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Sengupta v University of Alaska (4/27/01) sp-5397

     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.


                              )    Supreme Court No. S-8515
             Appellant,       )
                              )    Superior Court No.
     v.                       )    4FA-97-85 CI
both individually and as      )
agents and employees of the   )
University of Alaska and      )    [No. 5397 - April 27, 2001]
University of Alaska          )
Fairbanks,                    )
             Appellees.       )

          Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
                      Mary E. Greene, Judge.

          Appearances: Robert A. Sparks, Fairbanks, for
Appellant.  Mark E. Ashburn, Ashburn & Mason, Anchorage, for

          Before:  Matthews, Chief Justice, Eastaugh,
          Fabe, Bryner, and Carpeneti, Justices.  

          PER CURIAM
          FABE, Justice, dissenting in part.

          The University of Alaska terminated Dr. Mritunjoy
Sengupta from his position as a tenured professor of mining
engineering.  The University based its decision on the factual
findings made by a hearing officer at an earlier proceeding on
grievances brought by Sengupta against the University.  These
findings from the grievance proceeding were later accorded
collateral estoppel effect in the termination proceedings.  Because
Sengupta failed to timely appeal the termination decision to this
court, we will not examine whether the collateral estoppel doctrine
was properly applied.  Sengupta also sued the University, claiming
that it terminated him in retaliation for constitutionally
protected conduct and speech and discriminated against him on the
basis of his race and national origin.  Because res judicata bars
Sengupta's sec. 1983 free speech claims, and Sengupta failed to
evidence of discriminatory motive that would raise a genuine issue
of fact regarding his sec. 1983 equal protection claim, we affirm
dismissal of his retaliatory termination claim.
     A.   The Parrish Administrative Proceeding
          Dr. Mritunjoy Sengupta is a United States citizen of
Indian birth and descent.  Between 1990 and 1995, he was a tenured
professor of mining engineering with the School of Mineral
Engineering, Department of Mining and Geological Engineering at the
University of Alaska Fairbanks (UAF).
          In 1992 and 1993, Sengupta brought three grievances
alleging that (1) Sengupta, rather than Dr. Sukumar Bandopadhyay,
should have been appointed acting head of the Mining and Geological
Engineering Department; (2) Sengupta, rather than Bandopadhyay,
should have been appointed as the director of UAF's Mining and
Mineral Resource Research Institute; and (3) Sengupta's salary
level was inequitable under the circumstances.
          The grievance proceeding was conducted by Hearing Officer
James Parrish.  In his June 24, 1994 decision, Parrish recommended
that each grievance be denied.  In evaluating Sengupta's honesty,
collegiality, and professionalism in relation to the grievance
claims, Parrish specifically found that Sengupta had demeaned,
degraded, and abused his colleagues; intentionally misrepresented
his academic degrees; repeatedly dealt with his colleagues and the
University in a dishonest manner; testified falsely under oath
multiple times during the hearing; created and introduced false
documents; and committed plagiarism by copying material from
another University professor without proper credit.  University
Chancellor Joan Wadlow accepted Parrish's recommendations and
denied all of Sengupta's grievances.
          Chancellor Wadlow advised Sengupta that her July 12, 1994
written decision represented the University's final decision and
that Sengupta could obtain further review only by appealing the
decision in superior court within thirty days in accordance with
Alaska Appellate Rule 602(a)(2).  Sengupta did not appeal
Chancellor Wadlow's decision within this time period.
     B.   The Rice Administrative Proceeding
          On September 1, 1994, School of Mineral Engineering Dean
Robert Trent and Department Head Bandopadhyay sent Sengupta a
Notice of Intent to Discharge for Cause, stating UAF's intent to
initiate termination proceedings. [Fn. 1]  In this notice, Trent
and Bandopadhyay indicated that the termination proceedings were
initiated primarily on the basis of the findings of Hearing Officer
Parrish in the prior grievance proceeding.  After consulting with
Sengupta and the School of Mineral Engineering faculty in
accordance with UAF procedures, [Fn. 2] Dean Trent recommended to
Chancellor Wadlow that Sengupta be discharged for cause. 
Chancellor Wadlow then notified Sengupta that she had accepted Dean
Trent's recommendation to terminate Sengupta for cause on the basis
of charges identified previously by Dean Trent and Dr.
Bandopadhyay, as well as additional charges that Sengupta had
violated the law.  Sengupta requested a pre-termination hearing, to
which he was entitled.
          The pre-termination hearing, authorized by Board of
Regents' (BOR) Policy Section 04.08.08 XI, was conducted on
December 12, 1994, before Hearing Officer Julian Rice.  In his
January 17, 1995 written decision, Rice accorded collateral
estoppel effect to the Parrish findings and recommended that
Sengupta be terminated for cause.  Relying on the Parrish findings,
Rice concluded that "Dr. Sengupta's propensity for dishonest,
unprofessional and disruptive behavior has been established" and
that "major and substantial shortcomings . . . render Dr.
Sengupta's continued employment by the University detrimental to
appropriate discipline and efficiency of service, including, but
not limited to, neglect of contractual duties, unprofessional
conduct and other conduct which interferes substantially with the
continued performance of his duties."  Chancellor Wadlow accepted
Rice's recommendation to discharge Sengupta for cause.  In her
January 19, 1995 decision, she adopted nearly all of Rice's
findings of fact and conclusions of law.
          Sengupta subsequently exercised his right under BOR
Policy 04.08.08 IX.B to appeal the chancellor's decision to
University President Jerome Komisar.  On January 27, 1995,
President Komisar rejected Sengupta's appeal and affirmed
Chancellor Wadlow's decision.  President Komisar's decision
represented the final University decision and Sengupta appealed
this decision to the superior court on February 23, 1995.  On
appeal, Superior Court Judge Jay Hodges affirmed, finding
"substantial evidence to support the University's decision to
terminate Dr. Sengupta for cause."  Sengupta appealed Judge
Hodges's decision to the Alaska Supreme Court but the appeal was
dismissed as untimely.
     C.   Sengupta's Grievance Alleging Retaliation
          On September 9, 1994, shortly after the Notice of Intent
to Discharge was issued, Sengupta filed a grievance with UAF
claiming that the attempt to terminate him constituted an improper
retaliation in response to his filing grievances against UAF. 
Chancellor Wadlow ultimately decided that Sengupta could not
present his retaliation claim in a separate grievance proceeding
but rather would be required to present the claim in the pending
pre-termination hearing.  Sengupta appealed this decision to the
superior court.  Judge Hodges affirmed the University's dismissal
of Sengupta's grievance on August 20, 1996.  Sengupta subsequently
appealed to the Alaska Supreme Court but that appeal was dismissed
as untimely on November 29, 1996.
     D.   Sengupta's Sick Leave Request
          On September 28, 1994, Sengupta requested that the pre-
termination hearing be scheduled to accommodate his heightened
stress level.  He attached a letter from his physician detailing
his health problems.  On October 13 Sengupta requested that the
pre-termination hearing be delayed "for about seven/eight months"
due to his health problems.  On October 21 Sengupta officially
requested sick leave, again attaching a physician's note. 
Bandopadhyay responded on October 25, noting that Sengupta's
current request was inadequate and that additional information was
required.  Sengupta failed to provide the information requested by
Bandopadhyay by the November 8 deadline and the sick leave request
was denied.
     E.   Judicial Proceedings
          On January 14, 1997, Sengupta filed a complaint against
the University [Fn. 3] in superior court setting forth four claims
in connection with the termination of his employment, denial of his
sick leave request, and alleged salary disparity.  In particular,
Sengupta asserted claims under 42 U.S.C. sec. 1983 on the grounds
that UAF had violated his freedom of speech, and also that UAF had
violated his right to due process, and equal protection.  Sengupta
also asserted a claim under 42 U.S.C. sec. 1981 alleging
discrimination on the basis of his color and national origin.
Sengupta further asserted a claim under Title VII of the Civil
Rights Act of 1964, [Fn. 4] alleging that UAF had violated his
right to be free from employment discrimination. [Fn. 5]
          On March 29, 1997, Sengupta filed a second complaint
against UAF in a separate action.  The constitutional claims in
this complaint were essentially identical to those of the earlier
complaint.  Sengupta added an independent cause of action to set
aside certain prior final judgments as void due to alleged
violations of his due process rights and UAF's alleged fraud,
misrepresentations, and misconduct.
          On April 24, 1997, UAF moved for summary judgment with
respect to the sec. 1981 and sec. 1983 claims on the basis of
estoppel, res judicata, and statute of limitations.  On June 23,
1997, Superior Court Judge Mary Greene granted summary judgment for
UAF with respect to the sec. 1983 claims.  Judge Greene determined
that the decisions of Hearing Officer Parrish and Judge Hodges
precluded the sec. 1983 claims challenging the termination and
salary disparity.  Judge Greene further held that the statute of
limitations barred the sec. 1983 claims challenging the denial of
sick leave request and the alleged salary disparity.  But the
sec. 1981 claim survived; Judge Greene determined that prior final
judgments did not preclude a sec. 1981 racial discrimination claim
based on a mixed motives theory challenging the termination. [Fn.
          On June 12, 1997, UAF moved for summary judgment with
respect to the independent action to set aside prior judgments.  On
July 29, 1997, UAF again moved for summary judgment with respect to
the sec. 1981 mixed motives discrimination claim.
          On September 8, 1997, Sengupta moved for a continuance of
five to seven months under Civil Rule 56(f) to conduct additional
discovery with respect to the mixed motives claims.  On October 4,
1997, Judge Greene granted the Rule 56(f) continuance, allowing
Sengupta until November 6, 1997, to supplement his opposition to
the summary judgment motion with new factual information.  Sengupta
filed the supplemental opposition on November 6.
          On December 10, 1997, the eve of the oral arguments on
the summary judgment motions, Sengupta filed another Rule 56(f)
motion, requesting additional time to conduct discovery prior to
the oral arguments.  Judge Greene denied the Rule 56(f) motion and
heard oral arguments as scheduled on December 11.  Judge Greene
granted summary judgment in favor of UAF with respect to both the
independent action and the mixed motives claim.
          On December 22, 1997, Sengupta moved for reconsideration
under Civil Rules 59 and 60(b).  Judge Greene denied the motion on
February 2, 1998, and did not alter the final judgment order.
          On March 8, 1998, Judge Greene awarded UAF partial
attorney's fees under Civil Rule 82 for defending the state law
independent action claim. 
          Sengupta now appeals the grants of summary judgment, the
award of attorney's fees, and the denials of his motions for
continuance and reconsideration.
          This court reviews de novo a trial court's decision to
grant summary judgment. [Fn. 7]  Summary judgment is appropriate
only when there are no material disputed facts such that the moving
party is entitled to judgment as a matter of law. [Fn. 8]  This
court must draw all reasonable inferences in favor of Sengupta, the
non-moving party. [Fn. 9]
          The abuse of discretion standard applies to a trial
court's decision whether to permit further discovery under Rule
56(f), [Fn. 10] award attorney's fees, [Fn. 11] or deny relief from
judgment under Rules 59 and 60. [Fn. 12]  This court will find an
abuse of discretion only when "left with a definite and firm
conviction, after reviewing the whole record, that the trial court
erred in its ruling." [Fn. 13]
     A.   The sec. 1983 Claims

          Sengupta claims that the superior court erred in
dismissing his sec. 1983 claims on June 23, 1997, on the grounds of
collateral estoppel, res judicata, and statute of limitations. [Fn.
          1.   Statute of limitations

          The limitations period for a sec. 1983 claim is
by the state statute of limitations for a personal injury action.
[Fn. 15]  In Alaska, the limitations period for personal injury
actions is two years. [Fn. 16]  A personal injury claim accrues
when a party knows or should know that he has a claim, ordinarily
the date the alleged injury occurs. [Fn. 17]  Therefore, if
Sengupta knew or should have known that he had a sec. 1983 claim
than two years before the January 17, 1997 filing of his complaint,
those claims would be barred by AS 09.10.070.
               a.   Sick leave and salary level
          The superior court dismissed Sengupta's sec. 1983 claims
challenging the denial of sick leave and alleged salary disparity
as barred under AS 09.10.070.  Sengupta challenges this decision
under a continuing violation theory.  Under this theory, certain
patterns of discriminatory acts against the same employee can
preserve a claim as timely that might otherwise be barred by the
statute of limitations. [Fn. 18]  To benefit from the continuing
violation theory, a plaintiff must first demonstrate that some
discriminatory act occurred within the limitations period.  The
plaintiff must then show that the timely filed claim -- based upon
this act within the limitation period -- is closely related to the
otherwise time-barred claims. [Fn. 19]  Thus, Sengupta must
demonstrate that the sick leave and salary claims are so related to
the timely filed termination claim that they constitute a
continuing violation.
          To determine whether the claims are sufficiently related,
federal circuit courts have often looked at three primary
characteristics of the violations: subject matter, temporal
proximity, and permanence. [Fn. 20]  Many courts have designated
the permanence factor as the most important. [Fn. 21]  The
"permanent" violation triggers a reasonable person's awareness of
the alleged discrimination and the need to assert her rights. [Fn.
22]  On a subjective basis, if a plaintiff's actions show that she
knew her rights had been violated by a certain point in time, the
limitations period starts running from that date. [Fn. 23]  "The
continuing violation doctrine does not exist to give a second
chance to an employee who allowed a legitimate [discrimination]
claim to lapse." [Fn. 24]
          Here Sengupta has long felt that he has suffered
discrimination -- certainly before January 17, 1995, the date two
years before the filing of the complaint.  With respect to the
alleged salary disparity, Sengupta raised the discrimination issue
in the grievance proceedings leading to the June 24, 1994 Parrish
decision.  Because Sengupta was aware of the alleged discrimination
and the need to assert his rights, his claim regarding salary
disparity is barred by the statute of limitations.  For the same
reasons, Sengupta's claim regarding the November 4, 1994 denial of
sick leave is also barred.
          Thus, because Sengupta perceived the alleged discrimina-

tion outside of the two-year limitations period, the superior court
properly concluded that AS 09.10.070 bars his salary and sick leave
               b.   Due process violation
          Sengupta alleges numerous procedural defects with respect
to the Parrish hearing. [Fn. 25]  Sengupta knew of these alleged
due process violations at the time of Parrish's June 24, 1994
decision and thus prior to the January 17, 1995 limitations cut-off
date.  Therefore, AS 09.10.070 bars Sengupta's sec. 1983 claims
premised upon alleged due process violations in the Parrish
proceedings. [Fn. 26]
          2.   The preclusive effect of the prior administrative
and judicial proceedings.

          Judge Greene dismissed Sengupta's sec. 1983 claims
challenging his termination on the basis of the preclusive effect
of the
Parrish findings and Judge Hodges's unappealed decision.  Sengupta
challenges numerous aspects of this decision.
               a.   Collateral estoppel
          Sengupta claims that summary judgment was improper
because Judge Greene erroneously accorded collateral estoppel
effect to the Parrish findings.  Collateral estoppel, or issue
preclusion, bars the relitigation of an issue where:
          (1)  the party against whom the preclusion is
employed was a party to or in privity with a party to the first
action; (2) the issue precluded from relitigation is identical to
the issue decided in the first action; (3) the issue was resolved
in the first action by a final judgment on the merits; and (4) the
determination of the issue was essential to the final judgment.[[Fn. 27]]

If these criteria are met, collateral estoppel would properly apply
to the issues litigated before and decided by Parrish, Rice, and
Judge Hodges. [Fn. 28]
          Sengupta raised objections to the application of
collateral estoppel to the Parrish findings before both Rice and
Judge Hodges.  Rice rejected these objections and accorded
collateral estoppel effect to the Parrish findings.  Judge Hodges
affirmed Rice's application of collateral estoppel in Sengupta's
appeal of his termination.  Because Sengupta failed to timely
appeal Judge Hodges's decision, Sengupta may not now object to the
application of collateral estoppel to the Parrish findings in the
termination context of the present case. [Fn. 29]
          Furthermore, collateral estoppel precludes Sengupta's
sec. 1983 claims premised upon a lack of due process before Hearing
Officer Rice.  Judge Hodges determined that Sengupta had been
afforded due process in his pre-termination proceedings before
Rice.  Because the prerequisites for collateral estoppel are
present, this unappealed finding precludes Sengupta from
relitigating the due process issue with respect to the Rice
proceedings. [Fn. 30]
               b.   Res judicata
          Sengupta also challenges the res judicata effect of Judge
Hodges's decision.  The doctrine of res judicata provides that a
judgment in a prior action will bar a subsequent action if the
prior judgment was (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 cause of action. [Fn. 31] 
It is not disputed that Judge Hodges's decision was a final
judgment on the merits, from a court of competent jurisdiction, in
a dispute between the same parties.  Hence, the critical question
is whether the current and the earlier dispute are about the same
"cause of action." 
          We have not previously decided what constitutes a "cause
of action" when a defendant who could, but does not, interpose a
counterclaim in one proceeding subsequently seeks to maintain a
separate action on that claim. [Fn. 32]  Had the plaintiff failed
to bring a claim in the original proceeding, any subsequent claim
arising from the same transaction would clearly be barred by res
judicata. [Fn. 33]  To apply the same rule to a defendant's
foregone counterclaim, however, would require the defendant "to
assert his claim in the forum or proceeding chosen by the plaintiff
. . . [rather than being] allowed to bring suit at a time and place
of his own selection." [Fn. 34]  To protect the defendant's right
to choose his or her own forum for suit, the Restatement (Second)
of Judgments sec. 22(2) provides that a defendant will only be
from bringing a foregone counterclaim as a claim in a subsequent
proceeding if:
               (a)  The counterclaim is required to be
interposed by a compulsory counterclaim statute or rule of court,
               (b)  The relationship between the
counterclaim and the plaintiff's claim is such that successful
prosecution of the second action would nullify the initial judgment
or would impair rights established in the initial action.[ [Fn. 35]]

Under ordinary circumstances, Restatement sec. 22(2) adds little to
the preclusive effect of Civil Rule 13(a)'s compulsory counterclaim
provision. [Fn. 36]  It was not the Civil Rules that governed
Sengupta's administrative hearing, however, but Board of Regents'
Policy 04.08.08.  That policy "afforded [the defendant employee] an
opportunity to present testimony and other evidence as to why the
action should not be taken," but did not require the defendant to
raise any counterclaims.  Sengupta's appeal to superior court,
similarly, was governed not by the Civil Rules, but by the Rules of
Appellate Procedure. [Fn. 37]  Absent the grant of a trial de novo,
the Appellate Rules do not adopt Civil Rule 13(a)'s compulsory
counterclaim provision. [Fn. 38]  In the absence of a "compulsory
counterclaim statute or rule," Sengupta's attempt to assert his
foregone counterclaim in a new action will only be barred if "[t]he
relationship between the counterclaim and the [original]
plaintiff's claim is such that successful prosecution of the second
action would nullify the initial judgment or would impair rights
established in the initial action." [Fn. 39]
          In Lee v. City of Peoria, [Fn. 40] the Seventh Circuit
applied Restatement sec. 22(2)(b)'s common law compulsory
provision to bar the claims of a plaintiff in a position much like
Sengupta's.  Lee, a police officer, was discharged by the Board of
Fire and Police Commissioners for giving false testimony. [Fn. 41] 
In defending himself before the Board, Lee argued only that his
testimony had been true. [Fn. 42]  In his appeal of the Board's
decision to state court, however, Lee claimed that his discharge
was the result of racial discrimination. [Fn. 43]  After his appeal
was denied, Lee filed a claim of racial discrimination in federal
court. [Fn. 44]  The Seventh Circuit noted that Lee's allegation of
racial discrimination, if established, would have been a complete
defense in his termination hearing. [Fn. 45]   Relying on
Restatement sec. 22(2)(b) as an alternative basis for its holding,
Seventh Circuit held that because Lee's claim of racial
discrimination, if successful, would directly undermine both the
right of the city to discharge him and the validity of the state
court's decision,  res judicata would bar Lee from subsequently
raising that claim in federal court even if Lee had not presented
a counterclaim alleging racial discrimination in the original
action. [Fn. 46]
          Because the factual basis of Sengupta's First Amendment
claims is closely tied to the factual basis of his termination
hearing, Sengupta probably would have been permitted to present his
First Amendment claims as counterclaims in the pre-termination
hearing, just as he was permitted to present his retaliation
grievance in that proceeding.  The University's decision to
terminate Sengupta was based, in part, upon his intentionally
untruthful conduct:  (1) "in the writing of a letter concerning the
licensing of Professors of Mining Engineering"; (2) "in reporting
Dr. Speck had 'secretly removed' a purchase order from the
purchasing files"; and (3) "in testifying concerning a 'Las Vegas
video.'"  In the current action, Sengupta now claims that the
University violated his First Amendment rights by retaliating
against him for making these statements, and that his termination
was illegitimately motivated by the University's opposition to his
protected speech on these issues.  If Sengupta were able to
establish that the First Amendment barred the University from
relying upon the disputed statements in the pre-termination
hearing, his successful prosecution of that claim would impair the
University's right to have terminated him on the basis of those
statements.  Sengupta's claim is thus barred by Restatement sec.
22(2)(b), because the "successful prosecution of [his claim] . . .
would impair rights established in the initial action." 
          Sengupta's First Amendment claims would also be barred
even if he had only been permitted to bring them as defenses,
rather than counterclaims, in the original action.  When a
defendant fails to interpose a defense to a plaintiff's original
action, Restatement sec. 22(2)(b) bars the defendant from relying
the facts of that defense to bring a separate action against the
original plaintiff if "[t]he relationship between the [subsequent
claim] and the plaintiff's claim is such that successful
prosecution of the second action would nullify the initial judgment
or would impair rights established in the initial action." [Fn. 47] 

          As the First Circuit has suggested, Restatement sec.
22(2)(b)'s application to both foregone counterclaims and foregone
defenses prevents parties from avoiding the preclusive effect of a
foregone counterclaim by denominating it a defense. [Fn. 48]  Even
if the defendant in the original proceeding is not permitted to
bring a counterclaim, res judicata will still bar the subsequent
assertion of that claim if it could have been raised by way of
defense in the original proceeding and could have provided the same
relief if raised. [Fn. 49]  Assuming certain remedies were not
immediately available to Sengupta in the administrative proceeding,
success in proving a constitutional violation at the pre-
termination hearing would have allowed him to seek those remedies
in a subsequent sec. 1983 suit. [Fn. 50]  Therefore, if Sengupta
been barred from presenting his First Amendment claim as a
counterclaim, his subsequent claim would still be barred because he
could have presented it as a defense. [Fn. 51] 
          Sengupta's claim arises out of the same cause of action
as his foregone counterclaim or defense.  But, "[i]t is a well-
established principle that no decision may constitute res judicata
if the party against whom it is asserted has not had a full and
fair opportunity to litigate his claims." [Fn. 52]  We must
therefore determine whether Sengupta had a "full and fair
opportunity" to litigate his counterclaim, or defense, in the
earlier proceeding.  In Eilrich v. Remas, the Ninth Circuit held
that the plaintiff "clearly" had a full and fair opportunity to
litigate his First Amendment claim in an unreviewed administrative
proceeding where
          Eilrich was afforded a 14-day proceeding
resembling a trial, documented by an eleven-volume transcript. . .
.  [B]oth sides were entitled to call, examine and cross-examine
witnesses under oath or affirmation.  At the hearing, both parties
were represented by counsel, twenty-one sworn witnesses testified,
subpoenas were issued, and both parties presented oral argument and
written memoranda. Both sides briefed the first amendment issue,
the hearing officer considered these arguments and applied the
appropriate legal standards to the facts surrounding Eilrich's
statements and discharge.[ [Fn. 53]] 

          We followed the Ninth Circuit's reasoning in Eilrich in
Diedrich v. City of Ketchikan. [Fn. 54]  Moreover, we have held
that appellate review provides a plaintiff with an even fuller and
fairer opportunity to litigate his constitutional claims. [Fn. 55] 
          Because Hearing Officer Rice gave preclusive effect to
the factual findings of the Parrish proceeding, whether res
judicata bars Sengupta's claim arguably depends upon whether
Sengupta was given a "full and fair opportunity" to litigate his
claims at both administrative hearings.  At the time the Parrish
proceeding began, the University's grievance procedures were still
governed by Alaska's Administrative Procedure Act (APA). [Fn. 56] 
 Sengupta was thus afforded the right to introduce exhibits, rebut
the adverse evidence, and subpoena, call, examine, cross-examine,
and impeach witnesses. [Fn. 57]  By Sengupta's own admission, the
Parrish hearing "lasted almost continuously over a two month
period, consisting of about five thousand pages of transcript,
several hundred exhibits, [and] about twenty five witnesses
. . . ." Sengupta also had the right to appeal the rejection of his
grievance to superior court, although he did not exercise that
          The Rice proceeding was governed not by the APA, but
rather by Board of Regents' Policy 04.08.08.  That policy gave
Sengupta the right to "present testimony and other evidence as to
why [he should not be terminated,]" and to be represented by legal
counsel or another advisor of his choice.  At the pre-termination
hearing, moreover, Hearing Officer Rice told Sengupta that he could
"present whatever you want to" -- evidence or argument -- "at this
time."  Despite the opportunity to do so, however, Sengupta
declined to present any evidence or make any substantive arguments.
Sengupta did, however, exercise his right to appeal his termination
to the superior court.
          In both the Parrish and Rice proceedings, then, Sengupta
was afforded an opportunity to be heard similar to the "full and
fair opportunity" approved of in Eilrich.  An additional
opportunity to be heard was provided by Sengupta's right of appeal
to the superior court, a right he exercised following his
termination.  Unlike the plaintiff in Eilrich, admittedly,
Sengupta's First Amendment claims were never actually litigated,
whether in the administrative hearings or on appeal.  Application
of res judicata depends only upon the plaintiff having had a "full
and fair opportunity" to litigate his claims, however, and not upon
his actually having done so.  Because Sengupta failed to take
advantage of his full and fair opportunity to assert his First
Amendment claims in the administrative hearings, he is barred by
res judicata from asserting them now.
          We need not consider whether res judicata barred
Sengupta's sec. 1983 equal protection claims.  In reviewing a grant
summary judgment, this court may affirm the superior court on any
basis appearing in the record. [Fn. 58]  To raise a genuine issue
of fact for a sec. 1983 equal protection claim, a plaintiff must
submit some evidence of discriminatory motive or intent. [Fn. 59] 
A plaintiff bears a similar burden for a sec. 1981 discrimination
claim. [Fn. 60]  As discussed infra, Sengupta had a full
opportunity to submit evidence of discriminatory motive in
conjunction with his sec. 1981 mixed motive discrimination claim
failed to produce any such evidence.  Because Sengupta had ample
opportunity but failed to submit evidence of discriminatory motive
that would raise a genuine issue of fact regarding his sec. 1983
protection claim, we affirm the dismissal of this claim.
          In summary, we hold that the applicable statute of
limitations bars Sengupta's sec. 1983 claims challenging the
salary disparity, the sick leave denial, and the procedural aspects
of the Parrish hearing.  Judge Hodges's unappealed decision
precludes under collateral estoppel principles Sengupta's sec. 1983
due process claims with respect to the Rice proceedings, as well as
his challenge to the application of preclusive effect to the
Parrish findings.  In addition, Judge Hodges's decision bars on res
judicata grounds the remaining sec. 1983 claims premised upon free
speech violations.  Finally, in the absence of any genuine issue of
fact, dismissal of the sec. 1983 equal protection claims was
Thus we affirm the dismissal of each sec. 1983 claim.
     B.   The Superior Court Properly Granted Summary Judgment on
Sengupta's Independent Action to Set Aside Prior Judgments.

          On December 11, 1997, the superior court dismissed
Sengupta's independent action to set aside the prior judgments of
Hearing Officer Rice and Judge Hodges terminating his employment. 
In granting summary judgment, Judge Greene ruled that the UAF
faculty regulations in effect from 1991 to 1993 -- granting tenured
professors the right to a pre-termination hearing before a faculty
panel -- did not apply to Sengupta's 1994 termination proceedings. 
She also ruled that under the 1989 regulations, reinstated in 1993,
Sengupta had no right to a pre-termination hearing before a faculty
panel.  Further, she held that the nondisclosure of the 1991
regulations did not constitute a fraud, accident, or mistake.  On
appeal, Sengupta argues that summary judgment was improper because
genuine issues of fact existed with respect to whether UAF's
failure to disclose the 1991 regulations created a fraud, accident,
or mistake. [Fn. 61]  We reject Sengupta's contention and affirm
the dismissal.
          Alaska Civil Rule 60(b) expressly reserves the power of
the courts to entertain independent actions to relieve parties from
judgments, and to set aside judgments for fraud upon the court.
[Fn. 62]  The phrase "fraud upon the court" describes "conduct so
egregious that it undermines the integrity of the judicial
process." [Fn. 63]  An independent action to relieve a party from
judgment is also considered "a most unusual remedy, historically
available only where there was extrinsic, as opposed to intrinsic,
fraud." [Fn. 64]  The United States Supreme Court, in a recent case
also involving an alleged failure to disclose relevant information,
held that relief from judgment through an independent action is
available only to prevent a grave miscarriage of justice. [Fn. 65]
          In these rare instances, courts have granted relief from
judgment where the plaintiff has demonstrated fraud, accident, or
mistake as an indispensable element of the independent action
claim. [Fn. 66]  Sengupta claims that a genuine issue of fact
exists as to whether the decisions by Rice and Hodges to terminate
his employment were void for fraud, accident, or mistake.  As a
basis for this claim, he asserts that UAF concealed from Sengupta,
Hearing Officer Rice, and Judge Hodges the 1991 amendments to the
UAF regulations, which permitted a pre-termination hearing before
a faculty panel rather than a hearing officer.
          UAF Regulations for the Evaluation of Faculty were
adopted in 1989 and provided for the termination of tenured faculty
members for cause.  The UAF Regulations were amended in 1991 to
comply with the procedural requirements of the Alaska
Administrative Procedures Act (APA).  Under these 1991 regulations,
a terminated faculty member could appeal the termination decision
to a hearing panel appointed from the University faculty.
          The Board of Regents repealed the 1991 amendments in
1993, when the legislature exempted the University of Alaska from
the APA, and reinstated the original 1989 regulations, effective
May 26, 1993.  Thus, the 1989 regulations were in effect when
Sengupta's termination proceedings commenced in September 1994. 
Because the 1989 regulations did not provide for any pre-
termination due process hearing, UAF followed the termination
procedures of BOR Policy 04.08.08 XI, which did not provide for a
hearing before a faculty panel, but rather afforded Sengupta a
hearing before an independent hearing officer. [Fn. 67]  Sengupta
claims he did not learn of the 1991 amendments until approximately
March 1997. 
          Sengupta's claim of fraud, mistake, or accident
implicitly assumes that the 1991 amendments applied to his
termination proceedings, at least to the extent that he had the
choice to use the 1991 procedures.  Sengupta asserts that the
repealed 1991 amendments were applicable because they were vested
in his employment contract.  But the amendments were not in effect
either at the time he was awarded tenure or at the time termination
proceedings began.
          As support for his vesting argument, Sengupta only cites
this passage from his 1990-1991 employment contract with UAF: 
"This is a tenured appointment.  Other conditions of your
employment are subject to UAF and BOR policies, regulations, and
salary schedules currently in effect and as they may subsequently
be amended."  Even if such language created vested contract rights,
[Fn. 68] such contract rights would only exist for the 1990-1991
term of that annual employment contract.  
          Sengupta was subject to the termination regulations under
the employment contract in effect when the termination proceedings
began; [Fn. 69] Sengupta has offered no legal support for his
contention that he was entitled to the application of regulations
from a previous contract period.  Because the 1991 amendments were
repealed in May 1993, they are not applicable to Sengupta's 1994
employment contract that was in effect when termination proceedings
were instituted. [Fn. 70]
          Moreover, Sengupta has not cited a single instance, where
UAF flatly denied or otherwise affirmatively misrepresented the
existence of the 1991 amendments, that could be construed as fraud. 

And Sengupta never requested copies of repealed procedures.  Thus,
we agree with Judge Hodges's conclusion that "[t]he University
supplied Sengupta and his counsel with copies of the applicable
regulations in effect during Sengupta's termination process" and
that "University employees had no obligation to provide Sengupta
with copies of repealed regulations without a specific request for
          Finally, Sengupta claims that the 1989 date printed on
the UAF Regulations for the Evaluation of Faculty constitutes a
misrepresentation.  This meager evidence does not warrant the
extraordinary remedy of overturning a final judgment. [Fn. 71]
          In sum, Sengupta has not demonstrated a genuine issue of
fact as to whether he was entitled to the pre-termination hearing
before a faculty panel as provided in the 1991 amendments.  Mere
nondisclosure of inapplicable regulations does not constitute
fraud, mistake, or accident.  We therefore affirm the dismissal of
Sengupta's independent action claim.
     C.   The Superior Court Properly Granted Summary Judgment on
Sengupta's Mixed Motives Termination Claims Under Title VII and
sec. 1981.

          1.   Sengupta failed to meet his threshold burden.
          On June 23, 1997, the superior court dismissed all claims
from Sengupta's original complaint except for the sec. 1981 claim
based on mixed motives discrimination with respect to the
termination.  On September 12, 1997, the superior court permitted
Sengupta to add a Title VII claim alleging discrimination based on
race, national origin, or prior EEOC activity. [Fn. 72]  On
December 11, 1997, the superior court granted summary judgment in
favor of UAF with respect to Sengupta's mixed motives
discrimination claims.  On appeal, Sengupta claims that this
summary judgment grant was in error.
          As an initial matter, sec. 1981 employment discrimination
claims are generally analyzed in the same manner as Title VII
claims. [Fn. 73]  To prove an employment discrimination claim, the
plaintiff must assert either that the employer's challenged
decision stemmed from a single, illegitimate motive (a "pretext"
case) or that the decision was the product of both legitimate and
illegitimate motives (a "mixed motives" case). [Fn. 74]  In order
to survive summary judgment in a mixed motives case, the plaintiff
must demonstrate "that it is more likely than not that a protected
characteristic played a motivating part" in the employment
decision. [Fn. 75]
          The superior court held that, under Cram v. Lamson &
Sessions Co., [Fn. 76] Sengupta failed to meet his threshold
evidentiary burden.  Sengupta claims that the superior court
incorrectly required direct evidence and that the evidence
presented raises a genuine issue of fact sufficient to avoid
summary judgment.  We reject both claims.
          The Supreme Court's decision in Price Waterhouse v.
Hopkins [Fn. 77] has created some confusion among the federal
courts as to whether "direct" evidence is required to meet the
plaintiff's threshold burden.  Several federal circuit courts have
concluded that circumstantial or inferential evidence may be
presented to sustain the plaintiff's burden. [Fn. 78]  Other courts
have interpreted Price Waterhouse to mean that a plaintiff must
produce non-circumstantial or non-inferential evidence. [Fn. 79] 
The principal mixed motives cases relied upon by Sengupta (Thomas
[Fn. 80]) and UAF (Cram [Fn. 81]) both approve of using
circumstantial evidence. [Fn. 82]
          We have permitted the use of circumstantial evidence in
pretext cases, [Fn. 83] and we now hold that a plaintiff may
sustain his threshold burden for a mixed motives claim by
presenting circumstantial evidence, as long as this evidence is
directly linked to the alleged discriminatory attitude. [Fn. 84] 
As we noted in Haroldsen, "it is usually impossible for an employee
to directly prove that the employer acted with a discriminatory
intent." [Fn. 85]
          Despite Sengupta's assertions to the contrary, the
superior court did not require him to produce direct evidence. 
Rather, the superior court followed the Cram analysis and
explicitly permitted the use of circumstantial evidence:
          [A] prima facie case under mixed motives
theory requires evidence of conduct or statements by persons
involved in the decision making process that directly reflects a
discriminatory attitude. . . .  

               The evidence may be direct or
circumstantial.  But particularly if circumstantial, it must be
tied directly to the alleged discriminatory animus, and I find Cram 
. . . to be particularly persuasive in this regard.  For example as
discussed in Cram, a plaintiff who does not show evidence of
discriminatory statements or ill treatment by decision makers
cannot meet the threshold burden required in a mixed motives case. 
A plaintiff cannot meet the threshold burden for a prima faci[e]
case through circumstantial evidence connected to decision makers
only through a series of inferences based on other inferences.

The superior court, after finding no direct evidence, went on to
find that "Sengupta has not provided any evidence of racial or
national origin animus such as derogatory remarks about employees
from India."  This finding appears to address the permissible type
of circumstantial evidence.  Sengupta is incorrect in his asser-

tions that the superior court disallowed the use of circumstantial
          Sengupta next argues that his evidence satisfies this
threshold burden.  But Sengupta's evidence consists largely of his
own conclusory affidavit testimony, his allegedly lower salary
level, and his treatment by Dean Trent.  The cited portions of the
record do not support Sengupta's assertions that he presented
evidence of a discriminatory intent by Trent or Wadlow to terminate
him.  Nor do they support Sengupta's assertion that he was the only
UAF employee terminated or disciplined for his grievance activity. 
Sengupta also claims that the "concealment" by UAF of the 1991
amendments was evidence of discriminatory disparate treatment. 
Overall, viewing the evidence in the light most favorable to
Sengupta, this cited evidence does not meet his threshold burden to
produce evidence of conduct or statements by persons involved in
the decisionmaking process that is directly tied to the alleged
discriminatory attitude.
          Because Sengupta has failed to meet his threshold burden,
this court affirms the dismissal of Sengupta's mixed motives
discrimination claims under Title VII and sec. 1981.
          2.   The superior court did not commit harmful error in
denying Sengupta's Rule 56(f) request for a continuance to oppose
UAF's motion for summary judgment.

          Sengupta argues that the trial court abused its
discretion in denying his December 10, 1997 Rule 56(f) motion for
continuance. [Fn. 86]  Sengupta claims that he had insufficient
time to adequately gather evidence to oppose UAF's summary judgment
motion directed at his sec. 1981 mixed motives claim.  In
Sengupta claims that UAF had not fully complied with prior
discovery requests or with the November 13, 1997 order compelling
discovery, and that he needed additional time to obtain affidavits
from Drs. Sharma and Afrouz.  UAF contends that Sengupta's Rule
56(f) motion was properly denied because Sengupta was dilatory in
conducting discovery.
          Alaska Civil Rule 56(f) permits a party opposing summary
judgment to request additional time to gather and submit evidence
to support the party's opposition. [Fn. 87]  The purpose of this
rule is "to provide an additional safeguard against premature
grants of summary judgment." [Fn. 88]  In light of this purpose,
this court has held that requests made pursuant to Rule 56(f)
should be freely granted. [Fn. 89]  To obtain Rule 56(f) relief, "a
party need only provide 'adequate reasons explaining why the party
cannot produce facts necessary to oppose summary judgment within
the original time frame.'" [Fn. 90]  But if the movant has been
dilatory in conducting discovery, the trial court may properly deny
a Rule 56(f) motion for further discovery. [Fn. 91]
          Sengupta submitted a supplemental opposition brief
pursuant to the superior court's earlier Rule 56(f) extension but
failed to request an additional Rule 56(f) continuance at that
time.  Thus, any further Rule 56(f) relief cannot be based upon
material discovered prior to the deadline for supplemental briefing 
-- by then, Sengupta had five months or more to conduct discovery,
take depositions, and obtain affidavits. [Fn. 92]  During the
continuance period, Sengupta conducted only one incomplete
deposition, and he did not attempt to depose any of his supervisors
involved in the termination process.
          On December 10, 1997, one day before oral arguments,
Sengupta requested another Rule 56(f) continuance to obtain the
affidavit of Dr. Andy Afrouz.  But Sengupta had already offered
evidence of Afrouz's claims of racial discrimination through copies
of Afrouz's correspondence that Sengupta appended to his original
opposition to UAF's mixed motives summary judgment motion.  And
Sengupta cites no reason -- apart from Afrouz's failure to return
Sengupta's calls -- for his inability to obtain Afrouz's signed
affidavit in a timely fashion.  Thus, Sengupta could not properly
request in his December 10 motion additional time to obtain further
testimony of Afrouz.
          Additionally, Sengupta argues that, because the superior
court granted his motion to compel production of documents on
November 13, after the November 6 close of the initial Rule 56(f)
extension period, material within the ambit of this order
compelling discovery properly served as a basis for additional Rule
56(f) relief.  But to warrant that relief, Sengupta needed to offer
a discovery plan regarding evidence within the discovery order's
ambit that could raise a genuine issue of material fact. [Fn. 93] 
In his December 10 motion, Sengupta primarily argued that a
continuance was warranted because UAF had failed to comply fully
with the order to compel.  Mere speculation that UAF withheld
additional responsive documents does not warrant Rule 56(f) relief.
          Sengupta also argues that he needed additional time to
obtain the affidavit of Dr. G.D. Sharma.  At first blush this
argument appears to have merit because the superior court's
November 13 order compelled production of evidence regarding
Sharma.  Sengupta also stated in his motion that he had been able
to locate Sharma in Norway only because of documents belatedly
produced by UAF.  By the time Sengupta was able to obtain Sharma's
signed and notarized affidavit, the continuance period had closed. 
          After examining the new information contained in Sharma's
late-filed affidavit, [Fn. 94] we conclude that any error in
denying the continuance to obtain Sharma's affidavit would be
harmless because this evidence does not sustain Sengupta's
threshold burden under Cram. [Fn. 95]  Sharma filed and ultimately
settled racial discrimination charges against the University of
Alaska, but these events occurred in 1976, twenty years before
Sengupta's claims of discrimination.  Apart from these events in
the mid-1970s, Sharma's affidavit merely presents evidence of
faculty discord with no correlation to racial animosity. 
Conclusory statements that UAF discriminated against Sharma do not
raise a genuine issue of fact with respect to Sengupta's present
claim. [Fn. 96]
          Because the superior court committed no harmful error in
denying Sengupta additional Rule 56(f) relief, we affirm the
superior court's denial of Sengupta's second Rule 56(f) motion.
     D.   The Superior Court Did Not Err in Denying Sengupta's
Motion Under Rules 59 and 60 to Amend the Judgment of Dismissal.

          On December 22, 1997, Sengupta filed a motion under Rules
59 and 60(b) requesting reconsideration of the December 11, 1997
grant of summary judgment dismissing his mixed motives
discrimination and independent action claims.  The superior court
denied the motion on January 15, 1998. [Fn. 97]  Sengupta argues
that the trial court abused its discretion by failing to grant him
relief under Rules 59 and 60(b) because he submitted newly
discovered evidence -- the affidavits of Sharma and Afrouz -- that
raises a genuine issue of material fact. [Fn. 98]
          This court analyzes motions based on newly discovered
evidence under the standard established by Montgomery Ward v.
Thomas. [Fn. 99]  The Montgomery Ward analysis applies to motions
made under either Rule 59 or Rule 60(b)(2). [Fn. 100]  In addition,
the Montgomery Ward standard applies to motions challenging not
only judgments entered after trial but also summary judgments. [Fn.
          Under the Montgomery Ward standard, to warrant relief
under either Rule 59 or Rule 60(b)(2), the newly discovered
evidence "must (1) be likely to change the result on a new trial;
(2) have been discovered after trial; (3) not have been
discoverable, with due diligence, before trial; (4) be material;
and (5) not be cumulative or impeaching." [Fn. 102]
          To meet the first Montgomery Ward criterion in the
context of a summary judgment challenge, the newly discovered
evidence must raise a genuine issue of material fact.  As we noted
supra, the signed affidavits of Sharma and Afrouz do not raise a
genuine issue of fact in the context of the mixed motives claim.
[Fn. 103]  Because Sengupta fails to meet this criterion, the trial
court did not err in denying him relief from summary judgment under
Rule 59 or 60(b).
     E.   The Superior Court Properly Awarded UAF Attorney's Fees.
          The trial court awarded UAF $5,301.60 in attorney's fees
pursuant to Rule 82 for defending Sengupta's state law independent
action claim.  Sengupta argues that attorney's fees should not be
awarded because: (1) the independent action claim was so closely
related to his federal civil rights claims that attorney's fees
should be awarded according to the federal standard -- when the
losing plaintiff's claims are "frivolous, unreasonable or without
merit"; and (2) UAF failed to identify the basis for segregating
fees among the various matters.  We reject these arguments and
conclude that the trial court did not abuse its discretion in
awarding attorney's fees to UAF.
          1.   The superior court did not err in awarding UAF
attorney's fees without a showing that Sengupta's independent
action claim was frivolous, unreasonable or without merit.

          A defendant prevailing on claims brought under federal
civil rights statutes may recover attorney's fees only if the
plaintiff's claims are frivolous, unreasonable, or without
foundation. [Fn. 104]  Alaska courts apply this same standard to
federal civil rights claims brought in state court. [Fn. 105] 
Sengupta argues that this Christiansburg/DeNardo standard should be
extended to apply to state law claims brought in state court that
are integrally related to the federal civil rights claims.  We
reject this argument because it is directly contrary to our case
          Sengupta's argument ignores our holding in Lyman v.
State. [Fn. 106]  In Lyman, the trial court had awarded attorney's
fees to the prevailing defendant under both federal and state law
claims based upon a finding that the plaintiff's lawsuit "bordered
on the frivolous." [Fn. 107]  On appeal, this court ruled that,
under DeNardo, attorney's fees could only be awarded under federal
civil rights statutes upon an "absolute determination" that the
lawsuit was "frivolous, vexatious or brought in bad faith." [Fn.
108]  This court then reversed the award of attorney's fees for the
federal law claims.  However, based upon the same lower court
finding, the court permitted the award of attorney's fees for the
state law claims under Rules 79 and 82.  This court did not
indicate that the defendant needed to make a heightened showing
above that required by Rules 79 and 82 -- that the defendant be a
"prevailing party."
          Having been awarded summary judgment, UAF is clearly a
prevailing party with respect to the state law independent action
claim.  UAF is not additionally required to show that Sengupta's
independent action to set aside prior judgments was frivolous,
unreasonable, or without merit in order to win attorney's fees.
          2.   The superior court did not err in concluding that
               UAF properly segregated and itemized its state law
claim fees.

          Sengupta next argues that the award of attorney's fees is
improper because UAF failed to identify the basis for segregating
its fees.
          But UAF attorneys adequately identified the basis of the
fee segregation.  UAF submitted a motion for attorney's fees under
Rule 82 based on all work performed on the case.  The superior
court then issued an order directing UAF to "submit a pleading
segregating all work done on State claims."  UAF attorneys
responded with an itemization of segregated fees.  According to the
attached affidavit of UAF attorney Mark Ashburn, the itemized fees
were "charges that relate to the State claims brought by Sengupta
in this case.  Specifically, the charges relate to the independent
action in equity brought by Sengupta to set aside the earlier final
judgments entered against him."  Ashburn's description sufficiently
identifies the manner in which UAF segregated its fees.  Because we
reject Sengupta's argument that attorney's fees should be denied
for failure to identify the basis for segregation, we affirm the
attorney's fees award. [Fn. 109]
          In sum, we AFFIRM the decision of the superior court in
all respects.
FABE, Justice, dissenting in part.
          I agree with the court's opinion in all respects but one: 
I disagree that the doctrine of res judicata precludes Sengupta's
free speech claim.  In this claim, Sengupta alleges that he was
terminated because he spoke out on issues of public importance --
alleged mismanagement of his University department.  Sengupta never
raised this claim at the administrative proceedings.  Thus, the
question is whether the doctrine of res judicata precludes him from
bringing his sec. 1983 free speech claim because he could have
it in his administrative proceeding.  Put another way, should
Sengupta have been required to raise all of his constitutional
claims in his administrative hearing and appeal, with the
understanding that these claims would be subject to collateral
estoppel if they were resolved against him?  In my view, requiring
him to do so is tantamount to forcing him to elect between his
right to an administrative grievance procedure and appeal and his
right to file a sec. 1983 lawsuit.
          As an initial matter, it should be noted that a party
need not exhaust administrative remedies before bringing a sec.
claim in state court. [Fn. 1]  Therefore, a plaintiff may
immediately file a sec. 1983 claim without first appealing the
adverse administrative decision.  The question before the court,
then, is
whether the plaintiff who chooses to grieve and appeal the agency
decision is barred by res judicata principles from filing a
subsequent sec. 1983 action for damages.
          Other courts have refused to apply res judicata to bar
subsequent sec. 1983 claims where the scope of available relief or
development of the record is limited on appeal from the
administrative decision. [Fn. 2]  In Davenport v. North Carolina
Department of Transportation, the Fourth Circuit Court of Appeals
focused on the limited relief available to the terminated employee
in refusing to apply res judicata. [Fn. 3]  The court recognized
that, in the administrative proceedings, "the claimed wrong was a
discharge without just cause from public employment in violation of
statutorily protected rights, entitling [Davenport] to the remedy
of reinstatement with back, and possibly front, pay." [Fn. 4]  In
contrast, Davenport's sec. 1983 claim involved a deprivation of his
constitutional rights under the First and Fourteenth Amendments
that entitled him to the remedy of compensatory and punitive
damages. [Fn. 5]  In concluding that res judicata did not apply,
the court stated: 
          Though the constitutional claims asserted in
the sec. 1983 action could be raised by the plaintiff in the
administrative hearing, their utility would be limited there to
rebutting any "just cause" defense raised by the defendants . . .
.  They could not be invoked in that proceeding to provide the full
range of constitutional remedies available in a sec. 1983 action.[[Fn. 6]]

          The Fourth Circuit Court of Appeals thus underscores the
unacceptable Catch-22 posed by the majority's approach.  If the
terminated employee immediately files a separate sec. 1983 claim
following the adverse administrative decision and foregoes the
administrative grievance and appeal, the requirement of exhaustion
of administrative remedies will bar the party from challenging the
termination on the grounds of lack of just cause. [Fn. 7]  If the
party appeals the termination through the administrative process,
the party will not be able to obtain the full array of relief
available under sec. 1983 for constitutional violations.
          Apart from the issue of remedies, courts have also
declined to apply res judicata where the plaintiff did not have a
full and fair opportunity to present the constitutional claim in
the administrative proceedings. [Fn. 8]  For example, in State
Board of Chiropractic Examiners v. Stjernholm, the Colorado Supreme
Court refused to apply res judicata where the record on appeal was
developed completely at the administrative level by the defendant
board. [Fn. 9]  The court indicated that sec. 1983 plaintiffs
be accorded the opportunity for "evidentiary presentation to and
fact finding by" the trial court and thus did not require
Stjernholm to litigate the sec. 1983 claim on appeal on the limited
record developed before the administrative agency. [Fn. 10]
          Similarly, in Smith v. Updegraff, the Eighth Circuit
Court of Appeals denied res judicata effect where the reviewing
state court had limited powers on administrative appeal. [Fn. 11] 
The state court only had the power to determine whether the civil
service termination "was made in good faith and for cause" and "its
review was limited to the evidence before the [agency]." [Fn. 12] 
Because the court "could not determine the broader sec. 1983 claim
issue" under these appellate restrictions, the Eighth Circuit Court
of Appeals concluded that, under Iowa law, res judicata would not
apply to bar a subsequent sec. 1983 claim. [Fn. 13]
          I believe that the court should adopt the reasoning of
Davenport, Stjernholm, and Updegraff and conclude that Judge
Hodges's decision on appeal does not preclude Sengupta's subsequent
sec. 1983 claims under principles of res judicata.  Under Appellate
Rule 602, Sengupta had no absolute right before Judge Hodges to
supplement the administrative record [Fn. 14] or to have a trial de
novo to adjudicate his constitutional claims. [Fn. 15]  In turn,
the administrative record before Judge Hodges was developed at the
Rice pre-termination hearing in accordance with procedures
developed by the University itself. [Fn. 16]  It is not apparent
from the record that the University's procedural rules afforded
Sengupta an adequate opportunity to litigate his sec. 1983 claims
seek the full range of relief, including consequential damages. 
Thus,  Sengupta should not have been required to pursue each
constitutional claim against the University in the pre-termination
hearing or the subsequent administrative appeal.  For this reason,
I respectfully dissent from this aspect of the court's opinion.


Footnote 1:

     Termination of tenured faculty is authorized by UAF
Regulations for the Evaluation of Faculty Section V.B.1, which
states in part: "In accordance with UAF Faculty Policies, Chapter
V, tenure faculty may be terminated for the following
reasons: . . . d) cause."  Paragraph 9 of the referenced Chapter V
of UAF Faculty Policies defines "cause" as follows:  "Cause shall
mean some substantial shortcoming which renders continuance in
employment detrimental to appropriate discipline and efficiency of
service.  Cause shall include . . . incompetency, neglect of duty,
unprofessional conduct or other conduct which interferes
substantially with the continued performance of duties." 

Footnote 2:

     UAF Regulations for the Evaluation of Faculty Section V.B.1.

Footnote 3:

     We will refer to the numerous defendants in this case as "the
University" or "UAF." 

Footnote 4:

     42 U.S.C. sec. 2000e.

Footnote 5:

     Sengupta later amended his complaint to cite the appropriate
Title VII provision.

Footnote 6:

     Sengupta's Title VII claims had previously been dismissed.

Footnote 7:

     See Parson v. Marathon Oil Co., 960 P.2d 615, 618 (Alaska

Footnote 8:

     See id. 

Footnote 9:

     See id.

Footnote 10:

     See Mount Juneau Enters., Inc. v. City & Borough of Juneau,
923 P.2d 768, 773 (Alaska 1996).

Footnote 11:

     See Osborne v. Hurst, 947 P.2d 1356, 1358 (Alaska 1997).

Footnote 12:

     See Benedict v. Key Bank of Alaska, 916 P.2d 489, 491 (Alaska
1996); Nelson v. Jones, 781 P.2d 964, 968 (Alaska 1989).

Footnote 13:

     Buster v. Gale, 866 P.2d 837, 841 n. 9 (Alaska 1994) (quoting
Dura Corp. v. Harned, 703 P.2d 396, 409 (Alaska 1985)).

Footnote 14:

     Sengupta also challenges the dismissal of his sec. 1983 claims
the grounds that the superior court improperly denied his Rule
56(f) requests for additional time to oppose this summary judgment
motion.  But the superior court in fact granted all continuance
requests with respect to this summary judgment motion.  Sengupta
twice requested and the superior court twice granted extensions
until a specific date.  Sengupta cannot now object to the court's
failure to grant longer or additional extensions.  See Jennings v.
State, 566 P.2d 1304, 1314 (Alaska 1977) (noting that additional
Rule 56(f) relief cannot be requested for the first time on
appeal).  Because the superior court granted the precise relief
that Sengupta requested, it did not abuse its discretion by failing
to grant additional Rule 56(f) relief.

Footnote 15:

     See Wilson v. Garcia, 471 U.S. 261, 275 (1985); Jenkins v.
Daniels, 751 P.2d 19, 24 (Alaska 1988).

Footnote 16:

     See AS 09.10.070; Jenkins, 751 P.2d at 24.

Footnote 17:

     See Yurioff v. American Honda Motor Co., Inc., 803 P.2d 386,
388 (Alaska 1990).

Footnote 18:

     See, e.g., Jensen v. Frank, 912 F.2d 517, 522-23 (1st Cir.
1990); Green v. Los Angeles County Superintendent of Schs., 883
F.2d 1472, 1480-81 (9th Cir. 1989).

Footnote 19:

     See Green, 883 F.2d at 1480-81.

Footnote 20:

     See West v. Philadelphia Elec. Co., 45 F.3d 744, 755 n.9 (3rd
Cir. 1995); Mascheroni v. Board of Regents of Univ. of Cal., 28
F.3d 1554, 1561 (10th Cir. 1994); Martin v. Nannie & the Newborns,
Inc., 3 F.3d 1410, 1415 (10th Cir. 1993); Selan v. Kiley, 969 F.2d
560, 565 (7th Cir. 1992); Berry v. Board of Supervisors, 715 F.2d
971, 981 (5th Cir. 1983). 

Footnote 21:

     See Sabree v. United Bhd. of Carpenters Local No. 33, 921 F.2d
396, 402 (1st Cir. 1990) ("the most important");  Hendrix v. City
of Yazoo City, 911 F.2d 1102, 1104 (5th Cir. 1990) ("key to the
inquiry"); Glass v. Petro-Tex Chem. Corp., 757 F.2d 1554, 1561 n.5
(5th Cir. 1985) ("core idea"); Selan, 969 F.2d at 566 n.7
(compiling list of cases).

Footnote 22:

     See Martin, 3 F.3d at 1415 n.6; Berry, 715 F.2d at 981.

Footnote 23:

     See Conlin v. Blanchard, 890 F.2d 811, 815 (6th Cir. 1989)
(filing state-law actions as evidencing knowledge of

Footnote 24:

     Roberts v. Gadsden Mem'l Hosp., 835 F.2d 793, 800 (11th Cir.

Footnote 25:

     Sengupta primarily alleges that (1) Parrish was not properly
appointed as a hearing officer; (2) Parrish was biased against
Sengupta; and (3) Sengupta was unfairly surprised by the issues
raised at the Parrish hearings.

Footnote 26:

     Although the superior court dismissed Sengupta's sec. 1983 due
process claims on collateral estoppel and res judicata grounds, we
may affirm the decision on any basis.  See John v. Baker, 982 P.2d
738, 746 n.28 (Alaska 1999).

Footnote 27:

     Renwick v. State, Bd. of Marine Pilots, 971 P.2d 631, 634
(Alaska 1999); see also Jackinsky v. Jackinsky, 894 P.2d 650, 654
(Alaska 1995).

Footnote 28:

     See Diedrich v. City of Ketchikan, 805 P.2d 362, 369-70
(Alaska 1991); see also Johnson v. Alaska State Dep't of Fish &
Game, 836 P.2d 896, 908-09 (Alaska 1991).

Footnote 29:

     This analysis would not apply if the amount at stake in the
present case differed substantially from that in the Rice/Hodges
proceedings.  See Restatement (Second) of Judgments sec. 28(5)
But because both the present and prior actions contest Sengupta's
termination, the amount at stake is the same and Sengupta had
adequate incentive to litigate the collateral estoppel issue to the
fullest extent in the prior action before Hearing Officer Rice and
Judge Hodges. 

Footnote 30:

     See Diedrich, 805 P.2d at 369-70.

Footnote 31:

     See Plumber v. University of Alaska Anchorage, 936 P.2d 163,
166 (Alaska 1997).

Footnote 32:

     See Andrews v. Wade & De Young, Inc., P.C., 950 P.2d 574, 579
(Alaska 1997) (hereinafter Andrews II) (declining to reach this

Footnote 33:

     See DeNardo v. State, 740 P.2d 453, 456 (Alaska 1987).

Footnote 34:

     Restatement (Second) of Judgments sec. 22 cmt. a (1982).

Footnote 35:

     Restatement (Second) of Judgments sec. 22(2) (1982).  While
Restatement sec. 22(2)(a) is embodied in rules like Alaska Civil
13(a), we have not explicitly adopted that subsection of the
Restatement.  See Andrews II, 950 P.2d at 579. The heart of
sec. 22(2)(b) is, however, incorporated in the precedential basis
this court's res judicata jurisprudence.  See Plumber, 936 P.2d at
166 (res judicata applies only in dispute involving the same "cause
of action") (citing Blake v. Gilbert, 702 P.2d 631, 634-35 (Alaska
1985)), overruled on other grounds by Bibo v. Jeffrey's Restaurant,
770 P.2d 290, 295 (Alaska 1989) (citing Weston Funding Corp. v.
Lafayette Towers, Inc., 410 F. Supp. 980, 983 n.4 (S.D.N.Y. 1976))
(citing Herendeen v. Champion Int'l Corp., 525 F.2d 130, 133 (2d
Cir. 1975) ("The test for determining whether causes of action are
the same for purposes of res judicata has been variously expressed. 
Most frequently cited as the relevant criteria . . . are whether a
different judgment in the second action would impair or destroy
rights or interests established by the judgment entered in the
first action, whether the same evidence is necessary to maintain
the second cause of action as was required in the first, and
whether the essential facts and issues in the second were present
in the first." (emphasis added)).  

Footnote 36:

     See Andrews v. Wade & De Young, Inc., P.C., 875 P.2d 89, 91
(Alaska 1994) (hereinafter Andrews I) ("Failure to assert a
compulsory counterclaim bars a party from bringing a later
independent action on that claim.").

Footnote 37:

     See Alaska R. App. P. 601.

Footnote 38:

     See Alaska R. App. P. 601-12.

Footnote 39:

     Restatement (Second) of Judgments sec. 22(2)(b) (1982).

Footnote 40:

     685 F.2d 196 (7th Cir. 1982).

Footnote 41:

     See id. at 197.

Footnote 42:

     See id.

Footnote 43:

     See id.

Footnote 44:

     See id.

Footnote 45:

     See id. at 200.

Footnote 46:

     See id. at 200-01.

Footnote 47:

     Restatement (Second) of Judgments sec. 22(2)(b) (1982).  See
also Lee, 685 F.2d at 200-01 (holding that Restatement sec.
applies similarly to foregone counterclaims and defenses).

Footnote 48:

     See Puerto Rico Maritime Shipping Auth. v. Federal Maritime
Comm'n, 75 F.3d 63, 67 (1st Cir. 1996).

Footnote 49:

     See id.

Footnote 50:

     See Restatement (Second) of Judgments sec. 26(1)(c) (1982)
(explaining that where the plaintiff cannot seek a certain remedy
in the first action, res judicata does not bar the plaintiff from
seeking that remedy in a later action).  We emphasize this point. 
If full relief for an alleged wrong is not available through the
administrative process, a party who successfully presses a claim
(or defense) through the administrative process can subsequently
bring a sec. 1983 action seeking whatever relief for that wrong was
previously unavailable.  It is only the party who unsuccessfully
presses a claim -- or who fails to present a claim, like Sengupta
-- who will be barred by res judicata from seeking previously
unavailable relief in a subsequent proceeding.

Footnote 51:

     See Puerto Rico Maritime Shipping Auth., 75 F.3d at 67.

Footnote 52:

     Pirela v. Village of North Aurora, 935 F.2d 909, 913 (7th Cir.
1991) (internal brackets, ellipses, and quotation marks omitted). 

Footnote 53:

     839 F.2d 630, 634 (9th Cir. 1988). 

Footnote 54:

     805 P.2d 362, 369 (Alaska 1991).  See also Johnson v. Alaska
State Dep't of Fish & Game, 836 P.2d 896, 908 (Alaska 1991)
(holding that essential elements of adjudication in administrative
proceeding include "adequate notice to persons to be bound by the
adjudication, the parties' rights to present and rebut evidence and
argument, a formulation of issues of law and fact in terms of
specific parties and specific transactions, a rule of finality
specifying the point in the proceeding when presentations end and
a final decision is rendered, and any other procedural elements
necessary for a conclusive determination of the matter in

Footnote 55:

     See Balough v. Fairbanks North Star Borough, 995 P.2d 245, 269
(Alaska 2000).  

Footnote 56:

     See AS 44.62.330(45) (repealed by sec. 1 ch 30 SLA 1993).

Footnote 57:

     See AS 44.62.430, .460.

Footnote 58:

     See Far North Sanitation, Inc. v. Alaska Pub. Utilities
Comm'n, 825 P.2d 867, 869 n.2 (Alaska 1992).

Footnote 59:

     See McCleskey v. Kemp, 481 U.S. 279, 292 (1987); Giano v.
Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995); Trautvetter v. Quick,
916 F.2d 1140, 1150 (7th Cir. 1990).

Footnote 60:

     See Gray v. City of Kansas City, Kan., 603 F. Supp. 872, 875
(D. Kan. 1985).

Footnote 61:

     As discussed above, Sengupta alleges several due process
violations with respect to the pre-termination procedures.  Judge
Hodges ruled that UAF afforded a constitutionally-adequate due
process hearing prior to termination.  Sengupta failed to file a
timely appeal on this issue and cannot relitigate the issue through
an independent action claim.  See Morris v. Morris, 908 P.2d 425,
429 (Alaska 1995) ("Civil Rule 60 is not a substitute for a party
failing to file a timely appeal; nor does it allow relitigation of
issues that have been resolved by the judgment.") (quoting Burrell
v. Burrell, 696 P.2d 157, 163 (Alaska 1984)).

          Sengupta also claims that the 1993 reinstatement of the
1989 regulations was invalid because the 1993 change was not
approved by UAF Faculty Senate.  UAF correctly asserts that
Sengupta did not raise this argument at trial level.  This court
will not consider arguments on appeal that were not raised below
unless the new issues either establish plain error or do not depend
on new or controverted facts, are closely related to the
appellant's arguments at trial, and could have been gleaned from
the pleadings.  See Arnett v. Baskous, 856 P.2d 790, 791 n.1
(Alaska 1993).  These criteria are not satisfied here.

Footnote 62:

     See Stone v. Stone, 647 P.2d 582, 586 n.7 (Alaska 1982).

Footnote 63:


Footnote 64:


Footnote 65:

     See United States v. Beggerly, 524 U.S. 38, 46 (1998)
("Independent actions must . . . be reserved for those cases of
injustices which, in certain instances, are deemed sufficiently
gross to demand a departure from rigid adherence to the doctrine of
res judicata." (internal quotations omitted)).

Footnote 66:

     See 11 Charles Alan Wright et al., Federal Practice and
Procedure sec. 2868, at 399 (2d ed. 1995); Campaniello Imports,
v. Saporiti Italia, S.p.A., 117 F.3d 655, 661 (2d Cir. 1997);
Barrett v. Secretary of Health & Human Servs., 840 F.2d 1259, 1263
(6th Cir. 1987).

Footnote 67:

     Judge Hodges ruled that the reinstated 1989 UAF Faculty
Policies and Regulations V.B.1 & 2 did not provide for a due
process hearing, to which Sengupta was entitled, and that the
University appropriately provided such a hearing under BOR Policy
04.08.08 XI.

Footnote 68:

     See Zuelsdorf v. University of Alaska, 794 P.2d 932, 935
(Alaska 1990) (noting that employment relationship between
nontenured professor and university is created by contract and
governed by contract law).

Footnote 69:

     See, e.g., Koch v. Board of Trustees of Univ. of Ill., 187
N.E.2d 340, 343 (Ill. App. Ct. 1962); Keiser v. State Bd. of
Regents of Higher Educ., 630 P.2d 194, 198 (Mont. 1981); State ex
rel. Keeney v. Ayers, 92 P.2d 306, 310 (Mont. 1939); Nostrand v.
Little, 361 P.2d 551, 563 (Wash. 1961).

Footnote 70:

     This contract contained a provision similar to that cited by
Sengupta:  "This appointment and other conditions of employment are
subject to the policies of the Board of Regents and University
rules and regulations as they presently exist and as they may be
duly amended or promulgated."

Footnote 71:

     See Beggerly, 524 U.S. at 46. 

Footnote 72:

     Sengupta had filed a complaint with the Alaska State
Commission for Human Rights and the EEOC on June 24, 1994, alleging
that UAF discriminated against him on the basis of color and
national origin. 

Footnote 73:

     See Bratton v. Roadway Package Sys., Inc., 77 F.3d 168, 176
(7th Cir. 1996); Miller v. Fairchild Indus., Inc., 885 F.2d 498,
504 n.4 (9th Cir. 1989).

Footnote 74:

     See Sischo-Nownejad v. Merced Community College Dist., 934
F.2d 1104, 1109 (9th Cir. 1991) (citing Price Waterhouse v.
Hopkins, 490 U.S. 228, 244-48 (1989)).

          Sengupta cites a number of opinions that pertain to
pretext cases.  As the Ninth Circuit has noted, the approach to the
two types of cases is "somewhat different."  Washington v. Garrett,
10 F.3d 1421, 1432 n.15 (9th Cir. 1994).  The superior court
rejected a pretext claim and Sengupta does not challenge the
preclusion of the pretext theory.  Thus, we will not address that

Footnote 75:

     Reyes v. Atlantic Richfield Co., 12 F.3d 1464, 1471 (9th Cir.
1993) (quoting Sischo-Nownejad, 934 F.2d at 1110); see also Cram v.
Lamson & Sessions Co., 49 F.3d 466, 471 (8th Cir. 1995) ("Under
Price Waterhouse, plaintiff carries the threshold burden of showing
that an illegitimate criterion was a motivating factor in the
employer's decision to terminate her employment.").

Footnote 76:

     49 F.3d 466 (8th Cir. 1995).

Footnote 77:

     490 U.S. 228 (1989).

Footnote 78:

     See Thomas v. National Football League Players Ass'n, 131 F.3d
198, 205 (D.C. Cir. 1997) (citing cases); Starceski v. Westinghouse
Elec. Corp., 54 F.3d 1089, 1096 (3d Cir. 1995); Cram, 49 F.3d at
471; Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 182 (2d
Cir. 1992); White v. Federal Express Corp., 939 F.2d 157, 160 (4th
Cir. 1991); see also EEOC v. Pape Lift, Inc., 115 F.3d 676, 684
(9th Cir. 1997) (citing with approval Armbruster v. Unisys Corp.,
32 F.3d 768, 778 (3d Cir. 1994) for proposition that to come within
Price Waterhouse framework the evidence "must directly reflect a
discriminatory or retaliatory animus on the part of the person
involved in the decisionmaking process").

Footnote 79:

     See Brown v. East Mississippi Elec. Power Ass'n, 989 F.2d 858,
861 (5th Cir. 1993); Heim v. Utah, 8 F.3d 1541, 1547 (10th Cir.
1993); EEOC v. Alton Packaging Corp., 901 F.2d 920, 923 (11th Cir.

Footnote 80:

     79 F.3d 859.

Footnote 81:

     49 F.3d 466.

Footnote 82:

     Compare Cram, 49 F.3d at 471 ("This evidence may be direct or
circumstantial, but if it is circumstantial, it must be 'tied
directly to the alleged discriminatory evidence.'" (quoting
Ostrowski, 968 F.2d at 182)), with Thomas, 131 F.3d at 204
(plaintiff must produce "evidence of conduct or statements that
both reflect directly the alleged discriminatory attitude and that
bear directly on the contested employment decision" (quoting Fuller
v. Phipps, 67 F.3d 1137, 1142 (4th Cir. 1995))).

Footnote 83:

     See Haroldsen v. Omni Enters., Inc., 901 P.2d 426, 431 (Alaska

Footnote 84:

     See Cram, 49 F.3d at 471; Thomas, 131 F.3d at 204.

Footnote 85:

     901 P.2d at 431.

Footnote 86:

     Sengupta also includes in the 56(f) discussion in his opening
brief a one-sentence argument that the trial court abused its
discretion in limiting the scope of discovery.  This argument is
deemed waived for insufficient briefing.  See Adamson v. University
of Alaska, 819 P.2d 886, 889 n.3 (Alaska 1991) ("[W]here a point is
given only a cursory statement in the argument portion of a brief,
the point will not be considered on appeal.").

Footnote 87:

     See Coulson v. Marsh & McLennan, Inc., 973 P.2d 1142, 1147
(Alaska 1999).

Footnote 88:

     Gamble v. Northstore Partnership, 907 P.2d 477, 485 (Alaska

Footnote 89:

     See id.; Munn v. Bristol Bay Housing Auth., 777 P.2d 188, 193
(Alaska 1989); Jennings v. State, 566 P.2d 1304, 1313 (Alaska

Footnote 90:

     Parson v. Marathon Oil Co., 960 P.2d 615, 619 (Alaska 1998)
(quoting Gamble, 907 P.2d at 485-86).

Footnote 91:

     Cf. Demmert v. Kootznoowoo, Inc., 960 P.2d 606, 612 (Alaska
1998) ("Where the party has not been dilatory in seeking discovery
and identifies those people whom it intends to depose, it should be
granted an extension under Civil Rule 56(f) to conduct
discovery.").  Compare Gamble, 907 P.2d at 486 (finding movant not
dilatory where non-movant raised unanticipated affirmative
defense), with Braun v. Alaska Commercial Fishing & Agric. Bank,
816 P.2d 140, 145 (Alaska 1991) (finding movant dilatory where
movant conducted no discovery on a summary judgment issue known to
movant for 13 months). 

Footnote 92:

     UAF first challenged the mixed motives claim by summary
judgment motion on April 24, 1997.  UAF moved for summary judgment
with respect to the independent action on June 12, 1997.  Sengupta
submitted his supplemental brief on the November 6, 1997 deadline.

Footnote 93:

     See Glover v. Western Air Lines, Inc., 745 P.2d 1365, 1371
(Alaska 1987).

Footnote 94:

     Sengupta had previously submitted factual information
regarding Sharma in Sengupta's August 17, 1997 affidavit.

Footnote 95:

     See Coulson, 973 P.2d at 1147 (finding any error in denying
Rule 56(f) relief harmless where additional evidence would not
raise a genuine issue of fact).

Footnote 96:

     Sengupta cites several cases purporting to support the
proposition that such evidence is relevant, and thus admissible, in
pretext claims.  These cases are not germane to whether such
evidence, even if admissible, raises a genuine issue of fact in a
mixed motives case.

Footnote 97:

     Sengupta also requested a hearing and moved the court to
reconsider its denial of the motion for reconsideration.  The
superior court rejected both the request for a hearing and the

Footnote 98:

     Despite its title as a motion to amend judgment, Sengupta's
motion actually requests reconsideration of the dismissal of his
claims upon summary judgment.  Motions to reconsider are directly
addressed by Rule 77.  Under Rule 77(k)(1), newly discovered
evidence is not a stated basis for a motion for reconsideration. 
However, federal courts have recognized that the federal analog of
Alaska Rule 59(f) generally encompasses motions for
reconsideration.  See Edward H. Bohlin Co., Inc. v. Banning Co., 6
F.3d 350, 353 (6th Cir. 1993); 11 Charles Alan Wright et al.,
Federal Practice and Procedure sec. 2810.1 (2d ed. 1995).

          In his reply brief, Sengupta discusses other "newly
discovered evidence" apart from these two affidavits.  We do not
address these contentions.  Under Appellate Rule 212(c)(3), the
reply brief "may raise no contentions not previously raised in
either the appellant's or appellee's briefs."  See also Conam
Alaska v. Bell Lavalin, Inc., 842 P.2d 148, 158 (Alaska 1992). 
Moreover, the sole document cited as previously unavailable
evidence in the reply brief was in fact appended to Sengupta's
August 17, 1997 affidavit.

Footnote 99:

     394 P.2d 774, 776 (Alaska 1964).

Footnote 100:

     Compare Dickerson v. Williams, 956 P.2d 458, 464 (Alaska 1998)
(Rule 60(b)(2) motion), with Montgomery Ward, 394 P.2d at 776 (new
trial motion).  While we have not squarely held that this analysis
applies to Rule 59 motions to amend or alter the judgment, we
extend this analysis to all Rule 59 motions premised upon newly
discovered evidence.

Footnote 101:

     See Palmer v. Borg-Warner Corp., 838 P.2d 1243, 1247 n.6
(Alaska 1992).

Footnote 102:

     Dickerson, 956 P.2d at 467 (applying Montgomery Ward).

Footnote 103:

     In addition, much of the factual information in these
affidavits was not "newly discovered" because it was presented to
the superior court in Sengupta's August 17, 1997 affidavit
submitted in conjunction with his opposition to UAF's mixed motives
summary judgment motion.

Footnote 104:

     See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422

Footnote 105:

     See DeNardo v. Municipality of Anchorage, 775 P.2d 515, 518
(Alaska 1989).

Footnote 106:

     824 P.2d 703 (Alaska 1992).

Footnote 107:

     Id. at 707.

Footnote 108:

     Id. at 707 n.7.

Footnote 109:

     If we interpret Sengupta's cursory argument as challenging the
descriptions of the attorney work rather than the failure to
provide a basis for fee segregation, we would reject this argument
as well.  The prevailing party seeking attorney's fees under Rule
82 need only submit "accurate records of the hours expended and a
brief description of the services reflected by those hours."  Hayes
v. Xerox Corp., 718 P.2d 929, 939 (Alaska 1986) (cited in Lyman,
824 P.2d at 707-08).  The Lyman court did not require more detailed
descriptions of the attorney services when segregation was
required.  UAF's itemization of segregated state law claim fees
contains the hours expended and short descriptions of the work
performed.  Thus, UAF's itemization of segregated charges was

                      FOOTNOTES   (Dissent)

Footnote 1:

     See Felder v. Casey, 487 U.S. 131, 147 (1988); Diedrich v.
City of Ketchikan, 805 P.2d 362, 368 (Alaska 1991).

Footnote 2:

     Accord City of North Pole v. Zabek, 934 P.2d 1292, 1306
(Alaska 1997) (Shortell, J. pro tem, dissenting) (res judicata
should not bar subsequent sec. 1983 claim where administrative
proceedings did not permit full scope of relief or evidence
admissibility); Restatement (Second) of Judgments sec. 26(1)(c)
(stating res judicata inapplicable where "plaintiff was unable
. . . to seek a certain remedy or form of relief in the first
action because of limitations on the subject matter jurisdiction of
the courts or restrictions on their authority to entertain multiple
theories or demands for multiple remedies or forms of relief in a
single action").    

Footnote 3:

     3 F.3d 89, 96-97 (4th Cir. 1993).

Footnote 4:

     Id. at 96.

Footnote 5:

     See id.

Footnote 6:

     Id.; see also Dionne v. Mayor of Baltimore, 40 F.3d 677, 681-
82 (4th Cir. 1994); Burka v. New York City Transit Auth., 32 F.3d
654, 658 (2d Cir. 1994) ("the resolution of whether [the
constitutional] claim would be barred by res judicata turns on
whether the relief sought in that action was relief obtainable in
[the prior proceeding]"); Parker v. Blauvelt Volunteer Fire Co.,
Inc., 712 N.E.2d 647 (N.Y. 1999) (refusing to apply res judicata
where the damages available under sec. 1983 were not available
the administrative proceedings).  But see Strickland v. City of
Albuquerque, 130 F.3d 1408, 1412 (10th Cir. 1997) (applying claim
preclusion, reasoning that "[t]he fact that plaintiff's [sec. 1983]
claims attempt to vindicate interests or obtain remedies other than
those pursued or made available under [state law] does not make the
prior action a different 'claim'").

Footnote 7:

     See Voigt v. Snowden, 923 P.2d 778, 782-83 (Alaska 1996).

Footnote 8:

     See, e.g., Scroggins v. Kansas, 802 F.2d 1289, 1292-93 (10th
Cir. 1986); Huron Valley Hosp. v. City of Pontiac, 612 F. Supp.
654, 659 (E.D. Mich. 1985), aff'd in part on other grounds and
dismissed in part, 792 F.2d 653 (6th Cir. 1986).

Footnote 9:

     935 P.2d 959, 967 (Colo. 1997).

Footnote 10:


Footnote 11:

     744 F.2d 1354, 1362 (8th Cir. 1984).

Footnote 12:


Footnote 13:


Footnote 14:

     See Alaska R. App. P. 604(b).

Footnote 15:

     See Alaska R. App. P. 609(b).

Footnote 16:

     The University of Alaska is exempted from the procedural
requirements of the Alaska Administrative Procedure Act, AS 44.62. 
See ch. 30, sec. 1, SLA 1993.  The Board of Regents established the
pre-termination procedures at issue in this case.  Under Board of
Regents Policy 04.08.08 XI(A), the employee has the opportunity at
the pre-termination hearing "to present testimony and other
evidence as to why the action should not be taken."  This provision
does not guarantee that an employee's constitutional rights will be
adequately adjudicated.