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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Toliver v. Alaska State Commission for Human Rights (6/29/2012) sp-6687

Toliver v. Alaska State Commission for Human Rights (6/29/2012) sp-6687

        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 



WILLIAM M. TOLIVER II,                          ) 

                                                )       Supreme Court No. S-14232 

                  Appellant,                    ) 

                                                )       Superior Court No. 1JU-09-00639 CI 

        v.                                      ) 

                                                )      O P I N I O N 

ALASKA STATE COMMISSION                         ) 

FOR HUMAN RIGHTS,                               )      No. 6687 - June 29, 2012 

                                                ) 

                  Appellee.                     ) 

                                                ) 



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

                Judicial District, Juneau, David V. George, Judge. 



                Appearances:      William   M.   Toliver   II,   pro   se,   Anchorage, 

                Appellant.      David     T.  Jones,   Senior    Assistant   Attorney 

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

                Juneau, for Appellee. 



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

                Stowers, Justices, and Matthews, Senior Justice.* 



                MATTHEWS, Senior Justice. 



I.      INTRODUCTION 



                This appeal presents the question whether the Alaska State Commission for 



Human Rights (the Commission) must interview one or more witnesses identified by a 



        *       Sitting   by   assignment   made   under   article   IV,   section   11   of   the   Alaska 



Constitution and Alaska Administrative Rule 23(a). 


----------------------- Page 2-----------------------

complainant before dismissing a complaint for lack of substantial evidence to support a 



discrimination claim.       We conclude that the statutory duty to impartially investigate 



implies that the Commission must make a reasonable effort to interview at least some of 



the witnesses identified by a complainant where it appears that they may have relevant 



information.      We   also   conclude     that   this   duty  was   not   satisfied  here   because   the 



Commission did not interview any of the witnesses identified by the complainant even 



though they potentially had relevant information. 



II.     FACTS AND PROCEEDINGS 



        A.      Summary Of Facts 



                William M. Toliver II is an African-American man in his sixties; he has 



litigated pro se throughout these proceedings.   During 2007 and 2008, Toliver shopped 



at two Brown Jug liquor stores - Store 32 and Store 55 - located in the Mountain 



View neighborhood of Anchorage. 



                On August 21, 2007, Toliver entered Store 32 and was approached by the 



assistant   manager,   Crystal   Dockter.     After   a   heated   verbal   exchange   of   some   sort, 



Dockter "86ed" - banned - Toliver from Store 32.  In the store's incident log for that 



evening,   Dockter   wrote   that   she   had   banned   Toliver   "for   causing   problems   and   for 



cursing me out."     Toliver later disputed this version of events.  He continued to shop at 



Store 55, where he was not banned. 



                In   late   June   2008   Toliver   called   O.C.   Madden   III,   Brown   Jug's   vice- 



president   for   human   resources,   and   complained   that   Brown   Jug   was   discriminating 



against him and other members of racial minority groups in Mountain View.                    Madden 



and Ed O'Neill - Brown Jug's co-owner - invited Toliver to meet with them in person 



at   their   offices.  During   the   meeting   Toliver   expressed   frustration   over    Dockter's 



behavior and stated that members of the Mountain View community considered Store 



32 to be a "[w]hites only" store. 



                                                  -2-                                            6687
 


----------------------- Page 3-----------------------

               Madden      and   O'Neill   spoke   with   their  staff  in  response  to  Toliver's 



allegations. They eventually told Toliver that he would be allowed to continue shopping 



at Store 55 but would be banned from Store 32.           Madden and O'Neill also organized a 



public meeting at a community center to address Toliver's claim that members of the 



Mountain View community believed Brown Jug employees had racially discriminated 



against them.  Toliver distributed notices of the meeting around Mountain View, which 



stated: 



               Now     is  the  opportunity   to  verbalize   your   encounters   of 

               racism, disrespect and illegal abuse of the sales clerks and 

               managers'      positions  at   the  various  stores  throughout   the 

               [A]nchorage area. [O'Neill and Madden's] sincere objective 

               is to rectify these problems.       With our input of ideas let's 

               have an intelligent, constructive and beneficial meeting. 



Toliver also circulated a petition in the days leading up to the meeting.  In it he referred 



to his experience of "true disrespect and racism" in a Mountain View Brown Jug store, 



noted that O'Neil and Madden wanted a meeting to resolve this problem, and asked for 



signatures   from   community   members   who   felt   they   were   also   victims   of   "racism, 



disrespect, etc."   At least 24 individuals signed the petition. 



               The meeting took place on June 30, 2008.  Employees from Stores 32 and 



55, including Dockter, were in attendance.          After the meeting, Madden and O'Neill 



instructed employees to handle customers respectfully. 



               At the conclusion of the meeting, the Brown Jug representatives reiterated 



that Toliver would be allowed to shop at Store 55, but not at Store 32.  Immediately after 



the community meeting, Toliver attempted to purchase alcohol at Store 55.  The clerk on 



duty, who was filling in while the other employees attended the community meeting, was 



unaware that Toliver was permitted to shop at Store 55 and prevented him from making 



a purchase. 



                                                -3-                                           6687
 


----------------------- Page 4-----------------------

                On three occasions in August 2008, Toliver entered Store 32 and attempted 



to purchase alcohol.  In each instance, a clerk told him he was banned from Store 32 but 



could shop at Store 55.       After the last of these encounters, on August 30, 2008, a clerk 



recorded an account of the event in the incident log: 



                [Toliver] started saying that he had a lawsuit and that he was 

                going   to   have   everyone   fired[,]   he   was   calling   me   racist 

                stupid clerk and that I'm white trash.        I told him that he had 

                to leave and called Eric.  He [smelled] like he'd already been 

                drinking. 



        B.	      Proceedings 



                On August 29, 2008, Toliver filed a complaint with the Commission.  He 



alleged that Brown Jug had denied him "rights and privileges as a customer" on the basis 



of race. 



                On   December   5,   2008,   Brown   Jug   filed   a   letter   with   the   Commission 



responding to Toliver's complaint. Brown Jug contended that Toliver's allegations were 



"meritless" and "unsupported" and that the facts showed "Brown Jug refused service to 



Toliver at one of its stores after Toliver verbally abused and physically threatened the 



store's assistant manager."       Brown Jug also pointed out that after meeting with Toliver 



and listening to his concerns, Brown Jug allowed him to make purchases at a different 



store in the same area. 



                After receiving Brown Jug's statement of position the investigator assigned 



by the Commission to the case called Toliver to review Brown Jug's position statement 



with him.     Toliver denied threatening or cursing at Dockter.              Toliver mentioned the 



manager at Brown Jug Store 55, Richard Senior, as a potential witness, alleging that 



Senior had told Toliver that he thought what was occurring was wrong. Toliver also 



stated that the manager at Store 32 "shook his head and said what the heck is going on 



                                                  -4-	                                            6687
 


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

here."    Toliver further stated that the people   who   had   signed the petition were also 



witnesses. 



                On December 10, 2008, the investigator wrote to Brown Jug's attorney 



requesting copies of incident logs and information about, among other things, Brown 



Jug's policy for denying customer service.  She also requested interviews with Dockter, 



Madden, O'Neill, and the managers of Stores 32 and 55.  The investigator did interview 



Dockter and Madden, but did not interview Senior (the manager of Store 55), nor the 



manager of Store 32, nor any of the individuals who signed Toliver's petition. 



                On April 21, 2009, the investigator issued a written determination based on 



her investigation.   She concluded that Toliver was denied the right to shop at Brown Jug 



Store 32 "because he verbally abused and threatened employees."                    She observed that 



customers   of   other   races   had   been   denied   service   for   similar   reasons   and   that   the 



evidence   did   not   show   that   Toliver   was   denied   service   because   of   his   race.   The 



investigator   reviewed   the   determination   with   Toliver,   who   vigorously   disputed   the 



version of events advanced by Brown Jug and again alleged that Senior had agreed 



banning Toliver from Store 32 was wrong. 



                Ultimately, the investigator concluded that Toliver's allegations were " not 



supported by substantial evidence."           On the same day that this report was issued, the 



executive   director   of   the   Commission   issued   an   order   closing   the   case   because   the 



"[i]nvestigation did not find substantial evidence to support allegations in the complaint." 



                Toliver appealed the closing order to the superior court, arguing in part that 



the investigation was incomplete because the investigator did not interview any of the 



individuals who signed Toliver's petition.            The superior court affirmed the order in a 



seven-page written decision.          The court concluded that it was not necessary for the 



investigator to interview the petitioners because "the record does not demonstrate that 



any of the petitioners on the list were present when Toliver's incidents occurred." 



                                                   -5-                                             6687
 


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

III.    STANDARD OF REVIEW 



                 "We review de novo questions of law, including the interpretation of a 



statute,   adopting   the   rule   of   law   most   persuasive   in   light   of   precedent,   reason,   and 

policy."1 



IV.      DISCUSSION 



                 Toliver appeals pro se, and his brief mainly sets out his version of the facts. 



But we consider pro se pleadings liberally in an effort to determine what legal claims 

have been raised.2      Taking that view, we         construe Toliver's brief to argue that (1) the 



Commission   staff   failed   to   impartially   investigate   Toliver's   complaint,   and   (2)   the 



Commission's executive director erred in dismissing the complaint on the grounds that 



the investigation did not find substantial evidence to support discrimination. 



                 As explained below, we conclude that the staff had a duty to conduct an 



impartial   investigation   before   dismissing   Toliver's   complaint   for   lack   of   substantial 



evidence   and   that   it   failed   to   comply   with   this   duty. These   conclusions   make   it 



unnecessary   to   decide   whether   the   investigation   uncovered   substantial   evidence   of 



discrimination.      Following   the   additional   investigation   after   remand   the   record   may 



change, or the executive director may decide that substantial evidence of discrimination 



has been discovered and proceed with conciliation or a hearing, or the executive director 



        1       Alaskans For Efficient Gov't, Inc. v. Knowles , 91 P.3d 273, 275 (Alaska 



2004). 



        2        See   Clemensen   v.   Providence   Alaska   Med.   Ctr.,   203   P.3d   1148,   1150 



(Alaska 2009) (construing pro se litigant's complaint to raise four distinct causes of 

action). 



                                                    -6-                                              6687
 


----------------------- Page 7-----------------------

may decide to close the case on other grounds.3          Any of these occurrences would moot 



the substantial evidence argument as it is currently presented. 



        A.	     The    Commission's       Duty    To   Conduct     An   Impartial     Investigation 

                Requires A Reasonable Effort To Interview Some Of A Complainant's 

                Witnesses. 

                The investigatory duties of the Commission4        are set out in the first sentence 



of   AS   18.80.110:    "The   executive   director   or   a   member   of   the   commission's   staff 



designated by the executive director shall informally investigate the matters set out in a 



filed complaint, promptly and impartially."          This language explicitly requires that the 



Commission conduct an impartial investigation of each complaint. 



                The investigation serves as the basis for further agency action.  Thus if the 



investigation discovers substantial evidence of discrimination the investigator is required 



        3       In State, Department of Fish & Game, Sport Fishing Division v. Meyer, 906 



P.2d 1365, 1373-74 (Alaska 1995), we held that Commission closing orders are subject 

to judicial review.    When Meyer was decided complaints could be dismissed after an 

investigation but before a hearing for lack of substantial evidence, but not for prudential 

or   policy   reasons.  Id.   at   1373. After  Meyer   was   decided,   the   legislature   enacted 

AS 18.80.112(b) to give the executive director discretion to dismiss a complaint for a 

number of reasons in addition to the lack of substantial evidence. Ch. 63,  4, 2006 SLA. 

These reasons include that the complainant has indicated an intent to bring an action 

based on the same facts in another forum, that the hearing will not represent the best use 

of   Commission      resources    or  advance     the  purposes    of  eliminating    or  preventing 

discrimination, or that the probability of success of the         complaint on the merits is low. 

AS 18.80.112(b).   In this case the executive director did not dismiss the complaint based 

on any of these reasons; the dismissal was based on the lack of substantial evidence. 

Such dismissals remain reviewable in accordance with Meyer . 



        4       Our use of the term "Commission" here refers to the State Commission for 



Human      Rights   collectively    and  includes    action   by  the  executive    director   of  the 

Commission and the Commission staff. 



                                                 -7-	                                          6687
 


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

to eliminate or remedy it "by conference, conciliation and persuasion."5         If that process 



fails, the executive director may decide to issue an accusation which initiates the hearing 

process before the Commission.6       But without an impartial investigation there is a risk 



that even if substantial evidence of discrimination exists, it will not be discovered and 

the case will be closed without conciliation or a hearing.7 



               The    policies  and  purposes   of  the  Human    Rights   Act8  are  set  out  in 



AS 18.80.200(a)-(b): 



       5       AS 18.80.110 provides in full: 



                      The     executive    director   or   a   member     of   the 

               commission's staff designated by the executive director shall 

               informally investigate the matters set out in a filed complaint, 

               promptly and impartially.   If the investigator determines that 

               there is substantial evidence of an unlawful discriminatory 

               practice under this chapter, the investigator shall immediately 

               try to eliminate or remedy the discriminatory practice through 

               an   agreement    reached    by  conference,    conciliation,  and 

               persuasion.  If an agreement is reached, it must be reduced to 

               writing and signed by the complainant, executive director, 

               and respondent.    The agreement is binding and enforceable 

               under    this  chapter  as  an  order  of  the  commission.     An 

               agreement     reached   under    this  section  may   include   the 

               compromise of damages authorized under this chapter. 



       6       AS 18.80.120(a). 



       7       See Grundberg v. Alaska State Comm'm for Human Rights, 276 P.3d 443, 



451 (Alaska 2012) ("During the investigative phase, the Commission is charged with 

'impartially' reviewing the allegations, 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 . . . ."). 



       8       We use the term "Human Rights Act" to refer to AS 18.80. 



                                               -8-                                         6687
 


----------------------- Page 9-----------------------

                         (a)      It   is   determined   and   declared   as   a   matter   of 

                 legislative finding that discrimination against an inhabitant of 

                 the state because of race, religion, color, national origin, age, 

                 sex, physical or mental disability, marital status, changes in 

                 marital status, pregnancy, or parenthood is a matter of public 

                 concern and that this discrimination not only threatens the 

                 rights and privileges of the inhabitants of the state but also 

                 menaces   the   institutions   of   the   state   and   threatens   peace, 

                 order, health, safety, and general welfare of the state and its 

                 inhabitants. 



                         (b)      Therefore, it is the policy of the state and the 

                 purpose       of   this    chapter     to    eliminate     and     prevent 

                 discrimination       in   employment,       in   credit   and    financing 

                 practices,   in   places   of   public   accommodation,   in   the   sale, 

                 lease,   or   rental   of   real   property   because   of   race,   religion, 

                 color, national origin, sex, age, physical or mental disability, 

                 marital     status,   changes     in  marital    status,   pregnancy      or 

                 parenthood.  It is also the policy of the state to encourage and 

                 enable physically and mentally disabled persons to participate 

                 fully in the social and economic life of the state and to engage 

                 in remunerative employment.             It is not the purpose of this 

                 chapter to supersede laws pertaining to child labor, the age of 

                 majority, or other age restrictions or requirements. 



                 Because of this strong statement of policy we have consistently construed 

the Human Rights Act broadly "to further the goal of eradication of discrimination."9 



We have also noted that, in view of this strong statement and the legislature's avowed 



determination to protect the civil rights of all Alaskans, "we believe that the legislature 

intended to put as many 'teeth' into this law as possible."10            In light of these observations 



         9       Muller v. BP Exploration, Inc. , 923 P.2d 783, 791 (Alaska 1996) (quoting 



Alaska USA Fed. Credit Union v. Fridriksson , 642 P.2d 804, 806 (Alaska 1982)). 



         10      McLean v. State , 583 P.2d 867, 869 (Alaska 1978) (quoting Loomis Elect. 



Protection, Inc. v. Schaefer , 549 P.2d 1341, 1343 (Alaska 1976)). 



                                                     -9-                                               6687
 


----------------------- Page 10-----------------------

it would be anomalous to hold that the "investigate impartially" language of section .110 



does not require that a reasonable effort be made to interview witnesses identified by a 



complainant   who   may   have   relevant   information.       Without   such   an   investigation,   a 



Commission determination that a complaint is not supported by substantial evidence 



could be meaningless.   Accordingly, we conclude that a reasonable effort must be made 



to interview at least some of a complainant's witnesses who appear to be possessed of 



relevant information. 



                Courts   in   New   York,   which   has   a   statutory   human   rights   system   very 



similar to Alaska's, have reached a similar conclusion.            The New York Human Rights 



Division is required to make a "prompt and fair investigation" of each complaint filed 

before it,11 language almost identical to that found in AS 18.80.110.              New York courts 



have interpreted this provision to establish an affirmative investigative duty on the part 

of the division, the breach of which is subject to judicial review.12 Appellate decisions 



have elaborated that a dismissal for lack of probable cause is improper if               "based upon 



an investigation which was abbreviated and one-sided and resulted in a record which did 

not afford a reasonable basis for an administration determination."13               Pertinently, one 



New York court, after considering the division's failure to "examine witnesses crucial 

to the complainant's case,"  reversed the agency's determination of no probable cause.14 



        11      N.Y.  COMP . CODES R. & REGS . tit. 9,  465.6(a) (2012). 



        12      See, e.g.,Belgrave v. State Div. of Human Rights , 68 A.D.2d 922 (N.Y.A.D. 



1979) (remanding to division for hearing when investigation was incomplete and did not 

allow complainant full opportunity to present contentions and evidence). 



        13      Tenenbaum v. State Div. of Human Rights, 50 A.D.2d 257, 259 (N.Y.A.D. 



1975); see also Belgrave, 68 A.D.2d at 922 (quoting Tenenbaum). 



        14      Pape-Becker v. Equitable Life Assurance Soc'y of the U.S. , 111 A.D.2d 



                                                                                       (continued...) 



                                                 -10-                                            6687
 


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

        B.     The Investigation Of Toliver's Complaint Was Not Impartial. 



               Here, the Commission's investigation consisted of an intake interview with 



Toliver, interviews with Dockter and Madden, and a few telephone conversations with 



Toliver that he initiated.    Significantly, the investigator did not interview any of the 



individuals who, according to Toliver, would corroborate his claim of discrimination. 



               The    investigator   did  ask   Toliver   to  provide   the  names    of  specific 



individuals who had witnessed the alleged discrimination taking place.  Toliver claimed 



at oral argument before the superior court that he provided the investigator with the 



names of three individuals, but the agency record does not corroborate this claim.  Even 



without    these  specific  names,    however,    it  would  have   taken   little  effort  for  the 



investigator to contact at least a few of the 24 individuals who signed the petition and 

provided telephone numbers.15 



               Further, it is unclear why the investigator retreated from her stated intention 



to interview the managers of Stores 55 and 32.         Her failure to interview Senior - the 



manager of Store 55 - is particularly troubling.  Toliver alleged that Senior had agreed 



that Brown Jug's actions were racially motivated.  If verified, Senior's agreement would 



mark him as a witness who has potentially relevant information.  We conclude, therefore, 



that as a result of its failure to make an effort to interview at least some of the witnesses 



        14     (...continued) 



427, 428 (N.Y.A.D. 1985). 



        15     Even though these witnesses may not have been present when the incidents 



concerning Toliver occurred, they still could have information about other discriminatory 

incidents or practices that would be relevant to Toliver's claims.          See, e.g., Parker v. 

Secretary, U.S. Dep't of Hous. & Urban Dev., 891 F.2d 316, 322-23 (D.C. Cir. 1989) 

(holding    witness   testimony    establishing  "discriminatory     atmosphere"    relevant   "as 

circumstantial evidence of individualized discrimination"). 



                                              -11-                                          6687
 


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

identified    by  Toliver,   the  Commission      breached    its  duty  to  conduct   an   impartial 



investigation. 



                The Commission's regulations authorize it to "determine the nature and 

scope" of each investigation.16       We agree that this authority is properly committed to 



agency discretion subject only to review for abuse of discretion.           We do not require by 



this decision that the Commission interview all alleged witnesses to discrimination, nor 



do we substantially restrict the Commission's ability to guide its own investigations.  We 



merely hold that the Commission abuses its discretion when it interviews witnesses who 



can be expected to be favorable to the respondent but makes no effort to interview any 



witnesses listed by the complainant.       In such a case the Commission may not dismiss a 



complaint for lack of substantial evidence because an investigation which is "abbreviated 

and one-sided" does not supply a reasonable basis for making such a determination.17 



V.      CONCLUSION 



                We REVERSE the decision of the superior court and REMAND this case 



to the superior court for REMAND to the Commission with instructions to fulfill its duty 



to complete an impartial investigation and to take further appropriate action.   We do not 



retain jurisdiction. 



        16      6 Alaska Administrative Code (AAC) 30.320(a) (2007). 



        17      Tenenbaum,   50   A.D.2d   at   259;  see   also   Belgrave,   68   A.D.2d   at   922 



(quoting Tenenbaum). 



                                                -12-                                             6687 

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