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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Perkins v. Doyon Universal Services, LLC (12/22/2006) sp-6085
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
| WILLIAM LEE PERKINS, | ) |
| ) Supreme Court No. S- 11920 | |
| Appellant, | ) |
| v. | ) Superior Court No. 3AN-04-03698 CI |
| ) | |
| DOYON UNIVERSAL SERVICES, | ) O P I N I O N |
| LLC, | ) |
| ) No. 6085 - December 22, 2006 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Mark Rindner, Judge.
Appearances: William Perkins, pro se,
Anchorage. William F. Mede and Norman P.
Resnick, Turner & Mede, P.C., Anchorage for
Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
William Perkins was a minority applicant for two
employment positions, animal enforcement officer and kennel
technician, at Doyon Universal Services, LLC. He sued Doyon,
claiming racial discrimination, when it filled at least one of
the positions with a non-minority applicant. Because the record
demonstrates that Doyon had legitimate reasons for preferring the
two successful applicants and because Perkins raised no genuine
issue of material fact, we hold that the superior court did not
err in granting summary judgment to Doyon.
II. FACTS AND PROCEEDINGS
Doyon Universal Services operates an animal care center
for the Municipality of Anchorage. In October 2001 William
Perkins applied for employment at the center in two different
positions, animal enforcement officer and kennel technician. The
application form contained an optional section requesting the
applicants ethnic group; Perkins checked the box entitled Black.
Perkins was not interviewed for either position. Doyon
hired an internal candidate for the animal enforcement officer
position. It hired a non-minority candidate with prior kennel
experience for the kennel technician position.
Perkins filed a complaint with the Alaska State
Commission for Human Rights, claiming Doyon had discriminated
against him on the basis of race when it failed to hire him for
either position. In October 2003 the commission issued a
determination in which it concluded that there was substantial
evidence to support Perkinss allegation that Doyon discriminated
against him based on his race when it failed to hire him for an
available kennel technician position. The commission therefore
proposed conciliation. (The commission appears to have concluded
that no substantial evidence supported a discrimination claim as
to the animal enforcement officer position.) Conciliation
attempts were apparently unsuccessful. In January 2004 Perkins
sued Doyon in the superior court, alleging discrimination. After
Perkins filed suit, the commission issued an order holding its
case in abeyance.
Doyon moved for complete summary judgment. Doyons
motion papers argued that the animal enforcement officer position
had been filled internally and thus was not at issue in this
case. As to the kennel technician position, Doyon claimed that
it was entitled to summary judgment because Perkinss
qualifications were not clearly superior to the qualifications of
the applicant selected for the job, and other, non-minority
candidates with qualifications similar to those of Perkins were
not interviewed or hired. In response, Perkins filed a one
paragraph unsworn document entitled Remarks About Deposition that
mostly discussed collateral issues. He did not contend that his
claim concerned the animal enforcement officer position. By
order signed March 17, 2005, the superior court granted summary
judgment to Doyon on all of Perkinss claims. The court entered
final judgment for Doyon in April 2005.
Perkins appeals.
III. DISCUSSION
A. Standard of Review
We review grants of summary judgment de novo to
determine whether a genuine issue of material fact exists and
whether the prevailing party is entitled to judgment as a matter
of law, drawing all reasonable factual inferences in favor of the
non-prevailing party.1
B. The Record Contains No Evidence that the Reasons Doyon
Gives for Not Hiring Perkins Were Pretextual.
Perkins has not articulated precisely what legal error
he thinks the superior court committed.2 He asserts, without
elaboration, that Doyon discriminated against him and violated
his constitutional rights; that he did not receive a fair trial;
that the hiring supervisor was unethical; that Doyon basically
told him he can never apply for a position at the center; that
evidence was irrelevant to his case; that defense counsel was
openly trying to ruin Perkinss character; and that defense
counsel did not prove Doyon was not guilty. We assume that
Perkins is basically contending that it was error to enter
summary judgment against him. In considering his appeal we
therefore examine the record to determine whether Doyon was
entitled to summary judgment as a matter of law given the facts
and permissible inferences.
Under Alaska law, it is unlawful to refuse employment
to a person, or to bar a person from employment because of the
persons race, among other things.3 We apply the McDonnell
Douglas Corp. v. Green4 burden-shifting test to allegations of
employment discrimination under AS 18.80.220.5
To establish a prima facie case of illegal
discrimination under AS 18.80.220 when there is no direct
evidence of discrimination the plaintiff must belong to a class
protected by the statute, and must have applied and been rejected
for a job despite being qualified for an open position.6 Once
the plaintiff establishes a prima facie case, the burden shifts
to the employer to show that there was a legitimate reason why
the applicant was not hired.7 The employer is required at the
second step of the analysis to rebut the presumption by stating
the permissible, objective criteria which led to the decision.8
If the employer articulates a permissible reason to explain why
the minority applicant was not hired, the burden shifts back to
the plaintiff to produce some evidence indicating that the
articulated reason is a pretext.9 The plaintiffs burden requires
him to offer something more than unsupported assumptions and
speculation.10 Summary judgment is appropriate when a plaintiff
presents nothing more than [his] own subjective belief that the
employers asserted ground is a pretext.11
There is no triable claim as to the position of animal
enforcement officer, because we conclude that the record contains
no indication of a genuine issue of fact material to that claim.12
The human rights commission concluded that the company had a
preference for internal candidates and that an internal candidate
was hired. The record indicates that Doyon only interviewed
internal candidates for the position of animal enforcement
officer. Preferring internal candidates is a legitimate and non-
discriminatory reason for Doyons action with respect to this
position.13 Given Doyons preference and the absence of any
evidence that Doyon deviated from that preference in filling this
position, and given the absence of any direct evidence of
discrimination and any permissible inference of fact supporting a
claim of pretext, we conclude that no genuine issue of material
fact precluded summary judgment for Doyon as to the animal
enforcement officer position.
Appellant also fails to make out a triable claim for
the kennel technician position because Doyon advanced legitimate,
non-discriminatory reasons for not hiring Perkins, and he has not
produced any evidence that Doyons employment criteria were
pretextual. Doyon recognizes that Perkins met his threshold
prima facie burden under the Yellow Cab three-part test. Thus,
under the three-part framework, the burden shifted to Doyon to
articulate a legitimate, non-discriminatory reason for its
employment decision.14 Thirty-seven people had applied for that
position, according to Debbie Cather, the person responsible for
hiring at Doyon. The kennel technician advertisement indicated
that the job involved caring for animals, [and] making sure they
have a clean kennel. Perkins was not interviewed for the
position. Cather hired another applicant for the kennel
technician position. Doyon admits on appeal and admitted below
that the person hired for that position was a non-minority.
Doyons primary rationale for preferring the person
hired over Perkins was that the successful candidates experience
was directly in line with the duties of a kennel tech at
Anchorage Animal Control Center. The r‚sum‚ of the man hired
indicated that he had worked at a kennel from 1990 to 1998
performing building maintenance and caring for dogs. Cather said
she hired him primarily because of his eight years of experience
working at Coshoks Canine Castle. In comparison, Perkinss r‚sum‚
listed his experience as five years and two months employment as
a laboratory animal technician. This in itself is a legitimate
non-discriminatory reason for Doyons hiring decision, and it is
sufficient to rebut the presumption of discrimination.15
Cather also explained that she regarded it as a
negative that Perkinss prior work experience had been in a
research lab. Perkinss application indicated that he had
experience [b]leeding monkeys in a research lab. Cather, a
certified and licensed veterinary technician, stated that some
research facilities do not take humane care of the animals. It
was not unreasonable for Cather to interpret Perkinss lab
experience as not reflecting the type of care that would be
required in a facility that primarily houses companion animals.
Doyon, by articulating legitimate reasons for its hiring
decision, therefore met its second-step burden of rebutting the
presumption of discrimination.16 The burden then shifted back to
Perkins to produce some evidence supporting a claim of pretext.
On appeal Perkins has not advanced any evidence or
logical argument casting doubt on Cathers explanation for her
hiring decision. In reviewing the grant of summary judgment we
examine the record to see if there was a genuine dispute of
material fact as to whether Doyons reasons for not hiring Perkins
were pretextual.
The record, viewed in the light most favorable to
Perkins, identified two factors which arguably decreased the
suitability of the successful kennel technician applicant or even
rendered him unqualified per Doyons own qualifications. The
successful applicant wrote on his application, in response to the
question whether he had ever been convicted of a crime, D. V.
Time Served. His application also indicated that he did not have
a drivers license.
The human rights commission reported that Doyons
contract with the municipality imposes restrictions on hiring
convicted felons. The record indicates that the successful
applicant had pleaded no contest to a misdemeanor charge of
violating a protective order and had served no time in jail but
served one year of probation.
Perkins originally believed that the person hired was a
felon, but conceded at his deposition that if the applicant was
not a felon [t]hen he deserved that job. Assuming that felons are
ineligible to work for Doyon, the successful applicant was not
ineligible for hire because the crime was in fact only a
misdemeanor.17 Cather stated in her affidavit that she made no
attempt to determine whether the domestic violence conviction was
a felony or a misdemeanor. Although her failure to determine
whether the crime might be a felony is potentially problematic,
Cather offered a plausible explanation that she did not recall
seeing the reference to criminal history on his application and
did not then even know what D.V. Time Served meant. She stated
that she had since learned D.V. refers to domestic violence.
The application form asks if the applicant has a
drivers license, but the record does not indicate, and Perkins
has not suggested, any reason why a license is relevant to the
kennel technician position. We assume that this question is on
the Doyon application form because some positions (such as the
animal enforcement officer position) involve driving. The kennel
technician position involves cleaning cages and caring for
animals, and there is no indication it involves driving. Cather
explained that the successful applicants prior work was directly
in line with the duties he would perform for Doyon. Her
description of his prior work did not indicate driving was one of
the duties at his prior employment, or would be one of his duties
as kennel technician.
There is no indication that a misdemeanor conviction or
the lack of a drivers license would have diminished an applicants
suitability, or rendered the applicant ineligible for the kennel
technician position. The fact that Doyon hired someone with a
prior misdemeanor conviction and without a drivers license does
not imply discrimination against Perkins and there was no genuine
dispute of material fact with regard to the criminal record or
drivers license.
Perkins therefore did not meet the burden of producing
admissible evidence sufficient to raise a genuine issue of fact
supporting [his] theory that [Doyons] reasons were merely a
pretext.18 And our independent review of the record has failed to
uncover any evidence permissibly giving rise to a reasonable
inference that Doyons articulated reasons are pretextual.
IV. CONCLUSION
For these reasons the judgment of the superior court is
AFFIRMED.
_______________________________
1 Hammond v. State, Dept of Transp. & Pub. Facilities,
107 P.3d 871, 874 (Alaska 2005).
2 Appellants pro se opening brief is one page long. It
contains no citations to the appellate excerpt or record. It
describes no circumstances that, if supported by inferences
reasonably derived from the record, might have demonstrated that
summary judgment was entered erroneously. Nothing in the brief
justifies a conclusion that the grounds for Doyons employment
decisions were pretextual. Our focus is therefore on the record.
3 AS 18.80.220(a)(1).
4 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05
(1973).
5 Alaska State Commn for Human Rights v. Yellow Cab, 611
P.2d 487, 490 (Alaska 1980).
6 Id. (citing McDonnell Douglas, 411 U.S. at 802).
7 Id. at 492.
8 See Haroldsen v. Omni Enters., Inc., 901 P.2d 426, 431
(Alaska 1995) (applying Yellow Cab framework in case alleging
wrongful firing).
9 Mahan v. Arctic Catering, Inc., 133 P.3d 655, 660
(Alaska 2006).
10 Id. at 661 (citing French v. Jadon, Inc., 911 P.2d 20,
25 (Alaska 1996)).
11 Id.
12 We address this issue only summarily given the
probability the pro se appellant is not raising it on appeal.
Although he had complained to the human rights commission about
not being hired for the animal enforcement position, his superior
court suit appears to have focused on the kennel technician
position. When Doyon asked him at deposition in the superior
court proceeding if he was suing over the enforcement officer
position or just the kennel technician position, Perkins
indicated that he was only suing over the kennel technician
position. Perkinss appellate brief does not mention either
position. We note that the commission appears to have silently
concluded that no substantial evidence supported Perkinss claim
as to the animal enforcement officer position; we also note that
Perkins has not alleged that a non-minority was hired for the
position.
13 See Summers v. Harvard Univ., 397 F. Supp. 2d 166, 173
(D. Mass. 2005) (holding universitys assertions candidate was
more qualified and that it preferred to hire an internal
candidate satisfied universitys burden of providing a non-
discriminatory reason for its conduct).
14 Yellow Cab, 611 P.2d at 490.
15 See id. at 492.
16 See id.
17 AS 11.56.740 classifies violating a protective order as
a class A misdemeanor.
18 Mahan, 133 P.3d at 661 (citing McGlothlin v.
Municipality of Anchorage, 991 P.2d 1273, 1277 (Alaska 1999)).
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