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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Beegan v. State (10/31/2008) sp-6322

Beegan v. State (10/31/2008) sp-6322, 195 P3d 134

     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- 12615
Appellant, )
) Superior Court No. 3AN-05-12324 CI
v. )
) O P I N I O N
DEPARTMENT OF ) No. 6322 October 31, 2008
Commissioner, in his Official )
Capacity, )
Appellees. )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sharon L. Gleason, Judge.

          Appearances:  Jeffrey J. Jarvi, Law Office of
          Michael   Stehle,   P.C.,   Anchorage,    for
          Appellant.    Brenda   B.   Page,   Assistant
          Attorney  General, Anchorage,  and  Talis  J.
          Colberg,   Attorney  General,   Juneau,   for

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

          FABE, Chief Justice.
          In  January 2005 Dennis Beegan won a favorable judgment
from  the  Alaska State Commission for Human Rights  against  the
State   of  Alaska,  Department  of  Transportation  and   Public
Facilities  (DOTPF)  for  retaliatory  failures  to  hire.    The
Commission  awarded  him certain relief  but  no  damages.   Nine
months later, Beegan filed a suit against DOTPF in superior court
pursuing damages for the retaliatory conduct.  The superior court
dismissed  Beegans  claims for back pay and noneconomic  damages,
reasoning  that they were precluded by the doctrine of collateral
estoppel.  It also dismissed Beegans whistleblower claim and  his
claim  for  retaliation in violation of public policy because  it
determined   that  AS  18.80  afforded  Beegan   adequate   legal
alternatives  for  his retaliation claims.  Because  we  conclude
that  Beegans  back pay and noneconomic damages claims  were  not
precluded  by  collateral estoppel or res judicata and  that  his
claim  for  noneconomic damages was neither waived nor barred  by
the  statute  of  limitations,  we reverse  the  superior  courts
decision and remand for trial on these claims.
          Dennis  Beegan  was  hired on a temporary  basis  as  a
maintenance  electrician for DOTPF at Ted  Stevens  International
Airport around November 11, 1996.  He was fifty-four years old at
the time.  His first period of temporary hire lasted ninety days,
and  that term was extended twice.  During this time period,  two
temporary  maintenance  electricians were upgraded  to  permanent
positions;  Beegan  was not.  Another permanent  position  became
available  shortly  after  Beegans  last  temporary  term  ended.
Although  a  conversation with his former supervisor led  him  to
believe  that  he  would  be  dispatched  to  interview  for  the
position, this did not occur.
          On  December 29, 1997, Beegan filed his first complaint
with the Commission alleging that DOTPF had discriminated against
him  on the basis of age.  In August 1999 Beegan interviewed  for
another  permanent electrician position at the  airport  but  was
rejected.   Over  the  course  of  the  next  two  years,  Beegan
continued  to  apply for permanent positions and  was  repeatedly
rejected.   He filed several more complaints with the  Commission
as  a  result.  On December 18, 2002, the Commission consolidated
his five complaints into one amended complaint.
          A Commission hearing officer conducted a hearing on the
matter  between  July 14 and July 18, 2003.  The hearing  officer
issued recommended findings of fact and conclusions of law, which
a  panel of three commissioners considered but declined to adopt.
The commissioners instead filed a Proposed Decision and Order  on
August  2, 2004, inviting comment and further briefing  from  the
          The  Commission published its final decision on January
26,  2005.  It found that DOTPF had neither discriminated against
Beegan  on the basis of age nor retaliated against him for filing
an  age  discrimination complaint in 1999.   The  Commission  did
find, however, that DOTPFs February 2000, November 2000, and  May
2001  rejections of Beegans applications for permanent employment
were  improperly  motivated by retaliation for his  human  rights
complaints.   The Commission rejected Beegans request  for  front
pay  along  with  his request to be hired for the next  available
electrician  position  at the airport.  But  the  Commission  did
order  DOTPF to interview Beegan for the next such position  with
unbiased  personnel.   Importantly,  the  Commission  noted  that
Beegans  request for back pay damages had been withdrawn  and  it
therefore did not address that claim.
          Though  he  did  not appeal this decision,  Beegan  did
submit  an  affidavit  to the Commission  immediately  after  its
decision  was distributed.  In his affidavit Beegan  stated  that
his  request  for  back pay damages had been withdrawn  over  his
objection by Commission staff and that he had dutifully mitigated
his  damages.  He requested that the Commission consider his back
pay  request  and  award  him  back pay.   The  Commission  never
responded   to  this  request  or  the  allegations  in   Beegans
          Approximately  nine  months  later,  in  October  2005,
Beegan  filed a pro se complaint against DOTPF in superior court,
alleging  age  discrimination  and  retaliation  for  filing  age
discrimination complaints.  Among other relief, he requested back
pay   damages   and   reinstatement.   As   an   alternative   to
reinstatement,  he  requested  damages  for  future   wages   and
benefits.   Beegan  later  secured representation  and  filed  an
amended  complaint in February 2006, alleging age discrimination,
retaliation  for filing age discrimination complaints,  violation
of  public policy, breach of the covenant of good faith and  fair
dealing,    defamation,    and   interference    with    business
relationships.   He listed his damages as both  past  and  future
economic  and non-economic losses, including but not  limited  to
loss  of  wages,  injury to business reputation, mental  anguish,
humiliation,  embarrassment,  and  inconvenience.   He  requested
compensatory damages, attorneys fees, and any other relief  found
to be proper.
          DOTPF  moved  to dismiss Beegans amended  complaint  on
grounds  of sovereign immunity, statute of limitations, and  lack
of an employment contract.  Beegan opposed the motion, abandoning
his  age  discrimination and defamation claims but asserting  (1)
that  DOTPF  was collaterally estopped from denying it retaliated
against  him;  (2)  that  DOTPF was  liable  for  retaliation  in
violation  of public policy; (3) that the statute of  limitations
was  equitably  tolled  while  the  Commission  proceedings  were
pending;  and  (4)  that  sovereign  immunity  was  inapplicable.
Beegan  appended  the Commissions decision and his  January  2005
affidavit regarding back pay damages to his opposition motion.
          The   superior   court  considered   these   additional
documents  in  its  ruling  and so converted  DOTPFs  motion  for
judgment  on  the  pleadings to a summary  judgment  motion.   It
dismissed  Beegans claims in their entirety.   Relevant  to  this
appeal,   the   superior  court  ruled:  (1)  that   Beegan   was
collaterally  estopped  from seeking damages  in  superior  court
because  the Commissions unappealed decision resolved all  issues
associated  with the retaliatory conduct, including damages,  and
(2) that Beegans theory of a common law claim for retaliation  in
violation  of  public  policy, along with his  Whistleblower  Act
claim,  failed because AS 18.80 provided him with adequate  legal
          Beegan filed a motion for reconsideration arguing  that
the  issue  of  back  pay damages was not precluded  because  the
Commission  had explicitly declined to rule on it, and  that  his
theory  of  common law retaliation in violation of public  policy
and  his Whistleblower Act claim were viable.  The superior court
denied  the motion for reconsideration and entered final judgment
against  Beegan on all claims.  Beegan appeals the  dismissal  of
his  claims for back pay and noneconomic damages under AS  18.80,
his  theory  of  common law retaliation in  violation  of  public
policy, and his Whistleblower Act claim.
          We  review  the grant of a summary judgment  motion  de
novo,  affirming  if  the record presents  no  genuine  issue  of
material  fact  and if the movant is entitled to  judgment  as  a
matter of law.1  All reasonable inferences are drawn in favor  of
the nonmovant in this examination.2  Questions of law such as the
application of collateral estoppel, res judicata, and statutes of
limitations are reviewed de novo.3
     A.   Beegans Claim for Back Pay Damages in Superior Court Is
          Not Precluded.
          The  superior court dismissed Beegans request for  back
pay  damages  on collateral estoppel grounds.  DOTPF agrees  with
the  superior  courts conclusion, additionally arguing  that  res
judicata  bars  the  claim.  We conclude  that  neither  doctrine
precludes Beegans back pay damages claim in superior court.
          Res  judicata and collateral estoppel prohibit  parties
from  litigating  points that have already been resolved:   claim
preclusion prevents a party from suing on a claim which has  been
previously  litigated to a final judgment,4 and issue  preclusion
prevents  a party from pursuing an issue in a second action  that
is  identical to [one] decided in the first action.5  But Beegans
request  for back pay damages, whether viewed as an  issue  or  a
claim,  has never been resolved.  The only reference to back  pay
in   the  Commissions  decision  is  found  in  a  footnote:   In
Complainants  Brief  on Relief to which Mr. Beegan  is  Entitled,
Complainant  states  that Mr. Beegan is  no  longer  seeking  the
remedy  of  back pay.  The superior court concluded that  because
the  Commission determined all appropriate relief to award to Mr.
Beegan  as authorized by AS 18.80.130(a)(1), his claims for  back
pay   damages  were  barred  by  collateral  estoppel.   But  the
Commission  neither decided the question of back pay damages  nor
issued  a  final  judgment  on  the matter;  indeed,  it  clearly
acknowledged that no back pay damages claim was before  it.   And
AS   18.80.145(b),  which  establishes  a  system  of  concurrent
jurisdiction  between  the two forums,6 provides  that  questions
left unresolved by the Commission remain open before the superior
court:  the decision of the commission is binding on the  parties
to  the court action as to all issues resolved in the hearing but
not  as  to  any  issues not resolved in the hearing.   (Emphasis
          DOTPF  argues that this provision applies only to cases
in  which a party pursues actions under AS 18.80 in court and  in
          front of the Commission at the same time and the Commission
intervenes in the court action.  This argument is unavailing.  As
we  made  clear in Johnson v. Alaska State Department of  Fish  &
Game,  the  application  of  AS  18.80.145  is  not  limited   to
situations in which the Commission requests deferral.7
          DOTPF maintains that even if the doctrine of collateral
estoppel  does not apply, Beegans claim for back pay  damages  is
nonetheless barred by res judicata because he had the opportunity
to  assert the back pay claim before the Commission but failed to
do  so.   DOTPF relies on our decisions in Sengupta v. University
of Alaska8 and McElroy v. Kennedy9 to support its position.
          Res   judicata   prohibits  a  party  not   only   from
relitigating  a resolved claim in a subsequent action,  but  also
from  asserting  any  legal theory, cause of action,  or  defense
which  could have been asserted in that [prior] action.10  As  we
stated in McElroy, when a party has previously had an opportunity
to  litigate  an  issue, the fact that he chose not  to,  whether
because  of  a  strategic decision or ignorance or other  reason,
does  not  exempt  him from the principles of res  judicata11  in
subsequent litigation.  But in Sengupta we also noted  the  well-
established  principle  that  no  decision  may  constitute   res
judicata if the party against whom it is asserted has not  had  a
full  and fair opportunity to litigate his claims.12   Here,  the
record  reveals  that Beegan did not have such an opportunity  to
litigate  his  back pay damages claim.  Beegan  has  consistently
maintained  that his request for back pay damages  was  withdrawn
over  his objection by the Commissions human rights advocate  who
prosecuted  the case, and DOTPF has provided no evidence  to  the
          Moreover,  the  statutory  structure  supports  Beegans
claim  that  he lacked control in the case before the Commission.
A  person  alleging discrimination may file a complaint with  the
Human  Rights Commission under AS 18.80.100(a).  Commission staff
then  investigate  the  claim and determine  whether  substantial
evidence  exists  to support it.13  If the staff  determines  the
claim  is  colorable,  it  attempts to  remedy  the  problem  via
conference,  conciliation, and persuasion.14  Failing  that,  the
Commissions executive director may choose to refer the  complaint
for  hearing, in which case she issues an accusation and presents
it to the Commission.15
          The Commission executive director and her staff control
this  process  throughout:  They may use discretion to  eliminate
claims  at  the mediation and prosecution stages.   A  Commission
staff member drafts the accusations and presents the cases to the
Commission.   Indeed, the case against DOTPF  was  filed  not  by
Beegan  himself but by the Commission ex rel.  on the information
of   Beegan.16  The prohibition against claim splitting  presumes
that  one  exercises  control  over  which  claims  are  brought.
Because  Beegan  did not control his claim for back  pay  damages
before  the  Commission,  he  did  not  have  a  full  and   fair
opportunity  to litigate it, and res judicata does  not  preclude
him from pursuing this claim in superior court.
          DOTPF  also  argues that Beegans back pay  claim  fails
because  he  did not appeal the Commissions decision,  but  DOTPF
          mischaracterizes Beegans appeal to this court as a conten[tion]
that the Commission erred in its decision regarding the scope  of
appropriate relief.  In fact, Beegan consistently argues  in  his
briefing that the Commission never decided the question  of  back
pay  damages  because  the  request was improperly  withdrawn  by
Commission  staff, not that the Commission erred in its  decision
on relief.  Beegan appeals the superior courts determination that
his  back  pay  damages  claim is precluded  by  the  Commissions
decision;  he  does  not appeal the Commission  decision  not  to
address  the  claim.  Because the Commission did not  decide  the
question  of back pay damages, there was no final order  on  back
pay damages for Beegan to appeal.
          As  we  explained in Johnson, Beegan was free  to  seek
damages  in  superior  court after having  prevailed  before  the
Commission:   [W]hen  .  .  .  claimants  before  the  Commission
prevail,  their claim does not merge into the favorable judgment.
Rather, they are still free to bring subsequent action . .  .  in
superior  court,  because the remedies  available  in  court  are
different than those available before the Commission.17   Beegans
claims are subject to issue and claim preclusion analysis, but we
have  already determined that neither doctrine prohibits his back
pay damages claim.
          For the foregoing reasons, the superior court erred  in
dismissing Beegans back pay damages claim.
     B.   Beegans   Claim  for  Noneconomic  Damages  Is  Neither
          Precluded nor Barred by the Statute of Limitations.
          The  superior court held that the Commissions  decision
resolved  all  issues of liability and the entire  scope  of  the
appropriate relief to award, including damages. It reasoned  that
Beegans  claim for noneconomic damages under AS 18.80 in superior
court  was  therefore precluded.  But again, claims can  only  be
precluded  by collateral estoppel or res judicata if the  initial
forum  actually decided the question or if the party  could  have
raised the question in the initial forum and did not.  Here,  the
Commission did not evaluate Beegans claim for noneconomic damages
because it could not have done so: that remedy was unavailable to
Beegan  at  the Commission level.18  Our decision in  Johnson  is
          In Johnson, a surf fisherman filed a complaint with the
Commission  on  behalf of himself and other  Alaska  Native  surf
fishermen  alleging  that the Department of  Fish  and  Game  had
racially  discriminated  against them.19   They  later  sued  the
Department in superior court for the same conduct.20  The Johnson
plaintiffs were permitted to seek noneconomic damages in superior
court  after  prevailing before the Commission  because  the  two
forums  offered different remedies.  Indeed, when . . . claimants
before  the  Commission prevail, their claim does not merge  into
the  favorable  judgment.  Rather, they are still free  to  bring
subsequent  action . . . in superior court, because the  remedies
available in court are different than those available before  the
Commission.21  Because  noneconomic damages were not available to
the  fishermen at the Commission level, they could  pursue  these
damages  in  superior court even after they had prevailed  before
          the Commission:
          Under  the  Act,  the Commissions  powers  to
          remedy  violations  of  AS  18.80  are  quite
          specific.  . . . [T]he Commissions  power  to
          award money is limited to special damages  or
          to   money  payments  incident  to  equitable
          relief,  that  is,  to  damages  for  direct,
          calculable pecuniary loss, such as  back  pay
          or housing expenses.
               Plainly, the remedial powers that  th[e]
          statute  grants  to  the superior  court  are
          broader  than  the specific  powers  that  AS
          18.80.130 grants to the Commission.   Indeed,
          the extraordinary difference between remedies
          available before the Commission and  remedies
          available before the court provides the  only
          rational  reason  for affording  complainants
          new  action in superior court after they have
          prevailed before the Commission.[22]
This  is  the case here.  As Johnson makes clear, the  Commission
was  not empowered to award noneconomic damages to Beegan for  AS
18.80 claims.23  Beegans claim for noneconomic damages before the
superior  court was thus not precluded by collateral estoppel  or
res judicata.
          DOTPF   finally   contends  that  Beegans   claim   for
noneconomic  damages  fails for two other reasons:   (1)  because
Beegan waived it before the superior court and (2) because it  is
barred  by  the  statute of limitations.  Neither contention  has
          1.   Beegan  did  not  waive  his  noneconomic  damages
          DOTPF  concedes that Beegan pleaded noneconomic damages
in  his  amended complaint but contends that he did  not  request
them in relation to an AS 18.80 retaliatory failure to hire claim
and   therefore  waived  them.   We  disagree.   In  his  amended
complaint,  Beegan pleaded noneconomic damages [a]s a  result  of
defendants conduct.  Among the allegations of defendants  conduct
in  paragraph eleven of the complaint is a statement that  Beegan
was  not  hired  for  such  a permanent  maintenance  electrician
position  at  the  airport  .  . .  because  he  previously  made
complaints of age discrimination with the Alaska State Commission
for  Human Rights.  This allegation precisely asserts the conduct
on which an AS 18.80 retaliatory failure to hire claim rests, and
it  suffices  to  raise  the  claim under  the  liberal  pleading
standard  of  Alaska Civil Rule 8(a).24  Moreover,  the  superior
court considered and ruled on Beegans claim for damages under  AS
          2.   The  statute  of limitations does not bar  Beegans
               claim for noneconomic damages.
          DOTPF  also  submits  that Beegans noneconomic  damages
claim  is  barred  by  the  statute  of  limitations.   Under  AS
09.10.070,  claims based on AS 18.80 must be brought  within  two
          years of the offending conduct.25  Beegan did not file his claim
in  superior court until at least four years after the  offending
conduct occurred.  His claim for noneconomic damages is therefore
barred unless equitable tolling applies.
          As  we  recognized  in  Dayhoff v. Temsco  Helicopters,
Inc.,  [t]he  equitable tolling doctrine  applies  to  relieve  a
plaintiff from the bar of the statute of limitations when he  has
more  than  one  legal  remedy available to  him.26   We  further
explained  that  after answering this threshold  question,  three
additional elements must be met for equitable tolling  to  apply:
(1)  pursuit of the initial remedy must give the defendant notice
of  the  plaintiffs claim; (2) the defendants ability  to  gather
evidence  must  not  be  prejudiced by the  delay;  and  (3)  the
plaintiff must have acted reasonably and in good faith.27  On the
threshold  question,  Beegan  had  more  than  one  legal  remedy
available  to  him: he was entitled to proceed  both  before  the
Commission  and  the superior court.28  And  each  of  the  three
additional  elements  set out in Dayhoff has  been  met.   First,
DOTPF has had notice of Beegans retaliatory failure to hire claim
since  he first presented it to the Commission in 1999.   Second,
although DOTPF asserts that it would be prejudiced if Beegan were
allowed to pursue noneconomic damages because witnesses have died
or  moved  on,  and memories have faded, DOTPF  has  known  about
Beegans  claim for years.  As we stated in Dayhoff,  if  evidence
available  when the employer first learned of the claim[]  is  no
longer  available,  and  the  employer  could  have  obtained  or
preserved  the  evidence,  the  current  unavailability  of   the
evidence  will  not  support a finding of  employer  prejudice.29
Finally,  nothing  in the record suggests that Beegan  has  acted
unreasonably  or in bad faith before the superior  court  or  the
          DOTPF  nonetheless argues that equitable tolling should
not  apply in this case because Beegans administrative action was
not dismissed or defective, relying on our decision in Gudenau  &
Co.  v. Sweeney Insurance30 to support its position.  DOTPF  also
cites  our  decision  in Fred Meyer of Alaska,  Inc.  v.  Bailey:
Generally, equitable tolling applies when the plaintiff files  an
action  in  court after an administrative proceeding  or  initial
court action is dismissed or proves unavailing.31
          But Beegans administrative action did prove unavailing.
Despite  success  on  some of his claims before  the  Commission,
Beegan was not awarded noneconomic damages because they were  not
available to him before the Commission.  His initial action tolls
his  subsequent one not because it was dismissed, but because  it
was unavailing with respect to this form of relief.32
          Our  equitable  tolling analysis in Gudenau  relied  on
case  law  from the Ninth Circuit and California,33 and decisions
from  those  jurisdictions suggest that equitable tolling  should
apply  here.  For example, in Daviton v. Columbia/HCA  Healthcare
Corp., the Ninth Circuit held that litigants who had prevailed on
their  administrative  complaint  for  disability  discrimination
before the United States Department of Health and Human Servicess
Office  of  Civil  Rights  satisfied  all  the  requirements  for
equitable tolling in their subsequent district court case against
          the same defendant for the same wrong.34  The Ninth Circuit also
concluded  that litigants need not seek the same remedies  before
both  forums in order for equitable tolling to apply.35   And  in
Collier  v.  City of Pasadena, the court held that  a  plaintiffs
successful  workers  compensation  claim  equitably  tolled   the
statute of limitations on his subsequent disability pension  case
based on the same injury.36  Similarly, in Tu-Vu Drive-In Corp. v.
Davies, the Supreme Court of California held that the statute  of
limitations on a plaintiffs subsequent damages claim  was  tolled
by  the previous and successful third-party claim for recovery of
the seized property at issue.37
          To  deny  equitable tolling here simply because  Beegan
succeeded before the Commission on some of his claims would place
form over substance in light of the relevant statutory structure.
Had Beegan filed before the two entities at the same time, it  is
quite likely that the superior court proceedings would have  been
stayed  by  operation  of the statute38 pending  the  Commissions
decision,  which  would have put the parties in  essentially  the
same  position  they are now.  And the statutory structure  could
scarcely be more permissive in providing an aggrieved party  with
routes  to  relief.  For instance, the statute  provides  that  a
human rights litigant may file a complaint with the Commission;39
he  may file a complaint in superior court;40 he may file in both
forums   simultaneously;  or  he  may  bring  the  discriminatory
practice  to the attention of the Commissions executive  director
and encourage her to file a complaint.41  This statutory structure
indicates  that the legislature intended to provide human  rights
litigants particular flexibility in pursuing relief.42  Requiring
human rights litigants to file before the superior court and  the
Commission  simultaneously  to  preserve  their  rights  in  both
forums,  as  DOTPF suggests, would introduce a rigid  requirement
into  an  otherwise  permissive  structure  and  could  frustrate
legislative intent.  Such a requirement would have a particularly
harsh  effect on pro se litigants, like Beegan, and  could  cause
superfluous filings in the superior court.43
          The  Supreme  Court of California has  articulated  the
general  principle  underlying the  equitable  tolling  doctrine:
[I]f the defendant is not prejudiced thereby, the running of  the
limitations  period is tolled when an injured person has  several
legal  remedies and, reasonably and in good faith, pursues one.44
Our  decisions  have  demonstrated the same general  principle.45
Beegan  has met this standard and the test set forth in our  case
          Because  Beegan  filed  his  claim  in  superior  court
approximately  nine  months  after  the  Commission  issued   its
decision,  and because his claim was equitably tolled during  the
pendency  of  the  Commission  proceedings,  Beegans  noneconomic
damages claim is not barred by the statute of limitations.46
          The  decision of the superior court is REVERSED and the
case  is  REMANDED for determination of back pay and  noneconomic

     1     Matanuska Elec. Assn v. Chugach Elec. Assn,  152  P.3d
460, 465 (Alaska 2007).

     2    Id.

     3     Id.;  Law  Offices of Steven D. Smith, P.C.  v.  Borg-
Warner Sec. Corp., 993 P.2d 436, 443 (Alaska 1999).

     4     McElroy  v.  Kennedy, 74 P.3d 903, 906  (Alaska  2003)
(internal quotation marks omitted).

     5     Johnson v. Alaska State Dept of Fish & Game, 836  P.2d
896, 906 (Alaska 1991).

     6      Other   states  have  also  established  systems   of
overlapping  jurisdiction in the context of human  rights  cases.
See,  e.g., Gandy v. Wal-Mart Stores, Inc., 872 P.2d 859,  862-63
(N.M.  1994)  (upholding  concurrent jurisdiction  of  the  Human
Rights  Division and the judicial system in the context of  human
rights  claims);  Harrison County Bd. of Educ. v. Carson-Leggett,
466  S.E.2d 447, 449-51 (W. Va. 1995) (holding that a  series  of
adverse  decisions  by  the  West Virginia  Education  and  State
Employees  Grievance Board did not preclude a party alleging  sex
discrimination and unlawful retaliation from later  pursuing  her
claims before the Human Rights Commission).

     7    836 P.2d at 907-08, 908 n.16.

     8    21 P.3d 1240 (Alaska 2001).

     9    74 P.3d 903.

     10    Id. at 906 (emphasis added).  Our cases have clarified
that  the  could  have been asserted test is  limited  to  claims
against  a  party  arising  out of  the  same  transaction  being
litigated.   The rule against claim splitting is  a  conventional
application  of the doctrine of res judicata.  The  rule  against
claim  splitting provides that all claims arising out of a single
transaction must be brought in a single suit, and those that  are
not become extinguished by the judgment in the suit in which some
of  the  claims were brought.   Robertson v. Am. Mech., Inc.,  54
P.3d  777, 780 (Alaska 2002) (quoting McDowell v. State, 23  P.3d
1165,  1167  n.9 (Alaska 2001) and Osborne v. Buckman,  993  P.2d
409, 412 (Alaska 1999)).

     11     McElroy,  74  P.3d at 909 (internal  quotation  marks

     12    21 P.3d at 1253.

     13    AS 18.80.110.

     14    Id.

     15    AS 18.80.120.

     16     Ex rel. suits are typically brought by the government
upon  the  application of a private party . . . who is interested
in the matter.  Blacks Law Dictionary 621 (8th ed. 2004).

     17     836 P.2d 896, 907 n.15 (Alaska 1991); see also id. at
909, 914.

     18     Id.  at  914 (In all cases, however, the  Commissions
power  to  award money is limited to special damages or to  money
payments  incident to equitable relief, that is, to  damages  for
direct,  calculable pecuniary loss, such as back pay  or  housing
expenses.   (footnote  omitted)).  The  statute  was  amended  in
September 2006 to expressly prohibit the Commission from awarding
noneconomic damages.  See AS 18.80.130(a); ch. 63,  6, SLA 2006.

     19    836 P.2d at 900, 903.

     20    Id. at 903.

     21    Id. at 907 n.15, 914.

     22     Id. at 914 (quoting McDaniel v. Cory, 631 P.2d 82, 88
(Alaska 1981)) (footnote omitted).

     23    Id.

     24     Alaska  Civil Rule 8(a) requires a complaint  to  set
forth  a short and plain statement of the claim showing that  the
pleader  is entitled to relief and a demand for judgment for  the
relief the pleader seeks.

     25     Beegan suggests that his claims may sound in contract
rather  than  tort  and  that  the  statute  of  limitations  may
consequently be three years rather than two. Regardless,  he  did
not  file his superior court suit until four to five years  after
the  offending  conduct, which is outside either  allowable  time

     26    772 P.2d 1085, 1087 (Alaska 1989).

     27    Id.

     28    AS 18.80.130(a)(1); AS 22.10.020(i).

     29    722 P.2d at 1088 n.7.

     30    736 P.2d 763, 768 (Alaska 1987).

     31    100 P.3d 881, 886 (Alaska 2004).

     32      Several  federal  courts  have  come  to  a  similar
conclusion  in  an  analogous context, holding  that  pursuit  of
internal  union remedies tolled the limitations period applicable
to a hybrid suit under  301 of the Labor Management Relations Act
.  .  .  where  the  remedies pursued, although  not  capable  of
providing  a union member with complete relief, were  capable  of
providing some relief.  James Lockhart, Annotation, When Is  Six-
Month  Limitations Period, Applicable to Employees Hybrid  Action
Against  Employer  and  Union  Under   301  of  Labor  Management
Relations  Act of 1947 (29 U.S.C.A.  185), Subject to Tolling  or
Equitable  Modification Due to Pendency of, or Employees  Pursuit
of,  Contractual or Internal Union Remedies?, 17 A.L.R.  Fed.  2d
523,   32 (2007); see also id.  33; Robinson v. Cent. Brass  Mfg.
Co.,  987  F.2d  1235,  1243-44 (6th Cir. 1993)  (stating  former
employees  pursuit of union remedies equitably tolled  subsequent
suit  against union in federal court because union remedies could
have provided her some relief, though not complete relief).

     33    736 P.2d at 768.

     34    241 F.3d 1131, 1133-34, 1141-42 (9th Cir. 2001).

     35    Id. at 1133, 1141.

     36    142 Cal. App. 3d 917, 921, 935 (Cal. App. 1983).

     37     426  P.2d  505, 506 (Cal. 1967); see also  Elkins  v.
Derby, 525 P.2d 81, 84 (Cal. 1974).

     38     AS  18.80.145(a)  provides that [i]f  the  commission
certifies   in  writing  to  the  court  that  it  is   presently
investigating  or  actively dealing with the  act,  practice,  or
policy  of the defendant giving rise to the cause of action,  the
court  shall, at the request of the commission, defer proceedings
for a period of not more than 45 days or such extended period  as
the  court may allow.  See also subsection (b) of this provision,
which provides that the decision of the commission is binding  on
the  parties to the court action as to all issues resolved in the
hearing but not as to any issues not resolved in the hearing.

     39     AS  18.80.100(a)  provides that  [a]  person  who  is
aggrieved by a discriminatory practice prohibited by this chapter
may  sign  and  file  with  the commission  a  written,  verified

     40     AS 22.10.020(i) states that [a] person who is injured
or  aggrieved by an act, practice, or policy which is  prohibited
under AS 18.80 may apply to the superior court for relief.   That
said, the commission must be given an opportunity to intervene if
it  chooses,  under AS 18.80.145(a):  When an action  is  brought
under  AS 22.10.020(i), the plaintiff shall serve a copy  of  the
complaint  on  the  commission.   Upon  timely  application,  the
commission may intervene as a matter of right.

     41     AS 18.80.100 provides that the executive director may
file  a  complaint in the manner provided in (a) of this  section
when  a  discriminatory practice comes to the  attention  of  the
executive director.

     42     In  an analogous context, other courts have concluded
that  civil  rights  statutes should be  liberally  construed  to
provide  litigants  flexibility in pursuing relief,  particularly
through  the  application of equitable tolling.  See Martinez  v.
Orr,  738  F.2d  1107,  1110 (10th Cir. 1984)  (In  view  of  the
principle that Title VII [of the Civil Rights Act of 1964]  is  a
remedial statute to be liberally construed in favor of victims of
discrimination,  we  conclude that the thirty-day  limitation  of
[U.S.C.]  section 2000e-16(c) . . . may be subject  to  equitable
tolling  in appropriate cases. (citations and internal  quotation
marks omitted)).

     43     See Elkins, 525 P.2d at 88 (If in order to avert loss
of his rights, an injured party is forced to initiate proceedings
with  both the compensation board and a superior court, he brings
onerous  procedural burdens upon himself, his employer,  and  the
already overtaxed judicial system.).

     44    Id. at 84.

     45     See,  e.g., Dayhoff v. Temsco Helicopters, Inc.,  772
P.2d 1085, 1087 (Alaska 1989).

     46     Beegan also contests the superior courts dismissal of
his  alternative  claims  based on retaliation  in  violation  of
public  policy and the Whistleblower Act.  Because we  hold  that
his  claims for damages under AS 18.80 are not precluded, we need
not reach these alternative theories.

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