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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sengupta v. University of Alaska (07/21/2006) sp-6026

Sengupta v. University of Alaska (07/21/2006) sp-6026, 139 P3d 572

     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


MRITUNJOY SENGUPTA, )
) Supreme Court No. S- 11805
Appellant, )
) Superior Court No. 4FA-03-889 CI
v. )
) O P I N I O N
UNIVERSITY OF ALASKA, )
UNIVERSITY OF ALASKA ) No. 6026 - July 21, 2006
FAIRBANKS, MARSHALL LIND, )
PAUL REICHARDT, and JAMES )
PARRISH, both individually and as )
employees of the University of )
Alaska Fairbanks, and the University )
of Alaska, )
)
Appellees. )
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Mark I. Wood, Judge.

          Appearances: Mritunjoy Sengupta, pro se, Mill
          Creek,  Washington.  Mark E. Ashburn, Ashburn
          & Mason, P.C., Anchorage, for Appellees.

          Before:    Bryner,  Chief Justice,  Eastaugh,
          Fabe,  and  Carpeneti,  Justices.  [Matthews,
          Justice, not participating.]

          EASTAUGH, Justice.

I.   INTRODUCTION
          Plaintiff  Mritunjoy Sengupta was terminated for  cause
by  the  University  of Alaska Fairbanks in  1995.   In  2002  he
unsuccessfully sought reemployment with the university.  Sengupta
then  sued  the university and related parties (collectively  the
university or UAF) for refusing to rehire him.  He contended that
UAF  could  not  base its refusal to rehire him on  his  previous
termination  because that termination was improper  for   various
reasons.   Sengupta also claimed that UAFs refusal to rehire  him
violated the First Amendment, Title VII of the Civil Rights  Act,
the Alaska Administrative Procedure Act, and university policies.
The  superior  court rejected all of Senguptas  claims.   Because
Sengupta  has  failed  to  show that:  (1)  retaliation  for  his
protected  speech  was  a substantial motivating  factor  in  the
universitys   refusal  to  rehire  him,  (2)  he  exhausted   his
administrative remedies under Title VII, (3) proper grounds exist
for reopening his previous lawsuit against UAF, or (4) his rights
were  otherwise  violated, we affirm the ruling of  the  superior
court in all respects.
II.  FACTS AND PROCEEDINGS
          On  December  14, 2002 Sengupta sent to UAF  Chancellor
Marshall  Lind  a  cover  letter  and  resume  applying   for   a
professorship  at UAFs School of Mineral Engineering  (SME).   On
January 23, 2003 UAF Provost Paul Reichardt sent this response to
Sengupta:
          Your employment as a faculty member with  the
          University of Alaska Fairbanks was terminated
          for  cause  in 1995 under circumstances  that
          make  you  ineligible for  future  employment
          with  the  University.  Should you choose  to
          apply  for a position, your application  will
          not be considered.
          
          This  refusal  to  rehire  is the  putative  basis  for
Senguptas current lawsuit. But it is also the latest chapter in a
long adversarial relationship between these parties.  In 1992 and
1993  Sengupta,  then a tenured professor at  UAFs  SME,  brought
three  grievances  against  UAF regarding  his  salary  and  UAFs
failure  to  promote him.1  His grievances were heard by  Hearing
Officer  James  Parrish  in  1994.  In ruling  against  Sengupta,
Hearing  Officer Parrish found that Sengupta had  repeatedly  and
purposefully  been  untruthful during the  grievance  proceeding,
that  he  had  submitted false documents to the hearing  officer,
that  he  had made untruthful statements both within and  without
UAF  that were often designed to degrade his colleagues, and that
he had plagiarized a colleagues work.
          In  September  1994,  about two  months  after  Hearing
Officer  Parrish resolved Senguptas grievances against  him,  UAF
gave  Sengupta  a  notice of its intention to discharge  him  for
cause.   UAF  cited the findings in the grievance  proceeding  as
the grounds for termination.  At Senguptas ensuing pretermination
hearing,  Hearing Officer Julian Rice determined that  collateral
estoppel prevented Sengupta from challenging the findings entered
in  the grievance proceeding and that those findings demonstrated
          cause for termination.  The university accepted nearly all of
Hearing Officer Rices findings and terminated Sengupta for  cause
in  1995.  After exhausting his administrative remedies, Sengupta
appealed  to the superior court.2  In August 1996 Superior  Court
Judge  Jay  Hodges affirmed the universitys termination decision.
We dismissed Senguptas subsequent appeal as untimely.3
          In early 1997 Sengupta sued UAF in superior court.4  He
alleged  that UAF violated his First Amendment rights  by  firing
him for statements he made while he was a UAF employee.5  He also
alleged  that UAF terminated him because of his race and national
origin.6  The superior court granted summary judgment to  UAF  on
all  of  Senguptas claims.7 On appeal, we affirmed  the  superior
courts decision.8
          Sengupta filed the present lawsuit against UAF in April
2003.   He  alleged  that  UAFs refusal to  rehire  him  in  2003
violated   the   First   Amendment,  the   UAF   Faculty   Senate
Constitution,  the Regents Policy on Evaluation of  Faculty,  the
Regents Grievance Policy, and the Alaska Administrative Procedure
Act.   He  also  alleged  that  UAFs  denial  of  employment  was
substantially unfair.
          In  August 2003 the superior court judge first assigned
to  the case recused herself and the case was reassigned to Judge
Mark  I.  Wood.  Sengupta moved for Judge Woods recusal,  arguing
that   the   judge   had   a  conflict  of  interest.    Sengupta
simultaneously  filed  a  separate document  entitled  Plaintiffs
Challenge  on  the  Assignment of  Judge  Mark  [I.]  Wood.   The
superior  court  denied  Senguptas recusal  motion  but  did  not
specifically address Senguptas separate Challenge.
          In  April  2004 the superior court granted UAFs  motion
for  summary  judgment  on all claims.  The  court  also  granted
Senguptas motion to file a third amended complaint.
          Senguptas third amended complaint asserted a Title  VII
Civil  Rights Act claim, alleging that UAF refused to rehire  him
because  of  his race and national origin. UAF moved for  summary
judgment.  On January 10, 2005 the superior court granted summary
judgment  to  UAF on this claim.  On the same day,  the  superior
court  denied  Senguptas motion to reopen his 1997 discrimination
suit.
          Sengupta  now  appeals  the  superior  courts   summary
judgment  decisions, its denial of his motion to reopen his  1997
case,  and its apparent failure to rule on his challenge  to  the
assignment  of  Judge  Wood.   He  also  argues  that  his   1995
termination case should be reopened.
III. DISCUSSION
     A.    Sengupta  Failed  To Demonstrate the  Existence  of  a
Genuine  Issue  of          Material Fact Regarding  Whether  UAF
Violated His First Amendment       Rights.

          Sengupta  argues  that  the  superior  court  erred  by
granting  summary  judgment  to  the  university  on  his   First
Amendment claim.  Sengupta contended in his 1997 lawsuit that UAF
fired  him in retaliation for statements he made criticizing  SME
during his tenure as a professor.9  In the present case, Sengupta
again  argues  that  UAF  fired  him  in  retaliation  for  these
          statements.  He reasons that because the 1995 firing violated his
constitutional rights, UAF may not rely on it to refuse  him  new
employment. Sengupta also appears to allege separately that  UAFs
2003  refusal  to  rehire  him  was  directly  motivated  by  his
criticisms of the school.  UAF responds that Sengupta has  failed
to  establish  a prima facie case of First Amendment  retaliation
and  that his arguments are barred by res judicata and collateral
estoppel.
          Summary  judgment is appropriate if there is no genuine
issue  as  to  any  material fact and the party to  whom  summary
judgment was granted is entitled to judgment as a matter of law.10
All  reasonable inferences of fact must be drawn in favor of  the
non-prevailing  party  (generally the non-movant).11   We  review
grants of summary judgment de novo.12
          The  First  Amendment prohibits public  employers  from
retaliating  against  employees  or  prospective  employees   for
engaging  in  constitutionally  protected  expression.13   Public
employees  who  suffer such retaliation may sue under  42  U.S.C.
  1983.14   To  establish a prima facie case of  First  Amendment
retaliation, a plaintiff must produce evidence showing:
          (1) he was subjected to an adverse employment
          action,  . . . (2) he engaged in speech  that
          was  constitutionally  protected  because  it
          touched on a matter of public concern and (3)
          the  protected  expression was a  substantial
          motivating factor for the adverse action.[15]
          
Sengupta  cannot establish a prima facie case that UAF retaliated
against him in 2003 simply by attacking his 1995 termination.  To
prevail  on  his First Amendment claim, Sengupta must demonstrate
that  the  adverse employment action at issue  in this case,  the
universitys refusal to rehire him  was substantially motivated by
his  criticisms of the university.16  Sengupta cannot  meet  this
requirement by demonstrating that UAF officials innocently relied
upon  the  outcome  of a prior adjudication,  even  if  he  could
demonstrate  that his First Amendment rights were  not  protected
during  the prior proceeding. Sengupta must present some evidence
that the officials who declined to rehire him in 2003 did so  not
because he was terminated for cause in 1995, but because  of  the
statements  he  made  criticizing the  university  prior  to  his
termination.
          Although it is true that [g]enerally, a plaintiff  need
only  offer very little direct evidence of motivation to  survive
summary judgment,17 Senguptas proffered evidence did not meet even
this  limited burden.18  Affidavits by UAF Provost Paul Reichardt
and  Chancellor  Marshall Lind stated that Senguptas  application
was  rejected because of his previous termination and denied that
his   application   was  rejected  because  of  Senguptas   prior
statements  on  public  issues.  Reichardt  and  Lind  also  both
asserted in their affidavits that they were not serving in  their
current  positions when Sengupta was terminated  in  1995.   UAFs
human  resources  director  also  stated  in  an  affidavit  that
Sengupta  was  ineligible for rehire because UAF  had  adopted  a
policy  in  1997 of screening out job applicants  who  have  been
          previously terminated for cause.
          Sengupta  has presented no evidence that  UAF  has  not
uniformly  applied the no-rehire policy.19  His  contention  that
this policy is not contained in UAFs faculty appointment policies
ignores  the fact that those policies vest the appointment  power
in   the  chancellor  and  his  designees.20  Sengupta  has   not
identified, nor have we discovered, any provision in UAFs faculty
appointment  policies, the Regents Policy,  or  other  university
policy  that  prevents the chancellor from adopting  a  no-rehire
policy.
          Sengupta relies on a memorandum by a member of  the  Ad
Hoc  Regents Committee on the School of Mineral Engineering  (the
Regents  report)  written  shortly  after  his  termination.   He
characterizes  the  report  as  vindicating  his  concerns  about
academic  problems and other management problems.  The three-page
memorandum  is  critical  of SME in several  respects,  including
enrollment,  retention, and what it terms the  facultys  woefully
low research efforts.  Sengupta argues that the report permits an
inference that UAF fired him to cover up its failures.  (Emphasis
omitted.) But even if the report relied on by Sengputa  raised  a
factual question regarding UAFs motives for firing him in 1995,21
it  would  not give rise to a further permissible inference  that
different  UAF officials retaliated against Sengupta in  2003  by
refusing  to  rehire  him more than seven years  after  the  1995
report allegedly vindicated his pre-1995 criticisms.
          Sengupta  also argues that his qualifications  and  the
awards  he  received while employed by the university demonstrate
that  he  deserves appointment to SME. But UAF does not base  its
refusal  to  rehire  Sengupta on his lack of  qualifications;  it
argues  instead  that Sengupta was found to have been  dishonest,
unprofessional, and disruptive.  These were also grounds for  his
1995 termination.  Hence, Senguptas qualifications and awards are
not relevant to whether UAF retaliated against him by refusing to
rehire him.
          Because  none  of  the  evidence  offered  by  Sengupta
reasonably permits an inference that UAFs 2003 application of its
no-rehire  policy was substantially motivated by  the  criticisms
Sengupta  expressed a decade earlier, the superior court properly
granted summary judgment to UAF on this claim.22
     B.    Sengupta  Failed  To Demonstrate the  Existence  of  a
Genuine  Issue  of          Material Fact Regarding  Whether  UAF
Violated Its Own Policies.

          Sengupta  claims  that  the  superior  court  erred  in
granting  summary  judgment against him on  his  claim  that  UAF
refused to rehire him because he filed grievances against UAF  in
1992 and 1993 seeking higher pay and a promotion.  Regents Policy
04.08.040  prohibits  the university from retaliating  against  a
grievant  for  good  faith  participation  in  the  dispute   and
grievance  resolution process.  Sengupta offers no  evidence  for
this   argument  beyond  UAFs  admitted  reliance  on  his   1995
termination to deny him reemployment in 2003.  As with  Senguptas
First  Amendment  claim,  to  avoid summary  judgment  after  the
university  makes a prima facie showing that its 2003 action  was
          not in retaliation for filing the 1992 and 1993 grievances,
Sengupta  must  offer  at least some evidence  of  a  retaliatory
motive on the part of the UAF officials who failed to rehire him.23
He has not done so.
          Sengupta  also argues that UAF violated Regents  Policy
04.04.040(A)(4)   because his 2002 application  did  not  receive
peer  review.   But this provision does not require peer  review,
either  by  express  command  or  through  its  requirement  that
appointments be made in accordance with Regents Policy and policy
and  procedures approved for each university.24  Furthermore,  it
appears  that  no  provisions in the UAF Faculty Appointment  and
Evaluation Policies, the Faculty Collective Bargaining Agreement,
or  the  UAF  Faculty  Constitution require peer  review  of  the
chancellors   appointment  decisions.   Sengupta  identifies   no
specific  provisions  that  contain  a  peer  review  requirement
pertinent to his rehire application.
          Sengupta   also  argues  that  UAF  cannot   deny   him
employment   on  the  basis  of  his  termination   because   the
appointment  policies  do  not have  any  provision  to  consider
circumstances  of termination eight years ago (in  1995)  as  the
exclusive  basis  or  even  as  a  criteri[on]  to  deny  a   new
appointment  to  the position as a Professor.   But  because  the
policies  provide  no substantive criteria for appointments,  the
lack  of  any  specific  policy  dealing  with  the  rehiring  of
terminated  employees  cannot  be  interpreted  as  limiting  the
chancellors  discretion to refuse to rehire on the basis  of  the
prior termination.
     C.     UAF   Was   Not   Required  To  Consider   Mitigating
Circumstances in         Refusing To Rehire Sengupta.

          Sengupta argues that UAF could not refuse to rehire him
without  considering mitigating circumstances in his termination.
He  cites  a  federal appeals court decision  that  required  the
district  court  to  consider mitigating factors  in  determining
whether a university had cause to terminate a tenured professor.25
But  because  UAF  was not required, either by  law  or  its  own
policies,  to demonstrate cause for refusing to rehire  Sengupta,
the federal case is inapposite.
     D.    Sengupta Failed To Exhaust His Administrative Remedies
Before         Bringing His Title VII Discrimination Claim.

          Sengupta argues that UAF failed to present evidence  at
summary  judgment  that its failure to rehire  Sengupta  was  not
based  on  race.  We need not reach the merits of  this  argument
because  Sengupta  failed to exhaust his administrative  remedies
with the Equal Employment Opportunity Commission (EEOC).
          Claimants under Title VII generally may not bring civil
actions  unless  they  have first filed a charge  with  the  EEOC
within  180  days of the alleged discrimination.26  If  the  EEOC
either finds against the claimant or takes no action, it issues a
right  to  sue  letter,  permitting the claimant  to  bring  suit
against the defendant.27
          Sengupta  had filed complaints with the EEOC before  he
began his 1997 lawsuit and had received right to sue letters from
          the EEOC in response.  Sengupta explains that he did not file a
complaint with the EEOC before filing the current lawsuit because
it  would  [have  been] futile to file another  charge  with  the
[EEOC]  on  the  same facts.  Sengupta was sure that  the  [EEOC]
would issue him a fourth Right[] to Sue [letter] if he would have
filed  another  complaint  with the  [EEOC].   Sengupta  alleges,
without  evidentiary support, that the EEOC  told  him  after  he
filed  his  earlier complaints that it was unable to  investigate
Senguptas charges due to lack of staff and resources.
          Senguptas futility argument is unpersuasive.   Although
courts have split on whether a showing of futility excuses  Title
VIIs  exhaustion  requirement,28 we need not  decide  that  legal
question   here  because  Sengupta  has  failed  to   demonstrate
futility.  Sengupta would infer from an alleged conversation with
the  EEOC  in 1997 that the EEOC in 2003 lacked the resources  to
investigate  his  2003  claim.  Such an inference  would  be  too
tenuous  and  speculative to satisfy any futility exception  that
may exist in Title VII.29
     E.    Sengupta  Cannot  Reopen  the  Judgment  in  His  1995
Termination         Proceeding.

          Although  Sengupta initially emphasizes on appeal  that
he  is  challenging UAFs refusal to rehire him in 2003,  he  uses
much  of his opening brief to argue that the judgment in the 1995
termination  proceedings  should  be  reopened  because  he   has
discovered new evidence.
          Per  Alaska Civil Rule 60(b), a motion for relief  from
judgment on the basis of newly discovered evidence or fraud  must
be  made not more than one year after the date of notice  of  the
judgment.  Judge Hodges issued his decision in the pretermination
case  in  1996.   It is now too late for Sengupta to  reopen  the
termination proceeding on the basis of new evidence.30
          Furthermore,  the new evidence Sengupta  cites  is  not
relevant  to his 1995 termination.  Sengupta spends much  of  his
brief  discussing  the  Regents  report.   He  interprets  it  as
vindicating his criticisms of SME, establishing the sole  grounds
upon  which a tenured professor could be terminated, establishing
the  incompetence of his former colleagues, and establishing  the
trustworthiness of student evaluations of his teaching.
          On each of these counts Senguptas reading of the report
is untenable.  The report discusses some enrollment and retention
problems  and  criticizes  the faculty  for  lackluster  research
efforts,  but  it  does not support any of Senguptas  contentions
regarding his 1995 termination.
          Other  new  evidence cited by Sengupta as a  basis  for
reopening his termination case, including a Department  of  Labor
report,  an  investigative report by UAF concerning an  associate
general  counsel, and a civil complaint by the associate  general
counsel   against  Senguptas  first  hearing  officer,  is   also
irrelevant  to  the  termination proceeding. Senguptas  remaining
arguments  for  reopening  his pretermination  hearing  are  both
unpersuasive and untimely.31
     F.    The  Superior  Court Did Not Err in Denying  Senguptas
Motion         To Reopen His 1997 Discrimination Case.

          The  superior court in 2005 summarily denied  Senguptas
motion  to  reopen  his  1997  civil  rights  case  against  UAF.
Sengupta argues that the Regents report demonstrates that he  was
treated  differently than Caucasian and Chinese  faculty  members
because  he  was  fired and they were not.  Senguptas  motion  to
reopen  the judgment resolving his previous lawsuit is barred  by
the  one-year  time  limit  for  reopening  judgments  for  newly
discovered   evidence.32    Furthermore,   Sengupta   incorrectly
interprets  the  Regents  report as requiring  that  all  faculty
members   be  fired  for  poor  research  efforts.   The   report
recommends  a prospective policy of termination for low  research
output,  not  a  retroactive  one.   Senguptas  new  evidence  is
therefore also irrelevant.
     G.    Sengupta  Failed To Timely Raise the  Superior  Courts
Failure To Rule          on His Peremptory Challenge.

          On  September  17, 2003 Sengupta filed in the  superior
court  a document entitled Plaintiffs Challenge on the Assignment
of  Judge Mark [I.] Wood.  The document simply reads, in relevant
part, Plaintiff challenges [the] assignment [of] Judge Mark  [I.]
Wood.  On the same day Sengupta also filed a motion seeking Judge
Woods  recusal on the basis of an alleged conflict  of  interest.
Judge  Wood denied that motion, but did not specifically  address
Senguptas  Challenge.  Sengupta argues that the Challenge  was  a
peremptory challenge under Alaska Civil Rule 42(c) and  that  his
Challenge required Judge Wood to recuse himself under that rule.
          Alaska   Civil  Rule  42(c)  allows  each   party   one
peremptory challenge of the assigned judge.33  Although Senguptas
Challenge  was not entitled Notice of Change of Judge, as  Alaska
Civil  Rule  42(c)(1) requires, we hold that, under  our  lenient
approach  to  filings by pro se litigants,34 Senguptas  Challenge
sufficiently conformed to the requirements of Alaska  Civil  Rule
42(c).
          But  given Senguptas failure to follow the requirements
of  Rule 42(c), it is not surprising that the superior court  did
not  recognize the document as a separate  peremptory  challenge,
particularly  because it was filed simultaneously with  Senguptas
motion papers seeking Judge Woods recusal for cause.  Upon  entry
of  Judge  Woods  next ruling in the case, the October  14,  2003
denial  of  Senguptas  motion for recusal  for  cause,  plaintiff
should  have realized that the court had not recognized that  his
companion  document was really a Rule 42(c) notice of  change  of
judge.   The entry of the order denying the recusal motion  would
have  been  unnecessary  had the judge  seen  and  acted  on  the
separate Challenge document.
          But  Sengupta did not raise the issue of the unresolved
Challenge at the time of that ruling, or, as far as we  can  tell
from  the  record,  at any other time during the  superior  court
proceedings in the ensuing months.  Regarding pre-trial  motions,
we  have  held  that [t]o preserve a claim based  on  a  superior
courts  failure  to  rule on a motion, a party  must  make  every
effort to request and obtain a ruling before proceeding to trial.35
Allowing  a litigant to wait until after entry of final  judgment
to  inform  a  court  that  there is  an  unresolved  Rule  42(c)
          peremptory challenge would invite abuse, providing litigants with
the  ability to avoid unfavorable judgments and relitigate  their
cases before different judges.  We therefore hold that even a pro
se  litigant  must  make  an effort  to  obtain  a  ruling  on  a
peremptory  challenge once it becomes apparent that the  assigned
judge  is  continuing to preside over the case.  Because Sengupta
made  no  effort to obtain such a ruling after Judge Wood entered
the  October  14, 2003 order, he did not preserve the  issue  for
appeal.
     H.    The  Provost  Was  Authorized To  Deny  Employment  to
Sengupta.
          Finally,  Sengupta argues that the UAF provost  is  not
authorized  to  review  the circumstances  of  termination  of  a
tenured  Professor.  Senguptas contention is without merit.   UAF
vests  the  power  of  appointment  in  the  chancellor  or   the
chancellors  designee.   No  university  policy  or  other  legal
principle  prevents the provost from serving as  the  chancellors
designee merely because the applicant was previously involved  in
a contentious termination for cause.  In rejecting Senguptas 2003
rehire  application, the provost, like every  other  official  at
UAF,  was  entitled  to rely on the finality of  the  termination
proceeding  and  therefore  to  assume  that  the  legal   issues
surrounding Senguptas termination had long-since been resolved in
favor of UAF.
IV.  CONCLUSION
          We therefore AFFIRM the judgment below.
_______________________________
     1    Sengupta v. Univ. of Alaska (Sengupta I), 21 P.3d 1240,
124546 (Alaska 2001).

     2    Id. at 124647.

     3      Id.   at  1247.   Sengupta  subsequently  brought   a
malpractice  suit  against his attorney for  failing  to  file  a
timely appeal.  We recently affirmed the superior courts grant of
summary  judgment  against Sengupta in that  case.   Sengupta  v.
Wickwire, 124 P.3d 748, 755 (Alaska 2005).

     4    Sengupta I, 21 P.3d at 1247.

     5    Id. at 1252.

     6    Id. at 1247.

     7    Id. at 124748.

     8    Id. at 1263.

     9    Id. at 1252.  These statements included the contents of
a  letter  he  sent to a state representative and copied  to  the
governor,  criticizing the qualifications of his colleagues,  his
accusation that a colleague secretly interfered with his  attempt
to  purchase  software for the school, and his testimony  at  the
grievance  proceeding concerning an anonymous videotape allegedly
showing  his  colleagues neglecting their duties at a  Las  Vegas
convention.  Id.

     10    Alaska R. Civ. P. 56(c).

     11    Rockstad v. Erikson, 113 P.3d 1215, 1219 (Alaska 2005);
Kaiser v. Umialik Ins., 108 P.3d 876, 879 (Alaska 2005).

     12    Kaiser, 108 P.3d at 879.

     13     See Sanchez v. City of Santa Ana, 936 F.2d 1027, 1038
(9th  Cir. 1991) (as amended on Denial of Rehearing and Rehearing
En  Banc).   But cf. Garcetti v. Ceballos, 126 S. Ct. 1951,  1960
(2006) (holding that statements made by public employees pursuant
to their official duties are not constitutionally protected).

     14    See id. at 1037.

     15    Ulrich v. City & County of San Francisco, 308 F.3d 968,
976 (9th Cir. 2002).

     16    See Ulrich, 308 F.3d at 976.

     17    Id. at 980.

     18     Senguptas failure may result from his apparent belief
that  we  held  in Sengupta I that he had proved First  Amendment
retaliation  by  UAF.  In fact, we held only that Sengupta  would
have  been  entitled to raise a First Amendment  defense  in  the
pretermination  hearing.   Sengupta  I,  21  P.3d  at  1252.   We
expressed no opinion about whether such a defense would have been
successful.

     19     Cf. Raytheon Co. v. Hernandez, 540 U.S. 44, 55 (2003)
(holding  that,  in disability discrimination case,  if  employer
applied  a  neutral,  generally applicable no-rehire  policy,  to
employee  terminated for cause, employers decision not to  rehire
[former  employee] can, in no way, be said to have been motivated
by [former employees] disability).

     20     The  UAF Faculty Appointment and Evaluation  Policies
state that [a]ll appointments shall be made by the chancellor  or
the  chancellors designee in accordance with [Board  of  Regents]
Policy  and policy and procedures approved for the University  of
Alaska  Fairbanks.   The  Regents Policy  uses  almost  identical
language.

     21      Because  Senguptas  pretermination  expressions   of
criticism   of   the   school  related  to  the   integrity   and
qualifications  of faculty members  issues not mentioned  in  the
report    we   doubt  that  such  an  inference   is   reasonably
permissible.

     22     Because we affirm on the basis of UAFs argument  that
Sengputa  did not establish a prima facie case of First Amendment
retaliation, we need not consider UAFs contention that collateral
estoppel and res judicata bar Sengputas claim.

     23     Provost Reichardt and Chancellor Lind both stated  in
their  affidavits that Sengupta was refused reemployment  because
of his previous termination for cause and  not because of his use
of the grievance process.

     24    Regents Policy 04.04.040(A)(4) states:

          Method   of  appointment.   All  appointments
          shall  be  made  by  the  Chancellor  or  the
          Chancellors   designee  in  accordance   with
          Regents  Policy  and  policy  and  procedures
          approved for each university.
          
     25     McConnell v. Howard Univ., 818 F.2d 58, 64 (D.C. Cir.
1987).

     26    42 U.S.C.  2000e-5(e)(f) (2000).

     27    Greenlaw v. Garrett, 59 F.3d 994, 999 (9th Cir. 1995).

     28     See Lilly v. Harris-Teeter Supermarket, 720 F.2d 326,
335  (4th Cir. 1983) (holding that futility exception applied  to
interveners when EEOC had already denied almost identical  claims
by  plaintiffs in same lawsuit who were injured by  same  alleged
conduct);  Murphy v. West, 945 F. Supp. 874, 876  (D.  Md.  1996)
(holding that plaintiffs assertion of futility exception in Title
VII  was extraordinary proposition that must be rejected  out  of
hand);  Bachman  v.  Collier, 73 F.R.D. 300,  303  (D.D.C.  1976)
(stating in dictum in Title VII case that [t]his Court would  not
require exhaustion if it concluded that said exhaustion would  be
no more than a futile act); DeFigueiredo v. Trans World Airlines,
Inc.,  322  F.  Supp. 1384, 138586 (S.D.N.Y. 1971) (holding  that
exhaustion would be futile in class action when another member of
class   had   already  filed  complaint  with  EEOC   over   same
discriminatory practices).

     29     Sengupta  also  argues that Regents Policy  04.02.010
prohibits  discrimination by the university and does not  require
claimants  to file a complaint with the EEOC.  Because exhaustion
is  a  federal statutory requirement, it is irrelevant  that  the
Regents  Policy does not require claimants to exhaust their  EEOC
remedies.

     30     Rather  than rely on Alaska Civil Rule  60,  Sengupta
contends  that  his  termination proceedings should  be  reopened
because  he  was denied a full and fair opportunity to  litigate.
We  have held the lack of a full and fair opportunity to litigate
may  prevent a judgment from being given preclusive effect  under
the  doctrine of res judicata.  Sengupta I, 21 P.3d at 1257.  But
Sengupta  is not seeking here to avoid preclusion of his  claims;
he  is  seeking to reopen the past judgment that made  final  his
termination  for  cause and that therefore, as a  matter  of  UAF
policy, made him ineligible for rehire.  He may not do so without
satisfying Alaska Civil Rule 60.

     31     A  number of Senguptas additional arguments  why  his
termination  case should be reopened first appear  in  his  reply
brief.   We deem arguments raised for the first time in  a  reply
brief  to  have  been waived.  See Simpson v.  State,  Commercial
Fisheries Entry Commn, 101 P.3d 605, 611 (Alaska 2004).

     32    See Alaska R. Civ. P. 60(b).

     33    Alaska Civil Rule 42(c) states in relevant part:

          (c)   Change of Judge as a Matter  of  Right.
          In all courts of the state, a judge or master
          may be peremptorily challenged as follows:
               (1)   Nature  of  Proceedings.   In   an
          action  pending in the Superior  or  District
          Courts, each side is entitled as a matter  of
          right  to  a change of one judge and  of  one
          master.  Two or more parties aligned  on  the
          same  side  of  an  action,  whether  or  not
          consolidated, shall be treated  as  one  side
          for  purposes  of the right to  a  change  of
          judge,  but the presiding judge may allow  an
          additional  change of judge to a party  whose
          interests  in  the  action  are  hostile   or
          adverse to the interests of another party  on
          the  same  side.  A party wishing to exercise
          the  right  to change of judge shall  file  a
          pleading entitled Notice of Change of  Judge.
          The  notice may be signed by an attorney,  it
          shall  state  the  name of the  judge  to  be
          changed, and it shall neither specify grounds
          nor be accompanied by an affidavit.
          
     34     See Kaiser v. Sakata, 40 P.3d 800, 803 (Alaska  2002)
([T]he  pleadings of pro se litigants [should be  held]  to  less
stringent  standards  than those of lawyers,  particularly  where
lack  of familiarity with the rules rather than gross neglect  or
lack of good faith underlies litigants errors.).

     35    Taylor v. Johnston, 985 P.2d 460, 467 (Alaska 1999).

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