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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Mahan v. Arctic Catering, Inc. (04/21/2006) sp-6002

Mahan v. Arctic Catering, Inc. (04/21/2006) sp-6002, 133 P3d 655

     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

BONITA MAHAN, )
) Supreme Court No. S- 11184
Appellant, )
) Superior Court No. 3AN-02-5536 CI
v. )
)
ARCTIC CATERING, INC., ) O P I N I O N
RICARDO GOBALEZA, AND )
TODD HARRIS, ) No. 6002 - April 21, 2006
)
Appellees. )
)
Appeal    from     the
          Superior Court of the State of Alaska,  Third
          Judicial District, Anchorage, John E.  Reese,
          Judge.

          Appearances:       Hugh  W.  Fleischer,   Law
          Offices of Hugh W. Fleischer, Anchorage,  for
          Appellant.  Laura L. Farley, Farley & Graves,
          P.C., Anchorage, for Appellees.

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

          BRYNER, Chief Justice.
          FABE,  Justice, with whom CARPENETI, Justice,
          joins, dissenting.

I.   INTRODUCTION
          Bonita   Mahan  worked  for  Arctic  Catering  on   two
occasions:  once  in 1999 and again in 2000.  Mahan  claims  that
during  her first period of work, two of her supervisors sexually
harassed  her.  During her second period of work, in 2000,  Mahan
was  fired  after working only ten days.  Nearly two years  later
Mahan  sued  Arctic,  claiming  sexual  harassment  and  wrongful
termination.  The superior court granted Arctic summary judgment,
dismissing Mahans claims for sexual harassment because they  were
time-barred,  and  dismissing  her  wrongful  termination   claim
because  it  was  unsupported.  Mahan appeals, challenging  these
rulings.  We affirm, holding that Mahan presented no evidence  of
harassment  occurring within the statutory time limit and  failed
to raise any genuine issues of material fact supporting her claim
for wrongful termination.
II.  FACTS AND PROCEEDINGS
          Bonita  Mahan worked as an at-will employee for  Arctic
Catering  on  two  separate occasions.  She  first  worked  as  a
housekeeper  at the Badami camp on the North Slope  from  January
25,  1999,  until March 11, 1999.  Mahans supervisors there  were
Doug  Schneider and Ricardo Gobaleza.  While she was  at  Badami,
Mahan  claims, Gobaleza made several sexual comments to her;  she
consistently  rejected his sexual advances.  Mahan  alleges  that
she  complained about Gobaleza to Todd Harris, Arctics operations
manager, but Harris reacted by joining in the harassment.   Mahan
quit  her  job with Arctic on March 11, 1999, because of  a  rash
that  she  suffered after her skin reacted to  laundry  soap  and
because the person she was filling in for returned to work.
          Arctic rehired Mahan the following year, and she  began
work  at  the Alpine camp on March 5, 2000.  On March  16,  2000,
Mahans supervisor, Scott Laney, fired her, stating that she could
not perform necessary duties of her position.
          On  March  14,  2002, Mahan filed a  complaint  in  the
superior  court against Arctic, Gobaleza, and Harris  for  sexual
harassment  and wrongful termination.1  Arctic moved for  summary
judgment,  asserting that Mahans claim for sexual harassment  was
barred  by  the statute of limitations.  Arctic further  asserted
that  Mahan failed to present any evidence to support  her  claim
for  wrongful  termination.  The superior court dismissed  Mahans
sexual  harassment  claim  as untimely,  finding  that  a  sexual
harassment  claim  must  be  brought  within  two  years  of  the
harassments  occurrence and that Mahan  had  alleged  no  act  of
harassment  occurring less than two years before March  14,  2002
the  date  she  filed  her complaint.  The court  also  dismissed
Mahans wrongful termination claim, finding that she had failed to
present  any evidence tending to show that Arctic terminated  her
for improper or pretextual reasons.
          Mahan appeals.
III. DISCUSSION
     A.   Standard of Review
          A  trial  court may grant a motion for summary judgment
when  there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law.2  We review  de
novo a trial courts order granting summary judgment,3 viewing all
reasonable  inferences in the light most favorable  to  the  non-
moving    party4   and   considering   affidavits,   depositions,
admissions,  answers to interrogatories and similar  material  to
determine  .  .  .  whether there are any . . .  triable  genuine
issues of material fact.5
     B.   Sexual Harassment Claim
          Alaska  law  prohibits an employer from  discriminating
          against a person because of the persons sex.6  We have held that
this  law prohibits sexual harassment against employees.7  Alaska
Statute  09.10.070 requires that claims for sexual harassment  be
brought  within  two years of the wrongful conducts  occurrence.8
The two-year limit starts when a party knows or should have known
of  a  claim  usually the date that the alleged incident occurs.9
Mahan filed her claim on March 14, 2002.  Barring some basis  for
extending the statutory period, then, her sexual harassment claim
would be limited to acts occurring within the two years preceding
this filing date.
          Mahan  testified in her deposition that almost all  the
incidents  of sexual harassment occurred at Arctics  Badami  camp
during  her  first period of employment  between January  25  and
March  11,  1999.   She stated that Richard Gobaleza  first  made
sexual  comments  to  her  soon after he  began  working  as  her
supervisor  at Badami in February 1999.  Mahan claimed  that  she
eventually  told Todd Harris, Arctics operations  manager,  about
Gobalezas   comments,  but  [he]  seemed  like  he  didnt   care.
According to Mahan, Harris began making sexual comments to her as
well,  and the harassment by both men continued until Mahan  left
Badami on March 11.  Because this alleged harassment all occurred
more  than two years before Mahan filed her complaint, her sexual
harassment claim was time-barred to the extent that it was  based
on the Badami camp incidents.
          Mahan  did  describe  one incident of  possible  sexual
harassment  by Gobaleza that occurred at Alpine camp  during  her
second  period  of employment.  She testified at  her  deposition
that  when  Gobaleza first saw her at Arctic, he hugged  her  and
asked  how  she was doing.  When asked at the deposition  if  she
thought  this conduct was inappropriate, Mahan initially insisted
that she was unable to respond, saying, I dont know how to answer
that question, I dont know, and I cant answer.  She then added, I
guess, when he rubbed his hand down by my bra strap, when he went
to  give a hug, thats inappropriate; if he was just giving  me  a
hug,  thats  not.  In a supplemental affidavit filed  two  months
after her deposition, Mahan specified that this incident occurred
at  least  seven days prior to March 16, 2000  that is,  sometime
before March 9, 2000.
          In   responding  to  a  written  interrogatory   before
testifying at her deposition, Mahan also had claimed to  remember
a  sexually harassing remark that Harris made to her one  morning
at  Alpine  camp;  but  she could not pin this  incident  to  any
specific  date.  Later, at her deposition, Mahan did not  mention
this  incident  and recalled only one episode of possible  sexual
harassment  at  Alpine: Gobalezas hug.  Although Mahan  testified
that she remembered seeing Harris at Alpine camp the day she  was
fired and that she thought he had been there earlier as well, she
acknowledged:  But  I cant remember how many  days  or  anything.
When  asked  if  Harris said or did anything at Arctic  that  she
considered harassment, Mahan replied, I cant remember right  now.
Whatever  I  had  put on the paperwork, thats what  it  was.   In
testifying about the difficulties at Alpine that led  up  to  her
termination, Mahan did not claim that any new acts of  harassment
at  Alpine  contributed  to  her firing;  to  the  contrary,  she
          specifically attributed her firing to the harassment she had
experienced  the year before at Badami: I was terminated  because
of  what  happened in the past, at Badami. . . .  Because  I  was
sexually  harassed by Todd Harris and by Ricardo.   And  I  guess
they   it  reminded them of it every time theyd see  me  anyplace
else.   Although Mahans post-deposition affidavit specified  that
Gobalezas  hug  occurred  before March  9,  2000,  the  affidavit
omitted  any mention of her pre-deposition claim that Harris  had
made a sexually harassing comment to her at Alpine.
          Even construing the totality of this evidence in Mahans
favor  for  summary  judgment purposes, we  find  no  substantial
evidence  of any incident of sexual harassment  occurring  within
the  two-year period before March 14, 2002, the date Mahan  filed
her  complaint.  By Mahans own account, the Gobaleza hug occurred
sometime  before March 9, 2000  several days outside the two-year
statutory limit.  Mahans initial interrogatory responses included
an  additional claim that Harris made a sexually harassing remark
to  her  at  Alpine.   But Mahan acknowledged  that  this  remark
occurred  on  some  date unknown.  At her subsequent  deposition,
Mahan  could  not  recall this allegation  and  she  provided  no
further  information  about  it in  her  supplemental  affidavit.
Given  these  circumstances, we think  that  it  would  be  sheer
speculation  to  assume that Harriss alleged  comment  at  Alpine
occurred  sometime  within the three-day span between  March  14,
2000  (the  outside  limit of the statutory filing  period),  and
Mahans termination on March 16, 2000.
          In  fact, Mahan does not seriously contest this  point.
She  insists instead that because her case involves a  continuous
course  of severe and pervasive sexual harassment, the continuing
violations  doctrine resurrects her claim.  Under this  doctrine,
certain patterns of ongoing discriminatory conduct can preserve a
sexual harassment claim that might otherwise be time-barred.10  To
benefit  from  this  theory,  though,  a  plaintiff  must   first
demonstrate  that  some discriminatory act  occurred  within  the
limitations period.  The plaintiff must then show that the timely
filed claim  based upon this act within the limitation period  is
closely  related  to  the otherwise time-barred  claims.11   Upon
making  this showing, the plaintiff can use evidence  of  earlier
events to prove the defendants liability for the acts within  the
statutory period.12
          But here, as we have already mentioned above, Mahan has
failed to show any acts of sexual harassment occurring within two
years   of  her  complaint.   And  the  only  evidence  of  other
discriminatory acts she offers is the evidence she relies  on  to
support  her  wrongful termination claim.  Because Mahans  sexual
harassment claim ultimately depends on the same evidence  as  her
claim for retaliatory discharge, we turn to the discharge claim.13
     C.   Wrongful Termination Claim
          Mahans  complaint separately advanced a  claim  against
Arctic  for  wrongful  termination,  alleging  that  the  company
violated the Alaska Human Rights Act14 by firing her on March 16,
2000,  in retaliation for opposing Gobalezas and Harriss  earlier
acts  of sexual harassment.  In considering retaliatory discharge
claims  under  the Act, we apply the distinction between  pretext
          and mixed motive cases that federal courts use in enforcing the
federal   Civil  Rights  Act.15   Although  Mahan  advances   her
retaliatory discharge claim primarily as a pretext case, we  will
consider her claim under both theories.
          In  a  pretext  case,  we  apply  the  same  three-part
framework  used  under federal law.16  First, the plaintiff  must
establish a prima facie case for retaliatory discharge.  To  meet
this  standard, Mahan would need to show that (1) she engaged  in
[a protected activity]; (2) her employer subjected her to adverse
employment action; [and] (3) there was a causal link between  the
protected   activity   and  the  employers   action.    Causation
sufficient   to  establish  a  prima  facie  case   of   unlawful
retaliation  may be inferred from the proximity in  time  between
the  protected action and the allegedly retaliatory  discharge.17
Once the plaintiff establishes a prima facie case, the burden  in
a  pretext case shifts to the employer to show a legitimate, non-
retaliatory  reason for the discharge.18  To do so, the  employer
must produce admissible evidence that would allow a trier of fact
to  conclude  that  the employers decision was not  motivated  by
discriminatory  animus.19  If the employer offers  evidence  that
rebuts the employees prima facie case, the burden of proof shifts
back to the employee to show that the employers explanation is  a
pretext for retaliation.20
          Here,  Mahan  contends that her evidence established  a
prima  facie  case of retaliatory discharge.  She maintains  that
her  evidence  showed that she engaged in protected  activity  by
refusing  Harriss and Gobalezas sexual advances, and that  Arctic
fired  her  for  engaging  in  this  protected  activity.    More
particularly,   Mahan  asserted  at  her  deposition   that   her
supervisors  at Arctic set her up to be fired by forcing  her  to
work harder than other workers and assigning her to do unpleasant
jobs:  Its  just the way I was treated.  Whenever they looked  at
me,  I  was   they piled extra work on my shoulders  every  time,
extra stuff, that the other housekeepers didnt have to do.  Mahan
theorized  that  she  was treated this way,  and  was  ultimately
fired,  because of the sexual harassment that had occurred during
her  first period of employment: I was terminated because of what
happened in the past, at Badami.
          Arctic responds that no genuine issue of material  fact
exists  on the issue of pretext, because there was uncontroverted
evidence  showing that Arctic had legitimate reasons to terminate
Mahans  employment  and  because  Mahan  failed  to  produce  any
evidence  tending  to  show that these reasons  were  a  pretext.
Specifically, Arctic points to record evidence demonstrating that
Mahan  was  unable  to perform her work because  she  continually
broke out in a rash when she handled laundry.  Arctic also points
to  undisputed evidence that Mahan received verbal reprimands for
fighting  with other workers.  According to Arctic, this evidence
gave  Mahan  the  burden of offering proof that  her  firing  was
actually a pretext  a burden that, in Arctics view, Mahan  failed
to carry.
          Arctics  argument is persuasive.  As an initial matter,
we note that Mahans own testimony leaves little dispute as to the
existence of facially legitimate, non-retaliatory reasons for her
          termination.  Mahan herself acknowledged that she had developed a
rash  on her arms that precluded her from doing the work she  had
been  told to do in the laundry.  She further acknowledged having
problems meeting her supervisors demands  I had five bosses  that
[were]  trying to tell me what to do, and . . . just   I  couldnt
handle  it.  And  she admitted that during her  short  tenure  at
Alpine camp she received two verbal reprimands for fighting  with
other workers.
          Because  Arctic  supported its summary judgment  motion
with ample evidence of legitimate, non-discriminatory reasons for
Mahans  discharge,  Mahan had the burden of producing  admissible
evidence  sufficient to raise a genuine issue of fact  supporting
her  theory  that these reasons were merely a pretext.21   Mahans
burden  required  her  to offer something more  than  unsupported
assumptions  and  speculation.22  In French v. Jadon,  Inc.,  for
example,  we held that summary judgment was appropriate  when  an
employer  produced  evidence showing that it fired  its  employee
because  she  was  unreliable,  and  the  employee  responded  by
presenting nothing more than her own subjective belief  that  the
employers asserted ground for her firing was merely a pretext.23
          Here,  as  in French, the claim of pretext is based  on
nothing  more  than  the  claimants unsupported  assumptions  and
speculation.24 Relying on her deposition testimony, Mahan asserts
that  Arctic  gave her extra work and then used her inability  to
handle  the  workload as a pretext to fire her:   Arctics  actual
motive,  Mahan  insists, was to get back at her for  refusing  to
have  sex  with  Gobaleza and Harris in 1999.   But  while  Mahan
offered   her  subjective  opinion  that  she  had  been  treated
unfairly,  she  presented  no solid evidence  to  show  that  she
actually  received unusually burdensome and unequal work.   Mahan
testified that her supervisors piled work on [her] shoulders; and
she expressed the conclusory view that she had not been hired  to
do the work she was given. But she provided no factual details to
flesh  out  these  bare  allegations; she described  no  concrete
examples of conduct by Arctic to substantiate her perception that
she received more work than other housekeepers; and she presented
no   other  factual  information  tending  to  show  that   other
housekeepers got better treatment.
          More  important,  Mahan offered  nothing  but  her  own
subjective, after-the-fact impressions to establish the link that
she  assumed must have existed between her extra workload and the
prior  sexual  harassment.   At her  deposition,  Mahan  gave  no
testimony  suggesting  a close temporal  or  other  logical  link
between  her firing in March 2000 and the protected conduct  that
she  herself claimed to be the cause of Arctics retaliation   her
resistence  to  Gobalezas and Harriss sexual  advances  the  year
before  at  Badami.  She insisted that she believe[d]  that  what
happened in Badami had a lot to do with her firing; and she  said
that she guess[ed] that her presence at Alpine must have reminded
Gobaleza and Harris of what had happened a year before at Badami.
Yet  when  pressed  to say why she believed  this,  Mahan  simply
responded, Because I just do.  When asked how the supervisors who
actually  fired her at Alpine knew of the sexual harassment  that
occurred  the previous year at Badami, Mahan replied, Apparently,
          [Harris and Gobaleza] must have talked to them.  I dont know.  At
the same time, Mahan readily acknowledged, Maybe Im wrong.
          Although  Mahan did describe one specific  incident  in
2000  that  she  apparently  viewed as  sexually  harassing   the
incident  in  which Gobaleza greeted her with a  hug  upon  first
seeing her back on the job at Alpine  she did not claim that this
incident prompted her to take any action that could reasonably be
construed   as  protected  conduct   conduct  such  as  resisting
Gobalezas  efforts  to hug her or reporting his  actions  to  her
supervisors.   Absent some evidence that Gobalezas  hug  prompted
Mahan  to  engage  in protected conduct, the temporal  connection
between  this  recent act of sexual harassment  and  her  ensuing
firing  would  not alone provide a logical basis to suggest  that
her  firing was a retaliatory measure: [C]ausation sufficient  to
establish  a  prima  facie case of unlawful  retaliation  may  be
inferred  from  the  proximity  in  time  between  the  protected
activity and the allegedly retaliatory discharge.25 According  to
Mahans  evidence,  her  most recent protected  conduct  allegedly
occurred at Badami, a full year before she was fired.
          On  this  record, we conclude that the  superior  court
properly  granted summary judgment to Arctic on Mahans  claim  of
pretextual  discharge  because,  in  response  to  uncontroverted
evidence of Arctics legitimate reasons to fire her, Mahan  failed
to   offer   anything  more  than  unsupported  assumptions   and
speculation to establish her theory of pretext.26
          Mahans  failure  to meet her burden under  the  pretext
framework  does not necessarily defeat her retaliatory  discharge
claim,  since  she could conceivably still prevail  on  a  mixed-
motive theory by showing that, even if Arctics legitimate reasons
were  not  completely  pretextual, its actions  were  nonetheless
substantially motivated by a desire for retaliation.   Yet  under
the facts presented here Mahans claim fares no better as a mixed-
motive  case than it does under a pretext theory.  Under  federal
case law, mixed-motive cases require the plaintiff to clear[] the
initial  hurdle  of presenting direct evidence of  discriminatory
intent.27   In  Kinzel  v.  Discovery Drilling,  we  declined  to
strictly  apply the federal direct evidence requirement;  yet  we
nonetheless held that a plaintiff in a mixed-motive case must  at
least  offer  either direct evidence of prohibited motivation  or
circumstantial   evidence  strong  enough  to   be   functionally
equivalent to direct proof.28
          To  meet  this  burden, the plaintiff in a mixed-motive
case  must  present evidence of conduct or statements by  persons
involved  in  the decisionmaking process that may  be  viewed  as
directly  reflecting on the discriminatory attitude.29   If  that
evidence  is  sufficient to permit the factfinder to  infer  that
[the discrimination] was more likely than not a motivating factor
in  the employers decision, then the plaintiff may recover unless
the employer [can] establish[] by a preponderance of the evidence
that  [it] would have taken the same action without consideration
of  the impermissible [discrimination.]30 In a mixed-motive case,
then, the claimant must go beyond establishing the existence of a
potential   retaliatory  motive  by  adducing   strong   evidence
evidence  akin  to  direct proof  that  tends  to  establish  the
          improper motives substantial contributing role.
          Here, as our discussion of Mahans pretext theory shows,
Mahan  offered neither direct nor strong circumstantial  evidence
suggesting   that  Arctic  actually  fired  her  for  retaliatory
reasons.  At most, she presented a theory of retaliation based on
subjective  belief  and  an attenuated  circumstantial  chain  of
events.   She insisted that she was fired from her job at  Alpine
camp  in  March  2000  for  engaging in  protected  conduct  that
occurred  the  year before at Badami camp, yet she identified  no
specific  conduct  or  statements  by  persons  involved  in  the
decisionmaking process31 to support her contention.   As  already
noted,  she  offered only her own subjective belief:  When  asked
whether Arctic fired her because of her refusal to have sex  with
Harris  and Gobaleza at the Badami camp in 1999, Mahan responded,
I  believe  it  had a lot to do with it; maybe Im  wrong,  but  I
believe it did.
          We  see no arguable basis on this record for concluding
that   Mahans  beliefs  concerning  Arctics  retaliatory   animus
amounted to sufficiently strong circumstantial evidence to  raise
a  genuine dispute of material fact under Kinzels standard for  a
mixed-motive claim.
IV.  CONCLUSION
          We  thus  AFFIRM  the  superior courts  order  granting
summary judgment to Arctic.
FABE, Justice, with whom CARPENETI, Justice, joins, dissenting.
          I  disagree with the courts conclusions that Mahan  has
failed to raise a genuine issue of material fact on her claim  of
wrongful termination and that her hostile work environment  claim
is  time-barred.   As the court correctly notes,  all  inferences
must  be drawn in favor of Mahan, as the non-moving party.1   Yet
the  courts decision credits Arctics version of the facts and its
argument  that  Mahans termination stemmed from  her  failure  to
perform her work because she continually broke out in a rash when
she   handled laundry.2  If Mahans deposition testimony  and  her
responses  to  interrogatories  are  viewed  in  the  light  most
favorable to her, one must conclude that she has raised a genuine
issue  of  material fact on the question whether her  termination
was  retaliatory.  Viewed in the light most favorable  to  Mahan,
the evidence suggests that her supervisors assigned her tasks  in
the  laundry room  with the knowledge that these were outside her
normal duties and that she was allergic to laundry soap  in order
to  punish  her,  and that this retaliatory conduct  led  to  her
termination.   Furthermore, Mahan has made a convincing  argument
that  her  otherwise untimely hostile environment claim has  been
revived  by  her  termination  under  the  continuing  violations
doctrine.  I would therefore reverse the superior courts grant of
summary judgment and permit Mahan to proceed on both her wrongful
termination and hostile environment claims.
I.   The  Evidence Presented by Mahan Raises a Genuine  Issue  of
     Material Fact.
          Mahans  argument  is  that  both  Harris  and  Gobaleza
sexually  harassed  her while she was at  Badami.   According  to
Mahans responses to interrogatories, Gobaleza would come into the
restroom  when Mahan was cleaning and use the urinal in front  of
her.  Both Gobaleza and Harris came into her room at night to the
point  where [she] had to prop a chair against the door,  because
[she]  wasnt getting enough rest at night.  Each man asked  Mahan
to  have sex with him and when Mahans supervisor, Doug Schneider,
observed  Gobalezas  conduct,  he said  thats  considered  sexual
harassment  and  told Gobaleza to leave Mahan  alone.   Schneider
told Mahan she was a good employee, the best one they had.
          When Mahan was rehired to work for Arctic at the Alpine
camp,  she  claims  that Gobaleza continued  the  harassment  and
rubbed  his hand down by [her] bra strap, when he went to give  a
hug.   Mahan  also  believed  that at  Alpine,  Harris  evidenced
residual resentment of her action in reporting him for the sexual
harassment  at Badami.  According to Mahans deposition testimony,
submitted in support of her opposition to the motion for  summary
judgment,  when  Harris  arrived at  Alpine,  he  piled  work  on
[Mahans]  shoulders  every  time, extra  stuff,  that  the  other
housekeepers didnt have to do.
          Mahan also testified that at Alpine, she wasnt assigned
to  do  laundry;  [she] was assigned to do the bedrooms  and  the
bathrooms and stuff.  She insisted that she was supposed to  make
beds,  do  bathrooms,  and  only the  laundry  that  was  in  the
bedrooms.  .  .  .   Not  work . . . in the  laundry  room.   She
maintained:  I did the duties of [the] position I was hired  for.
I was not hired to work in the laundry room.  She claims that she
          wasnt treated like the other housekeepers, and was given a
tremendous amount of extra work by Harris.  She also claims  that
Harris was [at Alpine] the day [she] was fired from [her] job  up
there.
          Thus,  the  courts  assertion that there  are  facially
legitimate,  non-retaliatory reasons for her termination  because
the rash on Mahans arms precluded her from doing the work she had
been  told to do in the laundry3 does not give Mahan the  benefit
of her testimony that she was not assigned to work in the laundry
and  that she was being given inappropriate duties by Harris  due
to  her  protected  activity of resisting  his  sexual  advances.
Moreover,  although Arctic offered evidence that it  fired  Mahan
due  to  her inability to perform laundry duties, Mahans evidence
that she was not hired to do laundry and that she was given extra
duties  as retaliation for her earlier claims of harassment  were
more than unsupported assumptions and speculation. 4
          Finally, although the court concludes that there is  no
strong  chronological connection between Mahans firing  in  March
2000  and  the protected conduct in 1999 of resisting the  sexual
advances  of  Gobaleza and Harris at Badami,  Mahan  stated  that
sexual  harassment occurred at Alpine as well as Badami.  In  her
answers to interrogatories, she stated that Mr. Harris asked  Ms.
Mahan  to  have  sex  with him at Alpine and Badami  on  repeated
occasions  during  her  tenure.   (Emphasis  added.)   She   also
responded  that  Harris  made  the following  comment  to  me  at
Alpine[:]  You sure have a cute ass.  I wish I could have a piece
of  that.   She claimed that Gobaleza inappropriately rubbed  his
hand  down  her bra strap when he gave her a hug at Alpine.   Her
claim   of  sexual  harassment  at  Alpine  thus  establishes   a
chronological  connection between her firing  and  the  protected
conduct.
II.  This Case Is Distinguishable from French v. Jadon, Inc.
          The  court  relies on French v. Jadon,  Inc.5  for  the
proposition  that Mahan must offer more than her  own  subjective
impressions  to  establish  a  link between  the  alleged  sexual
harassment  and  her  subsequent  firing.   But  Mahans  case  is
distinguishable  from  French because, unlike  the  plaintiff  in
French, Mahan points to specific instances of sexual advances  at
both camps, and she asserts that one of her alleged harassers was
among  those  who assigned her extra work at Alpine.6   As  noted
above,  Mahan alleges in her affidavit that Gobaleza  and  Harris
made  sexual  advances  toward her at  both  camps,  that  Harris
assigned  her  a tremendous amount of extra work at  Alpine,  and
that  Harris was [at Alpine] the day [she] was fired  from  [her]
job up there.  Whether this evidence would ultimately persuade  a
jury  is  unclear,  but it certainly amounts to  more  than  just
Mahans own subjective impressions.
III. The  High Evidentiary Threshold that the Court Applies  Here
     Is Inconsistent with Recent Case Law.
     
          Our many decisions on the standard for summary judgment
prevent  us  from weighing the evidence relied on by a non-moving
party in opposition to summary judgment.7  Thus, our role at this
stage  is  not  to  decide whether Mahan has a  strong  case  for
          retaliatory discharge; it is merely to decide if she has raised a
genuine issue of material fact.  As we have held repeatedly,  the
evidentiary threshold necessary to preclude an entry  of  summary
judgment is low.8
          Two  recent  decisions,  neither  of  which  the  court
attempts to distinguish, indicate just how low.  In Cikan v. ARCO
Alaska,  Inc.,  this court reversed a superior  courts  grant  of
summary  judgment  to  the defendant in  a  slip-and-fall  action
brought  eight and a half years after the alleged  injury.9   The
court held that there was a genuine issue of material fact as  to
whether  the  plaintiff  had  been rendered  incompetent  by  the
accident, thereby tolling the statute of limitations.10   But the
evidence  of  Cikans  mental  incompetence  during  the  two-year
statute  of  limitations11 was far less substantial  than  Mahans
evidence  in  the present case.  Cikans medical  expert  did  not
state  that  [she]  was  mentally  incompetent  or  incapable  of
understanding  her legal rights from the date of  injury  .  .  .
until  the  running  of  the  statute [two  years  later];12  the
testimony  of lay witnesses relied upon by the court  focused  on
Cikans  incompetency  after  the expiration  of  the  statute  of
limitations  (rather than during the time that  she  should  have
been  filing  a lawsuit);13 and one of these witnesses  testified
that  Cikan  appeared to have her life together six months  after
the  accident.14  Nevertheless, the court held that the  evidence
raised a genuine issue of material fact.
          And  in  Meyer  v. State, Department of Revenue,  Child
Support  Enforcement Division ex rel. N.G.T.,15  the  court  held
that  a  putative fathers sworn denial that he engaged in  sexual
intercourse with the childs mother at the time of conception  was
sufficient to preclude the entry of summary judgment in  a  child
support  action, even though the record included a  genetic  test
indicating  a  99.98% probability that he was the father.16   The
sworn  denial,  which  was  the only evidence  presented  against
paternity, was not even unequivocal:  Meyer admitted that he  was
unable  to recall the precise dates, times of day, locations  and
circumstances surrounding each [sexual] contact that [he] .  .  .
had  with [the childs mother].17  The Meyer court recognized  the
significant  statistical odds suggesting  Meyers  paternity,  but
held that Meyers denial is sufficient to create a genuine factual
issue  despite the scientific evidence.  Given the low  threshold
necessary to preclude entry of summary judgment set by this court
in  Cikan  and  Meyer,  Mahans stronger  evidentiary  showing  is
certainly  sufficient  to  defeat  Arctic  Caterings  motion  for
summary judgment.
IV.  Departing from Our Prior Cases To Set a Higher Threshold  Is
     Likely To Discourage Meritorious Discrimination Claims.
     
          By  failing to apply consistently our summary  judgment
standard,  the  court not only creates a conflict  with  existing
case  law, but also sets a precedent that could deter meritorious
claims in the future.  Discrimination cases, including claims  of
harassment  and  wrongful  termination,  often  turn  on   subtle
questions of credibility and intent that only a factfinder  faced
with  a  live  witness should decide.18  The  evidence  in  these
          cases, which may consist primarily of the testimony of the
alleged  victim and the alleged perpetrator, is likely to contain
conflicting claims, and is likely to be susceptible to  different
interpretations,  depending on which  inferences  the  factfinder
draws.   For this reason, discrimination claims  including claims
that  might  prevail  if  allowed to  proceed   are  particularly
vulnerable  to  summary judgment if courts improperly  weigh  the
credibility  of evidence, fail to draw reasonable  inferences  in
favor  of  the non-moving party, or decide outright the  ultimate
questions of fact.  As several scholars have noted, this makes it
significantly  more  difficult for victims of  discrimination  to
seek  redress, even when the law grants them a cause of action.19
Thus,  by deterring meritorious discrimination claims, the courts
departure  from  precedent is likely to have  pernicious  effects
that go far beyond this particular case.
V.   Mahans  Hostile  Environment Claim Should  Be  Permitted  To
     Proceed.
          Because Mahan has brought forth sufficient evidence  to
prevent  summary judgment on her claim of retaliatory  discharge,
she  should  also  be  permitted  to  proceed  with  her  hostile
environment  claim.   We  have  held  that  certain  patterns  of
discriminatory  acts  against the same employee  can  preserve  a
claim as timely that might otherwise be barred by the statute  of
limitations.20  As the court correctly notes, a plaintiff seeking
to  preserve otherwise-barred claims must first demonstrate  that
some  discriminatory act occurred within the  limitations  period
[and]  .  .  . must then show that the timely filed claim   based
upon this act within the limitation period  is closely related to
the  otherwise  time-barred claims.21  To determine  whether  the
claims  are  sufficiently  related, we   look  to  three  primary
characteristics  of  the  violations:  subject  matter,  temporal
proximity,  and  permanence,22 with  permanence  being  the  most
important  of  the  three.23  A  permanent violation  triggers  a
reasonable  persons  awareness of the alleged discrimination  and
the need to assert [his or] her rights.24
          Federal  case law, although not entirely clear on  this
point,  does  not  appear  to preclude  a  claim  of  retaliatory
termination from reviving a hostile environment claim.25  Because
Mahan  does allege a hostile environment, the court should  apply
the   three   factors  for  determining  whether  the  continuing
violations  doctrine revives her sexual harassment claims.26   If
Mahan  was  given work that she was physically unable  to  do  in
retaliation  for her complaints about sexual harassment,  as  the
evidence suggests, her termination for inability to do that  work
is   clearly  related  to  the  previous  incidents   of   sexual
harassment.  Similarly, given the evidence that sexual harassment
occurred  at the second camp as well as the first, which  implies
that   the  alleged  harassment  happened  within  days  of   her
termination,  the  harassment and termination were  proximate  in
time.   Finally, her termination was permanent, in that it  would
trigger[]   a   reasonable  persons  awareness  of  the   alleged
discrimination and [of] the need to assert [his or] her rights.27
I  therefore believe that, based on the evidence that  Mahan  has
presented,  she should be permitted to proceed with  her  hostile
          environment claim as well as her wrongful termination claim.
VI.  Conclusion
          In  sum, Mahan has unequivocally alleged harassment and
wrongful  retaliation,  and has presented  evidence  that  easily
surmounts  the low threshold required to withstand a  motion  for
summary  judgment.   Affirming the grant of summary  judgment  in
this  case  is a departure from our recent precedents.   And  the
courts decision today is likely to deter meritorious civil rights
actions  in  the future.  Furthermore, because Mahan has  made  a
showing of a discriminatory act within the statute of limitations
that  is  closely  related  to the acts  underlying  her  hostile
environment  claim, she should be permitted to proceed  with  her
hostile  environment  claim as well.   I  therefore  respectfully
dissent.
_______________________________
     1     Mahans  complaint also included claims for  defamation
and  intentional infliction of emotional distress.   Mahan  later
withdrew her defamation claim.  Because Mahans IIED claim  relies
on  her  claim  for  sexual harassment, we need  not  discuss  it
separately here.

     2     In  re  Estate of Evans, 901 P.2d 1138,  1140  (Alaska
1995).

     3     Tongass  Sport Fishing Assn v. State, 866  P.2d  1314,
1317 n.7 (Alaska 1994).

     4    R.E. v. State, 878 P.2d 1341, 1345 (Alaska 1994).

     5     French  v. Jadon, Inc., 911 P.2d 20, 24 (Alaska  1996)
(internal  citations  omitted) (citing  Broderick  v.  Kings  Way
Assembly of God Church, 808 P.2d 1211, 1215 (Alaska 1991)).

     6    AS 18.80.220(a)(1) provides that it is unlawful for:

          an employer to refuse employment to a person,
          or  to  bar a person from employment,  or  to
          discriminate against a person in compensation
          or  in  a  term, condition, or  privilege  of
          employment  because  of  the  persons   race,
          religion,  color,  or  national  origin,   or
          because  of  the  persons  age,  physical  or
          mental   disability,  sex,  marital   status,
          changes  in  marital  status,  pregnancy,  or
          parenthood when the reasonable demands of the
          position  do not require distinction  on  the
          basis  of age, physical or mental disability,
          sex,   marital  status,  changes  in  marital
          status, pregnancy, or parenthood.
          
     7    See French, 911 P.2d at 28.

     8    The relevant portion of AS 09.10.070 provides in part:

          (a)   Except as otherwise provided by law,  a
          person may not bring an action . . .
          
               (5)    upon   a  liability  created   by
          statute,  other than a penalty or forfeiture;
          unless  the  action is commenced  within  two
          years of the accrual of the cause of action.
          
(Emphasis added.)

     9    Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1249 (Alaska
2001).

     10    Sengupta, 21 P.3d at 1249.

     11    Id.

     12     Reich v. Cominco Alaska, Inc., 56 P.3d 18, 26 (Alaska
2002).

     13     Because  we conclude in Part III.C below  that  Mahan
presented   insufficient  evidence  to  support  her  retaliatory
discharge claim, we need not address the dissents suggestion that
Mahans  wrongful  termination might have revived her  time-barred
sexual  harassment claim.  See Dissent at 23-25.   We  note  only
that  Mahan has not raised or meaningfully argued this  point  on
appeal.

     14    Specifically, AS 18.80.220(a)(4) makes it unlawful for
an  employer  to  discharge,  expel,  or  otherwise  discriminate
against  a  person because the person has opposed  any  practices
forbidden  under AS 18.80.200-18.80.280 [the Alaska Human  Rights
Act].

     15    Era Aviation, Inc. v. Lindfors, 17 P.3d 40, 43 (Alaska
2000).

     16    See VECO, Inc. v. Rosebrock, 970 P.2d 906, 918 (Alaska
1999)  (stating that the three-part framework used in  Title  VII
cases  has  been  adopted for discrimination claims  as  well  as
retaliatory discharge claims).

     17    Id. at 919.

     18    Id.; see also Lincoln v. Interior Regl Hous. Auth., 30
P.3d 582, 586 (Alaska 2001).

     19    Kinzel v. Discovery Drilling, 93 P.3d 427, 433 (Alaska
2004) (quoting VECO, Inc., 970 P.2d at 919).

     20    Lincoln, 30 P.3d at 586-87.

     21    McGlothlin v. Municipality of Anchorage, 991 P.2d 1273,
1277 (Alaska 1999).

     22    French, 911 P.2d at 25.

     23    Id.

     24    Id.

     25    Kinzel, 93 P.3d at 433 (emphasis added).

     26    French, 911 P.2d at 25.

     27    Era Aviation, 17 P.3d at 44.

     28    Kinzel, 93 P.3d at 434.

     29     Id.  at 435 (quoting Ostrowski v. Atlantic Mut.  Ins.
Cos., 968 F.2d 171, 182-83 (2d Cir. 1992) (citation omitted)).

     30    Id.

     31    Id.

1     See  K  &  K  Recycling, Inc. v. Alaska Gold Co.,  80  P.3d
702,  711  (Alaska  2003); R.E. v. State,  878  P.2d  1341,  1345
(Alaska 1994).

     2    Slip Op. at 10.

3    Slip Op. at 11.

     4    Slip Op. at 11.

     5    911 P.2d 20 (Alaska 1996).

     6     See  id.  at  27,  29  & n.16 (noting  that  plaintiff
produced  no  evidence  of  any statement  or  action  reasonably
permitting  an  inference  that  her  employment  was   in   fact
conditioned on dating her supervisors brother to support her quid
pro  quo harassment claim and observing that plaintiff could  not
point  to  any  specific  events  to  support  her  hostile  work
environment claim).

     7    See Cabana v. Kenai Peninsula Borough, 50 P.3d 798, 801
(Alaska  2002) (The court does not weigh the evidence or  witness
credibility  on summary judgment.); Alakayak v. British  Columbia
Packers, Ltd., 48 P.3d 432, 449 (Alaska 2002) (same); Moffatt  v.
Brown,  751  P.2d  939,  944  (Alaska  1988)  (rejecting  summary
judgment  standard for defamation used by federal courts  because
it  incorporated  a substantive evidentiary standard,  inevitably
implicat[ing]  a  weighing of the evidence)  (internal  citations
omitted).

8     Hammond  v.  State,  Dept  of Transp.  &  Pub.  Facilities,
107  P.3d 871, 881 (Alaska 2005) (quoting Johns Heating Serv.  v.
Lamb, 46 P.3d 1024, 1032 (Alaska 2002)).

     9    Cikan v. ARCO Alaska, Inc., 125 P.3d 335 (Alaska 2005).

     10   Id.

     11    Id.  at  5  n.8  (citing AS 09.10.070 (providing  that
lawsuits  based  on statutory causes of action  must  be  brought
within two years)).

     12   Id. at 16 (Fabe, J., dissenting).

     13   Id.

     14   Id.

     15   994 P.2d 365 (Alaska 1999) .

     16   Id. at 368.

     17   Id. at 369 (Fabe, J., dissenting).

     18    Ann  C.  McGinley, Credulous Courts and  the  Tortured
Trilogy:  The Improper Use of Summary Judgment in Title  VII  and
ADEA Cases, 34 B.C. L. Rev. 203, 208 (1993).

19    See,  e.g.,  M. Isabel Medina, A Matter of  Fact:   Hostile
Environments and Summary Judgments, 8 S. Cal. Rev.  L.  &  Womens
Stud.  311, 357-71 (1999) (arguing that the practice of  deciding
certain   factual  questions,  such  as  whether  the   plaintiff
experienced  a hostile work environment, at the summary  judgment
stage  makes it unnecessarily difficult for plaintiffs  to  bring
sexual harassment claims); Ann C. McGinley, supra note 18, at 241-
42 (noting that many courts approaching a summary judgment motion
in  a  civil rights case . . . require a plaintiff to prove  that
[he or] she was discriminated against, which effectively shift[s]
the  burden  of proof on a motion for summary judgment  from  the
moving  party  to the plaintiff, and require[s] the plaintiff  to
meet the ultimate burden of proof at the summary judgment stage);
see  also  Jana E. Cuellar, The Age Discrimination in  Employment
Act:  Handling the Element of Intent in Summary Judgment Motions,
38 Emory L. J. 523, 532-37 (1989) (noting similar problems in the
context of age discrimination actions).

     20   Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1249 (Alaska
2001);  see  also Reich v. Cominco Alaska, Inc., 56 P.3d  18,  26
(Alaska 2002).

     21   Sengupta, 21 P.3d at 1249; Slip Op. at 7-8.

     22   Sengupta, 21 P.3d at 1249.

     23   Id.

     24   Id.

     25    The  United States Supreme Court has held that certain
discriminatory acts, including termination, failure  to  promote,
denial  of transfer, or refusal to hire are [d]iscrete acts,  and
that  an  untimely  claim for a discrete act  cannot  be  revived
through  the  doctrine of continuing violations.  See  Natl  R.R.
Passenger  Corp. v. Morgan, 536 U.S. 101, 114-15 (2002)  (holding
that  discrete discriminatory acts are not actionable under Title
VII  if  the  statute of limitations for these acts has  expired,
even if they are related to other acts that are the subject of  a
timely  claim).  But Morgan did not hold that other claims cannot
be  revived  by  a discrete discriminatory act,  and  Morgan  did
conclude  that  the  continuing violations  doctrine  applies  to
hostile  environment claims.  See id. at 115-16.  To  the  extent
that  Mahan  alleges a series of incidents that, taken  together,
create  a  hostile  work  environment,  the  assertion  that  the
discrete  act of her termination revived the original claim  does
not appear to be inconsistent with the holding of Morgan.

          Furthermore, at least one state court has  declined  to
adopt  the  reasoning  of Morgan even as it applies  to  reviving
discrete acts.  See Yanowitz v. LOreal USA, Inc., 116 P.3d  1123,
1141-42  (Cal.  2005)  (holding that  the  continuing  violations
doctrine can revive acts that are part of a retaliatory course of
conduct,  even  if such acts could not be revived  under  federal
law).

     26    See  Reich,  56 P.3d at 26 (The continuing  violations
doctrine  allows  a  plaintiff to establish  the  elements  of  a
hostile  work  environment  claim by relying  on  incidents  that
predate  the statutory limitations period to prove that a hostile
environment continued into the limitations period.).

     27   Sengupta, 21 P.3d at 1249.

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