You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Raad v. Alaska State Commission for Human Rights (01/09/2004) sp-5769
Raad v. Alaska State Commission for Human Rights (01/09/2004) sp-5769
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
NADA ITANI RAAD, )
) Supreme Court No. S-10718
Appellant, )
) Superior Court No. 3AN-01-5274
CI
v. )
) O P I N I O N
ALASKA STATE COMMISSION )
FOR HUMAN RIGHTS, ) [No. 5769 - January 9, 2004]
)
Appellee. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, John E. Reese, Judge.
Appearances: Nada I. Raad, pro se,
Fairbanks. Robert A. Royce, Assistant
Attorney General, Anchorage, and Gregg D.
Renkes, Attorney General, Juneau, for
Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Nada I. Raad claimed that the Fairbanks North Star
Borough School District discriminated and unlawfully retaliated
against her by not hiring her for any of thirty-one teaching
positions. The Alaska State Commission for Human Rights
dismissed her discrimination complaint. Raad appeals a superior
court decision affirming the commission's dismissal. Because
there was some evidence that the explanations offered by the
school district for not hiring Raad were pretextual, and because
it is not clear from the record whether the commission adequately
considered that evidence, we reverse and remand.
II. FACTS AND PROCEEDINGS
Nada I. Raad is a Lebanese woman who is Muslim.1 Raad
was certified and endorsed by the State of Alaska to teach
secondary science and math. She completed her teacher
certification at the University of Alaska Fairbanks, and was a
student teacher and substitute teacher in the Fairbanks North
Star Borough School District in the early 1990s. In January 1991
Raad applied for full-time employment with the district, and in
1992 the district placed her in its hiring pool. The district
did not hire Raad for a full-time position for the 1992-93 school
year.
Raad was not eligible for a district teaching position
for the 1993-94 school year, as a result of disciplinary action
imposed by the district. Raad had been a finalist for a district
teaching position in 1993 but was not hired. Upset that she was
not hired, Raad entered the school district administrative
offices in August 1993, accused the district of discriminating
against her, and made an alleged threat. The district suspended
Raad from the applicant pool for the 1993-94 school year
following this incident.
Raad formalized her discrimination accusations against
the district in a complaint she filed in 1993 with the Alaska
State Commission for Human Rights. The commission investigated
the allegations, but dismissed her complaint for lack of
substantial evidence. This dismissed complaint forms the basis
for the retaliation claims at issue in this appeal.
Raad continued to seek a full-time position with the
district after her one-year suspension expired, but the district
did not hire her. District hiring decisions are made by
individual principals at district schools.
On March 20, 1995 Raad filed another complaint with the
commission. She alleged that the district discriminated against
her on the basis of her national origin and her religion, and
unlawfully retaliated against her for filing the earlier
discrimination complaint by not hiring her for positions that
became available after her suspension ended. She also alleged
that the district discriminated against her on the basis of her
sex, excluded her from consideration for substitute teaching
positions, and mishandled her son's assessment for the district's
gifted program for discriminatory reasons. Her claims as amended
were directed at district hiring decisions for the 1994-95, 1995-
96, and 1996-97 school years.
The commission investigated Raad's claims and
determined that substantial evidence supported her allegations
that the district discriminated against her on the basis of her
national origin and religion and retaliated against her for
filing a discrimination complaint, by not hiring her for teaching
positions. The commission found that substantial evidence did
not support her other allegations.
The executive director of the commission certified that
attempts to eliminate the alleged discrimination by conference,
conciliation, or persuasion failed, and that a hearing was
required to hear the merits of the case under AS 18.80.120. A
hearing on Raad's complaint was held in November and December
1999 before Hearing Examiner Nathaniel B. Atwood.
Raad's amended complaint alleged that the district
discriminated or unlawfully retaliated against her by not hiring
her for any of thirty-one teaching positions for the 1994-95,
1995-96, and 1996-97 school years. It is undisputed that Raad
was at least minimally qualified for each of the thirty-one
positions. District principals interviewed Raad for six of the
positions, but did not hire her for any of them. The hearing
examiner found that the district admitted that none of the
successful applicants for any of the thirty-one positions was
Lebanese or Muslim.
With respect to Raad's 1993-94 suspension from the
hiring pool and prior discrimination complaint, the hearing
examiner determined that the behavior resulting in Raad's
suspension was "relevant only to the limited extent that any of
the principals making the 31 hiring decisions at issue here, knew
of that behavior and were influenced by it in considering whether
Raad was a good candidate to fill one of the disputed positions."
The hearing examiner did not allow Raad to testify about the 1993
events or the propriety of the district's suspension, but did
allow testimony about the hiring principals' knowledge of the
1993 events if that knowledge played a role in their decisions
not to hire Raad.
The hearing examiner found that even if it were assumed
that Raad had established a prima facie case of discrimination as
to one or more of the thirty-one positions, the district had
articulated legitimate, non-discriminatory, and non-retaliatory
reasons for its hiring decisions for each of the thirty-one
positions. The hearing examiner also found that Raad did not
show that the reasons offered by the district were pretextual.
The hearing examiner concluded that there was "no evidence or
even any suggestion from the facts adduced at the hearing that
Raad's national origin, her religion, or her having filed a prior
complaint of discrimination had any impact whatsoever on any of
the 31 hiring decisions at issue." (Emphasis added.) The hearing
examiner recommended that Raad's complaint be dismissed in its
entirety.
On February 5, 2001 the commission issued a final order
that adopted the hearing examiner's findings of fact, conclusions
of law, and proposed order, and dismissed Raad's complaint.2
Raad appealed the commission's order to the superior court. The
superior court ruled that the commission's decision was supported
by substantial evidence, and affirmed the order. Raad now
appeals the superior court's decision to this court.
Raad also filed suit against the school district in
federal court.3 The United States District Court of the District
of Alaska granted summary judgment against Raad, but that
decision was reversed by the United States Court of Appeals for
the Ninth Circuit.4 The federal case does not involve claims
that are before this court. Raad's federal claims concern hiring
decisions the district made between 1991 and 1993, and the 1993-
94 disciplinary action.5 In contrast, this appeal involves
hiring decisions the district made in 1994, 1995, and 1996. In
reversing the grant of summary judgment, the Ninth Circuit held
that Raad established her prima facie case of discrimination,6
and that, viewing the evidence in the light most favorable to
Raad, there were debatable issues of material fact regarding
whether the school district's reasons for not hiring Raad were
pretextual.7
III. DISCUSSION
A. Standard of Review
In administrative appeals we "independently review the
merits of an administrative decision."8 We review an agency's
factual findings to determine whether they are supported by
substantial evidence.9 In applying the substantial evidence test
we view the evidence in favor of the findings.10 Where evidence
is conflicting, this court "will not reweigh the evidence and
substitute its judgment for that of the trier of fact."11 We
review questions of law not involving agency expertise under the
substitution of judgment test.12 The adequacy of findings of fact
and conclusions of law presents an issue of law which we review
de novo.13
B. The Legal Framework
Under Alaska law it is "unlawful for an employer to
refuse employment to a person, or to bar a person from employment
. . . because of the person's race, religion, color, or national
origin."14 Employers are also prohibited from retaliating against
persons who have filed discrimination complaints with the
commission.15
In cases such as this one, where there is no direct
evidence of discriminatory intent, both Alaska and federal courts
use a three-part analysis known as the McDonnell Douglas test to
determine whether an individual is the subject of unlawful
discrimination.16 In cases in which there is direct
evidence of discrimination we apply a mixed-motive analysis
instead of the McDonnell Douglas test. Under the mixed-motive
approach, if a complainant presents direct evidence of
discriminatory intent her ultimate burden of proof is somewhat
lower than that required to satisfy the McDonnell Douglas test.
Era Aviation, Inc., v. Lindfors, 17 P.3d 40, 44 (Alaska 2000).
On appeal Raad seems to imply that a mixed-motive analysis might
be appropriate in the present case, but she points to no direct
evidence of discriminatory intent. The mixed-motive framework
therefore does not apply. The McDonnell Douglas test involves a
series of shifting burdens.
The first step of the analysis places the burden on the
complaining party to establish a prima facie case of
discrimination.17 If a prima facie case of discrimination is
established, the burden shifts to the employer to articulate a
legitimate, nondiscriminatory reason for the employment action.18
If legitimate, nondiscriminatory reasons are presented, the
burden shifts back to the complaining party to show that the
reasons offered by the employer are pretextual.19
The elements of the prima facie showing of
discrimination are typically the McDonnell Douglas elements we
adopted in Alaska State Comm'n for Human Rights v. Yellow Cab.20
The complainant must show that (1) the complainant belongs to a
protected class; (2) the complainant applied for and was
qualified for a job for which the employer was seeking
applications; (3) the complainant was rejected despite the
complainant's qualifications; and (4) after the complainant's
rejection, the position remained open and the employer continued
seeking applications from persons with the complainant's
qualifications.21 This test is not applied mechanistically,
though, and varies with the factual circumstances of the
particular case.22 For example, if an employer has not left the
disputed position open, and has instead hired someone else, the
fourth element of the prima facie case is the hiring of an
individual not within the same protected class as the
complainant.23
This general framework also applies in retaliation
cases.24 To establish a prima facie case of discriminatory
retaliation, a complainant must establish that (1) the
complainant engaged in a protected activity (e.g., opposed a
discriminatory practice); (2) the complainant suffered an adverse
employment action; and (3) there was a causal link between the
protected activity and the employer's action.25 Causation may be
inferred from the proximity in time between the protected action
and the allegedly retaliatory action.26
If a complainant establishes a prima facie case of
discrimination or retaliation, the burden shifts to the employer
to articulate legitimate, nondiscriminatory reasons for the
employment action.27 We have noted that "[t]o satisfy this
burden, the employer `need only produce admissible evidence which
would allow the trier of fact rationally to conclude that the
employment decision had not been motivated by discriminatory
animus.' "28 An employer cannot "compose fictitious, post-hoc
justifications for an action taken against an employee. Rather,
the employer must articulate legitimate business reasons existing
at the time the employment decision was made and supported by
admissible evidence."29
If the employer provides legitimate, nondiscriminatory
reasons for the allegedly discriminatory action, the burden
shifts back to the complainant to show that discriminatory
reasons more likely motivated the employer.30 Usually a
complainant satisfies this burden by showing that the employer's
proffered explanation is a pretext for discrimination.31 The
legal standard for evaluating pretext is not as clear as the
standards for evaluating the first two prongs. As Raad noted in
her prehearing brief, the United States Supreme Court has held
that a complainant may demonstrate pretext "either directly by
persuading the court that a discriminatory reason more likely
motivated the employer or indirectly by showing that the
employer's proffered explanation is unworthy of credence."32
Because a complainant can show pretext either directly or
indirectly, a variety of factors can evidence a pretextual
justification.
The commission states on appeal that there are
generally three types of evidence used to show pretext: (1)
direct evidence of discrimination; (2) comparative evidence; and
(3) statistics.33 As the commission observes, courts have
explained that statistical evidence may help determine whether an
employer's actions "conform[] to a general pattern of
discrimination,"34 but the "[w]eight to be accorded such
statistics is determined by the existence of independent
corroborative evidence of discrimination."35 Thus, the commission
argues, "the fact that the successful applicants were not members
of Raad's protected class is insufficient to establish pretext."
Citing the district court's ruling in Raad's federal
case, the superior court noted that a disparity in qualifications
among candidates can serve as a basis for a finding of pretext.
But the superior court also agreed with the district court's
reliance on Bullington v. United Air Lines, Inc., and with the
proposition, drawn from Bullington, that the disparity in
candidates' qualifications "must be so apparent as `to jump off
the page and slap us in the face' to support a finding of
pretext."36 The superior court expressly agreed with the district
court's analysis and held that nothing in the record in this case
would support finding such a disparity.
The Ninth Circuit rejected the Bullington analysis in
reversing the district court's decision. The court of appeals
held that "[u]nlike the Tenth Circuit, we have never followed the
Fifth Circuit in holding that the disparity in candidates'
qualifications `must be so apparent as to jump off the page and
slap us in the face to support a finding of pretext.' "37 In
reversing the summary judgment, the court of appeals held that
"Raad has demonstrated a genuine factual dispute as to whether
the District's proffered reasons were pretextual."38
The Ninth Circuit, citing its earlier decision in Odima
v. Westin Tucson Hotel,39 noted that "[i]n this Circuit, we have
held that a finding `that a Title VII plaintiff's qualifications
were clearly superior to the qualifications of the applicant
selected is a proper basis for a finding of discrimination.' "40
The Ninth Circuit observed that "[i]n Odima, we held that the
plaintiff's superior qualifications standing alone were enough to
prove pretext and, on that basis, we affirmed the district
court's entry of judgment for the plaintiff following a bench
trial."41
Although the Ninth Circuit held that disparity in
qualifications can demonstrate pretext in disparate treatment
cases, it noted that "there was no logical reason" that disparity
in qualifications would be probative of pretext in retaliation
claims.42 It also noted that in discrimination cases, a disparity
in qualifications "naturally gives rise to an inference that the
non-discriminatory explanation offered by the employer is
pretextual."43 By contrast, the fact that an employer hired a
less qualified applicant does not give rise to an inference that
an employer knew of a complainant's prior discrimination
complaints.44
C. The Hearing Examiner's Approach
The hearing examiner first set out the McDonnell
Douglas framework, and then discussed how the test would apply to
Raad's allegations. The allegations involved hiring decisions
made by twelve school principals for thirty-one teaching
positions over the course of three years. The hearing examiner
then conducted a McDonnell Douglas analysis for the hiring
decisions for each of the thirty-one positions.
The hearing examiner observed that it was undisputed
that Raad's religion is Islam, that her national origin is
Lebanese, and that these are protected classes under Alaska law.45
The hearing examiner then found that "[i]t cannot be disputed
that Raad's membership in these protected classes is not readily
apparent." The hearing examiner observed that "Raad is a
Caucasian woman with light skin and dark hair. Overall, her
features do not bespeak of any particular national origin. She
does speak with a foreign accent and . . . her accent will be
relevant to her prima facie case of national origin
discrimination. Nothing about her appearance indicates any
particular religious preference." (Emphasis deleted.)
Alaska Statute 18.80.220(a)(1) makes it illegal for an
employer to refuse to hire a person "because of" the person's
religion or national origin. Because the hearing examiner found
that Raad's religion, national origin, and the fact that she
filed a prior complaint were not readily apparent, the hearing
examiner read AS 18.80.220(a)(1) and relevant case law as
requiring Raad, in establishing her prima facie case, to show
that the hiring principals knew that she was a member of the
relevant protected class. The hearing examiner noted that under
subsection .220(a)(1), an employer could not discriminate
"because of" a person's national origin or religion if the
employer was not aware of it. This approach is consistent with
case law cited by the hearing examiner.46
The hearing examiner then noted that it was undisputed
that the district hired applicants for the thirty-one teaching
positions that Raad applied for, that Raad was at least minimally
qualified for each position, and that Raad was not hired for any
of the positions. The hearing examiner therefore concluded that
Raad would need to prove the following elements to establish her
prima facie case of discrimination as to any given position: (1)
that the principal who made the hiring decision knew of Raad's
national origin or religion; and (2) that the individual hired
for the position was neither Lebanese nor Muslim.
With respect to the second requirement, the hearing
examiner found that the district admitted that none of the
successful applicants for the thirty-one positions was a member
of Raad's protected classes. The examiner based this finding on
Paragraph No. 6 of the district's answer to Raad's complaint.
Paragraph No. 6 stated in part: "Respondent affirmatively asserts
its belief that complainant is the only Lebanese or Moslem
applicant who has applied for a teaching position with
respondent." Because of the district's admission, the hearing
examiner concluded that Raad established the second prong of her
prima facie showing. Under the framework applied by the hearing
examiner, Raad only needed to show that a hiring principal was
aware of her national origin or religion to make her prima facie
showing on a given discrimination claim.
With respect to Raad's claims of national origin
discrimination, the hearing examiner's finding summary stated
that "[t]here was some evidence presented that a few of the
hiring principals may have known Raad's national origin. The
more persuasive evidence is that most did not." The hearing
examiner then stated that "[e]ven if Raad had established a prima
facie case as to one or more of the 31 positions, the principals
articulated legitimate, non-discriminatory and non-retaliatory
reasons for their hiring decisions."
The hearing examiner's summary findings suggested that
only "a few of the hiring principals may have known Raad's
national origin." But the hearing examiner's specific findings -
which addressed each principal's hiring decisions individually -
indicated that the hearing examiner concluded outright, or
assumed for the purposes of the decision, that, for twenty-eight
of the thirty-one hiring decisions, the principals either knew of
Raad's national origin or were aware that she was of some foreign
national origin. The hearing examiner concluded that there was
no evidence presented that the hiring principals for the other
three positions had, or could have had, any knowledge of Raad's
national origin. The hearing examiner concluded that there was
insufficient evidence presented to show that Principals Ofelt,
Thibodeau, or Conwell knew of Raad's national origin at the time
of the relevant hiring decisions.
Raad argues on appeal that her name, "Nada Hashem Itani
Raad," is identifiably "Arab," and that she "speaks with a
distinctive identifiable Middle East accent."
The hearing examiner concluded that knowledge of Raad's
accent would be relevant, but not necessarily dispositive,
evidence of knowledge of Raad's national origin.47
Despite the hearing examiner's initial suppositions to
the contrary in the findings summary, we accept for the purposes
of this appeal that Raad established a prima facie case of
discrimination on the basis of national origin for the twenty-
eight positions for which the hearing examiner concluded or
assumed that she had established a prima facie case. Raad's
resume on file with the district indicated that she had both
training and work experience in Beirut and that she was fluent in
Arabic. In light of Raad's name, her accent, and indications
throughout her resume that she was Lebanese, we accept for the
purposes of appellate review Raad's contention that Raad
established that the principals either knew of Raad's national
origin, or knew that she was of some foreign origin. Raad claims
that she established a prima facie case of discrimination for all
thirty-one positions, but we accept the hearing examiner's
conclusion that Raad failed to establish a prima facie case of
discrimination on the basis of national origin with respect to
the three positions filled by Principals Ofelt, Thibodeau, and
Conwell. The record demonstrates that substantial evidence
supports the hearing examiner's conclusion that those principals
were unaware of Raad's national origin.
With respect to Raad's claims of discrimination on the
basis of religion, the hearing examiner found that "[t]he
evidence was insufficient to establish that any of the principals
knew Raad's religion. Thus, her religious discrimination claims
fail from the outset." Because Raad's religion was not readily
apparent, and because substantial evidence supports the hearing
examiner's conclusions on this issue, we accept that Raad failed
to establish her prima facie case of discrimination on the basis
of religion.
With respect to Raad's claims of retaliation, the
hearing examiner found that it was undisputed that Raad had filed
a prior complaint of discrimination and that she was therefore a
member of the protected class identified in AS 18.80.220(a)(4).
The hearing examiner also found that she was subject to adverse
employment action - i.e., not hired for the thirty-one positions.
The hearing examiner concluded that to establish a
prima facie case of retaliation Raad would have to show: (1)
that the principal making the hiring decision knew that Raad made
a prior complaint; and (2) that there was a causal connection in
time between Raad's prior complaint and any of the thirty-one
hiring decisions, or that there was some other evidence
establishing retaliatory motive.
The hearing examiner found that there was evidence that
two of the principals, responsible for four of the thirty-one
hiring decisions, "may have known that Raad had filed a prior
complaint of discrimination. Thus, her retaliation claims as to
the remaining 27 positions fail." We accept the hearing
examiner's conclusion that Raad established her prima facie case
of retaliation with respect to only four of the thirty-one
positions because the conclusion is supported by substantial
evidence. The hearing officer concluded that Raad established
her prima facie case of retaliation with respect to the one
position filled by Principal Murphy, and for three positions
filled in 1996 by Principal Layral. The record supports the
hearing examiner's findings regarding Murphy and Layral's
knowledge of Raad's prior complaint, and the timing of the
employment action.
After outlining the requirements for the prima facie
showings of discrimination and retaliation, the hearing examiner
considered the reasons offered by the principals for not hiring
Raad. The hearing examiner concluded broadly in his summary
findings that "[e]ven if Raad had established a prima facie case
as to one or more of the 31 positions, the principals articulated
legitimate, non-discriminatory and non-retaliatory reasons for
their hiring decisions." (Emphasis deleted.) Despite this broad
declaration, the hearing examiner seems to have only considered
the district's reasons for not hiring Raad for twenty-eight
positions. The hearing examiner did not make specific findings
regarding reasons offered for not hiring Raad for the three
positions filled by Principals Ofelt, Thibodeau, and Conwell.
For these three positions, the hearing examiner simply concluded
that Raad did not establish a prima facie case of discrimination
or retaliation. In his position-by-position analysis, the
hearing examiner found that the district offered legitimate, non-
discriminatory, and non-retaliatory reasons for not hiring Raad
for each of the twenty-eight positions for which he concluded or
assumed that Raad had established a prima facie case of
discrimination on the basis of national origin. These included
the four positions for which the hearing examiner concluded that
Raad had established a prima facie case of retaliation.
Our review of the record confirms that substantial
evidence justified the hearing examiner's conclusion that the
district offered legitimate, non-discriminatory, and non-
retaliatory reasons for not hiring Raad for these twenty-eight
positions. Under the McDonnell Douglas framework, the burden
then shifted back to Raad to show that the reasons proffered by
the district were pretextual.
D. Pretext
In recommending the dismissal of Raad's claims, the
hearing examiner's findings summary stated that Raad "did not
meet her burden of showing that [the district's] reasons were
pretextual." But the hearing examiner's approach to the issue of
pretext is not clear from the record.
In setting out the general McDonnell Douglas
framework, the hearing examiner stated that if an employer offers
legitimate non-discriminatory reasons for an employment action
"the burden shifts back to the complainant to persuade the court
(or the Commission) that discriminatory reasons more likely
motivated the employer. Usually the complainant satisfies this
burden by proving that the employer's articulated reason for its
action is in fact pretextual."
In his position-by-position analysis, the hearing
examiner concluded that the reasons offered by the hiring
principals were legitimate, non-discriminatory, and non-
retaliatory; the hearing examiner then stated that the burden
shifted back to Raad to show by a preponderance of the evidence
that discriminatory reasons more likely motivated the principals.
As to the twenty-eight positions for which Raad established a
prima facie case of discrimination, the hearing examiner's
decision then concluded that "[n]o evidence was presented to
support such a finding." (Emphasis added.)
It is not clear how the hearing examiner analyzed the
issue of pretext. Similarly, it is not clear what evidence the
hearing examiner considered relevant to the pretext issue.
Raad, who represents herself on appeal, seems to argue
that she should have an opportunity to show that the reasons the
principals gave for not hiring her were, in fact, pretextual.
Raad claims she "is asking [for] an opportunity to be fully heard
regarding the pretext to [prove] her case of discrimination
against the District if the Court can not find it in the record."
Raad points to some evidence in the record that at
least raises questions about the reasons offered by the district.
The following two examples are illustrative. The hearing
examiner concluded that Principal McGill offered legitimate, non-
discriminatory reasons for not hiring Raad. The hearing examiner
mentioned McGill's testimony that she had observed Raad as
extraordinarily distressed and nervous prior to an interview in
1993. The hearing examiner accepted McGill's observations of
Raad's behavior as a legitimate, non-discriminatory reason for
not hiring her. On appeal Raad points to passages in McGill's
testimony that suggest that McGill might not have attended the
interview she claimed to have observed. McGill had testified
that her "direct observations [of Raad] were prior to the
interview I was part of and during the interview." But referring
to that interview, McGill also later testified: "I've told you
that I don't remember being in the room. So would it surprise me
that other people don't remember me being in the room, I can't
say that either way." This latter testimony permits an inference
that McGill was not actually at the interview she earlier claimed
she "was part of." Although not dispositive of the issue, the
inconsistency casts some doubt on the reason McGill gave for not
hiring Raad, and is at least some evidence of pretext.
Raad raises a similar question about Principal
McDaniel's reasons for not hiring Raad. The hearing examiner
accepted McDaniel's testimony that he did not hire Raad because
he was looking for a teacher who could work well with
underachieving or "at risk" students. Raad argues that this
reason was pretextual, and points to two letters of
recommendation on file with the district specifically praising
her for her work with "at risk" children. One of the letters
reads, "On her own initiative and time, Nada set up a tutoring
session for students at risk of failing. These sessions had a
positive impact on the students involved." The recommendation
letter does not necessarily undermine the reasons the hearing
examiner accepted from Principal McDaniel, but the recommendation
casts some doubt on those reasons, and permits an inference that
the reasons he gave were pretextual.
As mentioned above, a complainant has various ways of
showing that the reasons an employer gives for a discriminatory
hiring decision are pretextual.48 A complainant may show pretext
either directly or indirectly.49 Even as to claims on which the
evidence is barely sufficient to establish a prima facie case of
discrimination, that evidence remains relevant to the issue of
pretext.
For this reason, and in light of the permissible
inferences identified by Raad regarding the reasons Principals
McGill and McDaniel gave for not hiring her, the hearing
examiner's conclusion that there was "no evidence" of pretext is
problematic. The hearing examiner's conclusion that Raad "did
not carry her burden" with respect to pretext suggests that he
may have considered evidence of pretext and found it
unpersuasive. But because we cannot determine from the record
whether the hearing examiner adequately considered Raad's claim
that the district's proffered reasons for not hiring her were
pretextual, we must remand.
We do not substitute our view of the evidence for that
of the hearing examiner. However, we do see some evidence in the
record that at least suggests pretext, yet we cannot tell from
the hearing examiner's findings how, or if, he considered that
evidence at the pretext stage.
In reviewing the commission's decision, the superior
court cited the Bullington50 test and stated that evidence of
disparity in qualifications did not sufficiently "slap" the court
in its face to demonstrate pretext. The Ninth Circuit rejected
the Bullington test, and so do we. Evidence of disparity in
qualifications need not be sufficient to "slap" a hearing
examiner in the face to justify a finding of pretext. It is not
clear whether the hearing examiner incorrectly applied such a
strict standard to Raad's complaint, but, again, we cannot say
with assurance what standard the hearing examiner did apply.
To the extent the hearing examiner found that there was
"no evidence" of pretext, that finding is erroneous. As Raad
implies on appeal, the record includes at least some evidence
permitting an inference that some of the district's proffered
reasons for not hiring her were pretextual. In resolving the
pretext dispute, the hearing examiner should have again
considered any evidence Raad used in establishing her prima facie
case of discrimination that may have undermined the
justifications offered by the district. The hearing examiner
should also have considered any direct evidence Raad presented
undermining the district's reasons for not hiring her.
E. Disputed Issues on Remand
Although we accept the hearing examiner's assumptions
or conclusions for the purposes of appellate review, we do not
mean to prevent the parties from relitigating unresolved
contested fact disputes on remand. For example, in Part III.C we
accept for purposes of discussion that Raad established a prima
facie case of national origin discrimination with respect to
twenty-eight positions, and a prima facie case of retaliation
with respect to four positions. Our acceptance of those
propositions should not be interpreted as a holding that Raad
established a prima facie case with respect to those positions.
And it should not be read as precluding the parties on remand
from litigating any genuine factual disputes about whether she
established prima facie cases of discrimination or retaliation.
This would be so as to those hiring decisions for which the
hearing examiner made no conclusive factual findings and merely
assumed for the sake of argument that Raad had established a
prima facie case of national origin discrimination or
retaliation, requiring him to examine the reasons why Raad was
not hired.
On the other hand, the hearing examiner made several
determinations that will bind the parties on remand. The hearing
examiner concluded that Raad satisfied her burden of proving a
prima facie case of national origin discrimination as to those
principals who the hearing examiner found either knew Raad was
from Lebanon or "more likely than not knew that Raad was of some
foreign nationality." Likewise, the hearing examiner concluded
that Raad established her prima facie case of retaliation as to
at least one principal found to have known of Raad's complaint
against the district. The commission did not appeal these
factual findings and is therefore not free to relitigate these
determinations on remand.
Whether the hearing examiner concluded, after making
appropriate factual findings, or simply assumed for discussion's
sake that Raad established prima facie cases, he treated the
validity of the district's reasons for not hiring Raad as the
determinative issue. Because the hearing examiner reached the
district's reasons for not hiring Raad, he had to consider
whether those reasons were pretextual. And as stated above, we
remand because it is not clear from the record whether the
hearing examiner adequately considered evidence of pretext.
IV. CONCLUSION
For these reasons, we REVERSE and REMAND.51
_______________________________
1 Raad's Human Rights Commission complaint described herself
as a "woman whose National Origin is Lebanese and whose religion
is Moslem." The hearing examiner used similar terminology.
Although Raad's appellate briefs also refer to herself as
"Moslem," we use the phrase "Muslim."
2 The commission first inadvertently issued an order adopting
the hearing examiner's preliminary findings. During the
subsequent appeal the superior court issued a limited remand back
to the commission to correct this mistake. The commission then
issued a corrected final order on January 28, 2002 incorporating
the hearing examiner's final recommended findings of fact,
conclusions of law, and order.
3 Raad v. Fairbanks North Star Borough Sch. Dist., No. F97-
0068-CV slip op. (D. Alaska, July 17, 2000).
4 Raad v. Fairbanks North Star Borough Sch. Dist., 323 F.3d
1185 (9th Cir. 2003). The Ninth Circuit reversed and remanded
with respect to Raad's claims of disparate treatment based on
national origin and religion, and Raad's claim of retaliation
relating to her disciplinary suspension. As amended on May 8,
2003, the Ninth Circuit's opinion noted that Raad did not appeal
summary judgment on several claims, and affirmed summary judgment
on Raad's other claims. Id. at 1198.
5 Raad, 323 F.3d at 1188, 1192.
6 Id. at 1193, 1197.
7 Id. at 1194-95, 1197.
8 Newmont Alaska Ltd. v. McDowell, 22 P.3d 881, 883 (Alaska
2001) (quoting Blanas v. Brower Co., 938 P.2d 1056, 1059 (Alaska
1997)).
9 Id. at 883; Strand v. Petersburg Pub. Sch., 659 P.2d 1218,
1220 (Alaska 1983).
10 Alaska State Comm'n for Human Rights v. Yellow Cab, 611 P.2d
487, 490 (Alaska 1980).
11 Id.; see also Oceanview Homeowners Ass'n v. Quadrant
Constr. & Eng'g, 680 P.2d 793, 798 (Alaska 1984) ("[I]t is not
our function to evaluate the strength or weakness of evidence
presented to administrative agencies. . . . `[W]hat matters is
whether the determination of the [agency] is supported by
substantial evidence on the whole record.' " (quoting Anderson v.
Employers Liab. Assurance Corp., 498 P.2d 288, 290 (Alaska
1972))).
12 Newmont Alaska Ltd., 22 P.3d at 883.
13 W.R. Grasle Co. v. Alaska Workmen's Comp. Bd., 517 P.2d 999,
1003 (Alaska 1974).
14 AS 18.80.220(a)(1).
15 AS 18.80.220(a)(4) makes it unlawful for an employer to
"discriminate against a person because . . . the person has filed
a complaint, testified, or assisted in a proceeding under [AS
18.80]."
16 The McDonnell Douglas test is named after the United States
Supreme Court case in which it was first enunciated, McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Alaska adopted the
McDonnell Douglas test in Brown v. Wood, 575 P.2d 760, 770
(Alaska 1978). See also Veco, Inc. v. Rosebrock, 970 P.2d 906,
918-19 (Alaska 1999); State, Dep't of Fish & Game v. Meyer, 906
P.2d 1365, 1374-75 (Alaska 1995); Haroldsen v. Omni Enters., 901
P.2d 426, 430 (Alaska 1995).
17 Haroldsen, 901 P.2d at 430.
18 Id.
19 Id.
20 Alaska State Comm'n for Human Rights v. Yellow Cab, 611 P.2d
487, 490 (Alaska 1980).
21 Id.
22 Haroldsen, 901 P.2d at 431; see also McDonnell Douglas, 411
U.S. at 802 n.13.
23 See, e.g., Yellow Cab, 611 P.2d at 492 (holding prima facie
case was established in hiring discrimination case by showing
that position remained open before employer hired candidates not
belonging to complainant's protected class); see also Haroldsen,
901 P.2d. at 430-31 (holding that fourth factor of prima facie
case requires showing "that others, who are not within the
protected class, were treated more favorably").
24 Veco, 970 P.2d at 918-19.
25 Id. at 919; see also Raad v. Fairbanks North Star Borough
Sch. Dist., 323 F.3d 1185, 1196-97 (9th Cir. 2003).
26 Veco, 970 P.2d at 919.
27 Id.
28 Id. (quoting Miller v. Fairchild Indus., Inc., 797 F.2d 727,
731 (9th Cir. 1986)); see also Thomas v. Anchorage Tel. Util.,
741 P.2d 618, 624 (Alaska 1987) (holding that evidence of
legitimate, nondiscriminatory justification is sufficient if it
"allow[s] the trier of fact rationally to conclude that
discriminatory animus was not the motivating factor in the
employment decision").
29 Thomas, 741 P.2d at 624 (original emphasis).
30 Meyer, 906 P.2d at 1375.
31 Id.; see also Era Aviation, 17 P.3d at 44.
32 Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981).
33 Penk v. Oregon State Bd. of Higher Educ., 816 F.2d 458, 462
(9th Cir. 1987) (citing B. Schlei & P. Grossman, Employment
Discrimination Law 1314 (2d ed. 1983)).
34 McDonnell Douglas, 411 U.S. at 805.
35 Am. Fed. of State, County, & Mun. Employees, AFL-CIO v.
Washington, 770 F.2d 1401, 1407 (9th Cir. 1985).
36 The superior court cited Raad v. Fairbanks North Star
Borough School District, No. F97-0068-CV (HRH) at 40 (D. Alaska
2000) (quoting Bullington v. United Air Lines, Inc., 186 F.3d
1301, 1319 (10th Cir. 1999)).
37 Raad v. Fairbanks North Star Borough Sch. Dist., 323 F.3d
1185, 1194 (9th Cir. 2003) (original emphasis). We similarly
reject the Bullington test, and discuss it below in Part III.D.
38 Id.
39 Odima v. Westin Tucson Hotel, 53 F.3d 1484 (9th Cir. 1995).
40 Raad, 323 F.3d at 1194 (quoting Odima, 53 F.3d at 1492).
41 Id. (original emphasis).
42 Id. at 1197.
43 Id.
44 Id. at 1198.
45 See AS 18.80.220(a)(1).
46 See, e.g., Geraci v. Moody-Tottrup, Int'l, Inc., 82 F.3d
578, 581 (3d Cir. 1996) (holding that where disability is not
readily apparent, employee must allege knowledge and present
evidence from which rational jury could infer knowledge to
establish prima facie case of discrimination).
47 This approach is consistent with the case law cited by the
hearing examiner. See, e.g., Ang v. Procter & Gamble Co., 932
F.2d 540, 549 (6th Cir. 1991) (holding that discrimination based
on manner of speaking can be national origin discrimination, and
noting that "accent and national origin are inextricably
intertwined").
48 See supra notes 30-41 and accompanying text.
49 Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981).
50 Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1319
(10th Cir. 1999).
51 Raad, a pro se appellant, also seems to argue on appeal that
the hearing examiner improperly excluded evidence regarding her
previous discrimination complaint and the events surrounding her
1993 disciplinary suspension. Her arguments addressing the
admission of evidence of the 1993 suspension can be clarified on
remand.
