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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.