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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

Perkins v. Doyon Universal Services, LLC (12/22/2006) sp-6085, 151 P3d 413

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
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     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


) Supreme Court No. S- 11920
Appellant, )
v. ) Superior Court No. 3AN-04-03698 CI
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

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

          EASTAUGH, Justice.

          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.
          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.
     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
          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 résumé 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 résumé
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.

          For these reasons the judgment of the superior court is
     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

     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

     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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