts or statements
resulted in a work environment that was so
severe or pervasive that it altered the
conditions of the Plaintiffs employment; (4)
a reasonable person would have found the
workplace to be hostile or abusive.
Reich did not object to this instruction and no party argues that
it was error to give this instruction.
35 See, e.g., Morgan v. Natl R.R. Passenger Corp., 232
F.3d 1008, 1014-15 (9th Cir. 2000); Sengupta v. Univ. of Alaska,
21 P.3d 1240, 1249 (Alaska 2001) (citations omitted); but cf.
Hall v. Bodine Elec. Co., 276 F.3d 345, 353 (7th Cir. 2002)
(holding that plaintiff may not base suit on conduct occurring
outside statute of limitations unless reasonable to expect
plaintiff to sue before statute ran on conduct, as where conduct
could constitute or be recognized as actionable harassment only
in light of events occurring later, within statute of limitations
period).
36 Richards v. CH2M Hill, Inc., 29 P.3d 175, 183 (Cal.
2001); Cuddyer v. Stop & Shop Supermarket Co., 750 N.E.2d 928,
936-37 (Mass. 2001); Hall v. Saint Josephs Hosp., 777 A.2d 1002,
1009-1010 (N.J. Super. 2001); Wal-Mart Stores, Inc. v. Davis, 979
S.W.2d 30, 41 (Tex. App. 1998).
37 The superior court cited Oaksmith v. Brusich, 774 P.2d
191, 200 n.10 (Alaska 1989), in support of this ruling. See also
Sengupta, 21 P.3d at 1249 (recognizing continuing violations
theory under which certain patterns of discriminatory acts
against the same employee can preserve a claim as timely that
might otherwise be barred by the statute of limitations).
Cominco argues that Reich is not entitled to invoke the
continuing violations doctrine. We do not need to consider this
alternative ground for affirming.
38 See Grimes v. Haslett, 641 P.2d 813, 818 (Alaska 1982)
(An erroneous statement of the law in a jury instruction will not
constitute reversible error unless it prejudiced one of the
parties.) (citing City of Nome v. Ailak, 570 P.2d 162, 172
(Alaska 1977)).
39 Reich also asserts that the trial court required her to
give additional notice to Cominco within the limitations period,
and that the trial court told the jury that Reich was required to
give notice within the statutory limitations period and that
notice of the violations prior to that date were [sic]
irrelevant. These assertions do not correctly describe what the
trial court told the jury.
