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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Rodriguez v. Alaska Commission for Human Rights (8/14/2015) sp-7033

Rodriguez v. Alaska Commission for Human Rights (8/14/2015) sp-7033

         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@akcourts.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



LUIS R. RODRIGUEZ,                                        )  

                                                          )    Supreme Court No. S-15383  

                           Appellant,                     )  

                                                          )    Superior Court No. 3AN-11-11621 CI  

         v.                                               )  

                                                          )    O P I N I O N  

ALASKA STATE COMMISSION FOR                               )
  

HUMAN RIGHTS,                                             )    No. 7033 - August 14, 2015
  

                                                          )  

                           Appellee.                      )  

                                                          )  



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

                                                                  

                  Judicial District, Anchorage, Gregory Miller, Judge.  



                  Appearances:      Luis   R.   Rodriguez,   pro   se,   Anchorage,  

                                                                             

                  Appellant.  William E. Milks, Assistant Attorney General,  

                  and  Michael  C.  Geraghty,  Attorney  General,  Juneau,  for  

                  Appellee.  



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

                                               

                  Bolger, Justices.  



                  WINFREE, Justice.  



I.       INTRODUCTION  



                  An airline employee filed a complaint with the Alaska State Commission  

                                                         



for  Human  Rights,  alleging  employment  discrimination  based  on  his  race.                                The  

                                                                                                      



Commission initiated an investigation as required by statute.  After the investigation the  



Commission concluded that the employee's racial discrimination allegations were not  


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

                                                              

supported by substantial evidence, and the Commission dismissed the complaint without  



                                                  

holding a hearing.  The employee appealed to the superior court, and the superior court  



                                                               

affirmed the Commission's conclusion that the employee's complaint was not supported  



by  substantial  evidence.    The  employee  appealed  to  us.    Because  we  agree  that  the  



                                                                                         

employee   failed   to   present   the   Commission   substantial   evidence   of   race-based  



discrimination,  we  affirm  the  superior  court's  decision  affirming  the  Commission's  



dismissal of the employee's discrimination complaint.  



II.       FACTS AND PROCEEDINGS  



                                                                                               

                   Luis Rodriguez is a gay Hispanic man employed by Delta Airlines, Inc.  In  



November 2010 Rodriguez filed a complaint with the Alaska State Commission for  



                                      

Human Rights, accusing Delta of race-based discrimination.  Rodriguez alleged that  



                                                                                                         

Delta (1) "did not delete the position of a Caucasian coworker with less seniority," and  



                                                                                                          

(2) "recently brought another Caucasian employee with less seniority . . . back from lay- 



off status."  



          A.       Commission-Developed Facts And Decision  



                   The  Commission  notified  Rodriguez  and  Delta  that  it  had  initiated  an  



                                                                                                          

investigation to determine whether Rodriguez's discrimination complaint was supported  



                                      

by substantial evidence.  A Commission investigator interviewed Rodriguez, his union  



representative, and Delta staff.  The investigator also reviewed Delta's position statement  



and Delta's responses to information requests.  



                   The Commission determined that Rodriguez previously had worked for  



                                     

Northwest  Airlines  and  became  a  Delta  employee  when  the  two  airlines  merged.  



Rodriguez  had  been  employed  as  an  equipment  service  employee  (ESE)  in  cargo  



operations in Anchorage.  In December 2009 Delta had informed Rodriguez and other  



                                                                      

ESEs that they would be furloughed from their positions as full-time cargo-operations  



                                                                          

ESEs.  Delta explained to the Commission that this furlough "caused [Rodriguez and the  



                                                             -2-                                                      7033
  


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

other  cargo-operations  ESEs]  to  transfer  to  similar  ESE  positions  working  with  



scheduled passenger flights on the aircraft operations ramp."  Furloughed employees  



were offered part-time temporary positions in Anchorage.  But under the terms of his  



union's collective bargaining agreement, when furloughed Rodriguez also was entitled  



to exercise his seniority and displace a junior ESE at another location.  In May 2010  



Rodriguez exercised his seniority and requested a transfer to Seattle.  



                   Rodriguez told the Commission that he did not have the opportunity to bid  



                                                                                                    

for a part-time position in Anchorage, and that a Caucasian employee with less seniority  



                        

was allowed to remain in a position in Anchorage.  Rodriguez also asserted that while  



working on the ramp in Anchorage, after the furlough from cargo operations, he "was  



constantly harassed (called 'faggot' and other names) by his supervisor Nash and several  



coworkers."    In  April  2010  Delta  received  complaints   about  Nash's  behavior,  



                     

subsequently conducted an investigation, and in July terminated Nash's employment.  



                                                                               

During  the  investigation  Rodriguez  informed  Delta  that  Nash  gave  Rodriguez  no  



                                                                                               

overtime, harassed him, made comments about his sexuality, and retaliated against him  



for reporting to management.  



                                                                                                              

                   Approximately two weeks after accepting the Seattle position, and before  



working a single shift, Rodriguez requested a transfer back to Anchorage.  Delta granted  



                               

Rodriguez's request and in July, shortly after Nash had been terminated, Delta offered  



                                                         

Rodriguez  a  temporary  ESE  position  in  Anchorage.    After  returning  to  Anchorage  



                 

Rodriguez worked one day but then called in sick for his next five shifts.  Delta informed  



                                                                              

the  Commission  that  Rodriguez  had  then  "abruptly  requested  to  end  his  temporary  



assignment and return to furlough status."  



                   Rodriguez attempted to justify to the Commission his poor work attendance  



and furlough request, explaining that his union representative recommended layoff status  



                                                                                       

because  Rodriguez  was  depressed,  stressed,  and  afraid  after  receiving  harassing  



                                                            -3-                                                      7033
  


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

                                                                                                             

telephone calls from Nash. Rodriguez asserted that he reported the calls but Delta human  



resources would not allow him to take stress-based injury leave and would not allow him  



               

to  return  to  furlough  status  without  providing  documentation  establishing  medical  



reasons.  Rodriguez also claimed that a Delta manager told him to go on layoff status.  



                   Delta explained that it subsequently determined that it "needed another  



                                                                     

temporary ESE" in Anchorage.  Delta did not offer Rodriguez the assignment because  



                                                                                                        

there  were  limited  opportunities  and  Rodriguez  "gave  .  .  .  airport  leaders  a  poor  



                                                                                                       1  

impression of his dependability and willingness to resume working."   Delta instead  



offered the position to a "less senior active Caucasian ESE."  Rodriguez asserted that the  



Caucasian  ESE  and  additional  less  senior  employees  were  called  back  for  full-time  



positions, violating the collective bargaining agreement.  Delta contested Rodriguez's  



assertion, explaining that after July 2010 it had not hired or re-hired any ESEs and had  



instead relied on existing ESEs working temporary assignments.  



                                                                                                  

                   Delta explained to the Commission that "the fact that . . . Rodriguez was not  



                                         

selected [for the temporary ESE position] bears no relation to . . . Rodriguez's ability to  



be recalled for permanent work.  Indeed, if and when permanent positions open up at his  



work location, . . . Rodriguez will be recalled to duty based entirely on his seniority."  



Delta explained that "[i]f a temporary ESE position is intended to last no longer than  



three months, Delta can by-pass seniority and select an ESE at its discretion to fill the  



                                                                                    

short-term assignment" because the collective bargaining agreement did not require that  



Delta make temporary position offers based on employee seniority.  And Delta argued  



                                                                                                   

that Rodriguez's assertion that he was not selected for the temporary assignment because  



                                                                    

of  his  race  "is  based  solely  on  speculation  and  is  easily  contradicted  by  the  poor  



          1        There is evidence in the record that Rodriguez's poor attendance predated  



the Northwest-Delta merger and that Rodriguez was admonished by Northwest for poor  

                                                                             

work attendance.  



                                                             -4-                                                       7033
  


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

                                                                                                                                              

attendance and reliability he demonstrated when he was previously selected for  the  



temporary  position.    Indeed,  he  was  passed  over  for  legitimate,  non-discriminatory  



reasons."  



                                                                                                                                      

                        Delta provided evidence that it filled temporary positions after July 1, 2010  



with a diverse group of ESEs, selecting five Asian-Americans, three Caucasians, and one  



African-American.    Delta  explained  that  Rodriguez  was  not  offered  the  subsequent  



                                                                                                                                   

temporary ESE position because of Rodriguez's failure to work in Seattle as well as his  



                                                                

poor attendance when he returned to Anchorage - Delta denied any of its decisions  



                                                 

were  motivated  by  race.                       Delta  also  explained  that  the  less  senior  Caucasian  ESE  



                                                                                              

"maintained perfect attendance; unlike . . . Rodriguez he did not even miss one scheduled  



work day."  Delta provided evidence of hours worked to support its assertion.  And in  



May 2011 Rodriguez was offered and accepted another temporary ESE position.  



                        The Commission concluded that Rodriguez's December 2009 furlough was  



not timely challenged.  The Commission therefore did not determine whether there was  



                                                                                                                                              2  

                                                                                                                                                   The  

substantial evidence that Rodriguez  had  been furloughed because of his race. 



                                                                                           

Commission next addressed Rodriguez's assertion that Delta discriminated against him  



                                          

because of his race by hiring a junior Caucasian employee instead of Rodriguez when  



filling  the  temporary  position  in  September  2010.    The  Commission  explained  that  



                                                                                    

"[e]vidence showed that [Delta], in making its selection, compared [Rodriguez's] poor  



attendance  during  his  last  two  assignments  with  the  other  ESE's  good  attendance  



                                                                                                                        

record," that Rodriguez "accepted another temporary ESE position with [Delta] in May  



                                                                   

2011,"  and  that  the  "[i]nvestigation  did  not  show  that  [Delta]  discriminated  against  



            2           During the investigation the Commission informed Rodriguez:  "Your first       



allegation - that your position was deleted and the position of a Caucasian worker was     

not deleted is not timely for this complaint.  This occurred more than 180 days before   

your complaint was filed."  



                                                                          -5-                                                                    7033
  


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[Rodriguez] based on his race."   The Commission found Rodriguez's discrimination  



                                                                                                         

allegation  was  not  supported  by  substantial  evidence  and  dismissed  his  complaint  

without a hearing.3  



          B.       Superior Court Proceedings 



                     Rodriguez  appealed  pro  se  to  the  superior  court,  asserting  that  the  

                                                                                                                 



Commission's decision was unfair and requesting a more careful review of his case.  



Rodriguez detailed complaints about the stressful work atmosphere before he transferred  



to Seattle and about Nash's harassment.  Rodriguez also argued that the Commission  



"didn't do [a] full investigation."  



                                                            

                   The Commission explained to the superior court that "the investigation did  



                                                                                                      

not disclose substantial evidence of race discrimination" and that "the investigation did  



not  disclose  evidence  revealing  a  reasonable  possibility  that  race  discrimination  



motivated Delta's decision to recall another employee of a different race than Rodriguez  



                                                          

in September 2010."  The Commission also asserted that "regarding Rodriguez's initial  



                                            

layoff on December 30, 2009, the complaint of discrimination filed with the Commission  



                                                                    

on November 15, 2010 was untimely as it was filed more than 180 days after the layoff  



                                                                               

date."  Finally, the Commission noted that Rodriguez focused on his sexual orientation  



and  Nash's  offensive  behavior  -  allegations  that  did  not  support  the  race-based  



discrimination assertion.  



                                                                                                    

                   At oral argument before the superior court Rodriguez discussed Nash's  



                                           

harassment, and asserted that issues started when Rodriguez was moved to the ramp area.  



Rodriguez asserted that the harassment continued when he returned from Seattle and  



          3        If   the   Commission's   investigation   reveals   substantial   evidence   of  



discrimination the Commission may refer the complaint for a hearing.  AS 18.80.120(a).  

If the Commission's investigation fails to reveal substantial evidence of discrimination  

                                                          

the Commission shall dismiss the complaint.  AS 18.80.112(a).  



                                                             -6-                                                      7033
  


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

noted that his mental stress had led him to see a psychiatrist and to call a Delta hotline  

                                                                                                                            



asking for help.  Rodriguez mentioned that Nash called to harass him when he went back  

                                                                                       



to work.  And Rodriguez argued that the Commission  failed  to conduct a thorough  

                                                                                                                                 



investigation.  



                           The superior court first attempted to determine whether Rodriguez's claim                      



was timely filed.   Rodriguez explained that he waited until November 2010 because the        



union was investigating his complaint. Rodriguez then asserted that he was complaining                



not only about his furlough, but also about not being hired back.  



                           The court then asked Rodriguez about racial discrimination.  Rodriguez  



responded by talking about seniority and his pay decrease; he mentioned that Delta kept  



                                                                      

an employee with lower seniority while higher seniority employees had to leave.  The  



court pressed Rodriguez to talk about race.  Rodriguez mentioned the investigation of  



             

Nash   before   Rodriguez   went   to   Seattle,   but   again   said   nothing   about   racial  



discrimination.  



                                                                                                                                                   

                           The Commission's attorney asserted that its authority was limited to race  



discrimination, and noted that it had investigated the complaint as alleging race-based  



                                                                                                                                                     

discrimination when Rodriguez was furloughed in December 2009 and as alleging race- 



based discrimination for failure to recall him in late summer 2010.  He explained that  



Rodriguez's complaint was not timely as to the initial layoff.  



                                                                                                                                                               

                           The Commission's attorney then discussed Delta's decision not to recall  



                                                                                                                                

Rodriguez and instead recall a less senior Caucasian employee. He noted that Rodriguez  



was  furloughed  with  a  number  of  other  employees,  that  Rodriguez  decided  not  to  



                                                                           

continue his employment in Seattle, and that Delta permitted him to return and receive  



temporary employment in Anchorage.  He explained that Rodriguez was rehired in 2011,  



                                                                 

and  that  no  evidence  of  racial  animus  had  been  presented.    He  noted  that  the  facts  



                                                                                                                                                

supported Delta's explanation for selecting an employee with perfect attendance.  He  



                                                                                     -7-                                                                             7033
  


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

noted Nash's bad behavior, but explained that the Commission found no animus from  

                            



Nash or Delta based on Rodriguez's race.  



                   The court again asked Rodriguez whether he was complaining of racial  



discrimination.  Rodriguez responded that his complaint was a little bit of everything.  



The court asked Rodriguez if he still thought there had been racial discrimination, and     



what  the  evidence  was.    Rodriguez  responded  that  he  thought  there  had  been  



discrimination,  but  he  was  unable  to  point  to  any  specific  evidence  of  raced-based  



discrimination.  



                   Instead Rodriguez complained that the Commission's investigation was  



                                                                                                           

insufficient.  Rodriguez talked about his visits with a psychiatrist and how humiliated he  



                                                                                                 

felt.    The  court  again  asked  Rodriguez  for  evidence  of  racial  discrimination,  and  



                          

Rodriguez again asserted that the Commission's investigation was insufficient.  The  



court asked what racial discrimination information would have come from additional  



                                                                                           

investigation, but Rodriguez was unable to explain how racial discrimination led to any  



of Delta's decisions.  



                                                                                           

                   The superior court noted that "if an investigation by the Commission does  



                                                                                               

not reveal substantial evidence of discrimination based on race . . . then the Commission  



                                              

must dismiss the complaint for lack of jurisdiction" (emphasis in original) and that "the  



Commission has no power to address decisions based on workplace seniority."  The  



court explained that Rodriguez's arguments focused on seniority rather than race and that  



                  

he  pointed  to  no  evidence  of  race-based  discrimination.    The  court  affirmed  the  



Commission's decision because the "255 page record established that the Commission  



                                                            

adequately investigated . . . Rodriguez's claim" and because "there is no evidence that  



Delta discriminated against [Rodriguez] because of his race."  



III.      STANDARD OF REVIEW  



                                                                                          

                   "In an appeal originating with an administrative agency, we do not look to  



                                                             -8-                                                      7033
  


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

                               

the superior court's decision when that court acts as an intermediate court of appeal,  



                                                                           4  

                                                                                                   

instead directly reviewing the agency's decision."                            Although the Commission argues  



                                                                                                  

that we should apply the substantial evidence standard of review to its decision, a very  



                              5  

deferential standard,  we previously have explained that "[a] determination that a party  



                                           

failed to produce substantial evidence of discrimination is a question of law to which we  



                                                   6  

apply our independent judgment."   



IV.       DISCUSSION  



          A.        Legal Background  



                    Under AS 18.80.220(a) it is illegal for  



                    an employer to refuse employment to a person, or to bar a  

                    person from employment, or to discriminate against a person  

                                                                                                 

                    in  compensation  or  in  a  term,  condition,  or  privilege  of  

                    employment because of the person's race, religion, color, or  

                                        

                    national origin, or because of the person's age, physical or  

                                                                  

                    mental  disability,  sex,  marital  status,  changes  in  marital  

                    status,   pregnancy,   or   parenthood   when   the   reasonable  

                    demands  of  the  position  do  not  require  distinction  on  the  

                    basis of age, physical or mental disability, sex, marital status,  

                                        

                    changes in marital status, pregnancy, or parenthood.  



The statute does not include discrimination based on a complainant's sexual orientation.  

                                           



                    A person alleging employment discrimination may file a complaint with the  



          4         Grundberg v. Alaska State Comm'n for Human Rights                               , 276 P.3d 443, 449  



(Alaska 2012) (footnote omitted).  



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



487, 490 (Alaska 1980) ("The standard of review to be applied by the reviewing court  

                                                                           

is whether the agency's findings of fact are supported by substantial evidence. . . . [T]he  

                                                           

evidence should be viewed in favor of the findings even though the reviewing court  

                                               

might have taken a contrary view of the facts." (footnotes omitted)).  



          6         Grundberg, 276 P.3d at 449 (citing Button v. Haines Borough, 208 P.3d  



194, 200 (Alaska 2009); Leigh v. Seekins Ford , 136 P.3d 214, 216 (Alaska 2006)).  



                                                              -9-                                                        7033
  


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

                   7 

                                                                                                       

Commission.   "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  



                                8  

                                   "The [Commission] . . . shall informally investigate the matters  

practice occurred . . . ."                                            



                                                                                  9  

set  out  in  a  filed  complaint,  promptly  and  impartially."     "If  an  investigation  of  a  



complaint  .  .  .  fails  to  discover  substantial  evidence  of  an  unlawful  discriminatory  



                 

practice . . . the [Commission] shall issue an order dismissing the complaint without  

prejudice"10 and without a hearing.11  



                   We have adopted a three-step burden-shifting framework when evaluating  

                               12  "In the first stage of the burden-shifting analysis, the employee  

discrimination claims.                                                                                   



claiming  discrimination  must  introduce  evidence  that  raises  an  inference  that  an  

                                                                                                 

unfavorable employment decision resulted from the employer's discriminatory intent."13  

                                                                     



We  have  explained  that  "[t]he  first  step  of  the  analysis  places  the  burden  on  the  

                                      



         7         See  AS 18.80.100(a) ("A person who is aggrieved by a discriminatory  



practice prohibited by this chapter may sign and file with the commission a written,  

verified complaint stating the name and address of the person alleged to have engaged  

                                                                                         

in the discriminatory practice, and the particulars of the discrimination.").  



         8         6 Alaska Administrative Code (AAC) 30.230(b)(2) (2014).  



         9         AS 18.80.110.  



          10       AS 18.80.112(a).  



          11       See AS 18.80.110, .120 (together providing for an evidentiary hearing if the  



Commission's investigation reveals substantial evidence of discrimination).  



          12       Grundberg v. Alaska State Comm'n for Human Rights, 276 P.3d 443, 449  



(Alaska 2012) (citing State, Dep't of Fish &  Game,  Sport  Fish Div.  v. Meyer, 906 P.2d  

1365, 1374 (Alaska 1995)).  



          13       Id. at 450.  



                                                          -10-                                                     7033
  


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

                                                                                                    14  

complaining party to establish a prima facie case of discrimination."                                   To establish a  



prima facie case of discrimination:  



                                             

                                                                   

                   The complainant must show that (1) the complainant belongs  

                                                                              

                   to a protected class; (2) the complainant applied for and was  

                   qualified  for  the  job  for  which  the  employer  was  seeking  

                   applications;  (3)  the  complainant  was  rejected  despite  the  

                   complainant's qualifications; and (4) after the complainant's  

                                                                                 

                   rejection,  the  position  remained  open  and  the  employer  

                   continued   seeking   applications   from   persons   with   the  

                                                             [15] 

                   complainant's qualifications.  



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



                                                                                               16  

                                                                                                   "In the third stage  

evidence of a legitimate, non-discriminatory reason for its action." 



                                                                                            

of the analysis, the burden shifts back to the employee to rebut the employer's alleged  

non-discriminatory reason."17  



                   "The burden-shifting framework governs the Commission's investigation  



                                                                                                              18  

                                                                                                                  But we  

of discrimination complaints and its determinations of substantial evidence." 



have also explained that "[t]he burden required to compel a hearing is less than the  



                                                                                                          19  

burden  required  to  prevail  on  the  merits  at  the  hearing's  conclusion."                                Thus,  "a  



          14       Raad  v. Alaska  State Comm'n for Human Rights, 86 P.3d 899, 904 (Alaska  



2004).  



          15       Id.  



          16       Grundberg, 276 P.3d at 450.  



          17       Id.  



          18       Id.  



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



1376   (Alaska  1995),  superseded  by  statute,  ch.  63,    4,  SLA  2006.    Despite  being  

superseded by statute the Meyer analysis is still applicable.  We have explained:  

                                                                                                         (continued...)  



                                                           -11-                                                      7033
  


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

                                                                                                                      

[Commission] finding  of no  substantial evidence cannot be based  on  the fact that  a  



                                                                                                               20  

                                                                                                                   Instead,  

complainant 'failed' to meet the three-part . . . test at the investigative stage." 



                                                                                                  

at the investigative stage "the Commission must determine whether there is a reasonable  



                                                                                                              21  

possibility that discriminatory reasons motivated the employer's decision."                                       



                   When  reviewing  a  Commission  decision  dismissing  a  discrimination  



                                                                                                        

complaint without conducting a hearing, we ask whether the "evidence discussed by the  



                          

Commission . . . demonstrate[d] that [the] claims were completely lacking in merit, or  



          19	       (...continued)  



                   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.  

                   After       Meyer        was      decided,        the     legislature        enacted  

                                          

                   AS  18.80.112(b)  to  give  the  [Commission]  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  [Commission]  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 .  



Toliver v. Alaska State Comm'n for Human Rights, 279 P.3d 619, 623 n.3 (Alaska 2012)  

(citation omitted).  Because the Commission dismissed Rodriguez's claim for lack of  

substantial evidence we review the dismissal in accordance with Meyer .  



          20       Meyer , 906 P.2d at 1376.  



          21        Grundberg, 276 P.3d at 450.  



                                                            -12-	                                                      7033
  


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

that a fact finder would be compelled to find for [the employer]."22  We will reverse the  

                                                                                                   



Commission's  decision  if  the  complainant  "raised  a  genuine  dispute  regarding  [the  



employer's] employment decisions" because such factual disputes must be resolved  

                           23  "We have made clear that the Commission should not 'attempt to  

                                

through a hearing.  



determine at the investigative stage whether the non-discriminatory reasons proffered by  

                                                                                                              



the employer are legitimate.'  Instead, the Commission must determine whether there is  

                                                                                                                      

a reasonable possibility that discriminatory reasons motivated the employer's decision."24  



"An employee alleging discrimination must corroborate . . . allegations with objective  

                                                                   



evidence, but . . . [does not need to] develop a conclusive or unassailable account of the  

                                   

employer's decision-making."25  



          B.	       The Commission Correctly Concluded That Rodriguez's Complaint  

                    Regarding The Deletion Of His Position Was Untimely.  

                                      



                    Rodriguez asserted that Delta discriminated against him based on his race  



when it "did not delete the position of a Caucasian coworker with less seniority . . .  

                                                                               



[who]   is   still   employed   in   Anchorage."                      The   Commission   explained   that   the  



"[i]nvestigation  showed  that  [Rodriguez's]  layoff  is  not  timely  for  this  complaint."  



                                            

Rodriguez, appealing pro se, does not explicitly challenge or address the Commission's  



timeliness  conclusion,  focusing  instead  on  his  negative  interactions  with  Nash  and  



alleging the Commission failed to conduct a thorough investigation.  



                                                     

                    "Although we require courts to provide some procedural guidance for a pro  



          22	      Meyer , 906 P.2d at 1376.  



          23       Id. at 1375-76 & n.14.  



          24        Grundberg, 276 P.3d at 450 (footnote omitted) (quoting                             Meyer , 906 P.2d  



at 1376).  



          25       Id. at 451 (footnote omitted).  



                                                             -13-	                                                      7033
  


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

se litigant when it is clear what 'action he or she is obviously trying to accomplish,' the  

                                                                          



failure to raise an argument in an opening brief leaves the other party with no notice or  

                                         



                                         26  

opportunity to respond . . . ."              Because Rodriguez has not addressed timeliness, he has  



waived  any  challenge  to  the  Commission's  untimeliness  conclusion.    Even  had  



Rodriguez not waived this argument, the Commission correctly concluded that he failed  



to timely challenge the initial furlough decision.  The record establishes that Rodriguez  



was furloughed in December 2009.  Rodriguez's complaint, filed in November 2010,  

was not timely filed within the allowable 180-day time period.27  



          C.	      The  Commission  Correctly  Concluded  There  Was  Not  Substantial  

                   Evidence Of Race-Based Discrimination.  



                   Rodriguez established a prima facie case of discrimination.  There was  



evidence  that  Delta  hired  a  less-senior  Caucasian  employee  over  Rodriguez  for  the  



temporary  ESE  position.    And  at   oral   argument  before  the  superior  court  the  



Commission's attorney explained that the Commission did not argue Rodriguez had  



                                                                               

failed to establish a prima facie case of discrimination. He instead asserted that there was  



not   substantial   evidence   supporting   an   inference   that   Delta   was   motivated   by  



discriminatory reasons.  



                   Delta provided non-discriminatory reasons for its decision to hire the less- 



                                                  

senior Caucasian employee for the temporary assignment - Delta asserted that it did not  



                                                                                         

have faith Rodriguez would fulfill his obligations because he never reported to work in  



Seattle, called in sick after one day of work upon returning to Anchorage, and then  



                                                                                       

requested to return to furlough status.  Delta also provided evidence that it selected a  



                                                             

diverse group of temporary ESEs - five Asian-Americans, three Caucasians, and one  



          26       Hymes v. DeRamus , 222 P.3d 874, 887-88 (Alaska 2010) (quoting                                   Breck  



v.  Ulmer, 745 P.2d 66, 75 (Alaska 1987)).  



          27       See 6 AAC 30.230(b)(2).  



                                                           -14-	                                                     7033
  


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

African-American - after Rodriguez had requested to return to furlough status.  



                  Rodriguez  failed  to  rebut  Delta's  evidence  and  explanations  for  its  



                                                                      

employment  decisions;  i.e.,  Rodriguez  failed  to  point  to  any  objective  evidence  



                                                                                                

corroborating his allegation and thus failed to establish a reasonable possibility that  



discriminatory reasons motivated Delta's decisions.  Rodriguez's arguments throughout  



                            

this case focused on seniority, his sexual orientation, and Nash's extremely inappropriate  



                                                            

behavior, but Rodriguez's complaint to the Commission alleged racial discrimination.  



The superior court repeatedly encouraged Rodriguez to point to any evidence of race- 



based discrimination, but he was unable to do so.  And in his brief to us Rodriguez  



implies that he was furloughed and not rehired in retaliation for providing information  



about   Nash,   but   this   does   not   establish   a   reasonable   possibility   of   race-based  



                                                                                                   

discrimination.  And although Rodriguez admonishes the Commission  for failing to  



                                                                           

conduct further investigation into his mental health and his reaction to Nash's behavior,  



Rodriguez has not explained what evidence of racial discrimination the Commission  



would have discovered upon further investigation.  Nor has Rodriguez disputed Delta's  



evidence providing legitimate, non-race-based reasons for its employment decisions.  



                  Because Rodriguez failed to "corroborate [his] allegations with objective  

evidence,"28 we conclude the Commission correctly decided there was not substantial  



evidence that Delta discriminated against Rodriguez based on his race.  



V.       CONCLUSION  



                  We AFFIRM the superior court's decision to affirm the Commission's  



dismissal of Rodriguez's discrimination complaint.  



         28       Grundberg, 276 P.3d at 451.  



                                                       -15-                                                     7033  

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