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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Smith v. Anchorage School District (10/8/2010) sp-6519

Smith v. Anchorage School District (10/8/2010) sp-6519

        Notice:   This opinion is subject to correction before publication in the Pacific Reporter. 
        Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 
        K   Street,   Anchorage,   Alaska   99501,   phone   (907)   264-0608,   fax   (907)   264-0878,   e-mail 
        corrections@appellate.courts.state.ak.us. 

                  THE SUPREME COURT OF THE STATE OF ALASKA 

JAMES SMITH,                                      ) 
                                                  )       Supreme Court No. S-13285 
                 Appellant,                       ) 
                                                  )       Superior Court No. 3AN-06-12525 CI 
        v.	                                       ) 
                                                  ) 
ANCHORAGE SCHOOL DISTRICT,  )                             O P I N I O N 
                                                  ) 
                 Appellee.	                       )       No. 6519 - October 8, 2010 
                                                  ) 

                 Appeal from the Superior Court of the State of Alaska, Third 
                 Judicial District, Anchorage, John Suddock, Judge. 

                 Appearances:   Joe   P.   Josephson,   Josephson   &   Associates, 
                 P.C.,   Anchorage,   for   Appellant.       Howard   S.   Trickey   and 
                 Cheryl     Mandala,      Jermain      Dunnagan       &    Owens,     P.C., 
                 Anchorage, for Appellee. 

                 Before:     Carpeneti,    Chief    Justice,  Winfree,     Christen,    and 
                 Stowers, Justices.   [Fabe, Justice, not participating.] 

                 STOWERS, Justice 

I.      INTRODUCTION 

                 On   October   29,   2004,   the   Anchorage   School   District   terminated   James 

Smith from his security position at Whaley Secondary School.  Smith sued the School 

District, claiming: (1)  race discrimination;(2) age discrimination; (3) disability 

discrimination; and 4)breach of the covenant of good faith and fair dealing.  The 

superior court granted summary judgment in favor of the School District on all claims. 

We conclude that Smith did not present evidence raising genuine issues of material fact 

on any of his claims and that the School District was entitled to judgment as a matter of 

law on all claims.   We therefore affirm the superior court's grant of summary judgment. 

 II.    FACTS AND PROCEEDINGS 

                James Smith was a Mental Health Technician (MHT) at Whaley Secondary 

School, a school in the Anchorage School District for students with severe emotional 

disturbances and related behavioral problems.  MHTs are safety and security personnel 

at Whaley and are trained and authorized to restrain students using the Mandt system of 

de-escalation and restraint. In order to use Mandt techniques, the School District requires 

MHTs   to   obtain   certification   and   attend   an   annual   three-day   recertification   training 

program. 

        A.      Smith's Race Discrimination Complaint 

                On June 4, 2004, Smith and Todd Hess, the School District's Director of 

Contract Administration, met for a disciplinary conference.  Hess held the disciplinary 

conference in order to address, among other things, complaints that Smith was making 

racially insensitive remarks.   Smith is African-American. 

                During the conference, Smith expressed his belief that it was his coworkers 

who were acting in a racially inappropriate manner.  Hess forwarded Smith's complaints 

to the School District's Equal Employment Opportunity Office (EEO) "[b]ecause Smith's 

allegations against his coworkers concerned possible racial harassment or discrimination." 

The   EEO   conducted   an   investigation   and   issued   a   report   on   November   12,   2004, 

concluding that there was "no evidence to support the allegation that coworkers made 

racial comments to [Smith]." 

        B.      Smith's Absence From Whaley 

                Whaley held its annual Mandt training for returning MHTs on August 26, 

27, and 30, 2004.   Smith attended the first day of training, which was a Thursday.  At the 

beginning of the day, Smith informed Whaley's principal that he intended to use personal 

time off for the next two training days (Friday August 27 and Monday August 30) in 

order to officiate at his niece's wedding in California. Smith explained that he had 

purchased his airline tickets for this travel in July.  He was scheduled to fly out of 

Anchorage Thursday evening around 7 or 8 p.m.  The principal told Smith that he could 

not take the personal days off because of the mandatory training.  Later in the day, Smith 

informed the trainers that he was not feeling well.  At lunch, Smith went to the Veteran's 

Administration Hospital to see a doctor, received a prescription for pain medication, and 

then went home. 

                Smith testified that he called in sick that evening for the next morning, 

Friday, August 27, because he was still in pain.  Smith testified in a deposition that he 

stayed at home that day with his son. He testified that he was feeling better by the 

afternoon so he decided to fly that night to California.  He testified that he attended the 

wedding on August 28 and stayed with a relative through August 29.  Upon his arrival in 

Anchorage sometime after midnight Monday, August 30, he realized that he was sick and 

could not work, so he called in sick.   Thus, he did not attend the second and third Mandt 

training days. 

        C.      Ensuing Disciplinary Conferences 

                On September 8 Hess held a disciplinary conference with Smith to address 

"concerns related to [his] absence from work on August 27 and 30, 2004." Smith told his 

story, and Hess asked Smith to provide a copy of his boarding pass from his trip out of 

state to corroborate his story. 

                At the September 8 conference, Smith provided a physician's note stating 

that Smith was unable to walk more than 100 feet without resting, was unable to stand for 

longer than five or ten minutes, and may need crutches to aid in movement.                     Smith's 

MHT position required him to be in excellent health and specifically required him to be 

able to physically restrain students.   Based on Smith's physician's note, Hess placed 

Smith on leave until he provided the School District with a fitness for duty statement from 

a   physician   indicating   that   he   was   medically   able   to   perform   the   duties   of   his   work 

position.   Smith did not provide the requested information. 

                On September 13 Hess sent Smith a letter advising him that he had not 

provided the required travel documentation and giving Smith until September 17 to do so. 

The letter informed Smith that "[f]ailure to contact [Hess's] office [would] be viewed as 

insubordination."   Smith still did not provide the requested information. 

                On September 20 Hess sent another letter notifying Smith that he had failed 

to provide the requested travel documentation and directing him to attend a discipline 

conference on September 28 to discuss his "insubordination." 

                On September 28 Hess and Smith met for the discipline conference, and 

Smith still did not provide the required travel documentation.  Earlier in the week, Smith 

told Hess that it would take fourteen days to get documentation from the airline, so Hess 

set a deadline of October 15, 2004, for Smith to provide documents verifying the dates 

of Smith's travel. Hess also informed Smith that the School District intended to terminate 

his employment if he did not provide documentation. 

                During the conference, Smith produced another physician's note describing 

his hip injury.  Smith's second physician's note stated that Smith's limitations were 

because of severe pain in his hip and that, "[e]ven with surgery correcting his pain, he 

[would] have life-long limitations" that wouldprevent him from "performing duties such 

as restraining others." According to Hess, Smith also stated at the conference that he was 

physically able and ready to return to work.  Hess informed Smith that he would remain 

on leave until he provided a medical fitness for duty statement specifically addressing his 

ability to physically restrain students. 

                On October 7 Smith provided Hess with another physician's note.  Smith's 

third physician's note stated that Smith had chronic hip pain limiting his ability to lift, 

bend, or squat. Hess informed Smith that this third note did not address his ability to 

restrain students, and thus Smith remained on leave. 

                Smith never provided the School District with documentation regarding his 

trip to California. On October 29 the School District terminated Smith for sick leave 

abuse, insubordination, and dishonesty.   Smith was 53 years old when he was terminated 

and had worked for the School District for 19 years. 

        D.      Procedural History 

                On  October  30,  2006,  Smith  filed  a  lawsuit   against   the   School   District 

alleging: (1) breach of the covenant of good faith and fair dealing; (2) age discrimination; 

(3) disability discrimination; and (4) race discrimination.   The School District filed a 

motion for summary judgment on all claims, and on May 22, 2008, the superior court 

heard oral argument on the motion.  The superior court issued a ruling from the bench 

granting the School District's motion. 

                The superior court found that the School District did not fire Smith in bad 

faith, and granted summary judgment on his claim for breach of the covenant of good 

faith and fair dealing.   The superior court also ruled that the School District's reasons for 

terminating Smith were an "adequate and independent basis for termination" that limited 

Smith to mixed-motive theories for wrongful termination on his discrimination claims. 

The court found that Smith had not presented the evidence of discrimination necessary 

for mixed-motive theories of race and age discrimination.  The court granted summary 

judgment on Smith's race and age discrimination claims. 

                The superior court also found that there was "zero evidence" that Smith was 

fired because of his disability because the disability issues "hadn't yet played their way 

out in the system." It granted summary judgment on Smith's disability discrimination 

claim. 

                Smith appeals the superior court's grants of summary judgment on all 

claims. 

III.	   DISCUSSION 

        A.	     Standard Of Review 

                "Grants of summary judgment are reviewed de novo, reading the record in 

the light most favorable to the non-moving party and making all reasonable inferences in 
its favor as well."1   When reviewing a grant of summary judgment, we "must determine 

whether any genuine issue of material fact exists and whether the moving party is entitled 
to judgment on the law applicable to the established facts."2 

        B.	     Summary   Judgment   Was   Proper   On   Smith's   Race   Discrimination 
                Claim. 

                Smith argues that the superior court erred in granting summary judgment on 

his race discrimination claim against the School District. Smith argues that the "the close 

temporal relationship" between the June disciplinary conference when he raised concerns 

about racial comments by his coworkers and his termination in October raised a genuine 

issue of material fact whether race was a motivating factor in his termination.              He also 

argues that the general circumstances under which the School District fired him raised a 

genuine issue of material fact whether race was a motivating factor in his termination. 

                Smith brings his race discrimination claim under the Alaska Human Rights 
Act, Alaska Statute 18.80.220(a).3                                                                  4 
                                         We have previously adopted the federal "pretext"  and 
"mixed-motive"   analytical   frameworks   used   in   Title   VII5       claims   for   analyzing   race 

discrimination claims under Alaska's anti-discrimination laws.6  Although plaintiffs can 

pursue mixed-motive and pretext theories simultaneously,7 Smith presents primarily a 

mixed-motive theory on appeal. 

                 Under   Alaska   caselaw,   a   plaintiff   must   first   present   direct   evidence   of 

discriminatory intent in order to pursue a mixed-motive theory of discrimination under 
the Alaska Human Rights Act.8   Once the plaintiff meets the threshold direct evidence 

requirement, he can prevail at trial by showing that his race was a "motivating factor" in 
the   adverse   employment   decision.9   In   the   mixed-motive   context,   the   term   "direct 

evidence" refers to the quantum of proof; it is not used as an antonym for "circumstantial 
evidence."10  In order to show direct evidence the plaintiff must "at least offer either direct 

evidence   of   prohibited   motivation   or   circumstantial   evidence   strong   enough   to   be 
functionally equivalent to direct proof."11 

                 We first adopted the "direct evidence" threshold requirement for mixed- 
motive discrimination claims in VECO, Inc. v.Rosebrock.12  In doing so, we adopted, with 

little discussion, the "direct evidence" requirement from Justice O'Connor's concurring 
opinion   in Price   Waterhouse   v.  Hopkins.13    Justice   O'Connor   agreed   with   the Price 

Waterhouse plurality that Title VII's prohibition of discrimination "because of" gender 
allowed the plaintiff to pursue a mixed-motive theory,14 but she also would have required 

a plaintiff to "show by direct evidence that an illegitimate criterion was a substantial 
factor in the decision."15   We adopted the Justice O'Connor view because the Alaska 

Human Rights Act is modeled after, and is similar to, Title VII.16 

                In 2003 the Supreme Court in Desert Palace v. Costa eliminated the "direct 
evidence" requirement for mixed-motive cases under Title VII.17  In Desert Palace, the 

Court was asked to address what was the correct standard for making a "direct evidence" 

determination in mixed-motive cases. The Court held that Congress's 1991 amendments 

to Title VII meant that a plaintiff did not need to make a heightened showing through 
direct   evidence   in   order   to   receive   a   "mixed-motive"  instruction.18   At   least   one 

commentator has urged us to follow Desert Palace  and abandon the direct evidence 
requirement.19 

                We decline to overrule our previous cases today and jettison the "direct 

evidence" requirement for mixed-motive claims of employment discrimination. Dropping 

the "direct evidence" requirement for mixed-motive claims of employment discrimination 

might reduce confusion about what qualifies as "direct evidence."  See id. at 302-10.   But 

the Supreme Court's reasoning in Desert Palace was based on statutory language that is 

not   found   in   AS   18.80.220.    Specifically,   Title   VII   was   amended   following  Price 

Waterhouse by adding 42 U.S.C.2000e-2(m), which provides: "an unlawful employment 

practice is established when the complaining party demonstrates that race, color, religion, 

sex, or national origin was a motivating factor for any employment practice, even though 

other factors also motivated the practice." Desert Palace expressly relied on this statutory 
language in rejecting a "direct evidence" requirement for Title VII.20  But Alaska statutory 

law contains no similar provision.  Because neither party in this case comprehensively 
addressed this issue in their briefs21 and because, as we discuss below, Smith's claims 

would fail under a mixed-motive theory even if we eliminated the "direct evidence" 

requirement, we decline to address this issue in this case. 

                Smith failed to present any evidence raising a genuine issue of material fact 

on his race discrimination claim under a mixed-motive theory.   He acknowledges that 

Hess did not make any comments about race in the three sick-leave related disciplinary 

meetings. Smith claimed in his deposition that Hess ignored his June 4 complaint of 

racial discrimination, but it is undisputed that Hess communicated Smith's complaint to 

the EEO.  The EEO investigated the complaint and issued a report in November.                  We 

conclude   that   the   loose   temporal   proximity   of   Smith's   complaint   to   his   dismissal 

(approximately five months) and the general circumstances surrounding his dismissal do 
not raise a question of material fact on whether his termination was motivated by race.22 

                 Although Smith argues his discrimination claim under AS 18.80.220(a)(1), 

his argument would similarly fail under a retaliatory discharge theory under 

                   23 
AS 18.80.220(a)(4).    We do not mean to imply that temporal proximity alone can never 

indicate   that   an   adverse   employment   action   was   not   motivated   by   a   discrimination 
complaint,24 but "as the period of time separating the two lengthens, the hint of causation 

weakens."25     In this case, the five-month interval had so weakened the hint of causation 

that the proximity between Smith's complaint and his termination, without more, did not 

raise   a   question   of   material   fact   on   whether   his   termination   was   motivated   by   the 

complaint. 
                 Summary judgment was proper on Smith's race discrimination claim.26 

        C.	    Summary   Judgment   Was   Proper   On   Smith's   Age   Discrimination 
               Claim. 

               Smith argues that the superior court erred in granting summary judgment on 

his age discrimination claim against the School District.         He argues generally that the 

"circumstances of [his] work history" along with his "membership in the protected class" 

of people over the age of 40 raise a question of material fact whether age was a motivating 

factor in his termination. 

               Smith   brings   his   age   discrimination   claim   under   AS   18.80.220(a)(1). 

Although we have yet to explicitly apply a mixed-motive analytical framework to an age 

discrimination     claim   under    AS   18.80.220,    our   previous   cases   have    implicitly 

acknowledged that a plaintiff may bring an age discrimination claim under a mixed- 
motive theory.27 

               The Supreme Court recently held in Gross v. FBL Financial Services, Inc.28 

that Title VII's mixed-motive burden shifting analysis does not apply to federal age 

discrimination claims under the Age Discrimination in Employment Act (ADEA).29                      The 

Court held that plaintiffs in mixed-motive cases must prove by a preponderance of the 

evidence that age was a "but-for" cause of the employment decision, instead of just a 
"motivating   factor."30      The   Court   based   its   holding   on   differences   in   the   statutory 

language between Title VII and the ADEA,31 its independent construction of the language 

of   the   ADEA,32    and   the   problems   lower   courts  had   in   applying   the   mixed-motive 

analysis.33  The School District urges this court to adopt the Supreme Court's analysis in 

interpreting Alaska's age discrimination statute. 

                But while we look to federal discrimination law jurisprudence generally, 

"AS 18.80.220 'is intended to be more broadly interpreted than federal law to further the 
goal   of   eradication   of   discrimination.'   "34  The   Supreme   Court's   holding   in  Gross 

substantially relied on the differences between the ADEA and Title VII " differences 

that do not exist in Alaska's anti-discrimination law.  In addition, adopting the Court's 

holding in Gross would result in a different analytical framework for age discrimination 

claims than for other discrimination claims " yet all are prohibited by the same sentence 

in the same statute. We decline to follow Gross and we expressly hold that a plaintiff can 

bring a mixed-motive age discrimination claim under AS 18.80.220. 

               Smith failed to present evidence raising a genuine issue of material fact on 

his mixed-motive age discrimination claim.   Smith testified that he believed that age was 
a factor in his termination because he heard that a younger person was hired in his place.35 

But Smith had no first-hand knowledge that a younger person was hired in his place; his 

testimony was hearsay from an unnamed source.  Hearsay statements that would be 

inadmissible at trial are inadmissible for the purposes of supporting a motion for summary 
judgement.36   Because Smith failed to raise a genuine issue of material fact on whether 

his   termination   was   motivated   by   age, summary   judgment   was   proper   on   his   age 

discrimination claim. 

        D.	    Summary Judgment Was Proper On Smith's Disability Discrimination 
               Claim. 

               We have previously held that "AS 18.80.220 imposes a duty on an employer 
to reasonably accommodate a disabled employee."37  In order to show a prima facie case 

for a disability claim under AS 18.80.220, a plaintiff must show: 

               (1) that he or she is an individual who has a disability within 
               the meaning of the statute; (2) that he or she could perform the 
               essential functions of the position he or she holds (with or 
               without reasonable accommodation); and (3) that he or she 
               has   suffered    an   otherwise     adverse    employment       decision 
               because of the disability.[38] 

                 An    employer's      failure   to   make    reasonable     accommodations         for   an 

employee's disability is an adverse employment decision for the purposes of the prima 
facie case.39   Federal courts have held that the ADA requires an employer to "engage with 

the employee in an 'interactive process' to determine the appropriate accommodation 
under the circumstances" once it is aware of the employee's disability.40  An employer is 

liable   for   failing   to   provide   reasonable   accommodation   if   it   is   responsible   for   the 
breakdown in the interactive process.41 

                 Smith argues that the superior court erred in granting summary judgment on 

his disability discrimination claim against the School District.  He argues that the School 

District failed to accommodate his disability by failing to engage in an interactive process 

to   identify   an   appropriate   accommodation.         The   School   District   argues   that   it   was 

engaging in the interactive process when Smith was terminated for other reasons.                          It 

argues that its duty to accommodate was cut off by Smith's termination for sick leave 

abuse, insubordination, and dishonesty. 

                 Smith failed to present evidence raising a genuine issue of material fact on 

the third prong of the prima facie case " whether he suffered an adverse employment 

decision because of his disability.  The School District was given notice that Smith's 

limitations might be a permanent disability when Smith provided a doctor's note detailing 

his "life-long" physical limitations on September 23, 2004. Yet Smith also stated to Hess 

that he was "physically able and ready to return to work" on September 23.                       Because 

Smith's personal account of his ability to work conflicted with the doctor's note, Hess 

told Smith that Smith would not be able to return to work until he provided a more 

detailed fitness for duty statement that included a description of his ability to restrain 

students.      Smith   provided   another   short   doctor's   note   on   October   7,   but   it   did   not 

reference his ability to restrain students.  That day, Hess informed Smith again that he 

would remain on leave until he provided information on his ability to restrain students. 

Smith was terminated for other reasons on October 29. 

                 Our   review   of   the   record   indicates   that   there   was   no   breakdown   in   the 

interactive process. Instead, the School District was in the process of attempting to obtain 

complete information regarding Smith's physical capabilities and limitations when he was 

legitimately terminated for other reasons. 

                 Smith   presented   the   School   District   with   diametrically   conflicting   and 

facially irreconcilable information about his physical limitations and capabilities.                    His 

employment as an MHT required that Smith be physically capable of restraining students. 

Hess's evident concern was that Smith had placed the School District in a  Catch-22 

position.    Smith said that he was ready and able to return to work.              The School District 

would expose itself to liability if it allowed Smith to return to work in the face of his 

physician's note stating that "[e]ven with surgery correcting his pain, he [would] have 

life-long limitations" preventing him from "performing duties such as restraining others." 

Hess reasonably required that Smith produce a physician's report indicating Smith's 

capabilities and limitations.   Such medical information gathering was a preliminary step 

inherent in engaging in the interactive process.  Because Smith had not provided the 

requested information by the time he was terminated for other reasons, the interactive 

process had neither broken down nor advanced to a resolution.   We gather this was the 

point the superior court was making when it ruled that the disability issues "hadn't yet 

played their way out in the system." 

                 By requesting additional information, the School District engaged in the 

interactive process.  The burden was on Smith to produce the oft-requested medical 

information.  Because   he   did   not   do   so,   it   was   Smith,   not   the   School   District,   who 

prevented progress in that process.  Smith did not establish a prima facie case for a 

disability claim, and summary judgment on this claim was appropriate. 

        E.	      Summary Judgment Was Proper On Smith's Claim For Breach Of The 
                 Covenant Of Good Faith And Fair Dealing. 

                 Smith   also   claims   that   the   superior   court   erred   in   granting   summary 
judgment   on   his   breach   of   the   covenant  of   good   faith   and   fair   dealing   claim.42 He 

advances a litany of arguments on why the School District's behavior was not in good 
faith and "bordered on the irrational."43 

                 Every contract in Alaska includes an implied covenant of good faith and fair 
dealing.44    "The covenant has both a subjective and an objective component."45                       An 

employer violates the subjective component ofthe covenant when it acts with an improper 

motive, such as when it "discharges an employee for the purpose of depriving him or her 
of   one   of   the   benefits   of   the   contract."46  The   subjective   element   is   based   on   the 

employer's motives, not on the employee's personal feelings.47  "Therefore, the employee 

must present proof that the employer's decision to terminate him or her 'was actually 
made in bad faith.' "48 

                 The objective component of the covenant "prohibits the employer from 
dealing with the employee in a manner that a reasonable person would regard as unfair."49 

We have stated that "[t]his covenant . . . requires that an employer treat like employees 
alike."50    An   employer   also   breaches   the   objective   component   of   the   covenant   by 

terminating an employee on unconstitutional grounds or for reasons that violate public 
policy.51 

               Smith failed to present evidence raising a genuine issue of material fact on 

his claim that the School District breached the subjective component of the covenant of 

good faith and fair dealing.   None of the evidence Smith puts forward, even when viewed 

in the light most favorable to Smith, suggests that the School District discharged Smith 

for the purpose of depriving him of any of the benefits of his employment contract such 

as his retirement benefits. 

               Smith also failed to present evidence raising a genuine issue of material fact 

on his claim that the School District violated the objective component of the covenant. 

Although the question of what a reasonable person would find to be unfair is usually a 
question for the trier of fact,52 this does not relieve Smith of the burden of presenting 

admissible evidence to successfully oppose a motion for summaryjudgment.53          In Witt v. 

State, Department of Corrections, we held that an employee did not meet his burden of 

presenting evidence that he was unfairly terminated when he failed to introduce evidence 
showing that he was fired for any reason other than poor job performance.54 

              Like the plaintiff in  Witt, and as discussed above, Smith failed to present 

evidence that the School District terminated him for any reason other than its stated 

reasons: sick leave abuse, insubordination, and dishonesty.   The School District did not 

violate Smith's constitutional rights or public policy by terminating him for those reasons. 

Furthermore, Smith did not present evidence suggesting that the School District treated 
Smith differently from any other employee.55       Smith claims that it was "irrational" for the 

School District to suspect Smith of sick leave abuse because he could have traveled while 

sick, but "it is not unfair for an employer to question or disbelieve, in good faith, an 
employee's version of events."56  Under the circumstances of this case, it was not unfair 

for Hess to disbelieve Smith's story that he had not been in California during work hours 

and had only traveled during the intervening weekend hours, and the School District did 

not violate the covenant of good faith and fair dealing by terminating him after he failed 

to corroborate his story. 

               We have also held that employers may violate the covenant of good faith 

and fair dealing by following unfair procedures in an employee's termination, even where 
the employer's grounds for termination were fair.57       Smith claims that it was "irrational" 

for   the   School   District   to   require   a   boarding   pass   as   evidence   of   his   travels,   but   he 

produced no evidence suggesting that the School District acted unfairly. After their initial 

September 8 disciplinary meeting, Hess gave Smith ample time to provide documentation 

of his travel dates and extended Smith's deadline to provide documentation three times. 

Although   Smith   now   argues   that   Hess   should   have   accepted   affidavits   as   alternate 

documentation, Hess testified that Smith did not offer to provide alternate means of proof. 

Hess's   evident   purpose   in   demanding   proof generated   by   the   airline  of   the   dates   of 

Smith's travel was to see whether Smith traveled on the two work days he had asked and 

been denied to take personal leave " Friday and Monday " or if Smith actually traveled 

as   he   claimed   "   on   the   red-eye   flight   late   Friday   or   early   Saturday   morning,   and 

returning shortly after midnight Monday morning. We conclude that a reasonable person 

would not consider the School District as having treated Smith unfairly by demanding 

corroborating travel documentation generated by the airline. 

                 Because Smith did not raise a genuine issue of material fact on his claim that 

the   School   District   breached   the   covenant   of   good   faith   and   fair   dealing,   summary 

judgment was appropriate. 

IV.      CONCLUSION 

                 For   the   preceding   reasons,   we   AFFIRM   the   superior   court's   grant   of 

summary judgment on all of Smith's claims.
 
__________________________________________________


        1       Witt v. State, Dep't of Corr., 75 P.3d 1030, 1033 (Alaska 2003) (citing 

Spindle v. Sisters of Providence in Wash., 61 P.3d 431, 436 (Alaska 2002)). 

        2       Wright v. State, 824 P.2d 718, 720 (Alaska 1992) (citingZeman v. Lufthansa 

German Airlines, 699 P.2d 1274, 1280 (Alaska 1985)). 
	
	3       AS   18.80.220(a)(1)   states   that   it   is   unlawful   for   "an   employer   .   .   .   to 

discriminate against a person . . . because of the person's race, . . . age, [or] physical or 
mental disability."   AS 18.80.220(a)(4) states that it is unlawful for "an employer . . . to 
. . . discriminate against a person because the person has opposed any [discriminatory] 
practices . . . or because the person has filed a complaint . . . under this chapter." 

        4         Under the United States Supreme Court's McDonnell Douglas burden- 

shifting pretextual framework, the employee carries "the initial burden . . . of establishing 
a prima facie case of . . . discrimination." McDonnell Douglas Corp. v. Green, 411 U.S. 
792, 802 (1973).   The burden then shifts to the employer "to articulate some legitimate, 
nondiscriminatory reason" why the employee was discharged. Id. Finally, the burden 
shifts back to the employee to show that the employer's stated reason was pretextual. Id. 
at 804.    In doing so, the plaintiff's burden of proving pretext "merges with the ultimate 
burden of persuading the court that she has been the victim of intentional discrimination." 
Texas Dep't of Comty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). 

        5       42 U.S.C.  2000e"2000e-17 (2006). 

        6       Era Aviation, Inc. v. Lindfors, 17 P.3d 40, 43 (Alaska 2000) ("We look to 

decisions under Title VII in interpreting Alaska's anti-discrimination laws, and have . . . 
endorsed the federal approach to analyzing claims of disparate treatment.") (internal 
citations omitted). See also Haroldsen v. Omni Enter., Inc., 901 P.2d 426, 430-32 & n.12 
(Alaska 1995) (applying pretext analysis to race discrimination claim and acknowledging 
that AS 18.80.220 also bars termination where race is a motivating factor). 

        7       Era Aviation, 17 P.3d at 44.

	8       Id. 

        9        Kinzel v. Discovery Drilling, Inc., 93 P.3d 427, 434 (Alaska 2004) (quoting 

Era   Aviation,   17   P.3d   at   44).     In   contrast,   plaintiffs   pursuing   a   pretext   theory   of 
discrimination need not provide direct evidence.  Id. 

        10      Id. 

        11      Mahan v. Arctic Catering, Inc., 133 P.3d 655, 662 (Alaska 2006) (citing 

Kinzel, 93 P.3d at 434). 

        12      VECO, Inc. v. Rosebrock, 970 P.2d 906, 920 (Alaska 1999). 

        13      Price Waterhouse v. Hopkins, 490 U.S. 228, 263-64 (1989). AlthoughPrice 

Waterhouse did not have a clear majority, Justice O'Connor's concurring opinion was 
widely seen as the holding of the case.  See Griffith v. City of Des Moines, 387 F.3d 733, 
743 (8th Cir. 2004).        But, because Price Waterhouse interpreted Title VII and had only 
persuasive authority, we were not obligated to adopt Justice O'Connor's interpretation.  
                                                                                              6519
 
	14     Price Waterhouse, 490 U.S. at 240, 263-64. 

        15     Id. at 276. 

        16     Loomis Elec. Prot., Inc. v. Schaefer, 549 P.2d 1341, 1342 (Alaska 1976). 

        17     Desert Palace v. Costa, 539 U.S. 90, 98-99 (2003). 

        18     Id. at 98-99. 

        19      Brianne    Schwanitz,     Mixed    Motives    for  Firing   Employees:     Alaska's 

Inconsistent Standards and Its Failure to Follow the Changing Federal Tide, 24ALASKA 
L. REV. 287, 289 (2007). 


        20      Desert Palace, 539 U.S. at 98-99. 

        21      Both parties address Desert Palace only in passing, and Smith does not 

advocate eliminating the "direct evidence" requirement. 

        22      Cf. Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 511 (7th Cir. 1998)
(holding, where discharge occurred five months after employee filed ADA discrimination 
charge with EEOC, that "when so much time passes before the adverse action takes place, 
the order in which the events occurred does not by itself suggest a causal link between 
them"). 

        23       We     also   apply   Title   VII's   pretext   and   mixed-motive        frameworks      to 

retaliatory   discharge   claims   under   the   Alaska   Human   Rights   Act.  Mahan   v.   Arctic 
Catering, Inc., 133 P.3d 655, 660 (Alaska 2006) (citingEra Aviation, Inc. v. Lindfors, 17 
P.3d 40, 43 (Alaska 2000)). 

        24       Indeed, we have previously stated that "[c]ausation sufficient to establish a 

prima   facie   case   of   unlawful   retaliation   may   be   inferred   from   the   proximity   in   time 
between the protected action and the allegedly retaliatory discharge."                     VECO, Inc. v. 
Rosebrock, 970 P.2d 906, 919 (Alaska 1999) (quotingMiller v. Fairchild Indus., Inc., 797 
F.2d 727, 731 (9th Cir. 1986)).   Smith did not assert a retaliatory discharge claim in his 
case. 

        25       Davidson, 133 F.3d at 511. 

        26       Although Smith     primarily    advances     a   mixed-motive       theory    of   race 

discrimination, his claim also fails under a pretext analysis. A plaintiff must present  
something more than "unsupported assumptions and speculation" that an employer's 
stated reasons for termination were pretextual in order to survive summary judgment on 
a discrimination claim under a pretext theory.  Mahan, 133 P.3d at 660.  Smith argues 
that Hess's "readiness to consider him a malingerer" and the "close temporal relationship" 
between the June disciplinary conference and the October termination are evidence that 
the School District's reasons for terminating Smith were pretextual. These allegations are 
no more than "unsupported assumptions," and thus summary judgment was also proper 
under a pretext theory on his race discrimination claims. 

        27     See e.g., Villaflores v. Alaska State Comm'n for Human Rights, 175 P.3d 

1275, 1277 (Alaska 2008); Villaflores v. Alaska State Comm'n for Human Rights, 170 
P.3d 663, 665 (Alaska 2007) (applying burden-shifting pretext analysis because it was "a 
case in which there [was] no direct evidence of discriminatory intent"). 

        28     Gross v. FBL Financial Servs., Inc., 129 S. Ct. 2343, 2350 (2009). 

        29      29 U.S.C.  621-34 (2006). 

        30      Gross, 129 S. Ct. at 2350. 

        31      Id. at 2348-50. 

        32      Id. at 2350-51. 

        33      Id. at 2351-52. 

        34      VECO, Inc. v. Rosebrock, 970 P.2d 906, 912-13 (Alaska 1999) (quoting 

Wondzell v. Alaska Wood Prods., Inc., 601 P.2d 584, 585 (Alaska 1979)). 
        
	35     The only other evidence in the record that might be interpreted as reflecting 

a discriminatory attitude based on age was a single comment by Hess. Smith testified that 
Hess told him: "I know you're close to your retirement. You've been with the District for 
a long time, but that doesn't mean I can't excuse you from your service."            Even in the 
light most favorable to Smith, Hess's statement was a warning to Smith that his long 
service with the School District would not prevent his termination for other legitimate 
reasons. 

        36     French v. Jadon, Inc., 911 P.2d 20, 24 (Alaska 1996). 

        37     Moody-Herrera v. State, Dep't of Natural Res., 967 P.2d 79, 87 (Alaska 

 1998). 

        38      Id. at 88. 

        39      Id. at 88 n.44. 

        40       E.E.O.C.   v.   Sears,   Roebuck   &   Co.,   417   F.3d   789,   805   (7th   Cir.   2005) 

(quoting Gile v. United Airlines, Inc., 212 F.3d 365, 373 (7th Cir. 2000)). 

        41       Zivkovic v. So. Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002). 

        42       On appeal, Smith also argues that the superior court erred by treating him 

as an at-will employee.        At the beginning of its oral ruling on the motion for summary 
judgment, the superior court stated that it "started [its] analysis by looking at the core 
principles of termination of an at-will employee." Smith was not an at-will employee, but 
instead was a union employee covered by a collective bargaining agreement. We find that 
the superior court's incorrect statement on Smith's employment status was not material 
to its otherwise legally correct analysis of his claims.  Because the superior court applied 
the correct legal standard to Smith's claims, its statement regarding Smith's employment 
status was harmless error. 

        43       Smith argues that the School District's bad faith was shown by: (1) its 

demand that an employee unable to perform Mandt exercises attend the training; (2) its 
assumption that someone too ill to attend Mandt training was too ill to travel; (3) its 
assumption   that   employees   on   sick   leave   must   remain   in   Anchorage   and   not   fly   to 
California; (4) its insistence that a boarding pass was the only or best evidence of past 
travel; (5) its failure to take Smith's record of service into account; and (6) its decision 
to   hold   Smith   ineligible   for   reemployment.      These   reasons   are   mere   argument   and
 
speculation " not evidence that creates a genuine issue of material fact.

        44      Mitchell v. Teck Cominco Alaska, Inc., 193 P.3d 751, 760 (Alaska 2008). 

        45      Id. at 761. 

        46      Pitka v. Interior Reg'l Hous. Auth., 54 P.3d 785, 789 (Alaska 2002) (quoting 

Era Aviation, Inc. v. Seekins, 973 P.2d 1137, 1139 (Alaska 1999)) (alteration in original). 

        47      Pitka, 54 P.3d at 789. 

        48      Id. (quoting Era Aviation, 973 P.2d at 1141). 

        49      Mitchell, 193 P.3d at 761 (quotingBelluomini v. Fred Meyer of Alaska, Inc., 

993 P.2d 1009, 1013 (Alaska 1999)). 

        50      Holland v. Union Oil Co. of Cal., Inc., 993 P.2d 1026, 1032 (Alaska 1999) 

(quoting Jones v. Cent. Peninsula Gen. Hosp., 779 P.2d 783, 789 n.6 (Alaska 1989)). 

       	51      Charles v. Interior Reg'l Hous. Auth., 55 P.3d 57, 62 (Alaska 2002). 

       	52     See Holland, 993 P.2d at 1032 (citing Luedtke v. Nabors Alaska Drilling, 

Inc., 834 P.2d 1220, 1223 (Alaska 1992)). 

       	53      Witt v. State, Dep't of Corr., 75 P.3d 1030, 1036 (Alaska 2003) (holding that 

the State was entitled to judgment as a matter of law because employee had not introduced 
admissible evidence showing that he was hired or fired for an improper reason).  See also 
Alaska R. Civ. P. 56(c). 

       	54     Id. at 1035-36. 

        55     Hess testified, and Smith does not dispute, that the School District takes sick 

leave abuse very seriously and that other employees were also terminated for sick leave 
abuse.   Cf. Mitchell v. Teck Cominco Alaska, Inc., 193 P.3d 751, 761-62 (Alaska 2008) 
(holding that summary judgment was inappropriate where employee created an issue of 
triable fact about whether he was disciplined more severely than other employees who 
violated sexual harassment policy). 

        56     Holland, 993 P.2d at 1036. 

        57     Id.;see also Mitchell, 193 P.3d at 761 (holding that summary judgment was 

inappropriate where employee raised triable facts on whether employer gave employee 
notice and an opportunity to present evidence); Willard v. Khotol Servs. Corp., 171 P.3d 
108,   116   (Alaska   2007)   (holding   that   summary   judgment   was   inappropriate   where 
employer's "investigation" consisted only of second-hand information); Luedtke, 834 
P.2d at 1225-26 (holding that employer violated covenant by testing employee for drugs 
without prior notice when, among other things, no other employee was similarly tested).
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