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. 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.