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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Parson v. State, Dept. of Revenue, AHFC (07/25/2008) sp-6288

Parson v. State, Dept. of Revenue, AHFC (07/25/2008) sp-6288, 189 P3d 1032

     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- 12486
) Superior Court No. 3AN-04- 08383 CI
v. )
) O P I N I O N
OF REVENUE, ALASKA HOUSING ) No. 6288 - July 25, 2008
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sharon L. Gleason, Judge.

          Appearances:  C.R. Kennelly,  Law  Office  of
          C.R.  Kennelly, and Ted Stepovich, Anchorage,
          for   Appellant.   Richard  W.  Postma,  Jr.,
          Margaret   Paton-Walsh,  Assistant  Attorneys
          General,  Anchorage, and  Talis  J.  Colberg,
          Attorney General, Juneau, for Appellee.

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

          WINFREE, Justice.

          James  Parson  appeals from a superior  court  judgment
dismissing  his employment-related claims against Alaska  Housing
Finance  Corporation (AHFC).  After the Alaska  State  Commission
for  Human  Rights  closed  Parsons administrative  complaint  of
racial  discrimination because Commission staff found a  lack  of
substantial evidence to support it, Parson sued AHFC in  superior
court.  Parson pled several causes of action, including statutory
racial discrimination.  AHFC moved for summary judgment on all of
Parsons claims or, alternatively, for conversion of the statutory
discrimination claims to an administrative appeal.  The  superior
court  ruled that the Commission proceedings had resulted  in  an
acquittal  that  barred  Parsons direct statutory  discrimination
claims   against  AHFC,  but  converted  those  claims  into   an
administrative appeal of the Commissions decision  to  close  his
agency  complaint.  The court granted summary judgment dismissing
all  of Parsons direct claims.  After the court refused to  enter
partial  final judgment to allow him to appeal the  dismissal  of
all  of  his  direct  claims,  Parson voluntarily  dismissed  the
putative  administrative appeal.  This appeal followed.   Because
we  conclude  that  the  Commissions closure  of  Parsons  agency
complaint for lack of substantial evidence does not bar him  from
bringing his statutory discrimination claim in superior court, we
reverse the grant of summary judgment in favor of AHFC and remand
for  further  proceedings  on  Parsons  statutory  discrimination
          Parson,  an African-American, was originally  hired  by
AHFC  as a temporary laborer and gained permanent status in 1993.
In  October 2002 Parsons employment was terminated for failure to
complete  an anger management program that AHFC required  him  to
attend  after other employees complained that he had acted  in  a
threatening  manner  toward  them.   Parson  met  with  an  anger
management  counselor  three  times  but  refused  to  admit  any
wrongdoing.  As a result, the program counselor sent him back  to
AHFC   to  resolve  [the]  matter.   AHFC  then  terminated   his
          Parson  filed a complaint with the Commission, alleging
that  his termination and other actions by AHFC during the course
of   his   employment  amounted  to  racial  discrimination   and
retaliation for numerous complaints he had made.  AHFC denied the
allegations,  asserting  that  Parson  had  been  terminated  for
failure  to  accept  responsibility for and rectify  unacceptable
behavior  toward  coworkers and supervisors.  A Commission  staff
member    conducted   an   informal   investigation,   ultimately
determining  that  Parsons  allegations  were  not  supported  by
substantial  evidence.  The Commissions executive  director  then
issued a closing order.1
          A  month  later, Parson filed a complaint  in  superior
court.   He claimed:  (1) his termination was racially motivated;
(2)   he  was  subjected  to  race-based  discriminatory  conduct
throughout  his AHFC employment; (3) AHFCs conduct  violated  his
contractual rights and contractual due process and was  a  breach
of  the  covenant  of good faith and fair dealing;  and  (4)  his
termination  was in violation of public policy.   Parson  further
asserted  that  the Commission had dismissed the case  without  a
hearing  in violation of Plaintiffs due process, equal protection
and  Title 18 rights under AS 18.20.220 and that [t]o the  extent
it  can  be  appealed or should be, plaintiff  does  so  by  this
complaint.2   AHFC  answered  the  superior  court  complaint  by
denying  all allegations of racial discrimination and motivation.
AHFC  also asserted several defenses, among them that Parson  had
not  properly  perfected an administrative appeal  and  that  res
          judicata or collateral estoppel barred his claims.
          AHFC  filed  a motion for summary judgment  on  all  of
Parsons  claims.  As to Parsons statutory discrimination  claims,
AHFC  requested  that the superior court either dismiss  them  or
convert  them  into an administrative appeal of  the  Commissions
decision.   AHFC  argued that AS 18.80.2803  barred  Parson  from
bringing  statutory  discrimination  claims  in  superior   court
because  the  Commissions closure of Parsons  case  for  lack  of
substantial  evidence  was an acquittal of  AHFC,  and  therefore
Parsons  sole  remedy  was  an  administrative  appeal   of   the
Commission  decision.   Alternatively, AHFC  asked  that  Parsons
statutory  discrimination claims be dismissed  on  their  merits,
arguing  that  Parson  could  not make  a  prima  facie  case  of
discrimination or show pretext for the firing.
          Parson opposed summary judgment, filing an affidavit to
dispute  some of AHFCs factual allegations.  He argued  that  the
Commissions  administrative closure was not a final  decision  on
the  merits of his claims and noted that he had appeared  without
counsel before the Commission and was incapable of litigating  or
adequately  assisting the [Commission] staff in its investigation
and   unable   to  effectively  represent  himself   before   the
Commission.   Parson  reiterated  his  contention  that  he   was
entitled  to  a  hearing  before the  Commission  and  asked  the
superior court to remand the case to the Commission if it  viewed
the Commissions jurisdiction as exclusive.
          Three weeks before the scheduled start of a jury trial,
the  superior  court granted summary judgment in favor  of  AHFC.
Stating that AS 18.80.280 precluded claims under the Human Rights
Act  .  .  .  when  the [Commission] has issued  a  final  agency
decision with respect to the same alleged violation by AHFC,  the
superior  court  also  granted summary  judgment  against  Parson
insofar  as [he] seeks to litigate the alleged violation in  this
court.   But  the  court also determined that  Parson  should  be
accorded an opportunity for appellate review by this court of the
[Commissions]   decision;   to  that   end,   Parsons   statutory
discrimination  claims  were  converted  into  an  administrative
appeal.   The superior court dismissed Parsons other  claims  for
failure to exhaust collective bargaining grievance procedures.
          Parson  requested  but was denied reconsideration.   He
then requested but was denied entry of partial final judgment  as
to the claims dismissed by the superior court.  Parson then moved
for  a  voluntary dismissal of the putative administrative appeal
and  for  entry  of  final judgment.  AHFC  did  not  oppose  the
motions,  and  the court entered final judgment  against  Parson.
Parson  appealed the courts grant of summary judgment  dismissing
all  of his direct claims against AHFC.  But Parson briefed  only
the  dismissal of his statutory discrimination claims and limited
his  request  for  relief to a remand for  proceedings  on  those
claims, thus waiving appeal of the dismissal of his other claims.4

     A.   Standard of Review
          We  review  a  grant  of  summary  judgment  de  novo.5
Summary judgment is proper if there is no genuine factual dispute
          and the moving party is entitled to judgment as a matter of law.6
In  reviewing  a summary judgment motion, we draw all  reasonable
inferences  in favor of the nonmoving party.7  We  may  affirm  a
grant  of summary judgment on any basis appearing in the record.8
The interpretation of a statute is a question of law to which  we
apply   our   independent  judgment,  interpreting  the   statute
according  to reason, practicality, and common sense, considering
the  meaning  of the statutes language, its legislative  history,
and its purpose.9
     B.   The Commissions Closure of Parsons Administrative Claim
          Does  Not  Bar Direct Claims Against AHFC  in  Superior
          The   Alaska  Human  Rights  Act10  creates  concurrent
jurisdiction over discrimination claims; both the Commission  and
the superior court can hear a discrimination claim under the Act.11
Jurisdictional  conflict  in  concurrently  filed  complaints  is
avoided by requiring that a plaintiff serve the Commission with a
copy  of  a  superior court complaint, thus giving the Commission
the  right  to intervene and seek a deferral of court proceedings
upon certification that it is presently investigating or actively
dealing  with [the matter] giving rise to the cause of  action.12
If  the Commission fails to intervene or file a certification and
conduct a hearing on the plaintiffs claim, the court has complete
          In  some  circumstances, a final determination  on  the
merits  of  a claim by the Commission will preclude a  subsequent
action in superior court on all or part of the same claim.14  The
superior courts reliance on AS 18.80.28015 when granting  summary
judgment  to  AHFC indicates its agreement with AHFCs  contention
that  the Commissions closure of Parsons discrimination complaint
was an acquittal barring a superior court action.
          The  Commissions decision closing Parsons case was  not
an   acquittal  of  AHFC  for  purposes  of  AS  18.80.280.    In
interpreting this provision, we look at the ordinary  meaning  of
the  statutory  language because it has not acquired  a  peculiar
meaning   through  statutory  definition  or  previous   judicial
construction.16   Relying on Blacks Law Dictionary,  AHFC  argues
here,  as  it  did  in  the superior court,  that  acquittal  and
dismissal  are  equivalent, but the definitions  of  these  words
differ in one crucial way:  an acquittal generally comes after  a
trial, while a dismissal generally comes before a trial.17   When
discrimination complaints are before both the Commission and  the
superior court at the same time and the Commission does not  seek
to  defer  the court proceedings or ultimately does not  hold  an
adjudicatory   hearing,   the   superior   court   has   complete
jurisdiction  of the case, notwithstanding the provisions  of  AS  It should be no different when the Commission fails
to  hold a hearing and closes a case before a complaint is  filed
in  superior court.  The Commission never adjudicated the  merits
of  Parsons  discrimination claims and therefore did  not  acquit
AHFC.   Because  the  Commission did  not  acquit  AHFC,  Parsons
superior  court claims were not foreclosed by AS 18.80.280.   The
superior court erred in holding that they were.
          AHFC  also argues that even if the Commissions  closure
of  Parsons  complaint was not an acquittal, it was  a  dismissal
with prejudice, creating a preclusive effect in the nature of res
judicata  or  collateral estoppel.  Administrative  adjudications
can  have  preclusive effect in later court proceedings  in  some
circumstances.19   But  we  previously  have  stated  that  [t]he
preclusive  use of prior administrative findings must  always  be
fair   and   that  fairness  at  a  minimum  requires  that   the
administrative   process  follow  the   essential   elements   of
adjudication, including notice and an opportunity to present  and
rebut  evidence,  a formulation of issues of fact  and  law,  and
other    procedural   elements   necessary   for   a   conclusive
determination  of the issue.20  Issue preclusion can  apply  only
when the issue to be precluded from relitigation is identical  to
the  issue already litigated, there has been a final judgment  on
the  merits, and the determination of the issue was essential  to
that final judgment.21
          AHFC  argues that in closing Parsons case for  lack  of
substantial  evidence, the Commission used essentially  the  same
standard  the  superior court would use for  a  summary  judgment
motion.  AHFC then proceeds by analogy:  because dismissal  of  a
court  case  without  prejudice is  generally  not  reviewable,22
judicial review of an administrative order closing a case must be
available  only  if the closing order is with prejudice.23   AHFC
concludes  from  this  that  the  Commissions  closure   was   an
adjudication giving rise to preclusive effects.
          This   argument  fails  to  recognize  that   we   have
distinguished  administrative  determinations  from  trial  court
decisions and held that [a]n agency determination need not be one
which  ends  the litigation on the merits and leaves nothing  for
the  court to do but execute the judgment in order to be ripe for
judicial review.24  The fact that the closure of Parsons case was
a  final  agency action subject to judicial review does not  mean
that  the  closure  was a dismissal with prejudice  precluding  a
lawsuit in superior court.25  Moreover, an informal investigation
by  Commission staff does not contain the essential  elements  of
adjudication.   Closure of Parsons case after an  informal  staff
investigation  without  any  kind  of  adversarial  activity   or
decision  on the merits by an independent fact-finder  is  not  a
dismissal with prejudice and does not give rise to issue or claim
preclusion in a subsequent lawsuit in superior court.
     C.   Parsons   Voluntary  Dismissal  of  the  Administrative
          Appeal Does Not Bar Appeal of the Superior Courts Grant
          of Summary Judgment.
          AHFC  asserts that Parson is barred from appealing  the
superior  courts summary judgment ruling because of his voluntary
dismissal of the administrative appeal.  AHFCs argument rests  on
cases  holding that a party who agrees to a dismissal waives  the
right to an appeal.26
          Parsons case is distinguishable from those AHFC  relies
on  because  Parson  voluntarily dismissed only  one  claim   his
putative administrative appeal  after the trial court already had
granted  summary  judgment against him on  his  direct  claims.27
          Parson does not seek review of the merits of the Commissions
determination, and he is not appealing from a judgment related in
any  way  to  the  administrative appeal.   While  his  voluntary
dismissal  of  the  administrative appeal does  preclude  further
review of the Commissions actions,28 it does not foreclose Parson
from appealing the earlier summary judgment ruling barring Parson
from bringing direct statutory discrimination claims against AHFC
in superior court.
          AHFC  contends  that Parson should not  be  allowed  to
appeal the superior courts conversion of his discrimination claim
to  an  administrative appeal because Parson invited  the  error.
The  invited  error doctrine does not prohibit appellate  review,
but  rather embodies the notion that errors that are invited  are
less  worthy  of consideration by an appellate court  than  those
where a party merely fails to object.29  When an error is invited,
an  appellate  court examines the error to see  if  there  is  an
exceptional situation where reversal is necessary to preserve the
integrity of the judicial process or to prevent a miscarriage  of
justice.30   The  invited error doctrine  does  not  apply  here,
despite the language of Parsons complaint reflecting a desire  to
appeal  the  Commissions closing order, because  Parson  did  not
actively seek, but rather actively opposed, the order barring his
direct  statutory discrimination claims and converting them  into
an administrative appeal.
          AHFC  also argues that if the superior court  erred  in
barring  Parson  from  bringing direct  statutory  discrimination
claims,  instead  converting those claims into an  administrative
appeal,  it  was harmless error.  AHFC contends that  Parson  can
show  no prejudice from the ruling because (1) the superior court
could  have  conducted a trial de novo on  appeal,  and  (2)  the
superior courts potential appellate remedies would have been  the
same  as  its  potential trial-court remedies.  This argument  is
undercut  by  AHFCs  concerted efforts to  avoid  Parsons  direct
claims.   It is telling that had Parson been allowed to take  his
discrimination claims to trial, he would have had not only a full
trial on the merits of his claims, but a jury trial on the merits
of  his claims.  In an administrative appeal, on the other  hand,
Parson  could have requested a trial de novo,31 but there was  no
guarantee that the court would grant the request,32 much less that
his  claim  would  be heard by a jury.33  This is  sufficient  to
overcome AHFCs harmless error argument.
     D.   We   Decline   To  Consider  Alternative  Grounds   for
          Affirming   the  Superior  Courts  Grant   of   Summary
          AHFC  asks  that we affirm the superior courts  summary
judgment  ruling on the alternative ground that  Parson  did  not
make a prima facie case of discrimination, or, if he made a prima
facie  case, that he was not able to show pretext after AHFC  put
forward   a   legitimate,  nondiscriminatory   reason   for   his
termination.  Although an appellate court may affirm a  grant  of
summary  judgment based on any grounds appearing in  the  record,
this power is discretionary.34  Here, we prefer that the superior
court  allow  the parties an appropriate opportunity  to  marshal
          their evidence and then examine that evidence to determine
whether  AHFC  is entitled to summary judgment on the  merits  of
Parsons statutory discrimination claims.
          Because    the   Commissions   closure    of    Parsons
administrative complaint after an informal investigation was  not
an   acquittal   of  AHFC  and  did  not  contain  the   required
adjudicative elements to give rise to any preclusive  effect,  we
REVERSE the superior courts grant of summary judgment to AHFC  on
Parsons  statutory discrimination claims.  We REMAND for  further
proceedings on those claims.

     1     We described this process in State, Department of Fish
& Game, Sport Fish Division v. Meyer, 906 P.2d 1365, 1368 (Alaska

               The  Alaska Civil Rights Act  permits  a
          person aggrieved by discriminatory conduct to
          file   a  complaint  with  the  Alaska  State
          Commission  for Human Rights.  AS  18.80.100.
          The executive director or a staff member must
          then informally investigate the complaint  to
          determine  whether  the  allegations  of  the
          complaint   are   supported  by   substantial
          evidence.  AS 18.80.110.  If the investigator
          determines that the allegations are supported
          by  substantial  evidence,  the  investigator
          shall   immediately  try  to  eliminate   the
          discrimination complained of, by  conference,
          conciliation,   and  persuasion.    Id.    By
          implication,  if the investigator  determines
          that the allegations of the complaint are not
          supported   by   substantial  evidence,   the
          complaint is dismissed.
This was clarified and confirmed by the legislative enactment  of
AS 18.80.112, effective in 2006.  Ch. 63,  4 & 14, SLA 2006.

     2     Cf. Meyer, 906 P.2d at 1369-74 (Commission decision to
close  a complaint for lack of substantial evidence is judicially

     3     AS  18.80.280 provides:  The acquittal of a person  by
the  commission  or  a  court of competent  jurisdiction  of  any
alleged  violation of this chapter is a bar to any other  action,
civil or criminal, based on the same act or omission.

     4    Alaska Contl Bank v. Anchorage Commercial Land Assocs.,
781  P.2d 562, 563 n.2 (Alaska 1989) (issues raised in points  on
appeal but not briefed are waived).

     5     Parker  v.  Tomera,  89 P.3d 761,  765  (Alaska  2004)
(citing  Therchik  v. Grant Aviation, 74 P.3d  191,  193  (Alaska

     6    Id.

     7     Moore  v. Allstate Ins. Co., 995 P.2d 231, 233 (Alaska
2000)  (citing  Parson v. Marathon Oil Co.,  960  P.2d  615,  618
(Alaska 1998)).

     8     Parker, 89 P.3d at 765 (citing Martinez v. Ha, 12 P.3d
1159, 1162 (Alaska 2000)).

     9     Grimm  v.  Wagoner,  77 P.3d 423,  427  (Alaska  2003)
(citing  Native  Vill. of Elim v. State, 990 P.2d  1,  5  (Alaska

     10    See AS

     11     See  AS  18.80.060(a)(4), (b)(3);  AS;
AS  18.80.145; AS 22.10.020(i); Johnson v. State, Dept of Fish  &
Game, 836 P.2d 896, 900, 905 (Alaska 1991).

     12    AS 18.80.145(a).

     13    AS 18.80.145(d).

     14     See  AS  18.80.280  (claim preclusion  by  Commission
acquittal); Johnson, 836 P.2d at 907 (issue preclusion).

     15    See supra note 3.

     16     Dansereau  v. Ulmer, 903 P.2d 555, 564 (Alaska  1995)
(citing  Foreman v. Anchorage Equal Rights Commn, 779 P.2d  1199,
1201 (Alaska 1989)).

     17     Blacks Law Dictionary 25, 502 (8th ed. 2004).   In  a
somewhat   analogous  context,  the  prosecutions  dismissal   of
criminal  charges before trial is not an acquittal,  but  if  the
prosecution presents insufficient evidence at trial to sustain  a
conviction, the court may enter a judgment of acquittal.  Compare
Alaska  R.  Crim. P. 43(a) with Alaska R. Crim. P. 29;  see  also
State v. Williams, 730 P.2d 806, 807-08 (Alaska 1982); Morgan  v.
State, 673 P.2d 897, 901 (Alaska App. 1983).

     18    AS 18.80.145(d).

     19    Johnson, 836 P.2d at 906-07.

     20    Id. at 908.

     21    Id. at 906.

     22    Sherry v. Sherry, 622 P.2d 960, 963 n.4 (Alaska 1981).

     23    See supra note 2.

     24    Meyer, 906 P.2d at 1371 (quoting Greater Anchorage Area
Borough  v.  City  of Anchorage, 504 P.2d 1027,  1030-31  (Alaska

     25      Nothing  in  the  pre-2006  Human  Rights  Act,  the
Commissions regulations, or our case law implies that  a  closure
for  lack of substantial evidence after an informal investigation
is  a dismissal with prejudice.  In 2006 the Human Rights Act was
amended  to  clarify,  inter  alia,  that  closure  for  lack  of
substantial evidence does not prevent a superior court action  on
the  same  facts.  AS 18.80.112(d); ch. 63,  4, SLA 2006.   While
this  section does not apply to Parsons complaint,  see  ch.  63,
  14, SLA 2006, it supports our conclusion.  See In re Estate  of
Evanco,  955  P.2d  525, 528 (Alaska 1998) (policy  in  successor
statute  is  factor  to  be  considered in  construing  ambiguous
statute that has not been interpreted).

     26     E.g.,  Legge  v. Greig, 880 P.2d 606, 607-09  (Alaska
1994);  Gravel v. Alaskan Vill., Inc., 409 P.2d 983, 986  (Alaska

     27    See DeNardo v. Corneloup, 163 P.3d 956, 959-62 (Alaska
2007)  (reviewing claims not dismissed voluntarily  by  appellant
but holding review of dismissed claim unavailable).

     28    See id. at 959-60.

     29     People  of Guam v. Alvarez, 763 F.2d 1036, 1037  (9th
Cir. 1985).

     30     Id.  at 1038 (quoting Marshall v. United States,  409
F.2d 925, 927 (9th Cir. 1969)).

     31    AS 44.62.570(d); Alaska R. App. P. 609(b).

     32     See Sw. Marine, Inc. v. State, Dept of Transp. & Pub.
Facilities, Div. of Alaska Marine Highway Sys., 941 P.2d 166, 179
(Alaska  1997) (citing Kott v. City of Fairbanks, 661  P.2d  177,
180  n.1  (Alaska 1983) (describing trials de novo on  appeal  as

     33     AS  18.80.135(a)  provides that  judicial  review  of
Commission decisions shall be under the provisions of the  Alaska
Administrative  Procedures  Act, specifically  AS  44.62.560.570.
AS  44.62.570(a) provides that an appeal shall be  heard  by  the
superior  court sitting without a jury.  Moreover, we  previously
have noted that the term trial de novo does not imply a right  to
a jury trial.  Fairbanks N. Star Borough v. Duncan, 878 P.2d 641,
641 (Alaska 1994).

     34    Snyder v. Am. Legion Spenard Post No. 28, 119 P.3d 996,
1001 (Alaska 2005).

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