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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jones v. State, Dept. of Corrections (12/16/2005) sp-5969

Jones v. State, Dept. of Corrections (12/16/2005) sp-5969

     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

RAYMOND V. JONES, )
) Supreme Court No. S- 10743
Appellant, )
) Superior Court No.
v. ) 3AN-99-8633 CI
)
STATE OF ALASKA, ) O P I N I O N
DEPARTMENT OF )
CORRECTIONS, ) [No. 5969 - December 16, 2005]
)
Appellee. )
)
Appeal    from     the
          Superior Court of the State of Alaska,  Third
          Judicial   District,  Anchorage,  Sharon   L.
          Gleason, Judge.

          Appearances:  James Alan Wendt,  Law  Offices
          of   James   Alan   Wendt,   Anchorage,   for
          Appellant.    Jason   T.   Mogel,   Assistant
          Attorney  General, Anchorage,  and  Gregg  D.
          Renkes,   Attorney   General,   Juneau,   for
          Appellee.

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

          BRYNER, Chief Justice.
          CARPENETI, Justice, concurring.
          FABE, Justice, dissenting.


I.   INTRODUCTION
          Floyd  Ainsworth,  a  correctional  officer,  wrote   a
racially  and  sexually offensive memorandum  terminating  inmate
Raymond Joness job as a prison barber.  Jones sued Ainsworth  and
the  Alaska Department of Corrections (collectively, the  state),
claiming intentional infliction of emotional distress (IIED)  and
unlawful termination from his prison-barber job because  of  race
or  sex,  in  violation  of the Alaska  Human  Rights  Act.   The
superior  court  dismissed Joness IIED claim on summary  judgment
but  allowed  his  human-rights-act claim to  proceed  to  trial.
Before trial, the state made an offer of judgment to Jones, which
he  refused.  At trial, the court instructed the jury that  Jones
could   only  claim  emotional  damages  for  emotional  distress
suffered  after  his termination occurred. The  jury  found  that
Jones  had  been unlawfully terminated, but awarded  him  only  a
small  amount  of  damages, specifying that  its  award  was  for
emotional  distress.  The court awarded costs and attorneys  fees
to  the  state,  finding  that  its pretrial  offer  of  judgment
exceeded  the  jurys verdict.  Jones appeals, claiming  that  the
superior court erred in dismissing his IIED claim, in instructing
the  jury  on  the  scope of Joness right  to  recover  emotional
damages, and in awarding attorneys fees to the state.  We affirm,
concluding that Jones has failed to show prejudice from any error
in  dismissing  his  IIED  claim,  that  the  jury  was  properly
instructed  on Joness right to emotional damages,  and  that  the
court properly awarded the state costs and fees for prevailing on
its offer of judgment.
II.  FACTS AND PROCEEDINGS
          Raymond  Jones,  an  African American,  was  an  inmate
assigned  to  Spring Creek Correctional Center.  He worked  as  a
barber,   cutting  other  inmates  hair  for  a  nominal  salary.
Correctional Officer Floyd Ainsworth was Joness supervisor.
          On  August  4, 1997, Ainsworth gave Jones the following
memo:
          This  memorandum is to inform you,  that  you
          have  been fired as an APS barber/rec worker.
          You  are  a  lop, lame, sissy, cake-boy,  and
          your  girl is a mud-duck.  You are in fact  a
          no  talented bum.  You listen to Vanilla Ice,
          in  your  1975 AMC Pacer, and thats just  not
          cool.  In fact one of the brothers [sic] told
          me that you were white, and just had a really
          good tan.  Maybe the kitchen is looking for a
          new pots and pans man!
          
Jones interpreted this memo as containing sexual and racial slurs
and  as  being intended to terminate his employment.1  He stopped
reporting  for work and kept the memo in his possession  but  did
not  report it.  The memo was discovered by correctional officers
after  Joness  transfer to Wildwood Correctional Center  in  July
1998.  Its discovery triggered a departmental investigation  into
Ainsworths conduct and eventually led to his termination.
          Jones later sued the state, alleging that the August  4
memorandum had intentionally inflicted emotional distress and had
violated  the  Alaska  Human Rights Act2  by  terminating  Joness
employment as a prison barber for racial and sexual reasons.3
          The  state moved for summary judgment on Joness claims.
Regarding  the  IIED  claim, which required proof  of  outrageous
          conduct and serious emotional harm, the state argued that Joness
claim  was  deficient because the August 4 memo was  at  most  an
insult, rather than an outrageous act, and because Joness general
assertion that the memo had caused him to feel anxious and  upset
would  not  support  a  finding of serious  emotional  harm.   In
response, Jones insisted that racial and sexual indignities  such
as  those  cast at Mr. Jones are not mere insults, annoyances  or
trivialities.   He  also offered to present  additional  evidence
concerning the seriousness of his emotional injuries.
          After  hearing  oral argument on the  summary  judgment
motion,  the superior court dismissed Joness IIED claim,  finding
that  he  had  failed to offer any evidence of  severe  emotional
distress.   However,  the  court denied  the  states  motion  for
summary   judgment  on  Joness  human-rights-act  claim,  finding
sufficient  evidence  to  warrant a trial  on  whether  the  memo
wrongfully  terminated  Joness  employment  as  a  prison  barber
because of sex or race.
          Before  trial the state made Jones a $12,000  offer  of
judgment.   Jones  rejected the offer and the case  proceeded  to
jury  trial on the human-rights-act claim.  At the conclusion  of
the  trial, over Joness objection, the court instructed the  jury
that  Jones  is  not  entitled to emotional damages  that  he  is
claiming  occurred before he received the memorandum  from  Floyd
Ainsworth,  and  that  the  jury could  only  consider  emotional
damages  that  may  have occurred after Mr.  Jones  received  the
memorandum.
          The  jury  returned a special verdict finding that  the
August   memorandum  had  violated  the  human  rights   act   by
terminating Joness employment for impermissible racial or  sexual
reasons.   But the verdict found that this violation  had  caused
Jones  to  suffer only one kind of compensable injury   emotional
suffering; and it awarded him just $3,900 in emotional damages.
          Because  its  pretrial offer of judgment  exceeded  the
jurys  verdict,  the  state  moved for  an  award  of  costs  and
attorneys fees.  Jones filed a competing claim, seeking costs and
fees as the prevailing party.  The court declared the state to be
the  prevailing party by reason of its pretrial offer of judgment
and  awarded  it  $16,902  in costs and  attorneys  fees.   Jones
appeals.
III. DISCUSSION
     A.   Joness IIED Claim
          The  elements  of  the tort of IIED  require  that  the
defendant  intentionally  or  recklessly  engage  in  extreme  or
outrageous behavior causing severe emotional distress  or  bodily
harm  to the plaintiff.4  Before submitting an IIED claim to  the
jury, the trial judge must determine whether the severity of  the
emotional distress and the conduct of the offending party warrant
a  claim of [IIED].5  If this threshold test is conducted at  the
time of summary judgment, the court must afford the plaintiff all
favorable factual inferences.6
          The  superior  court  considered  Joness  evidence  and
granted summary judgment for the state.  Without making a finding
as  to  whether the memorandum amounted to extreme or  outrageous
conduct,  the  court decided that Jones has failed  to  establish
          that there is a genuine issue of material fact as to whether
there  was severe emotional distress.  . . .  There doesnt appear
to  be  any assertion that there was distress as a result of  Mr.
Ainsworth giving the memo to Mr. Jones.
          Jones  contends  that  because he presented  sufficient
evidence  to  establish  severe  distress,  the  superior   court
improperly  granted  summary judgment against  him  on  his  IIED
claim.   Jones  urges  us to re-examine the evidence  before  the
trial  court at summary judgment, maintaining that he was subject
to  racial  and  sexual  insults that would  normally  result  in
fisticuffs  in a prison environment . . . and he testified  under
oath  regarding his fear.  Arguing from cases in  which  we  have
previously recognized that a wrongful discharge may give rise  to
an  intentional  infliction of emotional  distress  claim,  Jones
insists  that  the  distress inflicted by  Ainsworths  memorandum
should be deemed sufficient to survive summary judgment.
          But  even if Jones presented enough evidence of serious
emotional  distress to prevent the superior court from dismissing
his  IIED claim on summary judgment, Joness argument would  still
be  unavailing  unless  Jones  further  showed  that  the  courts
erroneous  ruling  caused  actual prejudice.7   Here,  the  state
asserts  that any error was harmless because the jurys award  for
emotional  damages on Joness human-rights-act claim  covered  all
the  emotional damages that Jones could have received on his IIED
claim.8
          Our  cases show that improperly dismissing a claim will
be  harmless error when the claimant manages to recover the  same
damages  by pursuing an alternative theory.  In Bohna v.  Hughes,
Thorsness,  Gantz, Powell & Brundin, we held that  the  plaintiff
had  not suffered prejudice from dismissal of his fiduciary fraud
claim, because he was able to present the same evidence and  seek
punitive  damages under his surviving claims.9  Under this  rule,
if  the jury verdict on Joness human-rights-act claim compensated
Jones  for all the damages he would have been entitled to recover
on his claim for IIED, then he suffered no actual prejudice, even
assuming  that  his IIED claim was erroneously  dismissed  before
trial.
          We  have  recognized  that damages  allowed  under  the
Alaska  Human Rights Act, which prohibits discriminatory acts  by
the state,10 are essentially tort damages, thus authoriz[ing] the
courts  to  compensate a plaintiff for the injury caused  by  the
defendants  wrongful  breach.11  Accordingly,  when  a  plaintiff
proves  a  violation under the act, actual damages are  available
for   mental  anguish.12   Here,  Joness  human-rights-act  claim
specifically   alleged  that  Ainsworths  August   4   memorandum
terminated  his prison job and that the termination violated  the
act   because   the   memo   was   motivated   by   impermissible
considerations of race and sex.  The jury expressly  found  these
allegations  to  be  true and awarded monetary  damages  for  his
emotional  anguish; indeed, the only money the jury  awarded  was
for  the emotional damages that Jones experienced because of  the
August 4 memo.
          Like his human-rights-act claim, Joness IIED claim  was
based   on   the  August  4  memo.   In  accusing  Ainsworth   of
          intentionally inflicting emotional distress, Joness complaint
focused solely on the emotional damages he actually suffered as a
result  of  receiving the memo.13  Specifically, Joness complaint
alleged  that  the  state  was  liable  for  IIED  because  [t]he
memorandum  notifying Raymond Jones of his employment termination
was   racially  and  sexually  offensive.   Nothing   in   Joness
subsequent  summary  judgment  pleadings  or  his  counsels  oral
arguments   on  the  states  summary  judgment  motion   remotely
suggested  that his IIED claim was grounded on conduct  preceding
the August 4 incident.
          In  his  opposition to summary judgment, Jones  claimed
that  a  single event of racial and/or sexual insult   Ainsworths
memo  sufficed to bring his IIED claim to the jury.  He explained
that  his  human-rights-act  claim  was  likewise  based  on  his
discriminatory termination, the los[s] of his barber job.  At the
oral  argument  on  the summary judgment motion,  Joness  counsel
stated,  Regarding the Alaska Human Rights Act . . . it seems  to
hinge on whether or not Mr. Jones lost his job as a barber  as  a
result  of  or  at the same time as delivery of this  memorandum.
And he explained that Joness IIED claim was premised on [t]he one
incident with the derogatory, insulting and somewhat intimidating
memo.
          Although   Joness  deposition  did  include   a   brief
description of a separate incident in which Ainsworth  apparently
threatened  Jones  with  a  broomstick,  Jones  failed  to  cite,
discuss, or otherwise call the superior courts attention to  that
incident  as  having  any potential bearing on  his  IIED  claim.
Instead,  as  already mentioned, he limited his summary  judgment
arguments concerning that claim to Ainsworths August 4  memo  and
the  emotional  distress ensuing from that memo.  Nor  did  Jones
ever  voice  any broader theory of his IIED claim as a  potential
reason for reconsideration.
          Considering  the  manner  in  which  Jones  framed  and
presented his IIED claim to the superior court, we find no  sound
basis  to  construe  the claim as seeking any  emotional  damages
beyond  those  that the jury actually considered in deciding  his
human-rights-act  claim:  the emotional damages  attributable  to
Ainsworths  August 4 memo.  Although the summary judgment  record
included  some evidence of pre-termination conduct  by  Ainsworth
the  broomstick incident  that arguably might have allowed  Jones
to  expand his IIED claim, Joness failure to assert this  broader
theory  of  IIED below precludes us from considering  it  in  our
harmless error analysis here.
          Under these circumstances, we must accept Joness theory
of IIED as he actually asserted it in arguing his case on summary
judgment, not as he might have reshaped the theory had his  claim
eventually  proceeded to trial.14  Moreover,  even  if  the  more
expansive view of Joness IIED claim could properly be raised  for
the  first time on appeal, we would still decline to consider  it
because  Jones  has  not raised it in his briefing.   Jones  does
refer  to the broomstick incident briefly in the section  of  his
argument discussing his human-rights-act claim  a separate  issue
that  we address below.  But he does not argue this evidence   or
even mention it  in his argument challenging the dismissal of his
          claim for IIED.  Joness opening brief makes no effort to show how
his  IIED  claim  might  have  encompassed  a  broader  range  of
emotional  damages  than the damages that  the  jury  could  have
awarded  on his claim for violating the Human Rights  Act.   Even
though  the  state expressly argues in its appellees brief   that
dismissal of Joness IIED claim amounted to harmless error, Joness
reply  brief makes no attempt to explain why he would  have  been
entitled  to  claim  additional emotional damages  for  his  IIED
claim.
          In    short,  both  below  and  on  appeal,  Jones  has
consistently chosen to focus his IIED claim on a single  incident
of   intentionally  inflicted  emotional  harm:  the   August   4
memorandum that effectively terminated his prison employment.  In
his  arguments  addressing that claim, he has never  asserted  or
argued that he based his IIED claim on any other intentional  and
outrageous act.  Nor has he ever claimed or suggested a right  to
recover IIED damages suffered because of another incident.15  This
same incident, and its resulting injuries, formed the crux of his
claim  under  the Alaska Human Rights Act as well.   Since  Jones
sought  the  same emotional distress damages on both claims,  the
claims  overlapped.  The special verdict rendered under  the  act
establishes that Jones was in fact compensated for the  emotional
injuries underlying both claims.
          Even  if  any  error  occurred in dismissing  his  IIED
claim, then, the error appears to be harmless.
     B.   Jury Instruction No. 14.5
          Over   Joness  objection,  the  superior   court   gave
Instruction No. 14.5 to the jury:
          Mr.   Jones  is  not  entitled  to  emotional
          damages  that he is claiming occurred  before
          he   received  the  memorandum   from   Floyd
          Ainsworth dated August 4, 1997.  If you  find
          that   Mr.  Jones  was  terminated   by   the
          memorandum  you  may only consider  emotional
          damages  that  may  have occurred  after  Mr.
          Jones received the memorandum.
          
Jones  argues  on  appeal that this instruction misconstrued  the
law:  that  his  claim under the act allowed him to  recover  for
emotional  damages caused by Ainsworth before the August  4  memo
that terminated Joness employment.16  We disagree.
          The  Human Rights Act enabled Jones to recover  damages
from  the  state  for  any  denial  of  funds,  services,  goods,
facilities, advantages, or privileges because of race,  religion,
sex,  color, or national origin.17  Here, Jones alleged, and  the
jury  found,  that  the state had violated  the  act  because  of
Ainsworths August 4 memo, which effectively terminated Joness job
as  a prison barber based on impermissible considerations of race
and sex.  As the superior court properly reasoned in deciding  to
give the challenged jury instruction, the plain terms of the  act
only allowed Jones to recover those damages occurring because  of
the August 4 memo:
          [T]he  damages  have to  stem  from  the  act
          itself that forms the underlying basis of the
          complaint.  And the underlying basis  of  the
          complaint,  the  cause  of  action,  is   the
          termination and the damages that  would  come
          after that, not preceding it.
          
          Moreover, Instruction No. 14.5s express prohibition  of
an  award  for  emotional  damages  occurring  before  Jones  was
terminated   accords  with  other,  more  general,   instructions
received by the jury.  For example, Instruction No. 9 advised the
jury  that Jones could be awarded damages for emotional  distress
from  the  date  of any violation of his rights to  the  date  of
trial.18  And under Jury Instruction No. 4, the specific violation
Jones needed to prove to establish a violation of his rights  was
his  termination from the prison job by Ainsworths  racially  and
sexually  motivated  memo.19   Jones  did  not  object  to  these
instructions  below  and does not challenge  them  now.   Because
these  instructions  defined Joness right  to  recover  emotional
damages  in  essentially the same way as  Instruction  No.  14.5,
albeit  less  explicitly, we see no reason to conclude  that  the
jury would have reached a different verdict, even if the superior
court  had  yielded  to Joness objections and denied  the  states
request to give Instruction No. 14.5.20  We thus find no merit in
Joness challenge to this instruction.
     C.   Attorneys Fees
          Under  Alaska Civil Rule 68, a party may make an  offer
of  judgment  [a]t  any time more than 10 days before  the  trial
begins.21  If the judgment that a single offeree achieves  is  at
least  five percent less favorable to the offeree than the offer,
the  offeree shall pay all costs as allowed under the Civil Rules
and  shall  pay [a percentage of the] reasonable actual  attorney
fees incurred by the offeror from the date the offer was made.22
          Here,  Jones  declined  the states  pretrial  offer  of
judgment for $12,000 inclusive of all prejudgment interest, costs
and  attorney[]s fees.  After the jury awarded Jones $3,900,  the
state moved for costs and fees under Rule 68.  Upon comparing the
offer to the judgment, the trial court granted the states motion,
finding  that  the offer was sufficient to entitle the  state  to
costs   and  attorneys  fees   even  with  prejudgment  interest,
attorneys  fees  under Alaska Civil Rule 82 and  allowable  costs
added  to  the  judgment.23  The state claimed Rule  68  fees  of
$24,089.60.   From this amount the court offset Joness  recovery,
yielding a net judgment for the state of $16,902.60.
          Jones  appeals  this  award,  arguing  that  his  total
judgment  should have been more favorable than the states  offer.
Jones  advances three theories to support his claim.  Jones first
suggests that the states offer of judgment was deficient  because
the  state  extended the offer nearly two and a half years  after
the  filing  of Appellants complaint.  But Rule 68(b)  allows  an
offer  of judgment to be made more than 10 days before the  trial
begins.  The states offer complied with the rules requirement.
          Jones  next asserts that, as a successful civil  rights
plaintiff,  he was entitled to recover his actual fees  under  42
U.S.C.  1988(b), a federal provision authorizing courts to  award
prevailing  civil  rights plaintiffs their  reasonable  attorneys
          fees.  But Jones pursued his claim under Alaskas Human Rights
Act,  which  has  no comparable provision.  In  Moody-Herrera  v.
State,  Department of Natural Resources, we held that Civil  Rule
82 applies to civil rights plaintiffs who sue under Alaskas act.24
We declined to incorporate the federal model in our rules, noting
that  awards  of  attorneys  fees  under  our  rules  follow[]  a
fundamentally different principle.25  Moody-Herrera controls  our
decision here.
          Finally, Jones claims that, in determining whether  his
total  award  exceeded the states offer, the  court  should  have
calculated  his  fees  on an enhanced basis,  using  the  factors
listed  in  Civil Rule 82(b)(3).  But Jones does not discuss  how
these  factors  apply to his case and fails to  explain  why  the
superior   courts   calculation  of  his  fees   was   manifestly
unreasonable.26
          We  thus find no reason to disturb the superior  courts
award of costs and fees.
IV.  CONCLUSION
          We AFFIRM the superior courts judgment.
CARPENETI, Justice, concurring.
          I  agree with todays opinion upholding summary judgment
in  favor  of the state on Joness claim of intentional infliction
of  emotional  distress (IIED), but I disagree  with  the  courts
reasoning  in  reaching this conclusion.  I  would  affirm  Judge
Gleasons  opinion because it was correctly decided, and therefore
would find it unnecessary to undertake a harmless error analysis.
          Todays opinion, assuming error on the part of the trial
court,  addresses  first whether any error  was  harmless.1   But
[h]armless-error analysis is triggered only after  the  reviewing
court  discovers  that  an error has been committed.2   For  that
reason,  I turn first to the question whether the superior  court
erred  in  granting summary judgment to the state on Joness  IIED
claim.
          We  have  established  that in  order  to  recover  for
intentional  infliction of emotional distress a plaintiff  has  a
high  burden  of  proof.   To establish a  prima  facie  case,  a
plaintiff  must demonstrate that (1) the conduct is  extreme  and
outrageous, (2) the conduct is intentional or reckless,  (3)  the
conduct  causes  emotional distress,  and  (4)  the  distress  is
severe.3   In commenting on the first required showing,  we  have
stated  that a court may find liability for IIED only  when   the
conduct  has been so outrageous in character, and so  extreme  in
degree, as to go beyond all possible bounds of decency, and to be
regarded  as  atrocious, and utterly intolerable in  a  civilized
community.  4  As to the third and fourth requirements  that  the
conduct  cause severe emotional distress  we have defined  severe
emotional  distress as  distress of such substantial  quality  or
enduring  quantity  that  no reasonable  person  in  a  civilized
society should be expected to endure it. 5
          The  superior  court  held  that  Jones  presented   no
evidence of severe distress, and the record amply shows that  the
courts  conclusion  was  not  an abuse  of  discretion.6   Joness
opposition  to  summary judgment failed to discuss  any  distress
suffered by Jones that resulted from Ainsworths letter, much less
claim that Jones suffered severe emotional distress.  The dissent
cites  nine  pieces of evidence that it says support Joness  IIED
claim.7   However, only one  Joness deposition  testimony8   even
goes to the issue whether Jones actually suffered distress.9  And
that  testimony does not support the conclusion that he  suffered
severe emotional distress.  At his deposition, when he was  asked
whether  he  suffered any consequences as a result of  Ainsworths
letter,  here is what Jones said about the level of his emotional
distress:
               I  just  got   yeah, basically,  wouldnt
          ever  do the things I liked to do, cut  hair.
          You  know thats what I like doing is  cutting
          hair, I wasnt able to cut hair, you know what
          I mean.
               I  feared all the time because  I  didnt
          know  what  the  next step was  going  to  be
          because [Ainsworth] was still there.  I didnt
          know if, you know every time I hear the doors
          open  or  keys, it still bugs me, it bugs  me
               today, you know because I never know what is
          going to happen.
          
This  quotation is the only evidence of actual emotional distress
in  the  entire record.  This sort of vague, generalized fear  or
annoyance  is  insufficient  to  satisfy  the  threshold  showing
required by IIED;10 if it were otherwise, then the showing  is  a
mere  formality  that will always be met.  At  oral  argument  on
summary  judgment in the superior court, Joness counsel  conceded
that  he  had not put forth an affidavit or any other independent
or  expert evidence supporting Joness distress from the Ainsworth
letter.  Rather, counsel alluded generally to this one quotation,
and  added  the  unavailing fact that Jones  had  pleaded  severe
emotional  distress  in  his complaint.  Because  Jones  did  not
present  any evidence that, as a result of Ainsworths action,  he
had  suffered  the  kind  of severe emotional  distress  that  no
reasonable person could be expected to endure, the superior court
correctly denied summary judgment on Joness IIED claim.
          The   dissent   fails  to  discuss  the  trial   courts
conclusion  that Jones did not raise a genuine issue of  material
fact  as to whether he suffered severe emotional distress11    an
evidentiary  showing that our case law demands, as  noted  above.
Instead,  the  dissent looks at the defendants  action  (not  its
effect  on  the  plaintiff)  and  relies  on  United  States   v.
Balistreri12  for  the  proposition that  [t]he  more  inherently
degrading  or  humiliating the defendants  action  is,  the  more
reasonable  it is to infer that a person would suffer humiliation
or  distress  from  that action.13  But a  plaintiff  must  still
present some evidence of severe emotional distress, and Jones did
not.   Moreover,  while it is true that the court  in  Balistreri
characterized  the  evidence  there  as  somewhat   general   and
conclusory  and minimal,14 the evidence there was  much  stronger
than the evidence in Joness case.  Each of several plaintiffs  in
Balistreri  testified to being upset, humiliated, embarrassed  or
shamed.15   Individual plaintiffs testified  to  being  nauseous,
embarrassed, and ashamed,16 hurt and disappointed,17 and  damaged
in  their  relationship  with her husband,  children,  and  other
family  members;18 indeed, one characterized it  as  one  of  the
worst things that had happened to him.19
          It  is  instructive to compare a later case that relied
on  Balistreri, from the same Seventh Circuit, for an  indication
of  how  that court treats the requirement of a showing of actual
emotional  distress.  In Alston v. King,20 the court  found  that
several  of  the plaintiffs claims of distress  which  were  more
serious  than  Joness  claims  of distress21   were  insufficient
standing  alone to support emotional distress damages.   (It  was
only  when  the  court added consideration of  additional  facts,
including  that  the plaintiff was escorted to his  office  by  a
police  officer  and made to clean out his desk  while  employees
were   gathered  around,  and  some  were  crying,  others   were
befuddled,  and  still others were mocking or laughing  at  him22
that  the  court found a sufficient basis for emotional  distress
damages.)  The plaintiffs distress that the Seventh Circuit found
insufficient was as follows:
               Alston nevertheless argues that . . . he
          submitted  sufficient evidence of damages  to
          avoid  judgment  as  a matter  of  law.   The
          evidence relating to emotional distress  that
          was  admitted at trial was sparse.   We  have
          Alstons bare testimony that . . . he suffered
          humiliation,   embarrassment,  stress   [and]
          rejection [and became] depressed, that he had
          a  tendency  to abuse alcohol,  and  that  it
          materially  affected  the  quality   of   his
          relationship with the woman he was dating and
          that he was no longer engaged to her.[23]
          
          Comparing this evidence from Alston  which the  Seventh
Circuit   characterized  as  sparse  and  would  have  found   as
insufficient  without  more to avoid a  contrary  judgment  as  a
matter  of law24  with the evidence in the present case leads  to
the  conclusion  that  Judge  Gleason  properly  granted  summary
judgment  to  the state.  Jones said only that he was  no  longer
able  to  cut hair, he feared all the time, and it still bugs  me
today.   The  allegations of emotional distress  in  Alston  were
substantially more serious, including humiliation, embarrassment,
stress,  rejection, and depression, leading to alcohol abuse  and
impinging  on relations with others.  Yet that evidence  standing
alone was insufficient to meet the severe injury test, even  when
considering  the  rule  that  racial  discrimination,  which  was
involved  in  Alston,  is  the type  of  action  that  one  could
reasonably  expect to lead to emotional distress.  Judge  Gleason
did  not  abuse her discretion in determining that Jones did  not
present evidence of severe emotional distress sufficient to avoid
summary judgment.
          The  dissent also discusses emotional distress  arising
from  a  rat  comment  allegedly made by  Officer  Gilliam.   The
superior  court  refused to consider any distress resulting  from
this comment on procedural grounds.25  But even assuming that the
rat  comment is within the scope of Joness appeal, Jones has  not
offered  any  specific evidence of distress  resulting  from  it.
Jones  places his reliance on the expert testimony of  Ernest  C.
Weber,  a corrections and prison consultant who never met  Jones.
Mr.  Weber opined that being called a rat in prison is a  serious
matter  and that it could have caused him severe mental  anguish.
(Emphasis  added.)  While this is undoubtedly  true,  Mr.  Webers
testimony  has little bearing on whether Jones actually  suffered
emotional  distress  or  produced  evidence  that  he  did.    In
contrast,  it  appears that Joness deposition testimony  deviates
from  Mr.  Webers general prediction.  Joness testimony was  that
being called a rat was serious,
          because for me if I was in a real, you  know,
          somewhere that people didnt know me, if I was
          like in a federal prison, for him to say what
          he  said could have jeopardized my life,  you
          know.   And  you cant go calling people  rats
          and  stuff  like  that in a maximum  security
          prison  and thats coming from a guard,  thats
          your life, in other prisons, but maybe not in
          Alaska, but thats the way I look at it.
          
               And  people that knew me, know  that  Im
          not no rat and they know Im not that type  of
          person.  But Im saying if I was in any  other
          place,  that  could have caused  my  life  in
          Seward,  you know, if you would have got  the
          right person hearing this.
          
(Emphases  added.)   His testimony went on to  suggest  that  all
people who heard the rat comment were his friends, and that  they
would never have believed the charge.  In fact, Jones agreed that
[t]hey  knew  that this was a bunch of bullshit.  The  only  harm
suggested by Jones was [j]ust the anxiety caused by knowing  that
the  comment could have had negative consequences.  While  we  do
not  demand that a threshold showing of severe emotional distress
include  concrete  medical evidence,26 we  do  require  that  the
allegation  be  supported  by  the  record.   Here,  Mr.   Webers
conjecture regarding the possible consequences of the rat comment
was  contradicted  by  Joness  own  testimony  of  what  actually
happened.
          Because   the  record  supports  the  superior   courts
conclusion  that  Jones  failed  to  offer  evidence  of   severe
emotional distress, I would affirm the grant of summary  judgment
on  the  merits.  Judge Gleason did not abuse her  discretion  in
determining that Jones did not meet his threshold requirement  of
producing   evidence  that  he  had  suffered  severe   emotional
distress; accordingly, her decision to grant summary judgment  to
the state on the IIED claim was correct.  For this reason I agree
to affirm her decision.
FABE, Justice, dissenting.
          The court resolves this appeal through a harmless error
analysis,  without   addressing the  propriety  of  the  superior
courts  dismissal of Joness intentional infliction  of  emotional
distress  (IIED)  claim.  Because I believe that Jones  presented
sufficient evidence to satisfy the threshold requirements for  an
IIED  claim,  I  would hold that the superior  court  erroneously
dismissed  this  claim on summary judgment.  And  because  Joness
remaining  claim for wrongful termination under the Alaska  Human
Rights Act failed to compensate him for all damages sought  under
the  IIED  claim, I disagree with the courts conclusion  that  no
prejudice  resulted from dismissal of the IIED  claim.   I  would
therefore  reverse the superior courts dismissal of  Joness  IIED
claim and remand the case for a new trial on that claim.
I.   The Superior Court Erred in Dismissing Joness IIED Claim  on
     Summary Judgment.
     
          Although  the  trial  court  should  make  a  threshold
determination whether the severity of the emotional distress  and
the  conduct  of  the offending party warrant a claim  of  IIED,1
Jones  raised  genuine issues of material fact  as  to  both  the
outrageous nature of Ainsworths conduct and the probability  that
he  suffered severe emotional distress.  He accomplished this  by
presenting  to the superior court the following evidence  in  his
opposition to summary judgment:
          (1)   A  copy  of  Ainsworths termination  memo,  which
contains racial and sexual slurs;2
          (2)   Joness  deposition testimony that about  a  month
after  they started working together in the barbershop, Ainsworth
intentionally  mess[ed] with [Jones] . . . to make  it  hard  for
[Jones] to try to keep that job;
          (3)    Joness   deposition  testimony  that   Ainsworth
threatened  him  with a broomstick, brandishing the  handle  when
Ainsworth  was alone with Jones in the barbershop and threatening
to do bodily harm to Jones with the stick;
            (4)  Joness deposition testimony that after receiving
the August 4 memorandum, Jones was in fea[r] all the time because
[he]  didnt  know  what the next step was  going  to  be  because
[Ainsworth] was still there and that he felt fearful  every  time
[he]  hear[d] the doors open or the keys . . . because [he] never
kn[ew] what [was] going to happen;
          (5)  Joness deposition testimony that he was labeled  a
rat  by correctional staff in retaliation for causing trouble for
Ainsworth about the memo;
          (6)  An affidavit and expert report of Ernest C. Weber,
a  corrections  and prison consultant with over thirty  years  of
experience  in  the  field, explaining the  significance  of  the
context  of  Ainsworths conduct, the dependence of  prisoners  on
staff  for  their  safety and well being, and the  importance  of
minor  things that are so simple to us who are free [that] become
greatly magnified to those who are incarcerated;
          (7)   Webers opinion that [i]f staff indicate that they
are  out to get them [prisoners] can then develop an extreme fear
for their safety;
          (8)   Webers  opinion  that if a prisoner  contemplates
reporting  inappropriate  guard conduct,  he  must  consider  the
possibility  of  being  labeled a rat.  Weber  added:   I  cannot
overstate the seriousness of an inmate being labeled a rat in  an
institutional correction environment.  This label could and often
does   place   the   individual  in  very  real   danger   during
incarceration.
          (9)    Webers  opinion  that  the  racial  and   sexual
harassment  that  Jones was subjected to could  have  caused  him
severe mental anguish and could have placed him in a position  to
be subject to serious physical harm.
          Although   the  courts  opinion  does  not  reach   the
question,   the   concurrence  concludes  that  Jones   presented
insufficient  evidence  of  severe  distress  to  avoid   summary
judgment  on his IIED claim, basing this view on Joness purported
failure  to  present evidence regarding the effect of  Ainsworths
actions  on  him.3  But on a summary judgment motion, [t]he  non-
moving party is entitled to have the record reviewed in the light
most  favorable to it and to have all reasonable inferences drawn
in  its favor.4  And as the concurring opinion recognizes,  Jones
testified  that he feared all the time because I didnt know  what
the  next  step  was  going to be because [Ainsworth]  was  still
there.  I didnt know if . . . every time I hear the doors open or
keys,  it still bugs me, it bugs me today . . . because  I  never
know  what  is going to happen.5  Jones also described in  detail
Ainsworths  systematic harassment and discrimination.  Ainsworths
described  conduct  was so extreme and outrageous  that  standing
alone  it permits an inference of distress.  A number of  federal
decisions  have recognized that inferences of emotional  distress
may  be  drawn  from  conduct  in the context  of  discrimination
claims.6   As the Seventh Circuit explained:  The more inherently
degrading  or  humiliating the defendants  action  is,  the  more
reasonable  it is to infer that a person would suffer humiliation
or   distress  from  that  action;  consequently,  somewhat  more
conclusory  evidence of emotional distress will be acceptable  to
support an award for emotional distress.7  The Balistrieri  court
went  on  to conclude that even though the testimony offered  was
somewhat  general  and  conclusory  and  even  minimal,  it   was
sufficient to support an emotional distress award.8
          Similarly,  the  Ninth Circuit concluded  that  it  was
proper to award damages for humiliation and distress to a husband
and  wife who suffered discrimination in their search for  rental
office space, where there was no testimony from the husband about
his  emotional distress.9  That court concluded that the husbands
humiliation  could be inferred from the surrounding circumstances
of  not  being able to rent office space because he was  African-
American.10   And  in  Hobson v. Brennan,  the  court  relied  on
decisions  of  the D.C. Circuit to conclude that  an  absence  of
direct  testimony  about distress will not  defeat  a  claim  for
compensatory damages.11  The court in Hobson explained that [t]he
defendants  construction of the term testimony.  .  .  is  overly
narrow  [because  it]  overlook[s] the [D.C.  Circuit]  Court  of
Appeals further statement that in appropriate circumstances . . .
emotional  distress  may be inferred from the  circumstances.  12
          The Hobson court reasoned that in a case involving an intrusive
investigation by the FBI [t]estimony about something  so  obvious
[as  the plaintiffs emotional distress] would have been redundant
and  possibly  viewed  by the jury as so self-serving  as  to  be
counter productive.13
          Moreover,  the  Seventh  Circuit  has  recognized  that
racial  discrimination, which is one of the relics of slavery  is
the  type of action that one could reasonably expect to humiliate
or  cause emotional distress to a person.14  No reasonable person
could be expected to endure the degrading racial and sexual slurs
and routine threats allegedly made by Ainsworth without suffering
severe  emotional  distress.  And  [t]he  jury  is  in  the  best
position  to  evaluate  both  the  humiliation  inherent  in  the
circumstances and the witnesss explanation of his injury. .  .  .
[A] jury may glean as much if not more about a witnesss emotional
state  from  the  witnesss demeanor than  from  his  attempts  to
explain the nature of his injury in words.15
          Although the concurrence places great reliance  on  the
Seventh  Circuits decision in Alston v. King,16 Alstons emotional
distress  claim  arose  from  a municipal  employers  failure  to
provide  him  with  the pretermination hearing  required  by  his
employment contract.17  In my view, the conduct underlying Joness
claims  of emotional distress  degrading racial and sexual  slurs
and  continuing threats made by a jail guard to a prisoner  under
his  control   is  significantly more serious  than  the  conduct
underlying  Alstons claims, where Alston was taken  back  to  his
desk  and  forced  to clean out his desk in the presence  of  his
coworkers,  without any explanation, while some  coworkers  cried
and  others laughed and mocked him.18  Yet, in Alston, the  court
found   that  despite  scant  evidence  of  emotional   distress,
testimony  about  the  sequence  of  events  at  the  office  was
sufficient  to  raise a jury issue of emotional distress  damages
related  to  the denial of procedural due process.19   The  court
concluded: In other words, there was enough evidence [from which]
to   infer   that   the  humiliation  [Alston]  experienced   was
attributable  to  the  summary nature of the proceedings,  rather
than  to  the  termination  itself.  Alston  therefore  presented
sufficient evidence of damages to withstand judgment as a  matter
of law.20
          Thus,  in certain cases, severe emotional distress  may
be  inferred  from  the circumstances underlying  the  plaintiffs
claim.   The  outrageousness  of  Ainsworths  discriminatory  and
threatening conduct permits such an inference of severe emotional
distress and raises a genuine issue of material fact.  It is thus
my  view  that the evidence submitted by Jones on the  issues  of
outrageousness  and severe emotional distress was  sufficient  to
survive the States motion for summary judgment.
II.   The  Erroneous Dismissal of the IIED Claim Was Not Harmless
Error.
          Under  the harmless error test, [t]he members  of  this
court must necessarily put themselves, as nearly as possible,  in
the  position  of  the  jury in order to  determine  whether,  as
reasonable [people], the error committed probably affected  their
verdict.  21   If the jury had been permitted to consider  Joness
IIED  claim,  it  could  have weighed the nature  and  extent  of
harassment   that  Jones  suffered  throughout  his   period   of
employment  under  Ainsworth,  rather  than  just  the   distress
suffered from the time of termination.  And if the IIED claim had
remained, the jury could have compensated Jones for the emotional
distress   he   suffered  due  to  threatening  behavior   by   a
correctional officer who had  power over him, in addition to  the
emotional  distress  associated  with  being  terminated.   Thus,
dismissal of this claim cannot be viewed as harmless error.
          The  superior  court limited the recovery of  emotional
distress damages to those resulting from Joness termination based
on  racial  or sexual discrimination, in violation of  the  Human
Rights  Act.  Before closing arguments, the superior  court  gave
preliminary instructions, including an instruction that told  the
jury that it could award Jones damages to compensate him only for
emotional distress caused by racially motivated termination:   If
you find that Mr. Joness rights under the Alaska Human Rights Act
were violated, you may award him a fair amount to compensate  for
emotional distress caused by that injury.  The court defined  the
Human Rights Act violation as termination motivated by racial  or
sexual  discrimination.  Thus, the jurys  award  of  non-economic
damages  was to compensate Jones only for the emotional  distress
he suffered due to his termination for discriminatory reasons.
          But Jones also testified that he interpreted Ainsworths
memo as a threat and that it caused him to be afraid.  And Joness
corrections  expert confirmed that mere receipt of  such  a  memo
would  have  had  a  profound effect on the  individual  who  was
incarcerated,   due   to   the   extraordinary   authority   that
correctional  employees  have  over  inmates.   Moreover,   Jones
claimed  that  Ainsworths memo was just  the  culmination  of  an
abusive  relationship.  Jones testified that Ainsworth  had  made
earlier  comments  that  frightened  him,  and  he  described  an
incident during which Ainsworth made an unprovoked threat to  hit
Jones with a broom handle and actually picked up the broom as  if
to carry out the threat.
          Because  of  the courts earlier dismissal of  the  IIED
claim,  the  State  was  successful  in  its  argument  to  limit
emotional   distress   damages  to  those  resulting   from   the
termination via the memo.  And the State convinced the  court  to
give  Instruction  14.5,  which stated  that  Mr.  Jones  is  not
entitled to emotional damages that he is claiming occurred before
he  received the memorandum from Floyd Ainsworth dated August  4,
1997.  Because the jury was expressly prevented from compensating
Jones  for  his  distress  resulting from  Ainsworths  course  of
conduct  before  the  termination,  the  courts  assertion   that
Instruction No. 14.5 did not preclude the jurys consideration  of
Ainsworths  earlier  course of conduct in  making  its  emotional
distress award is inaccurate.22
          I   also  believe  that  the  court  is  incorrect   in
concluding  that Jones inadequately preserved in the trial  court
his  claim  to  emotional distress damages  for  Ainsworths  pre-
termination  conduct  by failing to object to  instructions  that
limited the scope of his claims or failing to argue the point  in
          his opposition to summary judgment and at trial.  Joness counsel
objected at trial to the States argument for an instruction  that
would  limit Joness emotional distress damages to those  suffered
after Jones received the memo:
               MR.  MOGEL:    Your Honor, I believe  Im
          entitled to an instruction that Mr. Jones  is
          not  entitled to any economic damages for the
          time before he received the memorandum.
          
               MR. VERMONT:  No, emotional distress.

               MR.  MOGEL:    No[ ] emotional  distress
          damages  for the time before he received  the
          memorandum.  The claim in this case  is  that
          he  was  terminated  and  any  distress,  any
          emotional  distress would have to  stem  from
          that termination.
          
               THE COURT:  Mr. Wendt?

               MR. WENDT:  I disagree.  Its true he was
          terminated  and the termination according  to
          the   complaint  happened  once.   But,  Your
          Honor, the termination is the culmination  of
          what  had  occurred for months  before  that.
          And  as such, the activity before termination
          is  part  of the termination. . . .  This  is
          the  actions of Floyd Ainsworth who  was  his
          supervisor who terminated him and the actions
          occurred before the termination and after the
          termination, and emotional distress Mr. Jones
          suffered  as  a  result of  Floyd  Ainsworths
          actions was culminated on August the 4th.   I
          dont  feel the need to be limited to the date
          of  culmination  of those  actions  when  the
          actions  took  place over a period  of  time.
          (Emphasis added.)
          
          Before  finalizing its jury instructions, the  superior
court  ruled against Jones on this point, concluding that
          the  damages have to stem from the act itself
          that  forms  the  underlying  basis  of   the
          complaint.  And the underlying basis  of  the
          complaint,  the  cause  of  action,  is   the
          termination and the damages would come  after
          that, not preceding it.
          
When  the trial court clarified that its ruling was based on  its
assumption  that  the  Human Rights Act  termination  claim  only
allowed  damages  from the date of termination,   Joness  counsel
responded I do object to that.
          Later,  when the superior court decided on the specific
language  of  the  instruction that would implement  its  ruling,
Instruction  14.5, Jones objected to it for the previous  reasons
stated,  referring to his earlier argument regarding  the  States
request  for  an  instruction  limiting  the  damages  to   those
resulting from the termination.  The superior court ruled that it
would give Instruction 14.5, subject to the underlying objection,
referring to Joness earlier argument that his emotional  distress
damages  should not be limited to those arising after receipt  of
the memo.
          Each  time  the subject of this limitation  of  damages
arose,  Joness counsel was clear in his objection, and the  trial
court  understood his continuing and underlying objection to  the
limitation on damages.  At the time that the trial court  decided
to  give Instruction No. 9 and the other preliminary instructions
generally  describing the claims to the jury, the State  had  not
yet  made  its  request  to  limit  emotional  distress  damages.
Certainly,  there was ample opportunity for the  trial  court  to
correct the final instructions that were given to the jury  after
closing  arguments.  Instead, Instruction 14.5 was inserted  over
Joness  objection.   Thus,  it seems  unfair  for  the  court  to
conclude that Jones failed to preserve properly his argument that
he  was  entitled  to  emotional distress  damages  beyond  those
related to the termination memo.
          Moreover,  as  Jones  explains in his  reply  brief  on
appeal,  had he been permitted to pursue his IIED claim he  would
have been able to present more evidence . . . at trial as well as
argu[e]  more forcefully to the jury.  Jones was not required  in
his  opposition to summary judgment on the IIED claim to  develop
fully the basis for his claim for damages arising from Ainsworths
alleged intentional infliction of emotional distress; he was only
required to raise a genuine issue of material fact.  And once the
IIED  claim  was dismissed at the summary judgment  stage,  Jones
likely  felt  constrained  in  his ability  to  present  evidence
outside  the  scope of the termination incident.   As  the  court
recognizes, the remaining Human Rights Act claim restricted Jones
to  evidence and argument on damages that directly and  naturally
resulted  from the injury in question  his termination.23   Thus,
once  the  IIED  claim  was dismissed from the  case,  Jones  was
required to alter the structure and presentation of his  case  in
order  to conform to that ruling.  It thus hardly seems right  to
fault  Jones for focusing his presentation in the trial court  on
the  emotional  distress damages he suffered as a result  of  the
August 4 termination memo.
          Because  I  believe that the superior  court  erred  in
granting  summary judgment on the IIED claim, and  because  Jones
testified that he suffered emotional distress independent of that
resulting from the racially motivated termination, I am unable to
agree  that the error in dismissing the IIED claim was  harmless.
I  would reverse and remand for a new trial on the IIED claim.  I
therefore respectfully dissent.
_______________________________
     1    Jones offered the following interpretation of the memo:

          A   sissy   and  cake-boy  are  each   common
          offensive terms for homosexual. . . .  A mud-
          duck is an offensive [term] for an individual
          who   engages  in  anal  intercourse   though
          Plaintiff  is  of  the belief  that  this  is
          simply  a reference to the attractiveness  of
          his girlfriend. . . . Vanilla Ice was a white
          entertainer who had adopted a superficial and
          stereotypical    black   persona    in    his
          performances and who was widely denounced  by
          the african-american community as a charlatan
          and  opportunist.  The accusation  of  really
          being  white  with  a  really  good  tan  was
          another  racial affront attacking Mr.  Joness
          own  racial  and  cultural  identity  through
          demeaning  characterization.  .   .   .   The
          reference  to driving a 1975 AMC Pacer  is  a
          suggestion that Mr. Jones is worthy  of  only
          the least desirable of material objects while
          the  suggestion that he seek employment as  a
          pots   and   pans   man   is   an   insulting
          characterization   of  african-americans   as
          worthy of only menial jobs.
          
     2    See AS 18.80.255.

     3     Jones  advanced several other claims that are  not  at
issue here and thus require no discussion.

     4     Richardson v. Fairbanks N. Star Borough, 705 P.2d 454,
456 (Alaska 1985).

     5    Id.

     6     Lincoln v. Interior Regl Hous. Auth., 30 P.3d 582, 589
(Alaska 2001).

     7     See  Alaska R. Civ. P. 61; Dobos v. Ingersoll, 9  P.3d
1020,  1024 (Alaska 2000) (holding that under the harmless  error
test, burden is on appellant to show prejudice).

     8     It  is well settled that the trial courts choice of  a
particular  legal  theory  does  not  define  the  scope  of  our
appellate review and that we may uphold the trial courts judgment
on  any  legal theory supported by the record  even one that  the
trial court expressly rejects.  We have often relied on this rule
to  resolve appeals on the most efficient available ground.   See
Alaska  Trademark Shellfish, LLC v. State, 91 P.3d 953, 956-57  &
n.11 (Alaska 2004) (citing cases).

     9    828 P.2d 745, 760 (Alaska 1992).

     10    AS 18.80.255 reads, in relevant part:

          It is unlawful for the state or any of its
          political subdivisions
          
          (1)  to refuse, withhold from, or deny to a
          person any local, state, or federal funds,
          services, goods, facilities, advantages, or
          privileges because of race, religion, sex,
          color, or national origin.
          
     11     Loomis  Electronic Protection, Inc. v. Schaefer,  549
P.2d  1341,  1344 (Alaska 1976) (quoting Curtis v.  Loether,  415
U.S. 189, 194-96 (1974)).

     12     Johnson v. Alaska State Dept of Fish & Game, 836 P.2d
896,  915  (Alaska 1991) ([R]ecovery of compensatory damages  for
mental  anguish [is for] all those damages directly and naturally
resulting, in the ordinary course of events, from the  injury  in
question.  )  (quoting Mitchell v. Seaboard Sys. R.R.,  883  F.2d
451, 453 (6th Cir. 1989)).

     13    Joness IIED claim did not include a claim for punitive
damages.

     14     Cf.  Still v. Cunningham, 94 P.3d 1104, 1111  (Alaska
2004) (Neither the trial court nor the movants should be required
to guess whether factual evidence might support defenses that are
not identified or relied on.).

     15    The dissent criticizes this opinion as seeming to fault
Jones  for  focusing his presentation in the trial court  on  the
emotional  distress  damages  he suffered  as  a  result  of  the
August 4 termination memo.  Dissenting Op. at 37.  But we ascribe
no  fault  to Jones; we simply base our decision on the arguments
that he has chosen to advance on this point.

     16    We exercise de novo review in considering challenges to
a trial courts rulings on jury instructions.  Johns Heating Serv.
v. Lamb, 46 P.3d 1024, 1030 (Alaska 2002).

     17    AS 18.80.255(1).

     18    Jury Instruction No. 9 provided:

               Mr.  Jones also makes a claim  for  past
          emotional  distress.  If you  find  that  Mr.
          Joness  rights under the Alaska Human  Rights
          Act  were violated, you may award him a  fair
          amount  to compensate for emotional  distress
          caused by that injury.
          
               Such  an  award should fairly compensate
          Mr.  Jones for actual emotional distress from
          the  date  of any violation of his rights  to
          the date of trial[.]
          
     19    According to Instruction No. 4, [t]o establish that his
rights were violated under that Act, Jones had to prove:

          (1)  .  .  . that he was terminated from  his
          position  as a barber in connection with  the
          memorandum  .  .  . given  to  him  by  Floyd
          Ainsworth; and
          
          (2)   .   .   .   that   racial   or   sexual
          discrimination was a motivating factor in the
          decision to terminate his employment.
          
     20    Furthermore, we note that Instruction No. 14.5 did not
completely  bar  Jones  from relying on  evidence  of  Ainsworths
hostile or menacing pre-termination conduct toward Jones.  To the
extent  that this pre-termination conduct might have  made  Jones
more  vulnerable  to  emotional  distress,  thus  heightening  or
prolonging the distress that he suffered because of  the August 4
memo,  the pre-termination conduct would have been relevant.   In
our  view,  Instruction  No. 14.5 would not  have  precluded  its
consideration.

     21    Alaska R. Civ. P. 68(a).

     22     Id. at (b).  The percentage of fees to be paid  under
the  rule  is determined by a sliding scale that varies depending
on how far in advance of trial the offer was made. Id.

     23     See  Steiner  v. Farnsworth, 601 P.2d  266,  270  n.4
(Alaska  1979) (describing proper method for comparing  offer  of
judgment to offerees judgment).

     24    967 P.2d 79, 89-90 (Alaska 1998).

     25    Id.

     26     On  issues involving enhancement of fees  under  Rule
82(b)(3),  we  review  only  to determine  if  the  trial  courts
decision was manifestly unreasonable.  Glamann v. Kirk,  29  P.3d
255,  265-66  (Alaska 2001) (citations omitted).  Here,  although
Jones  did  submit  a  conclusory discussion of  the  enhancement
factors  to  the  superior court, that  discussion   provides  no
meaningful basis for concluding that the superior courts award of
fees was manifestly unreasonable.

1    Slip Op. at 6-7.

     2     Lockhart  v.  Fretwell, 506 U.S. 364, 370  n.2  (1993)
(emphasis  in original).  See also Wyatt v. State, 981 P.2d  109,
112  (Alaska  1999) (If the trial court erred in its  ruling,  we
then   determine  whether  the  error  was  harmless.   (Emphasis
added.)).   While we do not consistently utilize  this  approach,
see,  e.g., Cummins, Inc. v. Nelson, 115 P.3d 536, 546-47 (Alaska
2005),  I  believe  that where the trial court  clearly  has  not
erred, such as here, we should eschew harmless error analysis.

     3    McGrew v. State, Dept of Health & Soc. Servs., 106 P.3d
319,  324  (Alaska 2005) (quoting Lincoln v. Interior Regl  Hous.
Auth.,  30  P.3d  582,  589  (Alaska  2001)).   Regarding   these
elements,  the  trial  court must make a threshold  determination
whether the severity of the emotional distress and the conduct of
the  offending  party  warrant a  claim.   Id.  at  325  (quoting
Lincoln, 30 P.3d at 589).  We review these threshold findings for
an abuse of discretion.  Id.

     4     Lybrand  v.  Trask,  31 P.3d 801,  803  (Alaska  2001)
(quoting Odom v. Fairbanks Meml Hosp., 999 P.2d 123, 133  (Alaska
2000)).

     5     Fyffe  v.  Wright,  93  P.3d 444,  456  (Alaska  2004)
(quoting  Teamsters Local 959 v. Wells, 749 P.2d  349,  359  n.14
(Alaska  1988)).   This definition of severe  emotional  distress
accords with the Second Restatement.  See Restatement (Second) of
Torts  46, cmt. j (1965).

     6     We review the superior courts decision as to whether a
plaintiff  met  the threshold burden of showing severe  emotional
distress  under  the abuse of discretion standard.   Lincoln,  30
P.2d at 589.

     7    Dissenting Op. at 26-28.

     8    Id. at 27.

     9     The  other pieces of evidence deal either with actions
that  Ainsworth allegedly took against Jones, not the  effect  of
those  actions  on Jones (points 1, 2, 3, and 5), or  an  experts
opinion  that  Ainsworths actions could have  caused  an  adverse
effect  on  Jones (points 6, 7, 8, and 9).  See  below  for  more
discussion of this experts opinion.

     10   We have held that examples of severe emotional distress
include   neuroses,  psychoses, chronic  depression,  phobia  and
shock.  However, temporary fright, disappointment or regret  does
not  suffice  under this standard.  Chizmar v. Mackie,  896  P.2d
196, 204-05 (Alaska 1995) (quoting Lejeune v. Rayne Branch Hosp.,
556 So. 2d 559, 570 (La. 1990)).

     11    At  the  argument on summary judgment,  Judge  Gleason
asked  counsel  for  Jones what evidence had been  produced  that
Jones suffered severe emotional distress.  Counsel responded that
Joness  deposition testimony certainly indicated that he suffered
emotional  distress.  When the court asked for the  part  of  the
deposition counsel was referring to, counsel was unable to locate
it,  but stated, It is absolutely true that Mr. Jones did not  go
into  detail  regarding the emotional distress but  he  testified
that  it  certainly disturbed him.  Judge Gleason followed  with,
But   nothing  to  indicate  that  he  was  severely  emotionally
distressed?  to  which counsel conceded, Well, .  .  .  the  word
severely didnt come out of Mr. Joness mouth.

          In announcing her findings on whether plaintiff met his
burden  of  producing some evidence of severe emotional distress,
Judge  Gleason found that plaintiff has failed to establish  that
there is a genuine issue of material fact as to whether there was
severe emotional distress.

     12   981 F.2d 916 (7th Cir. 1982), cert. denied 510 U.S. 812
(1993).

     13    Id. at 932.  On this issue  whether the outrageousness
or  maliciousness of the defendants action may substitute for the
lack  of  showing of severe emotional distress on the  plaintiffs
part  we have said:

          It has not been enough that the defendant has
          acted  with  an intent which is  tortious  or
          even  criminal,  or that he has  intended  to
          inflict emotional distress, or even that  his
          conduct has been characterized by malice,  or
          a  degree of aggravation which would  entitle
          the plaintiff to punitive damages for another
          tort.   Liability has been found  only  where
          the   conduct  has  been  so  outrageous   in
          character, and so extreme in degree, as to go
          beyond all possible bounds of decency, and to
          be   regarded   as  atrocious,  and   utterly
          intolerable  in  a civilized community.   The
          liability  clearly does not  extend  to  mere
          insults,  indignities,  threats,  annoyances,
          petty oppressions, or other trivialities.
          
Finch  v. Greatland Foods, Inc., 21 P.3d 1282, 1289 (Alaska 2001)
(emphasis added), (quoting Rest. (Second) of Torts  46(1) cmt.  d
(1965)).

     14   981 F.2d at 933.

     15   Id. at 931.

     16   Id.

     17   Id.

     18   Id.

     19   Id.

     20   231 F.3d 383 (7th Cir. 2000).

     21    The dissent places great weight on the seriousness  of
the  defendants acts, arguing that Ainsworths acts in the present
case were significantly more serious than the defendants acts  in
Alston v. Bird.  Dissenting Op. at 32.  But this suggests a false
equivalence  between the plaintiffs claims of emotional  distress
with the defendants acts that allegedly caused the distress.   No
doubt  Ainsworths acts may fairly be described  as  extreme,  but
Joness  actual claims of emotional distress resulting from  those
acts  cannot  accurately be so described.  The law requires  that
the distress suffered must be extreme before the action lies.

     22   231 F.2d at 389.

23    Id.  at  387.   The  court noted that on  cross-examination
Alston  acknowledged that he was not abusing alcohol,  had  never
sought  counseling,  and first became engaged  to  the  woman  in
question a year after his termination.  Id. at 388.

     24   Id. at 387.

     25    Officer  Gilliam had been earlier dismissed  from  the
case,  and  the court reasoned that it could not hold  the  state
vicariously liable for the acts of an employee who had not  first
been  held  liable for the underlying conduct.   That  conclusion
seems correct to me.

     26    See Richardson v. Fairbanks N. Star Borough, 705  P.2d
454,  457  n.6  (Alaska 1985) (expert medical testimony  is  most
effective method of demonstrating severe distress, but it is  not
exclusive method).

     1     Richardson v. Fairbanks N. Star Borough, 705 P.2d 454,
456 (Alaska 1985); see also Lincoln v. Interior Regl Hous. Auth.,
30  P.3d 582 (Alaska 2001) (holding failure of the trial court to
make  threshold decision about outrageousness of conduct required
remand of IIED claim for that determination).

     2    We have previously held that an isolated incident . . .
may . . . be sufficiently egregious to satisfy the outrageousness
threshold.  Lybrand v. Trask, 31 P.3d 801, 805 n.8 (Alaska 2001).

3    Concurring Op. at 19 n.9.

     4    Holland v. Union Co. of California, 993 P.2d 1026, 1029
(Alaska 1999).

     5    Concurring Op. at 19.

     6     See, e.g., United States v. Balistrieri, 981 F.2d 916,
932 (7th Cir. 1992), cert. denied, 510 U.S. 812 (1993) (inference
of  distress  permissible in housing discrimination case);  Secy,
U.S.  Dept  of Housing & Urban Dev. ex rel. Herron v.  Blackwell,
908  F.2d  864,  872-73 (11th Cir. 1990) (damages from  emotional
distress may be inferred from circumstances as well as proved  by
testimony); Phiffer v. Proud Parrot Motor Hotel, Inc.,  648  F.2d
548,  552-53 (9th Cir. 1980) (same); see also Hobson  v.  Wilson,
737  F.2d  1,  61-62 & n.173 (D.C. Cir. 1984), cert. denied,  470
U.S.  1084  (1985),  overruled  in  part  on  other  grounds   by
Leatherman   v.   Tarrant   County   Narcotics   Intelligence   &
Coordination  Unit,  507  U.S. 163 (1993) (identifying  emotional
distress  as an interest protected by common law tort rules,  and
declining  to  hold  that some quantum of  compensable  emotional
distress may not be inferred from the circumstances and remanding
the  issue  for  consideration by a jury of whether  the  conduct
justified such distress where the conduct included violations  of
the First Amendment); Doe v. District of Columbia, 697 F.2d 1115,
1124   n.24  (D.C.  Cir.  1983)  (observing  that  under  certain
circumstances  infliction of emotional distress may  be  inferred
from  the  circumstances of the violation,  particularly  in  the
context of substantive rights such as the Eighth Amendment,  even
though  such inferences may not be permissible in the  procedural
due  process context as the United States Supreme Court  held  in
Carey v. Piphus, 435 U.S. 247 (1978)).

     7    Balistrieri, 981 F.2d at 932.

     8    Id. at 933.

     9    Phiffer, 648 F.2d at 552-53.

     10    Id.  at 550, 553; see also Johnson v. Hale,  940  F.2d
1192,  1193 (9th Cir. 1991) (citing Phiffer for proposition  that
damages  may  be  awarded for humiliation and emotional  distress
established by testimony or inferred from the circumstances).

     11   646 F. Supp. 884, 890 (D. D.C. 1986) (quoting Hobson v.
Wilson, 737 F.2d at 61 n.173 (citing Doe, 697 F.2d at 1124 n.24).

     12   Hobson v. Brennan, 646 F. Supp. at 890.

     13   Id.

     14   See Balistrieri, 981 F.2d at 932 (quoting Seaton v. Sky
Realty  Co.,  491  F.2d  634, 636 (7th Cir.  1974)  (upholding  a
damages  award  based on racial indignity where the  only  direct
evidence  of  emotional  distress  was  testimony  that   I   was
humiliated.   I was intimidated, not only as a person  but  as  a
man.   He  stripped me of my right as a father to my kids));  see
also  Webner v. Titan Distrib., Inc., 267 F.3d 828, 836 (8th Cir.
2001)  (explaining  that a plaintiffs own testimony  may  provide
ample  evidence when heard in combination with the  circumstances
surrounding  the plaintiffs termination where the  plaintiff  was
terminated because of his disability); Krueger v. Cuomo, 115 F.3d
487, 492 (7th Cir. 1997) (noting that [i]t demands little in  the
way   of   either  empathy  or  imagination  to  appreciate   the
predicament  of  a  woman who is harassed in  full  view  of  her
children . . . . and concluding that an inference of distress  is
permitted with minimal direct evidence apart from her testimony).

     15   Balistrieri, 981 F.2d at 933; see also Wahi v. N. Trust
Corp., 2002 WL 31133205, at *7 (N.D. Ill. 2002) (testimony  alone
is  sufficient  to  support an award of  damages);  Kronstedt  v.
Equifax,  2001  WL 34124783, at *13 (W.D. Wis. 2001)  (concluding
that evaluation of emotional distress claim stemming from release
of  inaccurate and derogatory credit information on credit report
is  best left to the jury); Pumphrey v. Stephen Homes, Inc., 1994
WL  150947,  at  *7 (D. Md.1994) (testimony alone  sufficient  to
support award).

     16   231 F.3d 383 (7th Cir. 2000).

     17   231 F.3d at 386-87.

     18   Id. at 389.

     19   Id. at 389.

     20   Id.

p     p.  at  13,  n.20.oll,  9  P.3d 1020,  1024  (Alaska  2000)
(quoting Alyeska Pipeline Serv. Co. v. OKelley, 645 P.2d 767, 773
(Alaska 1982)).

     22   Slip Op. at 13, n.20.

     23    Slip  Op. at 12; see Johnson v. Alaska State  Dept  of
Fish & Game, 836 P.2d 896, 915 (Alaska 1991).