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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Pyramid Printing Company v. Alaska State Commission for Human Rights (03/16/2007) sp-6112

Pyramid Printing Company v. Alaska State Commission for Human Rights (03/16/2007) sp-6112, 153 P3d 994

     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,


) Supreme Court No. S- 12046
Appellant, )
) Superior Court No.
v. ) 3AN-03-12897 CI
HALEY, Executive Director, ex rel. ) No. 6112 - March 16, 2007
Appellee. )
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Dan A. Hensley, Judge.

          Appearances:  Sean  Halloran,  Hartig  Rhodes
          Hoge   &   Lekishch,  P.C.,  Anchorage,   for
          Appellant.    William  E.  Milks,   Assistant
          Attorney   General,  and  David  W.  M rquez,
          Attorney General, Juneau, for Appellee.

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

          CARPENETI, Justice.

          This  is an appeal from the award and order in a sexual
harassment case decided by the Alaska State Commission for  Human
Rights.   The employer appeals the commissions decision,  arguing
that  the award should be reduced since the employee should  have
mitigated  her damages by accepting the employers  offer  of  re-
employment, the commission should not have included vacation  pay
in  the  employees backpay award, and the commission applied  the
incorrect interest rate on the award.  The employer also  appeals
from  the commissions order that the corporations owners  undergo
sexual  harassment training.  We affirm the commissions award  of
backpay  and  vacation  pay, as well  as  its  order  for  sexual
harassment  training.  However, because we believe the commission
applied the incorrect interest rate to the award, we vacate  that
portion  of the order and remand to the commission to recalculate
the award amount using a reasonable rate of interest.
          Debra  Tiernan worked for Pyramid Printing Company,  an
Anchorage corporation, from September 1995 to December 1998.   At
the time Tiernan worked there, Don and Francine Pintar each owned
fifty  percent  of the stock of the corporation.   Don,  who  was
president of the corporation at the time, spent a couple of  days
each  week  there paying bills, filing invoices,  and  conducting
other administrative tasks.  Francine, who was ill, did not  take
an  active  role in the business at the time Tiernan  worked  for
Pyramid,  although  she advised Don on business  decisions.   The
Pintars  son  Kirk  worked as Pyramids general  manager  and  was
Tiernans  direct  supervisor.  Pyramid is a small  business  with
limited facilities and fewer than ten employees.  Tiernan was the
only female employee during her tenure there.
          It  is  undisputed  that  on several  occasions  during
Tiernans three years at Pyramid, Kirk touched her in an unwelcome
and  inappropriate manner, called her at home outside of  working
hours  on  subjects unrelated to her employment,  suggested  that
Tiernan  have  a  sexual relationship with him, and  acted  in  a
jealous  and violent manner (such as throwing coffee cups against
walls,  breaking a door off its hinges, and overturning a table).
After  a particularly difficult episode in December 1998, Tiernan
quit  her  job.  Shortly afterwards, she filed a claim  with  the
Alaska  Department  of Labor, listing sexual  harassment  as  her
reason  for  leaving.  When Don learned of the sexual  harassment
allegation, he called Tiernan, asked her what he could do to  fix
the  situation,  and  offered to pay her  unemployment  benefits.
Tiernan declined Dons offer and refused to discuss the case  with
          The  Department of Labor held two days of hearings, the
first  in  January  1999, and the second in February 1999.   Soon
after  the  first  day  of hearings, the Pintars,  on  behalf  of
Pyramid, sent Tiernan a letter inviting her to return to her job.
The letter, dated February 5, 1999, stated in part:
          If  she  wishes, Ms. Tiernan  is  welcome  to
          return  to her job at the same wage  she  was
          receiving  when she quit.  If she  elects  to
          accept  this  offer and return  to  her  job,
          Pyramid  will ensure that she will no  longer
          have   to  report  directly  to  her   former
          supervisor.  She will not have to work  alone
          with  him, and work related contact with  him
          will be minimized to the extent feasible.  In
          keeping with Pyramids long standing policy of
          providing    the   best   possible    working
          environment  to its employees,  Pyramid  will
          work  to  ensure  that  Ms.  Tiernan  is  not
          subjected to harassment or discrimination  on
          the job.
          Tiernan  rejected the offer of re-employment.   As  her
attorney explained in a letter of response:
          Ms.  Tiernan rejected the offer to return  to
          work at Pyramid Printing because: (1) it  was
          not  a practical remedy to the problem, i.e.,
          she  would  still be working in a small  shop
          run  by  Kirk  Pintar;  (2)  Kirk  Pintar  is
          violent   and  sexually  obsessed  with   Ms.
          Tiernan;  (3)  Ms.  Tiernan  would  be  under
          constant  stress and in constant apprehension
          of  additional violent outbursts  and  sexual
          harassment  by Kirk Pintar; (4)  Ms.  Tiernan
          has experienced a dramatic improvement in her
          emotional  well being since leaving  Pyramid;
          (5) it would be untenable for Ms. Tiernan  to
          work  at  Pyramid  while she  seeks  monetary
          compensation   for  her  damages   from   the
          Pintars;  and  (6) she does not  believe  the
          offer was made in good faith.
          The Department of Labor denied Tiernans benefits claim,
finding  that  she voluntarily left the job without  good  cause.
The  department  stated  that, although Tiernan  was  subject  to
inappropriate behavior by her supervisor, she failed to  properly
bring her grievance to the attention of her employer.
          Upon  receiving the departments final decision, Tiernan
submitted a claim to the Human Rights Commission.  The commission
conducted  five days of hearings in August 2002, and it concluded
that Kirk had subjected Tiernan to sexual harassment sufficiently
severe  to create a hostile work environment, that the harassment
was  both  objectively and subjectively objectionable,  and  that
Tiernan was justified in quitting her job.
          Upon  establishing  liability, the  commission  awarded
Tiernan damages for lost wages, including back pay, vacation pay,
and  yearly  bonuses;  the award totaled  $50,972.   Contrary  to
Pyramids   argument,  the  commission  determined  that   Tiernan
reasonably  rejected  the written offer  of  re-employment.   The
commission found that Pyramids offer had been made conditionally,
based on Francines testimony that Tiernan needed to  clean up her
act.   The commission alternatively concluded that, even  if  the
offer was unconditional, Tiernan acted reasonably in refusing  it
because she risked continued harassment: [Tiernan] had reason  to
believe  that she would be subjected to the same conditions  that
were  present  which  caused her to leave.  The  commission  also
noted  that Tiernan sought to mitigate her damages by  seeking  a
new  job  after  leaving Pyramid and by starting  her  own  label
          The  commission awarded Tiernan pre- and  post-judgment
interest at the statutory rate of 10.5%.  Finally, the commission
ordered  Pyramid  to adopt written policies on discrimination  in
the  workplace  and to provide annual training to its  employees,
managers,  and  owners  in the areas of  sexual  harassment,  sex
discrimination, and the Alaska Human Rights Act.
            Pyramid appealed the decision to the superior  court.
Superior  Court  Judge  Dan A. Hensley affirmed  the  commissions
decision.  Pyramid appeals.
          When  the superior court acts as an intermediate  court
of  appeal from an agency decision we review the agency  decision
directly.1  Whether or not an employees refusal to accept  a  job
offer  is  reasonable  is  generally  a  question  of  fact.2   A
determination of fact by the Human Rights Commission  will  stand
if  it  is supported by substantial evidence.3  Whether an agency
has  complied with statutory requirements is a question of  law.4
We  apply the reasonable basis standard of review to questions of
law  involving agency expertise, and the substitution of judgment
standard to questions outside the agencys expertise.5
     A.   The Commission Did Not Err in Awarding Tiernan Lost Wages
          After She Refused Pyramids Re-Employment Offer.
          According to Pyramid, [t]here are no facts that support
the  Commissions  finding [that Tiernans  rejection  of  the  re-
employment offer was reasonable], and Ms. Tiernan is not entitled
to  receive  any  damages for the period from February  12,  1999
forward.   Pyramid  argues that its letter of  February  5,  1999
contained  an unconditional and reasonable offer of re-employment
to  Tiernan  which she should have accepted in order to  mitigate
her  damages.  We hold that the commissions decision that Tiernan
acted  reasonably  when  she refused  to  accept  the  offer  was
supported  by  substantial  evidence.   Because  we  affirm   the
commissions decision on this ground, we do not reach the question
of whether the offer was unconditional.
          In  order  to  determine whether  substantial  evidence
supported   the   commissions  conclusion  that   Tiernan   acted
reasonably  when  she refused the offer of reinstatement,  it  is
necessary  to consider the context of this dispute.  Pyramid  has
not  appealed the commissions finding that Tiernan was  subjected
to  sexual  harassment by Kirk, or that Kirk  created  a  hostile
working  environment  in  the  form of  unwelcome,  inappropriate
touching,  suggestions  that  they have  a  sexual  relationship,
acting  in a jealous manner whenever other males interacted  with
her,  [and]  throwing objects.  Pyramids offer  of  reinstatement
assured  Tiernan only that she would not have to report  directly
to  Kirk  or work alone with him, and that her contact  with  him
would  be  minimized  to the extent feasible.6   But  substantial
evidence supports the commissions conclusion that this promise to
minimize contact was unrealistic and that  Tiernan had reason  to
believe that she would be subjected to the same conditions that .
.  .  caused her to leave.  Kirk managed the business and ran the
day-to-day  operations,  making it  highly  impractical,  if  not
completely  impossible, to minimize contact or Kirks  supervisory
role.  Tiernan expressed her apprehension about returning to work
for  Pyramid  when she testified, I decided I wasnt going  to  go
back  anymore  because  I didnt want to subject  myself  to  that
          behavior anymore . . . . [W]hen was it going to escalate into him
slamming me through a wall or something?
          While  an  employee  generally  has  an  obligation  to
mitigate damages by making a reasonable effort to secure suitable
alternative  employment,  that  obligation  does  not  extend  to
employment  that  would create embarrassment  or  hardship.7   An
employee  is not obligated to accept proffered employment  if  it
involves  an  increase  in  danger or  discomfort  vis-a-vis  the
promised  position,  or  if acceptance of  the  employment  would
involve humiliation or degradation. . . .8
          Constructive discharge occurs [w]here an employer makes
working conditions so intolerable that a reasonable person in the
employees  position would have felt compelled to resign.9   Where
an employee has been subjected to intolerable working conditions,
it follows that reinstatement to unchanged conditions  conditions
so  intolerable that a reasonable person would resign rather than
endure  them   would involve danger, degradation, discomfort,  or
humiliation.   Thus,  where a constructively discharged  employee
reasonably  believes  that the intolerable  conditions  have  not
changed,  the duty to mitigate does not require that the employee
accept a reinstatement offer.10
          Here,   the  commission  concluded  that  Tiernan   was
constructively  discharged and had reason  to  believe  that  she
would be subjected to the same conditions that were present which
caused   her  to  leave.   Substantial  evidence  supports   this
conclusion.    Given   Tiernans  reasonable   belief   that   the
intolerable conditions had not changed, she was not obligated  to
accept re-employment in order to mitigate her damages.  Thus, the
commission did not err in awarding her lost wages.
          B.   The  Commission Did Not Err in Including  Vacation
               Pay in the Lost Wages Award.
          Tiernans  award included a yearly bonus and  two  weeks
vacation pay per year.  Pyramid argues that the commissions award
of  vacation pay amounts to double recovery for time that Tiernan
would have spent on vacation had she still worked at Pyramid, and
thus   constitutes  error.   Pyramid  also  argues  that  Tiernan
voluntarily remained outside the workforce after leaving Pyramids
employment, [and therefore] she should not be permitted to assert
an  entitlement to pay over and above compensation for  each  and
every week of the year even if such payments were permitted under
Pyramids   vacat[]ion  policies.   Pyramid  does  not  cite   any
authority for this argument, which we reject.
          An employee earns her vacation pay through her labor.11
It  is established that vacation pay is not a gratuity or a gift,
but is, in effect, additional wages for services performed.12  The
consideration  for  vacation with pay is the employees  year-long
labor.13   As  Judge Augustus Hand wrote in explaining  employees
rights to vacation pay under a collective bargaining agreement, A
vacation  with pay is in effect additional wages.  It involves  a
reasonable arrangement to secure the well being of employees  and
the  continuance  of  harmonious relations between  employer  and
employee.14  Vacation pay is simply an alternate form  of  wages,
earned at the time of other wages, but whose receipt is delayed.15
          Accordingly, the commission properly awarded Tiernan the vacation
pay she had earned through her employment at Pyramid.
          Moreover,  we  note  that under AS 18.80.130(a)(1)  the
commission  has broad discretion to order any appropriate  relief
to  remedy  employment  discrimination.   The  ability  to  award
Tiernan vacation pay clearly falls within the commissions power.
     C.   The  Commission Did Not Err in Ordering Pyramids Owners
          To Undergo Sexual Harassment Training.
          The  commission ordered Pyramid to provide at least six
hours  of  training  to its owners, managers,  and  employees  to
address  prevention  of sexual harassment and sex  discrimination
and  to  promote greater understanding of the Alaska Human Rights
Law  to its employees, managers, and owners.  Pyramid objects  to
the   inclusion  of  owners  in  this  order,  arguing  that  the
commission cannot pierce the corporate veil in order to hold  the
shareholder owners of the corporation accountable.
          Piercing  the  corporate veil is not relevant  to  this
case.   The  doctrine  of  piercing  the  corporate  veil  is  an
exception  to  the principles that the corporation  exists  as  a
separate  legal entity and that owner liability for the debts  of
the  corporation is limited.16  Piercing the corporate veil is  a
means  of  assessing  liability for the  acts  of  a  corporation
against the equity holder in the corporation.17  The doctrine  of
corporate  veil-piercing  applies only  to  plaintiffs  who  seek
recovery against the personal assets of corporate shareholders or
directors.18   Here,  however, there  is  no  effort  to  get  at
shareholder   assets;  rather,  the  question  is   whether   the
shareholders   two owners, in fact  are amenable  to  a  remedial
order.  The commission has been granted broad remedial powers  to
order   any   legal  or  equitable  relief  which  is  reasonably
calculated to prevent future violations of a similar nature.19
            Given  Don  and Francines somewhat blurred  roles  as
owners  and  managers of the company, the breadth  of  the  order
seems appropriate.20  As Tiernan points out, Don and Francine are
not  only  Pyramids owners but also its managers.   Consequently,
they had the power to dictate terms and conditions of employment.
Tiernans  point  is well-supported by the record.   When  Tiernan
left  her  job in December 1998, Pyramids only stockholders  were
Don  and Francine Pintar.  The record shows several instances  of
Don and Francine participating in management decisions, including
Dons  internal investigation of Tiernans claim; Don and Francines
regular discussions of business decisions; and the fact that both
Don and Francine authorized the letter offering re-employment  to
          The commission did not err in ordering Pyramids owners,
including Don and Francine, to attend sexual harassment training.
     D.   The  Commission Erred in Applying 10.5 Percent Interest
          to the Award.
          Pyramid  argues that the commission erred in  requiring
it  to  pay  pre- and post-judgment interest at a  rate  of  10.5
percent.  We agree.
          Tiernan  contends  that  the administrative  regulation
which  provides for the commissions remedial authority, former  6
AAC  30.480(b), was still in force when she left Pyramid in  1998
          and thus the award of interest at 10.5% was proper.  Under the
former  version of 6 AAC 30.480(b)21 in effect as of the time  of
the  commissions 2003 order, the commission had the authority  to
award prejudgment interest at the rate of 10.5%.   The commission
presumably  relied  on  the  language  of  this  regulation  when
awarding Tiernan interest.
          Pyramid contends that the commissions reliance  on  the
regulation was in error and that any award of interest should  be
governed by the statutory rate set forth in Title 9 of the Alaska
Statutes.  Consequently, Pyramid argues that the rate of interest
applicable  to  Tiernans award should be the  statutory  rate  in
effect in August 2003:  3.75%.22
          We  reject Pyramids argument that Title 9 is applicable
to the commissions award.  Title 9 by its very definition applies
to  judicial actions.23  Alaska Statute  09.30.070(a) is  plainly
limited  to  judgments and decrees.   Nothing in the language  of
Title  9 indicates it applied to administrative proceedings  such
as  this  one.   But  rejection  of Pyramids  argument  does  not
inevitably lead to acceptance of Tiernans approach.
          The  regulation in effect as of the date  of  the  2003
order  granted the commission broad remedial authority  to  order
relief   which   is  reasonably  calculated  to  prevent   future
violations  of  a similar nature or which reasonably  compensates
the complainant [] for losses incurred.24  It then provides that A
monetary  award  under  this section  will,  in  the  commissions
discretion, include an order that interest on the amount  due  be
paid  from the date of the discriminatory conduct.25  Thus  while
the  commission clearly had the authority to award interest under
the latter provision in subsection (b), any amount so ordered  is
circumscribed by the preceding provision requiring that any award
made  reasonably compensate the complainant.  The commission  was
therefore  required to exercise its discretion in determining  an
appropriate  interest rate that accurately reflected  the  actual
cost  of  money and thus reasonably compensated Tiernan  for  her
lost wages.26
          Between  July  1, 1980 and the date of the  commissions
decision  in  Tiernans  case, 6 AAC  30.480(b)  provided  for  an
interest rate of 10.5 percent annually.  The former version of AS
09.30.070(a)  in effect prior to 1997 had similarly provided  for
an interest rate of 10.5% on judgments.27  But by 2003 it is clear
that   this   interest  rate  did  not  reasonably   compensate[]
complainants for losses incurred  it overcompensated them. 28
          Because an award of prejudgment interest is intended to
compensate a claimant for the lost use of money,29 any award that
provides disproportionate monetary compensation may rightfully be
considered punitive in nature.30  In light of the market forces in
play  at  the  time  of the commissions award,  as  indicated  by
changes to Title 9 and the 2004 amendment to 6 AAC 30.480(b),  an
interest  rate of 10.5% would have disproportionately compensated
Tiernan for her lost wages at the time the award was entered.  We
therefore  conclude that the commission abused its discretion  in
awarding  prejudgment interest that exceeded a rate of reasonable
          Because   we  hold  that  the  commission  abused   its
          discretion in awarding interest at a rate of 10.5%, we reverse
that   portion   of  the  commissions  order   and   remand   for
recalculation of the award. 31
          V.   CONCLUSION
          Because  Tiernan  was not required to  accept  Pyramids
offer  of  re-employment, we AFFIRM the commissions  decision  to
award  Tiernan backpay from January 1999 to August 2002.  Because
Tiernan  earned  vacation  pay as a  separate  component  of  her
compensation and because an award of vacation pay was well within
the  commissions power to order any appropriate relief, we AFFIRM
the  award  of  vacation  pay as a part  of  the  backpay  award.
Because  the commissions broad remedial powers also included  the
power  to  order training concerning sexual harassment,  we  also
AFFIRM the commissions order that Pyramids owners, employees, and
managers  undergo  sexual harassment training.  Finally,  because
the  commission  abused its discretion in awarding  an  excessive
rate of interest, we VACATE the award and REMAND this case to the
commission  to recalculate the award using a reasonable  rate  of

     1     Garner v. State, Dept of Health & Soc. Servs., Div. of
Med. Assistance, 63 P.3d 264, 267 (Alaska 2003);  Matanuska Elec.
Assn,  Inc. v. Chugach Elec. Assn, Inc., 53 P.3d 578, 583 (Alaska

     2     Restatement  (Second) of Agency  455  cmt.  d  (1958).
Gates v. City of Tenakee Springs, 822 P.2d 455, 460 (Alaska 1991)
([W]hether  efforts  [to  mitigate damages]  were  reasonable  or
potential risk and expense were undue are questions of  fact  for
the  trial  court.); West v. Whitney-Fidalgo Seafoods, Inc.,  628
P.2d  10,  18  (Alaska  1981) (What is a  reasonable  effort  [to
mitigate damages] is a question of fact . . . .).

     3      Alaska USA Fed. Credit Union v. Fridriksson, 642 P.2d
804,  808  (Alaska  1982) (citing Alaska State  Commn  for  Human
Rights v. Yellow Cab, 611 P.2d 487, 490 (Alaska 1980)).

     4     Allen v. State, Oil & Gas Commn, ___ P.3d ___, 2006 WL
2036576 *2 (Alaska 2006).

     5    Leigh v. Seekins Ford, 136 P.3d 214, 216 (Alaska 2006).

     6     Pyramid  suggests in its briefing to this  court  that
Tiernan knew Kirk was ready to resign if she would agree to  come
back to work.  However, the record does not indicate that Tiernan
was  informed  of  Kirks purported offer to resign  at  any  time
before  the commission hearings in August 2002.  Kirks  offer  of
resignation,  which he apparently made to his  parents,  was  not
part of the offer made to Tiernan.

     7    Univ. of Alaska v. Chauvin, 521 P.2d 1234, 1240 (Alaska

     8    Id. at 1240 n.22 (citing Restatement (Second) of Agency
455 cmt. d at 373).

     9     Cameron v. Beard, 864 P.2d 538, 547 (Alaska 1994).

     10       Several   federal  courts  have   reached   similar
conclusions in the Title VII and ADEA contexts.  See, e.g., Smith
v.  World  Ins. Co., 38 F.3d 1456, 1464 (8th Cir. 1994)  (holding
that  based on the totality of circumstances, including employees
discomfort  with employment offer and belief that  conditions  at
workplace  had  not  changed, constructively discharged  employee
reasonably  rejected an offer of reinstatement);  Lewis  v.  Fed.
Prison  Indus., Inc., 953 F.2d 1277, 1279 (11th Cir. 1992) (where
evidence   showed   plaintiff  could   not   return   to   former
discriminatory  work  environment  without  facing  increase   in
symptoms  of  depression court satisfied plaintiffs rejection  of
offer  of  reinstatement reasonable); Wilcox v. Stratton  Lumber,
921 F.Supp. 837, 843 (D.Me. 1996) (holding employee who prevailed
on  sexual  harassment  claim reasonably  declined  reinstatement
where  she had doubts that the work environment . . . had changed
and  feared  continued  harassment);  Naylor  v.  Georgia-Pacific
Corp.,  875  F.Supp.  564,  582 (N.D. Iowa  1995)  (holding  that
reasonable  concern  of continued harassment  may  constitute  an
exception   to   employees   duty  to   mitigate   by   accepting
reinstatement);  Maturo v. Natl Graphics, Inc., 722  F.Supp  916,
927  (D.  Conn.  1986)  (holding that  constructively  discharged
employee  reasonably rejected reinstatement where  she  had  been
subjected  to a long history of harassment by someone  with  whom
plaintiff, given the relatively small workforce [at the employer]
would undoubtedly come in contact [with] on a recurring basis  if
she  returned).  But see Robles v. Cox & Co., Inc., 154 F.Supp.2d
795,   807   (S.D.N.Y.  2001)  (where  employer  gave  assurances
returning employee would not be subject to further harassment and
plaintiff  presented no evidence that assurances were  insincere,
plaintiffs  assertions that returning to  work  would  cause  her
metal  anguish insufficient to create genuine issue  of  material
fact as to reasonableness of her rejection of offer).

     11     See, e.g., Langager v. Crazy Creek Prods., Inc.,  954
P.2d  1169, 1175 (Mont. 1998) ([V]acation pay is earned by virtue
of  an  employees  labor  and once it  has  accrued,  it  has  by
definition been earned.).

     12     Suastez  v. Plastic Dress-Up Co., 647 P.2d  122,  125
(Cal. 1982).

     13    Id.

     14     In re Wil-Low Cafeterias, 111 F.2d 429, 432 (2d  Cir.

     15    Suastez, 647 P.2d at 125 (quoting Local Union No. 186,
Packinghouse Food & Allied Workers v. Armour & Co., 446 F.2d 610,
612 (6th Cir. 1971)).

     16     See, e.g., Dole Food Co. v. Patrickson, 538 U.S. 468,
475  (2003); Sec. Investor Prot. Corp. v. Stratton Oakmont, Inc.,
234 B.R. 293, 321-22 (1999); Morris v. State, Dept of Taxation  &
Fin., 623 N.E.2d 1157, 1160 (N.Y. 1993).

     17     Village at Camelback Prop. Owners Assn, Inc. v. Carr,
538  A.2d  528,  532  (Pa. Super. 1990).   See  also  1  Fletcher
Cyclopedia  of Corporations  41.10, at 578 (1999) (An attempt  to
pierce the corporate veil is a means of imposing liability on  an
underlying cause of action, such as tort or breach of contract.).

     18     Leo Eisenberg & Co., Inc. v. Payson, 785 P.2d 49,  54
(Ariz.  1989).   See also 1 Fletcher Cyclopedia  of  Corporations
41.20,  at 589-90 ([C]ourts pierce the corporation veil  for  the
purpose of adjudging the rights and liabilities of parties in the

     19     6  AAC 30.480(b).  Additionally, the legislature  has
recently amended AS 18.80.130 to specifically include training of
an  employer, labor organization, or employment agency,  and  its
employees concerning discriminatory practice within the scope  of
appropriate relief.  Ch. 63,  4, SLA 2006.

     20     In  its  reply  brief, Pyramid states  that  Don  and
Francine  are  no  longer  the  owners  of  the  corporation  and
accordingly argues that they should not be subject to the  order.
Pyramid relies on facts outside the record, and thus we will  not
address  its argument.  Any request for relief based on corporate
changes  that  occurred  during the  appeals  process  should  be
addressed to the commission upon remand.

     21    Former 6 AAC 30.480(b) provides in relevant part:
          The  remedial  authority  of  the  commission
          under  AS 18.80.130(a) includes the authority
          to  order any legal or equitable relief which
          is  reasonably  calculated to prevent  future
          violations  of  a  similar  nature  or  which
          reasonably compensates the complainant or the
          class for losses incurred as a result of  the
          unlawful   conduct,  including  out-of-pocket
          expenses.    A  monetary  award  under   this
          section  will, in the commissions discretion,
          include an order that interest on the  amount
          due   be   paid   from  the   date   of   the
          discriminatory   conduct   at   six   percent
          annually  before  September 12,  1976,  eight
          percent  annually between September 12,  1976
          and  July  1, 1980, and 10.5 percent annually
          after July 1, 1980.
          In  2004  6AAC 30.480 was amended to require awards  of
interest to comply with AS 09.30.070.

     22     The Alaska Court System has published statutory  pre-
and  post-judgment interest rate data on its  web  site  for  all
years   since   1997.    This   information   is   available   at   In  2003,  the  rate  of
interest for judicial actions was 3.75%.

     23    AS 09.70.010 states This title governs all proceedings
in actions . . . .

     24    6 AAC 30.480(b) (emphasis added).

     25    Id. (emphasis added).

     26     See North Slope Borough v. LeResche, 581 P.2.d  1112,
1115  (Alaska 1978) (Where, as here, the question is  as  to  the
merits  of  an  agency  action  on matters  committed  to  agency
discretion,  our  scope  of  review is  limited  to  whether  the
decision   was  arbitrary,  unreasonable[,]  or   an   abuse   of

     27     Cf. Marine Solutions Inc. v. Horton, 70 P.3d 393, 415
(Alaska 2003).

     28     In  1997  AS 09.30.070(a) was amended to establish  a
floating  prejudgment  interest rate  dependent  on  the  Federal
Reserve discount rate in effect on January 2 of the year in which
the  judgment  or  decree is entered.   And  in  2004,  the  year
following the commissions order in this case, 6 AAC 30.480(b) was
amended to ensure that the regulations interest rates tracked the
statutory floating rate set forth in Title 9.  The amendment to 6
AAC  30.480(b) provided: A monetary award under this section  may
include  an  order that interest on the amount  due  be  paid  as
provided  in AS 09.30.070(a).  These changes were effectuated  to
ensure prejudgment interest rates would  track the cost of  money
and more accurately reflect market forces.  See  18 and 55 ch  26
SLA 1997.

     29    Liimata v. Vest, 45 P.3d 310, 322 n.44 (Alaska 2002).

     30     See Cool Homes, Inc. v. Fairbanks North Star Borough,
860  P.2d  1248,  1257 (Alaska 1993) (Interest, however,  is  not
punitive.  Rather, it is intended to compensate the party to whom
the sum is owed for the period of non-payment.).

     31     On  remand,  the  commission is  free  to  adopt  any
reasonable  rate of interest, including the 12th Federal  Reserve
District  discount  rate  augmented by  a  reasonable  amount  to
reflect  market  reality.  On October 1, 2003  the  date  of  the
final  order  issued by the commission  the 12th Federal  Reserve
District discount rate was 0.75%, and the statutory pre- and post-
judgment  interest rate in effect was 3.75%.   For  each  of  the
years  for  which the commission awarded Tiernan lost wages,  the
individual statutory yearly interest rates were as follows:  1999
(7.5%), 2000 (8%), 2001 (9%), 2002 (4.25%), and 2003 (3.75%).

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