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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Conitz v. Alaska State Commission for Human Rights (3/7/2014) sp-6871

Conitz v. Alaska State Commission for Human Rights (3/7/2014) sp-6871

         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  



GREGG CONITZ,                                        )  

                                                     )        Supreme Court No. S-14357  

                          Appellant,                 )  

                                                     )        Superior Court No. 3AN-09-10085 CI  

         v.                                          )  

                                                     )        O P I N I O N  

ALASKA STATE COMMISSION                              )  

FOR HUMAN RIGHTS, and TECK                           )       No. 6871 - March 7, 2014  

ALASKA INCORPORATED,                                 )  

                                                     )  

                          Appellees.                 )  

                                                     )  



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

                             

                  Judicial District, Anchorage, Philip R. Volland, Judge.  



                  Appearances: Kenneth L. Covell, Law Offices of Kenneth L.  

                  Covell, Fairbanks, for Appellant.  William E. Milks, Assistant  

                  Attorney   General,   Juneau,   and   Michael   C.   Geraghty,  

                                             

                  Attorney      General,   Juneau,        for   Appellee      Alaska      State  

                                                                              

                  Commission  for  Human  Rights.    Sean  Halloran,  Littler  

                  Mendelson,  P.C.,  Anchorage,  for  Appellee  Teck  Alaska  

                  Incorporated.  



                  Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                              

                  Bolger, Justices.   



                  MAASSEN, Justice.  



I.       INTRODUCTION  



                  The Alaska State Commission for Human Rights dismissed Gregg Conitz's  



complaint against his employer, Teck Alaska Incorporated, alleging discrimination in its  

                                                            


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

                                                                                                       

promotion decisions. The superior court dismissed Conitz's appeal as moot, finding that  



                                                                                          

the same claims had already been decided by a federal court and that the doctrine of res  



                                                              

judicata would therefore preclude further pursuit of the claims if they were remanded to  



the Commission.  Conitz appeals.  We affirm the superior court's decision.  



II.       FACTS AND PROCEEDINGS  



                    Over  the  last  seven  years,  Gregg  Conitz  has  filed  a  number  of  claims  



against his employer, Teck Alaska Incorporated (Teck), alleging violations of state and  

                                                                                                                    



federal civil rights statutes.  Teck operates the Red Dog Mine in what it characterizes as  

                                                                



a joint venture with NANA Regional Corporation.  Teck has a hiring preference for  



NANA shareholders under which "[f]irst preference for all Red Dog jobs would go to  



qualified  NANA  shareholders."1                                                         

                                                      Conitz,  who  describes  himself  as  white  and  as  a  



minority in the Northwest Arctic Borough (which is geographically coextensive with the  



                                                                                                                  

NANA Region), contends that Teck's preference for NANA shareholders is racially  



                                                                                        

discriminatory and that it has cost him several opportunities for promotion to supervisory  



positions at the Red Dog Mine.   



                                                                                                      

                    In 2006, Conitz filed complaints with both the Alaska State Commission  



       

for Human Rights (the Commission) and the federal Equal Employment Opportunity  



Commission  (EEOC)  based  on  Teck's  failure  to  promote  him  in  2004  and  2005  to  



positions as mine operations supervisor and mine trainer, respectively.  After the EEOC  

                                                                                      



declined  to  act  on  Conitz's  claims,  he  brought  suit  against  Teck  on  those  claims  in  

                                                                                                                   



          1         The parties dispute the scope of the preference, but Conitz also asserts that   



the  extent  of  it  "is  immaterial  to  the  question  of  law  of  whether  any  shareholder  

preference at the Teck mine is illegal."  We agree that the exact parameters of Teck's  

                  

shareholder preference are immaterial to our decision and therefore do not describe it  

                                                                                        

fully here.  



                                                              -2-                                                        6871
  


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

federal district court.  The federal district court dismissed Conitz's suit, ruling that he had  

                                                                       



failed  to  demonstrate  he  was  qualified  for  the  positions  he  sought  and  that  Teck's  

                                                               



shareholder preference was "not prohibited by law because it is based on the permissible  

                                                                              



                                                                            2  

distinction of shareholder status rather than race."                                                                   

                                                                               The Court of Appeals for the Ninth  



                                                                     

Circuit affirmed, though it limited its holding to Conitz's failure to show he was qualified  



                                                                                                                           3  

for the jobs he sought; it did not discuss the legality of Teck's hiring preference.   



                                                                                                                      

                    Between  the  time  of  the  federal  district  court's  decision  and  the  Ninth  



                                                                                           

Circuit's affirmance, Conitz filed new complaints with the EEOC and the Commission  



alleging new civil rights violations.  In these complaints, Conitz alleged that Teck had  



                                                                           

twice more failed to promote him to the position of mine operations supervisor, once in  



November 2007 and again in July 2008, because of its unlawful shareholder preference.  



                                                                                                 

The EEOC dismissed Conitz's complaint on grounds that it was "unable to conclude that  



                                                                        

the information obtained establishes violations of the statutes," and Conitz again brought  



suit on his claims in federal district court.  



                    While this second federal suit was pending, the Commission staff issued its  

                                                                                                                



own determination of Conitz's second administrative complaint.  The Commission found  



that Conitz's claim based on alleged discrimination in 2007 was untimely and therefore  

                                                                                                   



                                                             4 

                                                                                                     

"not jurisdictional for the Commission";  and it concluded that his claim arising in 2008 



          2          Conitz v. Teck Cominco Alaska Inc.                    , No. 4:06-cv-0015-RRB, slip op. at 4  



(D. Alaska July 21, 2008).  



          3          Conitz v. Teck Alaska Inc., 331 F. App'x 512, 513 (9th Cir. 2009).  



          4         The  Commission's  governing  regulations  provide  that  "[a]  complaint  



alleging a discriminatory act or practice not of a continuing nature must be filed no later  

                                                                                                              

than . . . 180 days after the alleged discriminatory act or practice occurred."  6 Alaska  

                                                                                                                (continued...)  



                                                                -3-                                                         6871
  


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

                                                                            

was  unsupported  by  substantial  evidence,  relying  on  testimony  that  the  employee  



                                                         

selected over Conitz for the position at issue was "not only a better equipment operator  



than complainant, but . . . , in the foreman's opinion, had a better safety record, better  



leadership  skills,  broader  experience,  and  a  better  attitude  than  complainant."                              The  



Commission's  investigations  director  approved  this  determination  and  dismissed  



Conitz's case by order dated August 20, 2009.  



                   Conitz appealed this order to the state superior court. While the appeal was  

                                                                                                



pending, the federal district court ruled on Conitz's second federal suit.5  

                                                                                                        It relied on the  



                                                                                                  

doctrine of res judicata to decide that Conitz was precluded from litigating the 2007  



                                                                                      

failure to promote, reasoning that he could have pursued the claim in his first federal suit,  



which did not proceed to final judgment until July 2008.6  

                                                                                     By separate order the court  



rejected Conitz's claim based on the 2008 failure to promote, which was too recent to  



                                                                   

have been brought in the earlier suit; the court ruled that Conitz was not qualified for the  



                                                          

position  he  sought  and  that  Teck's   shareholder  preference  was  not  unlawfully  



                      7  

discriminatory.                                                                                

                         On appeal the Ninth Circuit affirmed the lower court's decision that  



Conitz  was  not  qualified  for  the  position  he  sought  but  again  declined  to  reach  the  



          4        (...continued)  



Administrative Code (AAC) 30.230(b)(2) (2013).  



          5        Conitz  v.  Teck  Alaska  Inc.,  No.  4:09-cv-0020-RRB,  slip  op.  at  12  (D.  



Alaska Nov. 4, 2009).  



          6        Id. at 6-7.  



          7        Conitz  v.   Teck   Alaska  Inc.,  No.  4:09-cv-0020-RRB,  slip  op.  at  13  (D.  



Alaska Jan. 20, 2010).  



                                                            -4-                                                      6871
  


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

legality  of  Teck's  shareholder  preference,  on  grounds  that  "Conitz  has  failed  to  



demonstrate how the policy might have affected him."8  



                   Before the Ninth Circuit issued this ruling, the state superior court decided   



Conitz's  administrative  appeal  from  the  Commission's  determination  to  dismiss  his  



claims.  In a written decision, the court dismissed Conitz's appeal as moot, reasoning that  



all of his claims had been decided on their merits in his two federal suits, and thus even  

         



if the superior court reversed the Commission's determination and remanded the case,  

    



the doctrine of res judicata would prevent the Commission from prosecuting Conitz's  



claims to any different resolution.  



                   Following some procedural difficulties, further described in section IV.A  



below, Conitz filed an appeal to this court.   The Commission moved to dismiss the  

                                                                  



appeal on timeliness grounds, and Teck joined in the motion. We declined to dismiss the  

                                                                                            



appeal on the Commission's motion but did order the parties to "include as a point on  



appeal whether the appeal was timely filed."9  Conitz accordingly amended his points on  



appeal.  



                   Conitz's primary argument on appeal is that the superior court erred in  

                                                                                                               



applying the doctrine of res judicata to dismiss his case.  He also asks us to rule that  



Teck's shareholder preference is racially discriminatory.  He further argues that the  



Commission should not have closed his file without holding an adversarial hearing.  



III.      STANDARD OF REVIEW  



         8         Conitz v. Teck Alaska Inc., 433 F. App'x 580, 581 (9th Cir. 2011).  



         9         Alaska Supreme Court Order No. S-14357 (Oct. 11, 2011).  



                                                           -5-                                                        6871  


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

                                                                                                                           10  

                                                                                    

                     "We independently review the merits of administrative decisions."                                         "We  



review  an  agency's  factual  findings  to  determine  whether  they  are  supported  by  



substantial evidence."11  

                                       "We review questions of law not involving agency expertise  



                                                                12  

under the substitution of judgment test."                                                 

                                                                     Whether res judicata applies is one such  



question of law, reviewed de novo.13  



IV.	       DISCUSSION  



                                                                          

          A.	        Conitz's Appeal Was Untimely, But We Relax The Rules To Decide It  

                     On Its Merits.  



                                                                                                                     

                     We agree with Teck and the Commission that Conitz's appeal to this court  



                      14  

was untimely.                                                                 

                         The superior court's decision was distributed on February 17, 2011, and  



           10        Villaflores v. Alaska State Comm'n for Human Rights                                , 170 P.3d 663, 665   



(Alaska 2007) (citing Raad v. Alaska State Comm'n for Human Rights , 86 P.3d 899, 903   

(Alaska 2004)).  



           11	       Id . (quoting Raad , 86 P.3d at 903) (internal quotation marks omitted).  



           12	  

                                                                                                               

                     Id . (quoting Raad , 86 P.3d at 903-04) (internal quotation marks omitted).  



           13        Weber v. State, 166 P.3d 899, 901 (Alaska 2007) (citing Alaska Wildlife  



Alliance v. State , 74 P.3d 201, 205 (Alaska 2003)).  



           14        The appellees also argue that Conitz waived his right to respond to their  



                                                                                                              

timeliness argument because he did not address the issue in his opening brief.  Our order  

                                                                              

requiring Conitz to include the issue in his points on appeal was somewhat anomalous  

                                                                                                                        

as a procedural matter, given that the lack of timeliness was not his issue but rather the  

                                                                                                                

appellees' argument for dismissal. But as the appellees' argument, it was their obligation  

to brief it or risk waiving it.  Conitz could have anticipated the timeliness challenge in  

his  opening  brief,  but  he  did  not  waive  his  right  to  respond  by  failing  to  address  it  

preemptively.  We note that Conitz's arguments on the timeliness issue were identical  

                                                                                                                 

to those he raised in opposition to the motion to dismiss, and the appellees were not  

prejudiced by having to brief the issue first.  



                                                                 -6-	                                                         6871
  


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

                                                                                                  15  

Conitz therefore had until March 21, 2011, to appeal to this court.                                   He did not do so  



                                                                                                        

until June 20, nearly three months late.  In the meantime he had filed a tardy motion for  



reconsideration of the superior court's decision, had mistakenly filed a notice of appeal  



from that decision  in  the superior court rather than this court, and had shown some  

                                  



confusion as to whether the superior court's decision was in fact a final judgment for  

                                                                                                             



purposes of appeal.  On June 20, 2011, at the same time that he first filed a notice of  

                                                                                                                



appeal in this court, he filed a motion with the superior court requesting entry of final  



judgment. 16  

                   



                                                              

                    Conitz appears to argue that his motion for reconsideration, which he filed  



                                                                                                                    

in superior court on March 4, 2011, extended the time for filing an appeal.  It did not.  



                                 

Though  purportedly  brought  under  Civil  Rule  77(k),  Conitz's  motion  is  properly  



                                                                                        

considered as a motion for reconsideration under Appellate Rule 503(h), since Part Five  



of the Appellate Rules applies to motions for reconsideration when the superior court  



acts as an intermediate appellate  court.17  

                                                               But the motion was untimely under either  



          15        See Alaska R. App. P. 204(a)(1).  March 21, 2011, was actually 32 days  



from February 17, 2011.  The thirtieth day was a Saturday.  



          16        The superior court denied Conitz's motion for entry of final judgment on  



August 4, 2011.  Conitz then refiled his appeal in this court; his June 20 notice of appeal  

                          

had been rejected by the clerk's office for various deficiencies, including a failure to  

                                                  

include a copy of the final order or judgment from which he was appealing.   



          17        See Alvarez v. Ketchikan Gateway Borough, 28 P.3d 935, 942 (Alaska  



                          

2001) (applying Appellate Rule 506 to time for rehearing "because the superior court  

acted as an intermediate appellate court by reviewing the Board's decision"); Childs v.  

 Tulin, 799 P.2d 1338, 1341 (Alaska 1990) ("Appellate Rule 506 controls rehearings by  

                                                                

the superior court acting as an intermediate court of appeals.").  



                                                              -7-                                                       6871
  


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

        18  

                                                                                                   

rule.       And in any event, a motion for reconsideration filed pursuant to Appellate Rule  



                                                                                                                              

503(h) is not listed in Appellate Rule 204(a)(3) among the "timely motion[s] filed in the  



trial court" that terminate the running of the time for filing an appeal.  



                                                                                                               

                      We nevertheless entertain Conitz's late-filed appeal.  Appellate Rule 521  



allows us to relax the rules "where a strict adherence to them will work surprise or  



injustice."  When deciding whether to allow a late-filed appeal we must "balance the  

                                                                                                                          



right  to  appellate  review,  the  willfulness  and  extent  of  the  rules  violation,  and  the  



possible injustice that might result from dismissal."19  

                                                                                        We will excuse a late filing when  



                                                                                                        

it is the result of reasonable confusion about the state of the law and there is no prejudice  



                                    20  

to the opposing party.                   



                      We  have  excused  late-filed  appeals  in  the  past  where  the  appellant  



reasonably  believed  that  a  motion  for  reconsideration  would  terminate  his  time  for  



           18         See Alaska R. App. P. 503(h)(1) ("A motion for reconsideration must be   



filed within ten days after the date of notice of the order . . . ."); Alaska R. Civ. P. 77(k)                         

("A motion to reconsider the ruling must be made within ten days after the date of notice   

of the ruling . . . .").  The tenth weekday after the date of notice of the order, February  

17, 2011, was February 28, and Conitz filed his motion on March 4.   Conitz appears to  

                                                     

                                                                                                                  

argue that the appellees have waived any objection to the timeliness of his motion for  

reconsideration by failing to object to it in the trial court.  We found a similar argument  

to be without merit in  Vogt v. Winbauer, and we reject it here as well.  376 P.2d 1007,  

                                                                     

1009 (Alaska 1962).  



           19  

                                                                                                         

                      Cook v. Aurora Motors, Inc., 503 P.2d 1046, 1049 (Alaska 1972) (internal  

footnotes omitted).  



           20         See, e.g., McCarrey v. Comm'r of Natural Res., 526 P.2d 1353, 1354-55  



(Alaska 1974) (holding that plaintiff's failure to bring timely appeal of administrative  

                                    

decision  in  superior  court  was  forgiven  where  "a  great  deal  of  confusion  existed  

                                                                                            

concerning the method and procedures by which appeals from an administrative decision  

might be taken to the superior court").  



                                                                     -8-                                                              6871
  


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

appeal21 and where the appellant was reasonably confused about whether the superior  



                                                                            22  

                                   

court's order was an appealable final judgment.                                 Conitz's counsel made both these  



                                              

errors.  But before today we had never expressly held that motions for reconsideration  



filed   in   the   superior   court   under   Appellate   Rule   503(h),   unlike   motions   for  



                                                                                                                       

reconsideration filed under Civil Rule 77(k), do not terminate an appellant's time to file  



                                                                                                           

a further appeal (though the language of the rule is arguably explicit enough).  Further,  



when Conitz's time to appeal expired we had not yet explicitly stated that a separate final  



judgment is not required before a party may appeal a superior court's appellate decision.  

                                                  



We resolved this issue three months later in Griswold v. City of Homer, but in doing so  

                                                                                                                



we stated that we were clarifying an otherwise confusing area of the law.23  

                                                                                                                     



                                                                                   

                     Finally, the appellees do not allege that they were prejudiced by the delay  



                                                 

caused by Conitz's procedural errors.  Conitz served all of his erroneous filings on the  



                                                                                                 

appellees, and there is no question but that they were on notice of his intent to appeal the  



                                                                      

superior court's decision.  When the clerk of the superior court informed Conitz that no  



                                                                     

separate  judgment  would  be  forthcoming  absent  a  motion  requesting  one,  Conitz  



           21        Anderson v. State, Commercial Fisheries Entry Comm'n , 654 P.2d 1320,  



 1320-22 (Alaska 1982) (late-filed appeal accepted because appellant's incorrect belief  

                                                                                                               

that motion for reconsideration terminated time to appeal was "far from untenable").  



           22        Mattfield  v.  Mattfield ,  133  P.3d  667,  674  n.7  (Alaska  2006)  (late-filed  



appeal accepted "given the brief period of delay, the general confusion surrounding the  

                                                                             

proceedings on reconsideration, the uncertainty that might have arisen because the order  

                                                   

 . . . was not expressly identified as a final judgment, and the lack of any discernible  

                                                                                      

prejudice").  



           23  

                                                                                           

                     252 P.3d 1020, 1027 (Alaska 2011) ("We . . . clarify that where the superior  

                                                                                                                   

court acts as an intermediate appellate court, under Appellate Rule 507(a) its opinion or  

                     

decision  on  appeal  is  the  'judgment'  to  which  Appellate  Rule  204(a)(1)  refers"  for  

purposes of commencing the time for appeal.).  



                                                                 -9-                                                          6871
  


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

                                                                                           

immediately filed both a motion requesting a final judgment in the superior court and a  



                                                                     

notice of appeal in this court.  Given the element of confusion in the law, the various  



                                                           

efforts, albeit faulty, of Conitz's counsel to preserve his client's appellate rights, and the  



                                                                                           

lack of prejudice to the appellees, we exercise our discretion under Appellate Rule 521  



to relax the rules and hear Conitz's appeal on its merits.24  



            B.	         Conitz's Appeal Is Moot Because Further Pursuit Of His Claims On  

                        Remand Would Be Barred By Res Judicata.  



                        The superior  court dismissed Conitz's appeal as moot, finding that the  



                                                                    

decisions in the federal cases barred him from litigating his claims any further.  The  



doctrine of res judicata precludes a party from relitigating "a cause of action that has  



already  been  litigated  and  decided."25  

                                                                            The  elements  necessary  to  the  doctrine's  



application  are  "(1)  a  final  judgment  on  the  merits,  (2)  from  a  court  of  competent  



                                                                                                                                            

jurisdiction, (3) in a dispute between the same parties (or their privies) about the same  



                                26  

cause  of  action."      Conitz  pursued  claims  in  federal  court  alleging  that  Teck  had  



discriminated against him in 2007 and 2008 by twice failing to promote him to mine  



            24          The appellees argue that Conitz's first improper attempt to appeal, when he                                          



filed a notice of appeal in the superior court in April 2011, demonstrated that he was not               

truly awaiting a final judgment from the superior court and that his further delay was                                                   

willful.   Conitz's counsel later asserted in correspondence with the superior court clerk               

that he believed this initial appeal to have been premature.                                            We resolve the issue in favor  

of deciding the appeal on its merits.  



            25  

                                         

                        Smith  v.  CSK  Auto,  Inc.,  132  P.3d  818,  820-21  (Alaska  2006)  (citing  

Alderman v. Iditarod Props., Inc. , 104 P.3d 136, 141 (Alaska 2004)).  



            26  

                                                       

                        Angleton v. Cox , 238 P.3d 610, 614 (Alaska 2010) (citing Smith, 132 P.3d  

                                                                                                                                        

at 820); see also Alaska Pub. Interest Research Grp. v. State, 167 P.3d 27, 44 (Alaska  

2007) ("[T]he principles of res judicata and collateral estoppel apply in administrative  

proceedings.").  



                                                                          -10-	                                                                   6871
  


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

operations  supervisor,  claims  he  also  pursued  before  the  Commission.    The  federal  



district court entered final judgment on the merits of these claims and the Ninth Circuit  



affirmed  its  judgment  on  appeal.27  

                                                              The  federal  court  was  a  court  of  competent  



                   28  

jurisdiction.                                          

                        Thus the superior  court was correct in deciding that Conitz's claims,  



                                                             

having once been decided against him, would be barred by res judicata in any subsequent  



proceeding.29  



                                                   

                     A claim is moot if the party pursuing it would not be entitled to relief even  



                      30  

if he prevails.    Had Conitz persuaded the superior court that the Commission erred in  



                                                                     

its determination of his claims, a remand to the Commission would have been pointless,  



as res judicata would have prevented the Commission from pursuing Contiz's individual  



claims  in  an  adjudicatory  proceeding.31  

                                                                     The  superior  court  correctly  decided  that  



           27        Conitz v. Teck Cominco Alaska Inc.                     , No. 4:09-cv-0020-RRB, slip op. at 13                



(D. Alaska Jan. 20, 2010); Conitz v. Teck Alaska Inc.                               , 433 F. App'x 580, 581 (9th Cir.  

2011).  See Patterson v. Infinity Ins. Co., 303 P.3d 483, 497 (Alaska 2013) ("A dismissal  

based on summary judgment constitutes a final judgment on the merits.").  



           28  

                                                                                                                       

                     See, e.g., Smith, 132 P.3d at 820 ("There is no question that the federal  

court is a court of competent jurisdiction.").  



           29        The doctrine of res judicata applies in administrative proceedings.  See  



Robertson v. Am. Mech., Inc., 54 P.3d 777, 780 (Alaska 2002) (holding that employee's  

amended claim before workers' compensation board was barred by res judicata).  



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



                                                                     

 1165, 1167 (Alaska 2002) (citing Gerstein v. Axtell, 960 P.2d 599, 601 (Alaska 1998)).  



           31  

                                   

                     We are not presented in this case with the issue of whether an adverse  

                         

decision in an employee's individual discrimination suit would have any res judicata  

                                                                                                                           

effect on the Commission's ability to pursue public-interest litigation against the same  

employer  in  the  exercise  of  its  broad  statutory  mandate  to  "eliminate  and  prevent  

                                                                                                                   (continued...)  



                                                                 -11-                                                           6871
  


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

                                                                                           

Conitz's appeal from the Commission's determination of his claims was therefore moot.  



                                                                         

                    Conitz argues unconvincingly that the elements of res judicata are not met  



here.  He contends first that there would be no identity of parties between his second  



                                                                                            

federal  suit  and  a  proceeding  before  the  Commission  on  remand.    He  necessarily  



                                                                                                       32 

                                                       

concedes that he and Teck were the parties in his second federal suit,                                    but he contends  



                                                                                          

that there were different parties before the Commission, one of which is the Commission  



itself,  "effectively  [acting  as]  the  judge  and  the  prosecutor."    But  the  Commission  



identifies   the   parties   to   its   proceedings   as   Conitz,   "complainant,"   and   Teck,  



                                                                          

"respondent."  We have previously referred to the complainant in the Commission's  



complaint process as "the real party in interest."33  

                                                                            And even if Conitz were not a party  



                                                                 

himself to the Commission proceeding, we would still find that he was in privity with the  



Commission at least for purposes of its later pursuit of the claims, seeking individual  



                                                                                         

relief, that he had already lost once. "Privity 'is a shorthand way of expressing assurance  



                                                                                        

that the non-party has had adequate notice and opportunity to be heard, and that its rights  



          31        (...continued)  



discrimination in employment," see AS 18.80.200(b).  See, e.g., E.E.O.C. v. Jefferson  

Dental Clinics, PA , 478 F.3d 690, 696-99 (5th Cir. 2007) (holding that E.E.O.C. is not  

                                                     

in privity with losing individual litigants when it seeks injunctive and other equitable  

                                  

relief in pursuit of its mandate to eliminate workplace discrimination but is in privity  

with those litigants for purposes of recovering "make-whole" or "victim-specific" relief  

                                                                      

for their benefit.)  



          32        See Conitz v. Teck Alaska Inc., 433 F. App'x 580, 581 (9th Cir. 2011).  



          33  

                                                           

                    Alaska State Comm'n for Human Rights v. Yellow Cab , 611 P.2d 487, 488  

(Alaska 1980).  



                                                              -12-                                                         6871
  


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

                                                   34  

                                                                                   

and interests have been protected.' "                  Alaska follows the Restatement rule that privity  



exists when a party to a suit represents a non-party.35  

                                                                            In its list of such representatives  



the  Restatement  includes  "[a]n  official  or  agency  invested  by  law  with  authority  to  

                                                                                      



                                              36  

represent the person's interests."                                           

                                                 Conitz admits that during the initial investigation of  



                                               

his claim, the Commission  had  "an alignment with Conitz and essentially [was] his  



                                                             

representative" (though he asserts that on remand the Commission would be "aligned  



with Teck" now that it has decided against pursuing his claim).  



                   In Beegan v. State, Department of Transportation & Public Facilities , we  

                                                                                             



held that a complainant could not be barred by res judicata from pursuing a claim that  



could have been, but was not, raised in an earlier Commission investigation because he  

          



lacked control over the Commission process.37  

                                                                     But the situation here is the reverse:  



whereas the complainant in Beegan lacked the "full and fair opportunity to litigate his  



claims" that res judicata requires of the first case to reach final judgment (because the  



first case was the Commission investigation which the complainant did not control),38  



                                        

here the first case to reach final judgment was the federal lawsuit, which Conitz  did  



         34        Stewart v. Elliott, 239 P.3d 1236, 1241 (Alaska 2010) (quoting Alaska  



Foods, Inc. v. Nichiro Gyogyo Kaisha, Ltd. , 768 P.2d 117, 121 (Alaska 1989)).  



         35        See  id.  (quoting Powers v. United Servs. Auto. Ass'n , 6 P.3d 294,                               298  



(Alaska 2000); RESTATEMENT (SECOND) OF JUDGMENTS  41(1)(d) (1982)).  



         36        RESTATEMENT (SECOND) OF JUDGMENTS  41 cmt. d.  



         37        195 P.3d 134, 139 (Alaska 2008).  



         38        Id. (quoting Sengupta v. Univ. of Alaska, 21 P.3d 1240, 1253 (Alaska 2001)  



(internal quotation marks omitted).  



                                                          -13-                                                    6871
  


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

                                                                                                   

control and in which he clearly had a "full and fair opportunity to litigate his claims."  



                                                                                                     39  

A litigant is entitled to one such "full and fair opportunity," not two.                                  



                                                       

                    Conitz also argues that the application of res judicata here is foreclosed by  

comment o to the Restatement (Second) of Judgments  27.40  

                                                                                              But this section of the  



Restatement  describes  issue  preclusion,  not  claim  preclusion  (res  judicata).41                                   The  



comment discusses how to decide if a trial court's determination of an actually litigated  

                                                                          



issue is conclusive after an appeal;42 

                                                       but it is not a requirement of res judicata that an  



                                                                                                             43  

                                                                      

issue was actually litigated, only that there was an opportunity to litigate it.                                 The same  



                                                       

analysis disposes of Conitz's added claim that there was no identity of issues between  



                               

the federal lawsuits and the Commission proceedings because the federal court did not  



decide his state law claims.  This is incorrect - Conitz alleged both state and federal  



          39        See Stewart, 239 P.3d at 1241 ("In the past we have found privity only     



where  the  relationship  allowed  significant  and  unhampered  control  over  the  earlier  

litigation.") (emphasis added).  



          40  

                                                   

                    Conitz  supports  his  argument  with  a  citation  to  "Comment  O  of  the  

Restatement  of  the  Judgments,"  without  specifying  an  edition  or  a  section  of  the  

Restatement.  Because he also cites to the federal district court's decision, which refers  

                                                                                                              

to comment o to  27 of the R                                                                               

                                           ESTATEMENT (SECOND) OF JUDGMENTS , we assume this is  

the section to which he refers.  



          41        RESTATEMENT (SECOND) OF JUDGMENTS  27 (1982).  



          42       Id. at cmt. o.  



          43        See Patterson v. Infinity Ins. Co., 303 P.3d 493, 497 (Alaska 2013) ("[A]  



                                          

fundamental tenet of the res judicata doctrine is that it precludes relitigation between the  

same parties not only of claims that were raised in the initial proceeding, but also of  

those  relevant  claims  that  could  have  been  raised  then."  (alteration  in  the  original))  

          

(quoting Calhoun v. Greening, 636 P.2d 69, 72 (Alaska 1981)) (internal quotation marks  

omitted)).  



                                                             -14-                                                       6871
  


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

                                                                                             

claims and the federal courts dismissed them all - but it is also irrelevant; identity of  



issues, like actual litigation of the claims, is an element of issue preclusion but not res  



judicata. 44  



                                                              

                     Finally, Conitz argues that he had no opportunity to address the issue of res  



              

judicata  in  the  superior  court  because  the  judge  raised  it  sua  sponte.    This  is  again  



incorrect.  Teck filed a motion in the superior court arguing that Conitz's appeal was now  



"barred by the doctrine of res judicata" after the  federal court had rejected Conitz's  



claims.  Conitz filed an opposition, arguing cursorily that preclusion doctrines did not  

                                 



apply.    The  issue  of  res  judicata  was  raised  by  Teck,  briefed  by  both  parties,  and  



correctly decided by the superior court.  



           C.        Conitz's Broad Civil Rights And Public Policy Arguments Fail.  



                     Conitz  asks  this  court  to  rule  on  the  legality  of  Teck's  shareholder  



preference even though the superior court did not, arguing that regardless of the policy's  



application  to  his  own  personal  circumstances,  its  mere  existence  is  a  civil  rights  



violation that demands our attention.  But we "do not lightly issue advisory opinions,"45  



                                                                                                                       46  

and it is not our place to make a finding of discrimination in the first instance.                                         



                                                                                                                 

                     Conitz also argues that we are required by AS 44.62.570(g) to rule on the  



                                                                                             

legality of Teck's shareholder preference.  The cited statute provides that a stay should  



          44         See id .  



          45        Larson v. State        , 254 P.3d 1073, 1078 (Alaska 2011) (citing                        State v. ACLU  



of Alaska, 204 P.3d 364, 368-69 (Alaska 2009)).  



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

                                               

 1377 (Alaska 1995) (holding that the existence of discrimination is a factual question that  

                                                                                                  

cannot be resolved without a hearing), superseded by statute, AS 18.80.112(b).   



                                                               -15-                                                         6871
  


----------------------- Page 16-----------------------

not be imposed if "it is against the public interest."  There is no stay at issue here.  Conitz  

                                                                                                                



may be arguing that the public interest exception to the mootness doctrine applies.  We  

                              



have recognized an exception to the mootness doctrine where a matter of grave public  

                               



                                                                      47  

concern would otherwise evade review.  

                                                                                   

                                                                           But we have never applied the public interest  



                                                                                                                               

exception in order to allow relitigation of a private employment dispute that was already  



decided and reviewed on appeal elsewhere, and we decline to do so here.48  



V.          CONCLUSION  



                        We AFFIRM the decision of the superior court.  



            47          Doe v. State , 487 P.2d 47, 53 (Alaska 1971).  



            48          The remaining issue that Conitz raises - whether he was entitled to an                                     



adversarial hearing before the Commission - is mooted by our decision of the other  

issues.  



                                                                          -16-                                                                         6871  


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

           In the Supreme Court of the State of Alaska  



Gregg Conitz,                                          )  

                                                       )       Supreme Court No. S-14357 

                                   Appellant,          ) 



               v.	                                     )                   Order  

                                                       )           Petition for Rehearing  

Alaska State Commission for                            )  

Human Rights, et al.,                                  )  

                                                       ) 

                                   Appellee.           )         Date of Order: 3/07/2014  

Trial Court Case # 3AN-09-10085CI  



                 Before:	       Fabe, Chief Justice, Winfree, Stowers, Maassen and Bolger,  

                                                                                    

                                  Justices  



         On consideration of the Petition for Rehearing filed on 9/20/2013,  



        IT IS ORDERED :  



         1.      The Petition for Rehearing is GRANTED .  



        2.       Opinion No. 6830, issued on September 20, 2013, is WITHDRAWN .  



         3.      Opinion No. 6871, is issued on this date in its place.  



        The revised opinion changes two sentences at pages 11-12, as noted below (added  



language in bold), and adds a new footnote 31.  



                                 

                 Had Conitz persuaded the superior court that the Commission  

                 erred  in  its  determination  of  his  claim,  a  remand  to  the  

                 Commission would have been pointless, as res judicata would  

                 have  prevented  the  Commission  from  pursuing  Conitz's  

                 individual claims in an adjudicatory proceeding.  



                 And   even   if   Conitz   were   not   a   party   himself   to   the  

                 Commission proceeding, we would still find that he was in  

                 privity with the commission at least for purposes of its later  

                                                                

                 pursuit of the claims, seeking individual relief, that he had  

                 already lost once.  


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

Conitz v. Alaska State Comm'n for Human Rights, et al.  

No. S-14357  

Supreme Court Order March 7, 2014  

Page 2  



          Entered by direction of the court.  



                                                                        Clerk of the Appellate Courts 



                                                                                      /s/  

                                                                                                                            

                                                                        Marilyn May  

cc:	       Supreme Court Justices  

          Judge Volland  

          Trial Court Appeals Clerk  

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