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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Grundberg v. Alaska State Commission for Human Rights (5/18/2012) sp-6672

Grundberg v. Alaska State Commission for Human Rights (5/18/2012) sp-6672

        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, email 

        corrections@appellate.courts.state.ak.us. 



                 THE SUPREME COURT OF THE STATE OF ALASKA 



SUE L. GRUNDBERG,                              ) 

                                               )       Supreme Court No. S-13866 

                        Appellant,             ) 

                                               )       Superior Court No. 3AN-08-08481CI 

        v.                                     ) 

                                               )       O P I N I O N 

ALASKA STATE COMMISSION                        ) 

FOR HUMAN RIGHTS,                              )       No. 6672 - May 18, 2012 

                                               ) 

                        Appellee.              ) 

                                               ) 



                Appeal from the Superior Court of the State of Alaska, Third 

                Judicial District, Anchorage, Michael L. Wolverton, Judge. 



                Appearances:      David R. Edgren, Edgren Law Offices, LLC, 

                Anchorage,      for  Appellant.    William     E.  Milks,   Assistant 

                Attorney General, Anchorage, and John J. Burns, Attorney 

                General, Juneau, for Appellee. 



                Before:     Carpeneti,     Chief    Justice,  Fabe,    Winfree,    and 

                Stowers, Justices.    [Christen, Justice, not participating.] 



                CARPENETI, Chief Justice. 



I.      INTRODUCTION 



                A 58-year-old Asian-American woman alleged that she was discriminated 



against    when    her  employer,    the  Alaska    Department     of  Transportation     and  Public 



Facilities, denied her a promotion to the position of Engineer II, and instead hired "a 



younger less qualified" Caucasian man for the position.             She filed a complaint with the 


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State Commission for Human Rights, which initiated an administrative investigation of 



the hiring decision.      At the conclusion of the investigation, the Commission issued a 



written determination that the complainant had failed to produce substantial evidence of 



unlawful discrimination by the Department.  On appeal, the superior court affirmed the 



agency determination.   Because the complainant produced evidence sufficient to create 



an inference that the Department's alleged   reason for not hiring her is a pretext for 



discrimination, we reverse. 



II.     FACTS AND PROCEEDINGS 



        A.       Facts 



                Sue Grundberg is an Asian-American woman who was born in 1949.  In 



1984 she began working as an Engineering Assistant in the Traffic and Safety Division 



of   the   Alaska   Department   of   Transportation   and   Public   Facilities   (the   Department). 



About     four-and-a-half     years   later,  she  secured   a  license   as  an  Alaska    Registered 



Professional Engineer.  Grundberg continued to work as an Engineering Assistant in the 



Department   for      about   ten   years   after   obtaining   her   professional   license. In   1999 



Grundberg   was   promoted   to   an   Engineer   I   position   in   the   Measurement   Standards, 



Commercial Vehicle Enforcement Division of the Department of Transportation and 

Public Facilities.1   Grundberg asserts that she is currently the only female engineer in her 



        1       According to Grundberg's brief, she was promoted to the Engineer I job 



only after filing a grievance through her union, the Alaska State Employees Association, 

Local 52.    Direct evidence of the 1999 grievance resolution, which appears in the trial 

court record and excerpt, does not appear in the agency record.                In addition, the State 

argues that we should not consider this information because the parties agreed that the 

grievance resolution was "entered into solely to address the particular circumstances of 

[the 1999] dispute and does not establish any practice or precedent between the parties 

.   .   .   [and]   shall   not   be   referred   to   in   any   grievance,   arbitration,   hearing,   complaint, 

dispute, or other matter . . . ."    We do not draw any inferences from the 1999 letter. 



                                                  -2-                                             6672
 


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position   in   her   unit. She   has   tried   several   times   without   success   to   move   up   to   an 



Engineer II position or to transfer to another division. 



                On     April    17,   2007,    the   Department       began    recruiting    to   fill  an 



Engineer/Architect II position in the Central Region Design and Construction Division. 



The recruitment bulletin described the job as "a first level supervisor, overseeing the 



work of six (6) engineers and technicians providing traffic analysis and design."  The 



bulletin listed two minimum qualifications: (1) registration as a professional engineer or 



architect,   and   (2)   one   year   of   professional   experience   as   an   Engineer/Architect   I   or 



Engineering Associate with the State of Alaska, or the equivalent.                   In addition to the 



minimum qualifications, the applicants were presented with a list of questions about 



desired qualifications. 



                Grundberg met the minimum qualifications and submitted an application. 



Grundberg answered "yes" to seven of the eight "desired qualification" questions.  She 



answered      "no"    to  the  question    that  concerned     experience     programming       highway 



electronic     devices,    which    the   Department      argues    was    a  particularly    important 



qualification for the job.      Grundberg secured an interview, which took place in May 



2009. 



                The   interviewers'   notes   suggest   that   Grundberg   brought   to   the   panel's 



attention technical memos she had drafted as well as letters she wrote to stakeholders 



outside the Department.  The interviewers noted that Grundberg had limited experience 



with project specifications. Through the interview and application materials, Grundberg 



highlighted the magnitude of projects she had worked on - deals affecting 3,000 clients 



and a $25 million letter of credit.   During the interview, Grundberg offered an example 



of her supervisory experience and emphasized her ability to work with others and build 



relationships.    The interview notes suggest that Grundberg mentioned to the panel her 



Asian background and willingness to work with people of all backgrounds.   In response 



                                                   -3-                                             6672
 


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to interview questions, Grundberg appears to have mentioned that she had 22 years of 



experience in the Department, including 15 years working in traffic and safety, and that 



she believed experience was an important factor to consider in hiring. 



                The interview panel was made up of three Department of Transportation 

employees: (1) Judy Dougherty2   (Engineer IV), (2) Cindy Ferguson (Engineer III), and 



(3) Ken   Morton   (Engineer   III).     Cindy   Ferguson,   who   would   directly   supervise   the 



successful candidate for the vacant Engineer II position, was the hiring manager on this 



panel.    The   record   suggests   that   she   prepared   a   ranking   and   scoring   sheet   for   the 



interviews, which the panel agreed upon before the interviews took place.                  In her own 



position Ferguson reported directly to panel member Judy Dougherty, who was the Chief 



of the Highway Design section.            Although Ferguson had not spoken with Grundberg 



before    the   May   11   interview,   both   of   the   other   panel   members   had   worked   with 



Grundberg in the past.        Morton was listed as a reference for Grundberg, presumably 



because he supervised the traffic design unit between 1997 and 1999. 



                In   addition    to  Grundberg,      two   other   Department      of  Transportation 

employees applied for the Engineer II position.3         Both are white males, respectively three 



and thirteen years younger than Grundberg.               The record suggests that both answered 



"yes" to all eight of the desired qualification questions. In the interview scoring process, 



the successful applicant ranked highest with 545.6 points; Grundberg ranked lowest with 



253 points. The successful applicant, who received his engineering license in 2004, had 



        2       Although the spelling "Doherty" is more prevalent in the record and briefs, 



we have adopted the spelling "Dougherty," which appears to be how Dougherty spelled 

her own name on her interview notes. 



        3       The applications and interview materials of these two candidates are not 



before this court.    They were withheld from the agency record when it was transmitted 

to the superior court. 



                                                  -4-                                             6672
 


----------------------- Page 5-----------------------

previously worked with Ferguson and Dougherty.                The panel unanimously decided to 



offer him the Engineer II position.         According to the panel members, they scored each 



candidate separately and then met to discuss the scoring. 



                Ferguson asserted that selection of the candidate was based "largely," but 



not exclusively, on the interview scores.  According to Ferguson, the decision not to hire 



Grundberg reflected the facts that, unlike the successful applicant, Grundberg had not 



produced bid-ready plan sets, had not been the primary author of a Design Study Report, 



had worked only as an Engineering Assistant (not as an Engineer) in the design section, 



and could not answer "yes" to all the desired qualification questions.                She added that 



during the successful applicant's interview, he related his current design experience to 



the position, made good comments,   and had many good ideas.  When asked about what 



the interview panel was looking for in a candidate, Ferguson noted, "this was a position 



that manages   the technical engineering staff that deals with intersections.                We were 



looking for someone who had done this sort of design[] before, had done ready projects 



and was familiar with the ready projects." 



                In response to the same question, Judy Dougherty noted, "[w]e wanted this 



person to be able to independently lead a group of engineers in traffic design, to train 



people in their squad, traffic operation design, all aspects of signal and lighting and be 



a support for all the people."      When prompted, Dougherty confirmed that being able to 



answer "yes" to the desired qualification questions on the application and authoring a 



design   study   report   were   key   factors   in   the   hiring   decision. Dougherty   added   that 



Grundberg was not very productive and "[w]e were never able to give her responsible 



charge   for   a   lot   of   work;   her   work   [as   an   Engineering   Assistant]   required   a   lot   of 



review."  Morton offered the general explanation that Grundberg "did not have the best 



experience and skill set for the position."         The panel members have asserted that race, 



age, and gender played no role in the hiring process and that they did not know who 



                                                  -5-                                             6672
 


----------------------- Page 6-----------------------

would be hired prior to the interview.   Ferguson and Dougherty also noted that years of 



experience was not an important selection criterion. 



        B.      Proceedings 



                Shortly    after  the   Engineer    II  position   was   offered   to  the  successful 



applicant, Grundberg filed a complaint with the Alaska State Commission for Human 



Rights   (the   Commission)   with   a   request   that   it   also   be   filed   with  the   U.S.   Equal 

Employment Opportunity Commission.4               Grundberg's complaint alleges: 



                [The   State   of   Alaska,   Department   of   Transportation]   has 

                discriminated against me on the basis of my race, Asian, my 

                sex, female, and my age, 58. . . . On May 1, 2007, I applied 

                for   the   position   of  Engineer     II  with  the   [Department]. 

                Respondent failed to hire me for this position and instead 

                promoted a younger less qualified Caucasian male. 



In August 2007, Grundberg's complaint was assigned to a Commission investigator.  On 



behalf of the employer, the State Department of Administration's Division of Personnel 



and Labor Relations prepared a response to the complaint and provided documentation 



of   the  hiring   process   to  the  investigator.     The   response,    which    was   sent   to  the 



Commission in December 2007, asserts, "Ms. Grundberg's race, gender, and age played 

no role in the hiring decision."5     The investigator informed Grundberg of the employer's 



        4       Grundberg amended the complaint on July 11, 2007, to add claims under 



Title VII of the Civil Rights Act of 1964. It appears that, pursuant to her request, the 

Commission        forwarded     her   complaints     to   the  Equal    Employment        Opportunity 

Commission.       Pursuant to a worksharing agreement, the State Commission undertook 

the initial investigation.    It is not clear from the record whether the Equal Employment 

Opportunity Commission will independently investigate the situation or how that would 

be decided under the worksharing agreement. 



        5       This response arrived more than three months after its requested due date 



of August 17, 2007.        The record indicates that the investigator contacted the employer 

by phone to request its overdue position statement. 



                                                  -6-                                            6672
 


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position and requested any response, including the names of witnesses, by March 20, 



2008. 



                Grundberg responded with a letter dated March 19, 2008.                  Grundberg's 



letter identified other adverse employment actions she had experienced:                   It stated that 



between      2000    and   2007,   Grundberg      had   interviewed     unsuccessfully      for  "many 



positions," including some that "were vacant and posted for six months without being 



filled."   Grundberg   further   noted   that   in   2007   she   had   "interviewed   for   7   engineer 



positions    within   DOT     that   resulted  in  4  positions   being   filled  with   younger,   less 

experienced Caucasian males."6  Grundberg identified the successful candidates for three 



of these positions and provided the names of 13 other Department of Transportation 



engineers with some information about their credentials and relative years of experience. 



                Based     on  her   employment   history      and   failure  to  be  promoted     to  the 



Engineer II position, Grundberg concluded, "[t]hey don't have the willingness to train 



me and wouldn't provide me any opportunity to advance my career."  Grundberg noted 



that the applicant who secured the presently disputed Engineer II position was entrusted 



with   valuable   experience   early   on:    Within   four   years   of   obtaining   an   Engineering 



license, he was the principal author of a design study report, a responsibility that had not 



yet been entrusted to Grundberg 18 years after obtaining a license.               Grundberg further 



compared her employment history with his, noting that "[i]t took me 10 years after I 



        6       She provided further details about (1) an Engineer I position for which she 



interviewed in April 2007; (2) the May 11, 2007, interview for the Engineer II position 

at issue in this case; (3) another Engineer II position for which Grundberg interviewed 

in late May 2007; and (4) two other interviews for Engineer II positions that took place 

in the fall of 2007, after Grundberg had filed a complaint with the State Commission. 

She did not provide further details about two of the seven interviews mentioned; it is not 

clear what other positions she may have interviewed for. 



                                                  -7-                                             6672
 


----------------------- Page 8-----------------------

received my license to land an Engineer I (E I) position, yet DOT wasted no time to 



promote [the successful applicant] . . . to Engineer I as soon as he got his license." 



               Grundberg suggested alternative explanations for the hiring decision at 



issue in this case.  According to Grundberg: 



               Ms. Dougherty had already made up her mind to promote 

               [the successful applicant] prior to my interview.  She wasn't 

               interested during the interview; she answered her private cell 

               phone     during   the  interview.   Both   Mr.   Morton    and   Ms. 

               Ferguson work for Ms. Dougherty. Neither will jeopardize 

               their job by voting against the boss'[s] decision[.] 



She further noted her qualifications and the magnitude of her responsibilities. Grundberg 



suggested   that   "desired   qualification"   question   two,   which   concerned   programming 



highway electronic devices, was not essential to the job and was used to exclude her 



application for illegitimate reasons. Grundberg also provided the name of a Department 



employee   who,   according   to   Grundberg,   was   willing   to   be   interviewed   and   would 



corroborate her allegations. 



               About a month after the investigator received Grundberg's submission, the 



investigator set up interviews with the three members of the hiring panel. The interviews 



took place in early May 2008. The investigator asked Ferguson, Dougherty, and Morton 



about the reasons they decided to hire the successful applicant and the reasons they had 



decided not to hire Grundberg.   The investigator asked specifically about the roles race, 



age, and gender played in the hiring process; whether length of experience was a decisive 



factor in the hiring decision; and if the panel members knew who would be hired prior 



to the interviews.  The panelists denied that any of these factors played a significant role 



in the hiring. The investigator also asked Ferguson (not Dougherty) about answering her 



cell phone during Grundberg's interview, and Ferguson denied doing so. 



                                                -8-                                           6672
 


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                The record suggests that the investigator was prepared to conclude the 

investigation about two weeks after conducting these interviews.7  After several attempts, 



the   investigator   was   able   to   reach   Grundberg   and   conduct   an   exit   interview.    The 



investigator informed Grundberg that she had not found any evidence of discrimination. 



Grundberg insisted that the hiring decision was not based on qualifications and that the 



Department had a history of denying her employment opportunities.                    The investigator 



informed Grundberg of her right to appeal once the determination was finalized.  On 



May 21, 2008, the Commission closed its investigation of Grundberg's complaint and 



issued   its   formal   determination   that   Grundberg's   allegations   were   not   supported   by 



substantial evidence. 



                Grundberg   appealed   to   the   superior   court.     Grundberg's   opening   brief 



identified Alaska's burden-shifting framework for evaluating employment discrimination 



claims     and   clarified   how    the   information     that  Grundberg      had    provided    to   the 



Commission on March 19, 2007, was relevant under this framework.   The Commission 



responded, and Grundberg filed a reply.  The superior court affirmed the Commission's 



determination on the ground that Grundberg had not "presented evidence of a genuine 



dispute."    This appeal followed. 



        7       The record suggests that the investigation consisted of (1) reviewing the 



letters   and   attachments   submitted   by   the   parties   and   (2)   conducting   interviews   with 

Grundberg and the interview panelists, in addition to necessary administrative tasks and 

record-keeping.      If the investigator attempted to interview the individual identified in 

Grundberg's       submission,     we    have   found    no  indication    of   it  in  the  record.   The 

investigative plan has been withheld from the record. 



                                                   -9-                                             6672
 


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III.    STANDARD OF REVIEW 



                Questions of law where no agency expertise is involved are reviewed under 

the   substitution   of   judgment   test.8 In   an   appeal   originating   with   an   administrative 



agency,   we   do   not   look   to   the   superior   court's   decision   when   that   court   acts   as   an 

intermediate court of appeal,9 instead directly reviewing the agency's decision.1                   A 



determination that a party failed to produce substantial evidence of discrimination is a 

question of law to which we apply our independent judgment.11 



IV.     DISCUSSION 



                Alaska     Statute  18.80.220     bars  race-based,    sex-based,    and   age-based 



discrimination      in  hiring,  promotion,    compensation      and   other  terms,   conditions    or 



privileges of employment.  This provision implements the anti-discrimination mandate 

of Alaska's Constitution.12     Its language - making it "unlawful" for an employer to take 



employment        actions   "because     of"  race,   sex,   and   age   -    echoes    federal   anti- 



        8       Villaflores v. Alaska State Comm'n for Human Rights, 175 P.3d 1275, 1277 



(Alaska 2008) (quoting Villaflores v. Alaska State Comm'n for Human Rights, 170 P.3d 

663, 665 (Alaska 2007)). 



        9       Id. (citing Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 



896, 903 (Alaska 1987)). 



        10      Fairbanks Fire Fighters Ass'n, Local 1324 v. City of Fairbanks , 48 P.3d 



1165, 1167 (Alaska 2002). 



        11      Button v. Maines Borough , 208 P.3d 194, 200 (Alaska 2009); Leigh v. 



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



        12      Article 1, section 3 of the Alaska Constitution provides: "No person is to 



be denied the enjoyment of any civil or political right because of race, color, creed, sex, 

or national origin. The legislature shall implement this section." 



                                                 -10-                                           6672
 


----------------------- Page 11-----------------------

discrimination law.13       In interpreting AS 18.80.220, we have adopted   the three-step 



burden-shifting framework that is used to evaluate federal employment discrimination 

claims.14   The parties agree that Alaska's three-step burden-shifting inquiry governs this 



case, and that the first and second steps were met, but they disagree about its application 



in the third step. 



                Grundberg contends that the Department's hiring decision was the product 



of   discriminatory   intent   and   that   she   produced   evidence   sufficient   to   overcome   the 



Department's   reasons   for   its   decision.     Grundberg   supports   her   argument   with   the 



evidence she presented to the Commission in her letter of March 19, 2007, which alleged 



that she had experienced a history of adverse employment decisions; that the Department 



was more willing to make employment opportunities available to other employees; that 



the qualifications for the Engineer II position were artificially inflated to exclude her; and 



that the decision not to hire her was strongly influenced by one member of the hiring 



panel.   With respect to each allegation of discriminatory intent, Grundberg argues that 



the   Commission   has   not   demonstrated   any   analysis   or   consideration.       According   to 



Grundberg,   the   evidence       she  produced   should   have   prompted   the   Commission   to 



investigate Department hiring further. She argues that, if the Commission had completed 



a   thorough   and   independent   investigation,   it   would   have   been   compelled   to   issue   a 



determination in her favor. 



        13      Compare AS 18.80.220, with 42 U.S.C.  2000e-2, and 29 U.S.C.  623. 



        14      State, Dep't of Fish & Game, Sport Fish Div. v. Meyer, 906 P.2d 1365, 



1374 (Alaska 1995) (citing Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253- 

56 (1981) (this three-step framework provides: (1) the employee alleging discrimination 

must introduce evidence raising an inference of employer discriminatory intent; (2) the 

employer must then articulate a legitimate, non-discriminatory reason, for the treatment; 

and (3) the employee must present evidence suggesting the employer's explanation is 

pretextual); Thomas v. Anchorage Tel. Util., 741 P.2d 618, 622 (Alaska 1987)). 



                                                  -11-                                             6672
 


----------------------- Page 12-----------------------

                 The Commission defends its conclusion that Grundberg failed to produce 



substantial evidence of discrimination and its decision to close the investigation shortly 



after interviewing the members of the hiring panel.   The Commission insists that further 



investigation was not necessary because Grundberg produced no objective evidence of 



unlawful hiring.  The Commission points to a number of legitimate explanations for the 



employer's   hiring   decision,   including   Grundberg's   low   score   on   the   interviews,   the 



remoteness of her experience in the Design section, the relative insignificance of "years 



of   experience"   in   the   hiring   process,   and   the   successful   applicant's   familiarity   with 



Design section projects. 



                 In the first stage of the burden-shifting analysis, the employee claiming 



discrimination   must   introduce   evidence   that   raises   an   inference   that   an   unfavorable 

employment decision resulted from the employer's discriminatory intent.15                    The parties 



agree that Grundberg, an Asian-American female, met this initial burden by providing 



evidence that a younger, white male was hired to the Engineer II position for which she 



met the minimum qualifications; that she interviewed for the position; and that she was 



not selected. 



                 The burden then shifts, in the second stage, to the employer to articulate and 

provide evidence of a legitimate, non-discriminatory reason for its action.16                The parties 



agree that the State met this burden by providing evidence that the successful applicant 



        15       Thomas, 741 P.2d at 622 (citing McDonnell Douglas Corp. v. Green, 411 



U.S. 792, 802 (1973)); Haroldsen v. Omni Enter., Inc. , 901 P.2d 426, 430 (Alaska 1995); 

Strand v. Petersburg Pub. Sch. , 659 P.2d 1218, 1222 n.7 (Alaska 1983).  The first step 

is usually satisfied by showing that the aggrieved employee was qualified for the desired 

position   or   opportunity,   which   was   denied   to   that   employee   and   either   withheld   or 

provided to someone with different race, sex, or other protected trait.  Meyer , 906 P.2d 

at 1375 n.13. 



        16      Meyer at 1375. 



                                                   -12-                                              6672
 


----------------------- Page 13-----------------------

had qualifications - such as experience programming highway electronic devices and 



familiarity with recent Design projects - that Grundberg was missing. 



                 In the third stage of the analysis, the burden shifts back to the employee to 

rebut the employer's alleged non-discriminatory reason.17                The employee must produce 



substantial evidence sufficient to support an inference that the employer was motivated 

by discriminatory reasons, rather than its asserted non-discriminatory justification.18  The 



employee       can   meet    this  burden     by   showing     that  the   employer's      explanation     is 

pretextual.19   At this stage of the analysis, we ask whether Grundberg's March 19, 2007, 



letter   could   raise   "sufficient   doubts   regarding   the   employer's   stated   justifications   to 

permit a reasonable . . . infer[ence] that the reasons given are pretextual."20 



                 The Commission faced the same question in this case. The burden-shifting 



framework governs the Commission's investigation of discrimination complaints and its 

determinations of substantial evidence.21           The burden of producing substantial evidence 



of discrimination before the Commission "is less than the burden required to prevail on 

the merits" of an employment discrimination claim.22                   We   have made clear that the 



Commission should not "attempt to determine at the investigative stage whether the non- 



        17       Id. 
 



        18       Id. 
 



        19       Id. 
 



        20       Haroldsen v. Omni Enter., Inc. , 901 P.2d 426, 431-32 (Alaska 1995). 



        21       See, e.g., Alaska State Comm'n for Human Rights v. Yellow Cab , 611 P.2d 



487, 492 (Alaska 1980); see also AS 18.80.110. 



        22       Meyer , 906 P.2d at 1376. 



                                                    -13-                                              6672
 


----------------------- Page 14-----------------------

discriminatory      reasons   proffered   by   the  employer    are  legitimate."23   Instead,    the 



Commission must determine whether there is a reasonable possibility that discriminatory 



reasons motivated the employer's decision. 



                In making this determination, the Commission must be sensitive to the 

reality   that  direct  evidence    of  discrimination     is  difficult  to  find.24  During     the 



investigative    phase,   the  Commission      is  charged   with   "impartially"    reviewing    the 

allegations,25 but an employee seeking to rebut an employer's alleged non-discriminatory 



reason may have to rely on the Commission to investigate her expressed suspicions 



because the key evidence in an employment discrimination case   -   evidence of the 



employer's decision-making - is likely to be gleaned from employer personnel records 



unavailable to the employee. An employee alleging discrimination must corroborate her 

allegations    with   objective   evidence,26  but    she  need   not  develop    a  conclusive    or 



unassailable account of the employer's decision-making. 



                As noted above, Grundberg alleged that she had experienced a history of 



adverse     employment      decisions;   that  the  Department      was   more   willing   to  make 



employment opportunities available to other employees; that the qualifications for the 



        23     Id.   ("The Commission cannot adequately resolve factual disputes if the 



parties   have   not been   given   the   opportunity   to   conduct discovery   or   cross-examine 

opposing witnesses."). 



        24     Haroldsen , 901 P.2d at 431-32 (citing U.S. Postal Serv. Bd. of Governors 



v. Aikens , 460 U.S. 711, 716 (1983)) ("[I]t is usually   impossible for an employee to 

directly prove that the employer acted with a discriminatory intent."). 



        25      AS 18.80.110. 



        26     Mahan v. Arctic Catering Inc. , 133 P.3d 655, 662 (Alaska 2000) (affirming 



summary judgment where employee "failed to offer anything more than 'unsupported 

assumptions and speculation' to establish her theory of pretext" (quoting French v. Jadon, 

Inc. , 911 P.2d 20, 25 (Alaska 1996))) . 



                                                -14-                                          6672
 


----------------------- Page 15-----------------------

Engineer II position were artificially inflated to exclude her; and that the decision not to 



hire Grundberg was strongly influenced by one member of the hiring panel.  Her March 



19 letter detailed some of the adverse employment actions; provided the names of other 



engineers in the Department who, according to Grundberg, secured Engineer II and III 



positions, despite having the same or fewer qualifications than Grundberg; and identified 



a potential witness who could corroborate some of Grundberg's allegations. 



                Grundberg's submission could have been more complete. For example, she 



did not provide a detailed account of each employment opportunity denied.  And she did 



not produce refined data about the treatment of other Asian-American women in her age 

group nor the treatment of similarly situated employees with different backgrounds.27 



But    Grundberg      made    a  reasonable    effort  to  corroborate     her  own    perceptions     of 



discriminatory treatment by providing names, dates, examples from her employment 



history, details about the hiring process and personal dynamics, and a compilation of 



information      about   measurable      qualifications    of  her  colleagues.     Contrary      to  the 



Commission's suggestion, Grundberg offered more than her "subjective belief that the 



hiring process was manipulated to undermine her potential candidacy." 



                 The parties dispute the relevance of certain pieces of evidence, such as the 



importance of design experience and the significance of seniority. Without conclusively 



weighing Grundberg's evidence, we can agree that the information she produced could 



be used to support an inference of discriminatory intent. 



        27      See,    e.g.,  Meyer,    906   P.2d   at  1376    n.15   (reversing    Human     Rights 



Commission determination and closing order where employee met her burden under step 

three   of   the   burden-shifting   analysis   by   providing   evidence   that   "there   had   been   a 

significantly higher percentage of women in the applicant pool . . . than was reflected by 

the number of women holding those positions"). 



                                                  -15-                                            6672
 


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                Further,     we   are  troubled    by  certain   gaps   in  the  investigative    record. 



Grundberg provided the investigator with the names of other Department engineers who, 



according to her allegations, had been treated more favorably than Grundberg.  Showing 



that an adverse employment decision is consistent with broader patterns of discrimination 



reduces     the  risk  that   a  discrimination    case   will   be  based   on  a  single   employee's 

misperception or idiosyncracies in one individual's employment history.28  But there is 



no indication that the investigator sought any information about the number of engineers 



in the Department or how their backgrounds compared to Grundberg's. Nor is there any 



indication   that   the   investigator   called   Grundberg      to   clarify   the   significance   of   the 



experiences of the persons Grundberg named. 



                In addition, Grundberg alleged that the qualifications for the Engineer II 



position were inflated or manipulated to exclude her.             Grundberg does not suggest that 



the desired qualifications are irrelevant to the Engineer II position.             Rather, she argues 



that a person without experience programming devices could fill the Engineer II position 



and    alleges    that  other   supervisors     in  the  traffic   section   do   not  have    first-hand 



programming        experience.      In   interviews    with    members     of   the  hiring   panel,   the 



Commission investigator asked whether programming electronic traffic devices was an 



important qualification for the position for which Grundberg applied.                   But there is no 



indication that the investigator tried to find out whether other supervisors in the traffic 



section had this qualification or how the supervisor position Grundberg sought might 



have differed from other positions in the traffic section.              The investigator seemed to 



ignore   the   fact that direct evidence   of discrimination   is   difficult for   an   employee   to 



        28      See Alaska State Comm'n for Human Rights v. Yellow Cab, 611 P.2d 487, 



488 (Alaska 1980) (evidence that employer generally did not hire women as cab drivers 

supported individual's claim that she was denied employment opportunity). 



                                                   -16-                                               6672 


----------------------- Page 17-----------------------

produce, and her report contained too many gaps for the Commission to determine that 



Grundberg's case lacked substantial evidence of discrimination. 



                The strength of the employer's evidence does not change this conclusion. 

The Commission draws our attention to Doyon v. Perkins Universal Services, LLC ,29 



where we affirmed summary judgment in favor of an employer because there was no 



evidence to rebut the employer's non-discriminatory reason; thus, the claimant failed at 

the third step of the analysis.30    Although the employer's alleged reasons for not hiring 



Grundberg have support in the record, these explanations relate to the second step of the 



burden-shifting framework, which is not in dispute in this case.  Our decision in Doyon 



recognized   that   the   strength   of   an   employer's   non-discriminatory   reasons   does   not 



compel   a   determination   in   favor   of   the   employer   (or   the   Commission)   unless   the 

employee has failed at the third step to produce evidence of pretext.31               As explained 



above, Grundberg does not have this problem because she has produced evidence of 



pretext sufficient to overcome the "substantial evidence" hurdle in this case. 



                To be clear, Grundberg's evidence is not conclusive.               At this stage, we 



cannot resolve the ultimate question - whether the failure to hire Grundberg for the 



Engineer II position was motivated by a discriminatory purpose.                But we can say that 



Grundberg       produced     evidence    to  rebut   the  employer's     alleged    reasons,   so   the 



Commission's determination that there was not substantial evidence of discrimination 



was erroneous.      Grundberg's letter of March 19, 2007, produced evidence that could 



        29      151 P.3d 413 (Alaska 2006). 



        30      Id. at 416. 



        31      Id.  ("[G]iven the absence of any direct evidence of discrimination and any 



permissible inference of fact supporting a claim of pretext, we conclude that no genuine 

issue of material fact precluded summary judgment for [the employer] as to the animal 

enforcement officer position."). 



                                                 -17-                                           6672
 


----------------------- Page 18-----------------------

reasonably rebut the Department of Transportation's alleged reason for not hiring her to 

fill the Engineer II vacancy.32 



V.      CONCLUSION 



                Because     Grundberg      produced     objective    evidence    that  suggests    the 



Department of Transportation's alleged reason for not hiring her was pretextual and 



because      the  Commission's        investigation    was    insufficient,   we    REVERSE        the 



Commission's determination that there was insufficient evidence to warrant a hearing. 

We REMAND for further proceedings consistent with this opinion.33 



        32      All other arguments and issues implied by Grundberg's briefs are either 



waived   or   outside   the   scope   of   this   appeal. Although   Grundberg   suggests   that   her 

constitutional rights have been violated, she does not point to any authority to support 

the argument.      Thus, insofar as Grundberg seeks to advance a claim under the Alaska 

Constitution, her argument fails for inadequate briefing.            Grundberg also attempts to 

assert a private cause of action against her employer, but that contention is outside the 

scope of this administrative appeal; the Department of Transportation is not a party to 

this action between Grundberg and the Commission. 



        33      The Commission notes in a footnote to its brief that its executive director 



has discretion to dismiss a complaint if she determines that one of the factors listed in 

AS 18.80.112(b) applies. The Commission is correct that the executive director has such 

discretion, which she may decide to exercise on remand.              But as the Commission does 

not argue specifically that any of the AS 18.80.112(b) statutory factors apply here, we 

do not need to address this point further. 



                                                 -18-                                             6672 

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